Clair A. v. Department of Social Services

Opinion

STANIFORTH, J. Clair and Carol A. petitioned (June 1978) to set aside an adoption decree entered November 24, 1964. After arguments over pleadings and amendment to the pleadings, the court appointed an attorney to represent the adopted minor, Katherine A. The trial court then found the petition was legally sound, capable of being filed and [202]after hearing annulled the adoption of the minor. The court made no finding as to the further adoptability of the child as required by statute.

Facts

Katherine A. was born February 27, 1964. The A.s adopted her by decree obtained November 24, 1964. Evidence concerning the child’s early development described Katherine as slow to sit, walk and talk. Although the minor was seen by physicians from time to time and by a psychiatrist, there was no professional health report concerning the health of the minor nor were any tests done until the minor was in seventh grade. The minor was not examined by a physician before adoption although she was in a hospital until taken home after her birth.

In 1977, 13 years after the final decree of adoption, Katherine began to exhibit aggressive and abusive acts. At that time she was expelled from school. The same year she was found to be gravely disabled and commenced receiving treatment in San Diego and later in state hospitals on an in-patient basis. On behalf of the adoptive parents, Dr. Thomas L. Trunnel, testified the minor has psychomotor epilepsy, brain damage, Trisomy-X and borderline low intelligence. Dr. Trunnel is of the opinion the minor will be institutionalized for the rest of her life. He states the disorders were not observable until 1977. He is of the further opinion that slow development of the minor did not manifest the type of problems.which he now diagnoses. He says the adoption should be set aside in the best interest of the minor. Finally, Dr. Trunnel concluded the minor is suffering from a mental illness.

Dr. Loma M. Forbes testified on behalf of the minor. Dr. Forbes says Dr. Trunnel’s opinion and diagnoses are erroneous. The minor does not have psychomotor epilepsy nor brain damage; the minor is not mentally ill nor mentally retarded. Further, she testified the minor could be relinquished for adoption. The State Department of Social Services urged the dismissal of the petition on the basis the A.s’ petition was filed long after the time limitations as set forth in Civil Code sections 227b and 227d. Section 227d provides: “ .. . Any action or proceeding of any kind whatsoever to vacate, set aside, or otherwise nullify a decree of adoption on any ground other than a defect or irregularity of procedure must be commenced within five years after entry of the decree. In any case in which the decree of adoption was entered before the effective