Eleonor P. v. State Department of Social Services

181 Cal. App. 4th 50, 103 Cal. Rptr. 3d 715, 2010 Cal. App. LEXIS 49
CourtCalifornia Court of Appeal
DecidedJanuary 19, 2010
DocketNo. C060992
StatusPublished
Cited by1 cases

This text of 181 Cal. App. 4th 50 (Eleonor P. v. State Department of Social Services) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eleonor P. v. State Department of Social Services, 181 Cal. App. 4th 50, 103 Cal. Rptr. 3d 715, 2010 Cal. App. LEXIS 49 (Cal. Ct. App. 2010).

Opinion

Opinion

SIMS, J.

—This is a tragic case in which there can be no good ending for anyone.

Appellants Eleanor P. and Martin S. appeal from an order denying their petition to set aside their Ukrainian adoption of a Ukrainian girl, M.S. The petition was opposed by the State Department of Social Services (the Department or DSS). Appellants contend the trial court erred in construing [53]*53Family Code section 9100,1 which authorizes the court to vacate adoptions, as inapplicable to an “intercountry adoption” completed in Ukraine.2

This is a case with equities on both sides. However, when we apply the governing statutes enacted by the Legislature, we conclude the trial court was correct. We shall affirm the judgment.3

FACTUAL AND PROCEDURAL BACKGROUND

In early 2003, appellants began the process to adopt a foreign-bom child. Appellants engaged a California lawyer and a private California adoption agency, Heartsent Adoptions, Inc. (Heartsent), which was licensed by the Department to provide noncustodial intercountry adoption services.

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 [54]*54February 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.

Appellants’ declarations assert they believed M.S. was healthy, were not aware of this medical background information until after the adoption was finalized, and the documents were not translated for them until after the adoption was completed.

Appellants brought M.S. to live in their Davis home. They did not “readopt” M.S. in California, as authorized by section 8919.4

[55]*55In 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.

On May 20, 2008, appellants filed in Yolo County Superior Court a “MOTION TO SET ASIDE ORDER OF ADOPTION UNDER FAMILY CODE SECTION 9100” (the petition). This petition was served on the Department, which filed an opposition. The opposition argued section 9100 is inapplicable to intercountry adoptions; the statutory remedy is not appropriate because the child could not be returned to Ukraine; the records gave notice of potential problems; and the Department did not have access to underlying investigative reports or documentation it would need to fulfill its obligation to make a full report to the court.

On October 31, 2008, after hearing oral argument, the superior court5 issued an “ORDER DENYING PETITION TO SET ASIDE INTERCOUNTRY ADOPTION PURSUANT TO FAMILY CODE SECTION 9100.” The order denied the petition on the ground the court lacked jurisdiction to make a ruling on the matter.6

DISCUSSION

I. Standard of Review

“Where, as here, the issue presented is one of statutory construction, our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citations.] We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. [Citation.] We give the language its usual and ordinary meaning, and ‘[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.’ [Citation.]” (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227 [120 Cal.Rptr.2d 795, 47 P.3d 639].)

[56]*56II. Section 9100

Appellants cite no legal authority for undoing the Ukraine adoption except section 9100 (fn. 1, ante).

Section 9100 authorizes the superior court to vacate an adoption of a child “adopted pursuant to the law of this state.”

Appellants contend the superior court erred in construing section 9100’s language “pursuant to the law of this state” to mean that an adoption must have occurred within California’s borders in order to be afforded section 9100 relief to vacate the adoption.

However, the language of section 9100 itself, plus the language of a companion statute—section 9101—clearly show that section 9100 is limited to undoing adoptions that were granted by California state courts.7

Thus, section 9100 says a petition under that section “may be filed . . . with the court that granted the adoption petition.” (See fn. 1, ante.) “ ‘ “It is a conceded principle, that the laws of a state have no force, proprio vigore,[8] beyond its territorial limits (Estate of Lund (1945) 26 Cal.2d 472, 489 [159 P.2d 643].) With this in mind, the California Legislature surely did not intend to legislate court filings in a Ukrainian court. We therefore infer “the court that granted the adoption petition” in section 9100 must be a California state court. Moreover, when two statutes touch upon a common subject, they are to be construed in reference to each other. (San Leandro Teachers Ass'n v. Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th 822, 836 [95 Cal.Rptr.3d 164, 209 P.3d 73].) In the event an adoption is vacated under section 9100, section 91019 places responsibility for the support of the now unadopted child on “[t]he county in which the proceeding for adoption was had.” In this case, there is no such county in California, and the California Legislature obviously has no power to order a Ukrainian county (if such even exists) to support the child. Where section 9100 requires the petition to be filed “with the court that [57]*57granted the adoption petition,” the reference is to a court within the State of California. In this case, the petition was not filed “with the court that granted the adoption petition.” Accordingly, the Yolo County Superior Court correctly ruled that it had no authority to adjudicate the petition.

Appellants offer two main arguments against our conclusion.

First, they say that where section 9100 provides that a petition “may be filed . . . with the court that granted the adoption petition,” the word “may” is permissive, not mandatory.

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Adoption of Ms
181 Cal. App. 4th 50 (California Court of Appeal, 2010)

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Bluebook (online)
181 Cal. App. 4th 50, 103 Cal. Rptr. 3d 715, 2010 Cal. App. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eleonor-p-v-state-department-of-social-services-calctapp-2010.