Opinion
NOT TO BE PUBLISHED
San Francisco City and County, Super. Ct. No. JD07-3002
Reardon, J.
By petition seeking a writ of mandate, petitioner D.K. (mother) challenges the order setting a hearing pursuant to Welfare and Institutions Code section 366.26 for her son, M.K. (§ 366.26, subd. (l) ; Cal. Rules of Court, rule 8.452.) She further contends that the juvenile court erred in denying her counsel the opportunity to thoroughly assess whether the minor was a proper subject for adoption due to his purported disabilities. We deny the petition.
All statutory references are to this code unless otherwise indicated.
I. FACTUAL BACKGROUND
On March 11, 2009, this court issued its opinion affirming the juvenile court order terminating reunification services for mother. (In re M.K., A121833 [nonpub. opn.].) This order was rendered following a 12-month contested hearing. At that time, the court also suspended visitation between mother and M.K.; issued a stay-away order; ordered a permanent plan of long-term foster care; and set the matter for a six-month postpermanency review. For further factual and procedural background covering the period from the beginning of M.K.’s dependency through the contested 12-month review, see In re M.K., supra, A121833.
In the subsequent status review report, protective services worker Bethany Cagen asked the court to set a section 366.26 hearing and to modify the permanent plan from long-term foster care to adoption. Cagen reported that the department had placed M.K. in an adoptive placement on October 17, 2008, after four weeks of preplacement visits that “went extremely well.” Further, Cagen indicated that M.K. made a smooth transition to the new home, enjoyed the attention given by his prospective adoptive parents, and was acclimating to the new home and routines. According to Cagen, the prospective adoptive parents were loving and resourceful people who would be a good advocate for M.K. Already they had given thought to behavioral interventions and a new therapist.
M.K. started a new school coincident to the move. He was current with dental and physical examinations. The prospective adoptive parents intended to pursue a referral from M.K.’s pediatrician for physical and occupational therapy to address his gait, gross motor skills and slurred speech. The referral would be for preventative measures as there did not appear to be “anything organic related to these issues.”
As to M.K.’s psychological health, the report noted that a psychologist conducted a psychological evaluation in June 2008. She diagnosed M.K. with posttraumatic stress disorder. The minor scored in the clinical range on the anxious/depressed scale, and in the borderline range on the anxiety problems scale. The psychologist recommended continued therapy and observed that the frequent moves between foster care and D.K.’s home were detrimental to M.K.’s well-being; he needed “the security of a long term, permanent placement.”
Cagen asked the court to limit the educational rights of mother and to appoint a surrogate to address M.K.’s educational needs. Mother had not had any contact with M.K. since entry of the stay-away order.
Mother contested the recommendation to modify the permanent plan to adoption. At the contested hearing, Cagen testified that the department was now recommending adoption because it recruited an adoptive home with loving, caring and stable parents, and M.K. was “doing quite well there.” She believed M.K. was adoptable, and adoption was the most desired plan because it was the most permanent.
On cross-examination, mother’s counsel, Amanda Fischer, inquired about M.K.’s psychological evaluation and diagnosis. Counsel for the department and M.K objected on relevancy grounds. Fischer framed the issue this way: “[W]hether there is any reason that the minor is not a proper subject for adoption and therefore the case should not be referred to a .26. Those reasons being that he has special needs . . . .”
The juvenile court allowed Fischer to proceed. She elicited information about M.K.’s diagnoses and that the adoptive parents had been apprised of the psychological evaluation and the treatment recommendations. The court also allowed testimony as to the observation of M.K.’s teacher that he exhibited hyperactivity in the classroom, and that there “was [a] process in place which may lead to an IEP [individualized education program].” However, at the time M.K. had no official diagnosis for learning disabilities. Further, Cagen stated on cross-examination that department staff had conversations with the adoptive parents about M.K.’s awkward gait, difficulties with gross motor skills and slurred speech.
The court sustained relevancy objections to questions as to whether (1) the adoptive parents had begun to follow through with the recommendations; (2) there were other families interested in adopting M.K.; and (3) the department had referred the minor for a physical therapy or speech assessment, or for occupational therapy.
The minor’s counsel inquired as to whether conversations with the adoptive parents about M.K.’s diagnosis and issues about his gait and speech gave Cagen any reason to believe they were hesitant to proceed with adoption. They had not. On redirect examination, Cagen expressed the opinion that M.K. was adoptable by his prospective adoptive parents, notwithstanding their awareness of the physical and psychological issues he faced, and it was in his best interest to be adopted. Cagen also clarified that M.K. was not limited by his gait.
Closing the hearing, the juvenile court remarked that the evidence showed the prospective adoptive parents were “ready, willing and able” to adopt M.K. Any other conclusion was “sheer speculation.” The court found that the department complied with the case plan by making reasonable efforts to finalize M.K.’s permanent placement; set the matter for a selection and implementation hearing on May 20, 2009; and appointed the prospective adoptive parents as the minor’s educational surrogates.
Mother filed a timely intent to file a writ petition and this petition followed.
II. DISCUSSION
A. Referral to a Section 366.26 Hearing Was Proper
Mother urges that referral to a section 366.26 hearing was premature and in error because the juvenile court erroneously terminated reunification services, and this very matter was pending on appeal at the time she filed the writ petition. We have now decided mother’s appeal, concluding there was substantial evidence that reasonable reunification services were provided or offered, and affirming the termination order. (In re M.K., supra, A121844.) Therefore, this contention is moot. Moreover, mother cites no authority for the proposition, and did not raise the issue below. Finally, her then-pending appeal did not automatically stay the underlying juvenile proceeding. (See Code Civ. Proc., § 917.7.)
B. The Court did not Erroneously Curtail Cross-examination
Section 366.3 sets forth the procedures for retaining dependency jurisdiction after the juvenile court has ordered a permanent plan. Where, as was the case with M.K., the minor has been placed in long-term foster care, the court considers all permanency planning options and shall order a section 366.26 hearing “unless it determines by clear and convincing evidence that there is a compelling reason for determining that [such] a hearing . . . is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship.” (Id., subd. (h), italics added.)
Here there was ample evidence that M.K. was a proper subject for adoption by the prospective adoptive parents. As related above, the court allowed testimony on issues relating to M.K.’s physical, educational and psychological limitations. It was clear that the prospective adoptive parents were well aware of all the issues and were in the process of seeking appropriate referrals. What the juvenile court cut off on relevancy grounds was the consistent probing of whether the department and/or prospective adoptive parents had made referrals for specific assessments or taken specific follow-up measures. The juvenile court did not err in containing the scope of cross-examination in light of what it did allow on the issue of whether M.K. was a “proper subject for adoption . . . .” (§ 366.3, subd. (h).)
III. DISPOSITION
Mother’s petition for extraordinary writ on the merits is denied. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452; see Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1516.) This decision shall be final immediately.
We concur: Ruvolo, P.J., Sepulveda, J.