Tuesday, April 17, 2012

California Court Won't Undo Ukrainian Adoption

Interesting case, reported by California's Children blog, where adoptive parents seek to disrupt an international adoption:
"This is a tragic case in which there can be no good ending for anyone."

Thus begins the decision (written by Justice Rick Sims, and concurred by Presiding Justice Arthur Scotland and Justice Harry Hull) of the State Court of Appeals, Third District, in the matter of Eleanor Pracht-Smith et al., v. the California Department of Social Services.

* * *

The adoptive parents found that the child could not live in a "normal home environment, is unadoptable..." and the child has been in "intensive foster care placement" in Arizona for four years. In 2008, the parents filed in Yolo County Superior Court to set aside the adoption. Yolo said -- in layman's language -- that it didn't have jurisdiction, the Ukrainian court that issued the adoption decree was the venue.
The issue is, of course, lifetime support of this child. In upholding the Yolo decision, the court of appeals has determined that the support be the responsibility of Martin Smith and Eleanor Pracht-Smith.
The decision rests on a California statute, section 9100 of the California Family Code, that does, in fact, allow a court to vacate an adoption:
If a child adopted pursuant to the law of this state shows evidence of a developmental disability or mental illness as a result of conditions existing before the adoption to an extent that the child cannot be relinquished to an adoption agency on the grounds that the child is considered unadoptable, and of which conditions the adoptive parents or parent had no knowledge or notice before the entry of the order of adoption, a petition setting forth those facts may be filed by the adoptive parents or parent with the court that granted the adoption petition. If these facts are proved to the satisfaction of the court, it may make an order setting aside the order of adoption.
So much for "adoption is forever," hmm?  The court here isn't refusing to vacate the adoption because it feels the parents shouldn't disrupt, it's simply that the law applies, the court says, only to a child "adopted pursuant to the law of this state."  So feel free to disrupt your California adoption, but not this Ukrainian one.

And the California statute isn't all that unusual.  I've mentioned before (see here and here) that certain "reforms" were put into place in the late 80s/early 90s as a response to "wrongful adoption" lawsuits, where adoptive parents sued states and adoption agencies alleging that they were affirmatively lied to or information was hidden so that they didn't know about problems the kids had. Among the reforms were increased informational requirements prior to adoption, and these kind of statutes that make vacating the adoption the remedy for wrongful adoption.

Because of its jurisdictional ruling, the court doesn't have to address the merits of the petition here, deciding whether the child is "unadoptable" because of a "developmental disability or mental illness" of which the adoptive parents "had no knowledge or notice."  Reaching the merits might have led to the same results, since there was some evidence that the adoptive parents were aware of some of the issues prior to the adoption:

In late 2003, appellants spent several weeks in Ukraine for the adoption. On December 15, 2003, by decree of a Ukrainian court, appellants adopted M.S., a three-year-old Ukrainian girl. The Ukrainian court decree stated in part: "It was found out from the case documents that the child's [biological] mother is mentally sick. She left the child at the hospital and never visited her. The place of father's residence was not identified. Since February 2002 the child has been made the ward of the government. The medical history of the girl says that she is almost healthy though psychologically delayed." A hospital record says the mother has epilepsy.
The parents allege, though, that they didn't know any of that until after the adoption. And in fact, they discovered after returning home, that "almost healthy though psychologically delayed" may have been an understatement:
In California, various evaluations were performed due to M.S.'s low level of functioning. Health care professionals diagnosed her with spastic cerebral palsy, reactive attachment disorder, oppositional defiance disorder, moderate mental retardation, global developmental delay, ataxia, fetal alcohol syndrome or effect, microcephaly, and posttraumatic stress disorder. Appellants assert M.S. cannot live in a normal home environment, is unadoptable, and has been living in intensive foster care placement in Arizona since 2005.
So what's an adoptive parent to do?!  You can't put 'em on a plane back to Russia, you can't get the court to relieve you of the responsibility. . . .

So you parent.  Even when it's expensive, even when the child doesn't meet your expectations, even when it's damned difficult.  You parent.  And if the best thing for your child is intensive foster care placement in Arizona, that's what you do.  And you're still the parent. Because no one ever said it would be easy.


Tina said...


Sunday Taylor said...


Joy said...

We adopted a 3.5 year old a year ago. Our situation is a lot like this one. He had one listed physical SN. We found out after adoption that he had many more undisclosed needs, some the same as this little girl. (I will say though, we expected RAD and trauma.) As hard as it is, we are parenting him.

Karen said...

Our daughter has been easy, sweet, loving, and very attached to us. It took a lot of work on our end, but she was also very healthy when she came to us, because she was well taken care of, physically and emotionally.
However, I would not be so quick to judge. Having the Ukrainian government say the child was "almost healthy though psychologically delayed" would be what any PAP would expect to hear of a child that has been in an orphanage setting.
You and I are some of the lucky ones, Malinda. WE don't know what it's like for our children to come to us severely psychologically delayed, and hoping it was just a matter of "catch up" We don't know what it's like to have a child with RAD, or a child who threatens to kill us, or knocks over bookcases of books at 10 years old, because we won't let her read the book she wants to read. We don't know what any of that is like.
I used to feel the same as you. I used to judge someone who wanted to disrupt an adoption. But I have read a few blogs of people who are very open about the damages their adoptive children have done. They are calling the police on their children, putting them into psych hospitals, and short term care facilities, and still the outcome is the same. The child comes home and ravages the family members. I'm not so sure I would have the same attitude of "so much for forever" if it was me and my other family members trying to cope in a situation like that. It's easy to feel that way when we haven't a clue what it feels like on the receiving end of that.
As for anyone who is doing it, God bless you! You're stronger than I might be in your situation. And I commend you for sticking through it. I would really like to say that I would, and right now, I believe I would. But we don't know until (unless) we actually find ourselves there, what we would do.
I've changed my viewpoint on this kind of thing. 7 or 8 years ago, I would have judged but I truly cannot judge someone for feeling a need to relinquish a child who wreaks havoc on their family household.
I think it's a shame that they are not able to relinquish this child. They obviously realize the child's needs are beyond their capacity. And I'm pretty sure the parents have felt guilty about their feelings for a long long time already.

B.A. said...

Here is a blog post about life when you aren't one of the lucky ones