In re Felicity S. ( 2013 )

Filed 11/26/13 (note change in publication status)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re Felicity S., a Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU, A137439
Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J1200173)
ELIZABETH V., ORDER MODIFYING OPINION
Defendant and Appellant. AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
BY THE COURT:
The petition for rehearing, filed on November 15, 2013, is denied.
The opinion, filed on October 31, 2013, is modified as follows:
(1) The last sentence of the first paragraph of the introduction that begins with “In
the nonpublished portion of this opinion . . .” and the entire second paragraph of the
introduction are deleted. In their place, the following sentence is substituted:
“We conclude that substantial evidence supports both orders.”
(2) Footnote 4 of the opinion that begins with “Mother filed a petition for an
extraordinary writ . . .” shall now be placed immediately after the words “substantial
evidence supports both orders” at the conclusion of the revised introduction.
1
(3) Footnote 5 of the opinion that begins with “Klein was directed to address . . .”
is deleted and the following new footnote 5 is substituted in its place:
“The court’s concerns with the brief filed on behalf of the minor are addressed in
the order to show cause re public admonition filed contemporaneously with this
decision.”
(4) The last sentence of footnote 6 that begins with “We do not address . . .” is
deleted.
(5) All of Section III of the opinion entitled, “The Role of Appellate Counsel for
the Minor” is deleted.
(6) The disposition is deleted and the following is substituted in its place:
“The jurisdictional and dispositional orders are affirmed.”
The revised opinion is no longer certified for publication.
These changes do not affect the judgment.
Dated:____________ ___________________________________P.J.
2
Filed 10/31/13 (unmodified version; note change in publication status)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re FELICITY S., A Person Coming
Under the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Plaintiff and Respondent, A137439
v.
ELIZABETH V., (Contra Costa County Super. Ct.
Defendant and Appellant. No. J12-00173)
Contra Costa County Bureau of Children and Family Services (the bureau) filed an
amended petition pursuant to Welfare and Institutions Code section 300, subdivisions (b)
and (c),1 alleging, among other things, that Felicity S. was at substantial risk of harm due
to the failure of Elizabeth V. (mother) to provide for the child’s medical and emotional
needs. Felicity had been hospitalized for uncontrolled diabetes and for attempting to
commit suicide. The juvenile court sustained jurisdiction on all of the counts set forth in
the petition and, at a later dispositional hearing, found by clear and convincing evidence
that Felicity could not safely be returned to mother’s home, and ordered reunification
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part I through part II.
1
All further unspecified code sections refer to the Welfare and Institutions Code.
1
services. Mother appeals2 and contends that insufficient evidence supports the
jurisdictional and dispositional findings.3 In the nonpublished portion of this opinion we
conclude that substantial evidence supports both orders.4
In the published portions of this opinion, which include this introduction, the
background portion, part III of the discussion, and the disposition, we discuss the role of
appellate counsel for the minor in situations, like the present, where the minor has not
appealed and this court has exercised its discretion to grant the request of the First
District Appellate Project (FDAP) to appoint counsel for the minor. Here, appellate
counsel for the minor took a position completely opposite to that taken by minor’s trial
counsel, did not focus on how this changed position was in the child’s best interests, and
did not receive any authorization from minor’s guardian ad litem to change minor’s
position. Under these circumstances, we hold that minor’s appellate counsel exceeded
her authority.
BACKGROUND
The Original Petition and Recommendation of No Detention
On February 2, 2012, the bureau filed a petition pursuant to section 300,
subdivision (b), alleging that Felicity, a preteen, was at substantial risk of harm due to
mother’s failure to provide for the child’s medical needs. Felicity has, according to the
petition, “uncontrolled diabetes and/or diabetic ketoacidosis, a life-threatening condition
that occurs as a result of insulin omission.” The petition further alleged that mother had
2
Mother has filed a habeas petition, claiming ineffective trial counsel at the
jurisdictional hearing (A138655). We are filing contemporaneously with this decision a
summary order denying her petition.
3
Felicity’s father, Larry S., is not a party to this appeal.
4
Mother filed a petition for an extraordinary writ while this appeal was pending
seeking to extend the period for reunification services from 12 to 18 months. (§§ 366.21,
(subd.) (g)(1); 361.5, subd. (a)(3); 366.22, subd. (b).) On August 6, 2013, we filed our
nonpublished decision, In re Felicity S., A138940, denying mother’s petition (Cal. Rules
of Court, rule 8.452) from the order setting the section 366.26 hearing. However, on the
court’s own motion we have extended that hearing initially from September 20, 2013, to
October 20, 2013, and later to November 20, 2013.
2
not properly observed the child’s urine test for diabetic ketoacidosis (DKA). Felicity was
not detained.
The bureau filed its detention and jurisdiction report, which recommended
Felicity’s remaining in her mother’s custody with court ordered reunification services.
The report stated that Felicity was diagnosed with type 1 diabetes in February 2009. At
that time, mother received full diabetes education and, subsequently, mother attended
most of Felicity’s medical appointments. Since her diagnosis, Felicity had four
admissions to pediatric intensive care because of DKA. She was hospitalized with DKA
on March 15, 2010, June 15, 2010, November 8, 2011, and January 13, 2012.
Additionally, Felicity went to the hospital’s emergency room on July 15, 2011, August
16, 2011, October 3, 2011, January 5, 2012, January 9, 2012, January 11, 2012, and
January 18, 2012.
Amy Warner, a medical social worker, and Dr. Jennifer Olson, both from the
Pediatric Endocrinology Department of Children’s Hospital in Oakland (Children’s
Hospital), wrote a letter to the bureau indicating that DKA does not occur if insulin is
given as prescribed. Ketones in the blood or urine are early signs that the body has
insufficient insulin. Vomiting is a late sign of DKA and often indicates that the body has
been without adequate insulin for days. The Children’s Hospital recommended Felicity’s
“immediate removal.” The report stated that Felicity’s family was in denial about her
care.
The bureau’s report mentioned that Felicity’s most recent admission for DKA to
intensive care was on January 13, 2012. The cause of Felicity’s DKA was, according to
mother and Felicity’s half sister, Sarah K., Felicity’s menstrual cycle; they claimed that
Felicity did not miss injections. A psychologist assessed Felicity on January 17, 2012,
and recommended individual mental health therapy and family therapy to address
Felicity’s poor self-esteem, depression, and low confidence.
The bureau’s social worker spoke to Dr. Owens, Felicity’s family physician, on
January 24, 2012. Dr. Owens stated that she had known mother for 15 years and mother
had been doing “everything within her power to provide care for Felicity.” She noted
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that mother needed more support such as a home visiting nurse, as mother seemed
overwhelmed with Felicity’s medical needs. Mother worked fulltime and had to awaken
every three hours during the night to check Felicity’s blood sugar and to give her insulin.
A public health nurse reviewed mother’s daily log of Felicity’s insulin intake and
blood sugar level. The nurse remarked that mother was doing what was required.
Mother insisted that the doctors were not considering Felicity’s menstrual cycle.
On January 26, 2012, the social worker spoke to Warner at Children’s Hospital.
Warner believed mother was following the diabetes instructions but was concerned that
mother had not addressed Felicity’s possible manipulation of her treatment. The social
worker received a letter from Sarah E. Dorrell, a clinical psychologist. She had met with
Felicity and mother on two occasions. She “found no evidence to support a suspicion
that Felicity volitionally manipulated her blood sugar levels and no evidence to support
the suspicion that [mother] was in any way negligent or inadequately supervising and
parenting her daughter.”
The court held a detention hearing on February 6, 2012. It found that it was not
necessary to detain Felicity, and granted Larry S. (father) presumed father status.
The Changed Recommendation, Amended Petition, and Detention Hearing
Esmeralda Okendo, a social worker at the bureau, prepared a memorandum dated
March 13, 2013, for the court. The bureau was now recommending that Felicity be
removed from mother’s home “due to the child’s fragile health and her emotional
instability, and the mother’s lack of ability to stabilize the minor’s condition.” This
recommendation was based on events that occurred at the end of February and during the
first week of March 2012.
Okendo met with Felicity at school on February 29, 2012. Felicity disclosed that
she was afraid to return home because her mother threatened to hit her and told her that
she did not care if the court removed her from the home. Felicity revealed that her
mother was back with her boyfriend and that he was moving into the home. She asserted
that her mother smoked marijuana.
4
A few days later, on March 2, Okendo received a “Suspected Child Abuse
Report,” dated February 22, 2012 (suspected abuse report). This suspected abuse report
contained essentially the same information Felicity divulged to Okendo on February 29.
Felicity, according to the suspected abuse report, commented that mother had slapped her
on many occasions and kicked her once. The suspected abuse report indicated that a
tearful Felicity described her mother as yelling that “she hoped Felicity would tell the
court that she had been hit so she could be rid of her.” Felicity also said, according to the
suspected abuse report, that her mother’s boyfriend had returned and was drinking
alcohol every night.
On March 3, 2012, the social worker learned that Felicity was a patient in the
adolescent psychiatric unit at Alta Bates Herrick Hospital (Alta Bates). Mother had
failed to notify Dr. Dorrell, the family psychologist, of Felicity’s hospitalization. A
couple of days later, the social worker at Alta Bates confirmed that on March 1, Felicity
was placed on an involuntary psychiatric hold pursuant to section 5150 after attempting
suicide with an overdose of insulin. Felicity indicated that the precipitating event was a
fight she had with her maternal grandmother while her mother was not home. Felicity
grabbed an insulin pen and a belt, which she intended to use to strangle herself. Felicity
telephoned her half sister Sarah. She then telephoned her mother and declared, “ ‘I’m
gonna kill myself.’ ” Mother returned within 15 minutes of Felicity’s overdose. Mother
and Sarah drove Felicity to the hospital’s emergency room. The following day, March 2,
Felicity was transferred to Alta Bates, and was discharged on March 6.
Warner stated that insulin was like a “ ‘loaded gun.’ ” She commented that it was
likely that Felicity had injected herself with 60 units of insulin, an overdose, “but not as
much as Felicity believed she had injected.” She noted that a large overdose could have
ended Felicity’s life very quickly.
The bureau filed an amended petition on March 16, 2012, to include allegations
based on the recent events. The petition also asserted that mother regularly smoked
marijuana while caring for Felicity and that on March 12, during an unannounced visit to
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the home, personnel from Felicity’s school “detected a strong odor of marijuana in the
home” while Felicity was present. Felicity reported seeing her mother smoke marijuana.
On March 16, 2012, the juvenile court held a hearing on the bureau’s request to
detain Felicity. Mother submitted to detention. The court found that the bureau had
demonstrated substantial danger to the physical health of Felicity and that reasonable
efforts had been made to prevent removal. Felicity was detained. Felicity was placed in
the home of a relative.
The bureau filed another amended petition on May 21, 2012, and a corrected
amended petition on June 8, 2012. This petition contained allegations under section 300,
subdivisions (b) and (c). Under b-1, the petition alleged that the child has suffered, or
there is a substantial risk that the child will suffer, serious physical harm or illness: (a)
“In that the child received emergency medical treatment on [four occasions] for
uncontrolled diabetes and/or [DKA], a life-threatening condition that occurs as a result of
insulin omission”; (b) “Mother has not properly observed the child’s urine test . . .”; (c)
“The child did not attend school for the month of [January]” 2012; (d) “On March 1,
2012, while in the mother’s care, the child was 5150d after purposely injecting herself
with an overdose of insulin”; (e) “On March 12, 2012, the child was admitted to the
Contra Costa Regional Medical Center Crisis Stabilization Unit due to the child having
suicidal thoughts”; and (f) “Mother regularly smokes marijuana while caring for the
child.”
Under b-2, the petition alleged that mother was unable to manage Felicity’s
emotional needs and set forth the following: (a) “On March 1, 2012, mother minimized
the child’s attempt to commit suicide with an overdose of insulin and did not call 911.
Mother drove from Trader Joe’s in Concord to her home in Martinez before driving the
child to the emergency room at the Contra Costa Regional Medical Center in Martinez.”
(b) “On March 8, 2012, during a visit to the home mother reported to the social worker
that the child was fine and denied that the child was having suicidal thoughts. On March
9, 2012, the child’s therapist reported that the child continued to have suicidal thoughts
from the day she was released from Alta Bates Herrick Hospital on March 6, 2012.” (c)
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“On Friday, March 9, 2012, the mother did not want to meet with the Mobile Response
Team for them to assess Felicity for suicidal thoughts and to learn about the services they
provide; she asked them to come on Monday or Tuesday of the following week. The
mother agreed to meet with the Mobile Response Team after the social worker advised
her to do so.” (d) “On March 14, 2012, the mother reported to Martinez Junior High
School personnel that Felicity was not suicidal and that she just wants attention.”
The petition also alleged under b-3 that mother has a substance abuse problem.
Under section 300, subdivision (c), the petition asserted that Felicity was suffering, or is
at substantial risk of suffering, serious emotional damage and the petition described
Felicity’s overdose of insulin on March 1, 2012.
The Jurisdictional Hearing
After a number of continuances, the jurisdictional hearing occurred on June 11 and
June 20, 2012. Dr. Olson testified and all counsel stipulated that she was an expert in
pediatrics and pediatric endocrinology. She first became Felicity’s doctor in January
2012, and stated that Felicity was diagnosed with type 1 diabetes in 2009. She explained
that ketones appear when insulin is not administered as prescribed.
Dr. Olson testified that she was concerned that Felicity was not in a safe
environment. She noted that Felicity had been admitted to the hospital on four separate
occasions with DKA, “which is life threatening and 100 percent preventable . . . .” She
was concerned that Felicity was not receiving adequate supervision in her home. She
explained that, “despite repeated counseling by the social worker, the diabetes educator,
and [herself] on the need to supervise Felicity’s insulin, mother has not done this, and [on
several occasions] she has left Felicity in the care of adults who have not been trained in
diabetes.” She also recounted Felicity’s intentional overdose on insulin and stated that
mother did not respond appropriately to the overdose. She added that there was a delay
in mother’s reaching Felicity and that there was no 911 call. She stressed that mother
should have called 911 immediately.
Dr. Olson maintained it was “highly abnormal for a child with type 1 diabetes” to
have multiple admissions for DKA. Dr. Olson noted that her practice included about
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1,000 patients with diabetes and DKA was uncommon, “especially after a patient has
been diagnosed with diabetes.” She testified that the normal incident rate of persons
actually suffering DKA was “[a]bout 1.5 out of 100 patients per year.” She observed that
the treatment of DKA is problematic, as about two to five percent of the cases involve
“incidents of cerebral edemas.” Dr. Olson explained that a cerebral edema or the
“swelling of the brain” occurs during the treatment of children with DKA. She
maintained that with children, not adults, doctors “see the complications of cerebral
edemas as permanent neurologic injury, brain damage and death.”
To ensure that the child receives insulin and that the diabetes is managed, an adult,
according to Dr. Olson, must supervise the child. Despite advising mother on multiple
occasions that she was to supervise Felicity’s administration of insulin, mother did not
comply. She stated that mother’s failure to comply caused Felicity’s DKA. She
explained that preteens were not “cognitively mature [enough] to understand the
consequences of either not taking their medication or taking too much medication.”
Dr. Olson elaborated: “[W]e expect parents to manage the diabetes with their
child. So we expect that [parents will be] there when the child checks [his or her] blood
sugar on the metering and that the [parents are] either administering the insulin, . . . or
they are eye witnessing the child administer [his or her] own insulin, which means they
see the needle go underneath the skin with each injection. And at school the school
personnel are monitoring.” Mother, according to Dr. Olson, left Felicity with untrained
family members despite being told that she must leave her in the care of someone
knowledgeable about the administration of the medication.
The court asked Dr. Olson whether a parent could determine from a blood test
whether the child had been eating candies or chocolates. Dr. Olson responded that the
blood test would provide that information but eating sugar or other food would not cause
DKA. She emphasized, “Only insulin deficiency does.” The court asked, “So the
primary problem is the failure to administer the injection, not eating out of control?” Dr.
Olson answered, “Correct.”
8
Dr. Olson added that an unstable home environment was a known risk factor for
DKA for children. She explained that these risk factors occurred in Felicity’s home, as
there was the use of marijuana and alcohol and unkind comments made by mother to
Felicity. Dr. Olson added that she believed mother told Felicity, “[M]aybe you’ll get
your wish and they’ll take you away from me.” When the home has significant conflict,
the child acts out and the parent, according to Dr. Olson, becomes unable to supervise,
which leads to insulin omission and that then leads to DKA.
When asked about hormonal changes, Dr. Olson explained that “[h]ormonal
changes can affect blood sugar but [do] not lead to DKA.” Since being detained on
March 16, 2012, Felicity had not been to the emergency room and had not been
hospitalized. Felicity’s overall glucose control had improved. Felicity’s diabetes was
judged to be controlled at her last doctor’s visit on May 22, 2012.
Dr. Olson confirmed that overdosing on insulin could be fatal. She explained that
the brain needs glucose and oxygen to function and insulin drives the blood sugar down.
She elaborated, “So if the blood sugar gets to be so low that the brain doesn’t have any
access to glucose, then the patient has seizures, goes into a coma and dies.”
Dr. Olson was questioned about a letter she wrote to the bureau’s social worker on
January 19, 2012, and it was admitted into evidence. The letter set forth the causes of
DKA and emphasized that it is the most common cause of death in individuals with type
1 diabetes. Her letter stated that DKA occurs as a result of insulin omission and “does
NOT occur if insulin is given as prescribed.” The letter noted that “[d]uring Felicity’s
most recent DKA admission, the mother believed Felicity’s menstrual cycle caused her
DKA, despite having had education that DKA is caused by insulin omission.”
In the letter, Dr. Olson advised, “The most serious concern the diabetes team has
regarding Felicity’s diabetes care is the family’s denial that Felicity is missing insulin
doses.” She elaborated: “During Felicity’s most recent DKA admission, her blood
sugars had stabilized and they were all within an appropriate target blood sugar range.
Twenty-four hours after she was discharged with an insulin plan that included slightly
higher doses of insulin, the mother contacted the diabetes team to report Felicity’s blood
9
sugars were elevated and she had large ketones; a clear sign of continued outpatient
insulin omission. . . .”
On cross-examination, Dr. Olson stated that another doctor had been responsible
for Felicity’s care since January 2012. She admitted that her conclusion that Felicity’s
DKA was the result of mother’s failure to supervise was based on Felicity’s medical
information and not by any comments by mother that she was not supervising Felicity’s
diabetes. Her conclusion that mother left Felicity with family members unknowledgeable
about caring for a diabetic child was from mother’s statements that Felicity had been in
father’s care at the time of the first DKA hospitalization and in her paternal aunt’s care at
the time of the second DKA hospitalization. She admitted that both father and the
paternal aunt received education about diabetes care in February 2009, but both of them
declined further education offered in May 2011.
Explaining the testing procedures, Dr. Olson mentioned that the blood sample
indicates the blood sugar level at that moment. The dipstick urine test shows whether the
body is producing ketones; this occurs only if there is an insulin deficiency. She noted
that patients were instructed “to call immediately” if the dipstick revealed positive
ketones. Dr. Olson expressed concern that Felicity’s ketones were not always being
checked. She added, “Felicity actually came to the hospital several times very, very ill,
when if ketones had been checked earlier, she would not have been so sick when she
finally showed up.” During one admission to the hospital, Felicity had a pH balance of
7.08, and normal is 7.4. She elaborated, “That means there was so much acid in her
blood that without [the] intensive care unit she would have died.” She explained:
“Ketones are an earlier sign than acid. So before you develop acidosis you develop
ketoses. So ketones are a warning sign, and by the time you have measurable acid in the
blood that’s a much later sign.”
Dr. Olson testified that certain situations such as illness, stress, and puberty make
the body more resistant to insulin and then higher amounts must be injected. With regard
to the effect of puberty, Dr. Olson explained: “During puberty a lot of growth hormone is
made which leads to growth spurt, and growth hormone makes you relatively more
10
resistant to insulin, so doses during puberty need to be higher.” Puberty, according to Dr.
Olson, lasts two to four years. If puberty is affecting the blood sugar, a pattern would be
detected and the insulin dose would be increased. She stated that the blood sugar is to be
tested a minimum of four times a day: before each meal and at bedtime.
Dr. Olson testified that the Hemoglobin A1C is tested, and the test provides the
average blood glucose over the previous three-month period. In February 2012,
Felicity’s Hemoglobin A1C was 8.6, and the norm for a person of Felicity’s age with
type 1 diabetes is between 8.1 and 8.3. On May 22, 2012, Felicity’s Hemoglobin A1C
was 8.3.
Mother also testified. She stated that Felicity, father, and she received diabetes
education in February 2009. Part of the education was that Felicity should take part in
her own testing as much as possible, which included giving herself injections and testing
her own blood. Mother reported that she was responsible for administering Felicity’s
insulin but Felicity wanted to do the injections herself under mother’s supervision.
Prior to March 2010, mother was calculating the dosage that Felicity needed and
the amount of insulin in the syringe. Felicity physically drew the insulin into the syringe
under mother’s supervision. Felicity then, according to mother, physically injected
herself. She usually did this under mother’s supervision, but sometimes she did it under
other people’s supervision. She claimed that from January through March 2012, Felicity
did not inject her own insulin.
Mother testified that Felicity had her first DKA episode on the first day of her first
menstrual cycle. She believed that Felicity has resistance to insulin. She said her
research indicated that estrogen and progesterone cause insulin resistance. She insisted
that Felicity received the normal doses of insulin and that her problem was with insulin
resistance, not insulin deficiency. When asked whether she had discussed this theory
with Dr. Olson, she said she had. When questioned whether Dr. Olson agreed with her
theory, she answered, “Not completely.”
Mother was in the courtroom while Dr. Olson testified and the court asked: “Did
you hear her say in court that 100 percent of type 1 cases should never have DKA if
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insulin is properly administered?” Mother responded, “No, I did not hear her say that
exactly.” The court interjected, “Assume she said it, do you disagree with her?” Mother
replied, “Yes.”
Mother admitted that she was using marijuana. She also acknowledged that the
principal of Felicity’s school called her in 2011 and informed her that Felicity was cutting
herself. Mother took Felicity to Dr. Grace Malonai at Alhambra Valley Counseling
Associates in January 2011. After three months, Dr. Grace told mother that Felicity was
a healthy child and that Felicity did not have any issues that needed to be discussed.
Mother claimed that Felicity was cutting herself because of issues at school, such as the
death in December of a girl she knew, and the suicide of another girl at her school.
Felicity’s adult half sister, Sarah, testified. She reported that Felicity called her on
March 1, 2012. Felicity was crying and said, “I need you, I need you.” Sarah asked her
what was wrong and then Felicity hung up the phone after about 30 seconds. Sarah went
to mother’s home and saw Felicity in the laundry room. Felicity had her belt around her
neck. Sarah took the belt away from her. Sarah checked Felicity’s blood sugar and it
was “really high.” Mother arrived and they took Felicity to the hospital.
The juvenile court heard closing arguments. At the end of the hearing, the juvenile
court found all the allegations in the amended petition were true, and sustained the entire
amended petition. The court explained that it had to evaluate the testimony of mother
and Dr. Olson. If it believed Dr. Olson’s testimony, mother was guilty of serious neglect.
If it believed mother’s testimony, Dr. Olson was mistaken in her diagnosis of type 1
diabetes, and that the diagnosis might be type 2. The court found Dr. Olson’s diagnosis
was “unquestionable and unimpeachable. . . . Her testimony that there is no possible
other cause for DKA other than neglect in the treatment and care of this diagnosis is not
just a 50/50 proposition but according to Dr. Olson it’s a 100 percent conclusion.” The
court stated that it accepted Dr. Olson’s testimony that the only explanation for DKA was
the failure to administer medications and treatment according to the plan and directions.
The juvenile court expressed concern about mother’s testimony. Mother did not accept
12
Dr. Olson’s reasoning or science and concluded that her own research on the Internet
indicated that the DKA was related to hormonal changes, cramps, or both.
The Dispositional Hearing
On July 27, 2012, the juvenile court order stated that visits between Felicity and
mother could be unsupervised. The court also continued the dispositional hearing. On
this same date, Okendo received a letter from Felicity’s adult brother regarding an
interview he conducted with his sister. In the letter, Felicity responded that her mother
was not medically neglecting her and that her mother was doing everything she could to
take care of her. The letter indicated that Felicity wanted to return home.
The bureau wrote an updated memorandum dated August 9, 2012, regarding
Felicity. The caregiver reported that she was not checking all of Felicity’s insulin
injections as scheduled and that she was “unable to provide 24-hour supervision and that
Felicity need[ed] to be responsible.” The caregiver had not checked Felicity’s blood
sugar before she departed to visit her mother on August 3, 2012, and at dinnertime, 7:20
p.m., Felicity’s blood sugar reading was 83. The caregiver did not check Felicity’s blood
sugar after she returned that evening from her visit with mother. At bedtime, Felicity’s
blood sugar was high with a reading of 470. The guidelines from Children’s Hospital
required the person supervising Felicity to witness every insulin injection and every
blood sugar check while Felicity was not in school.
On August 24, 2012, the home of Felicity’s adult half sister, Sarah, was approved
for the care of Felicity. After another continuance, the dispositional hearing began on
August 24, 2012, and Sarah was briefly questioned and informed that Felicity’s
placement in her home was being finalized. Sarah stated that she agreed with her mother
that DKA could be caused by factors other than the improper administration of insulin.
The court responded: “So whatever the reasons may be, whether you like it or not, the
court has determined in this case that DKA can only be caused by the improper
administration of insulin. And that doesn’t matter if you have talked to other doctors that
might differ, because what the court is restricted to is the evidence that I’ve received in
this case, and that’s what the evidence that’s been presented to me in this case so far has
13
been to that effect. So it’s not going to be helpful to quarrel with that. . . . So I think
what . . . the court is looking for is some acknowledgement that even though you might
disagree, you’re going to be approaching the entire thing of administering insulin with
my ruling in mind.” Sarah responded that she accepted the court’s ruling. The court
continued the dispositional hearing to October 3, 2012.
The bureau filed its dispositional report on October 22, 2012. The bureau
recommended that Felicity be declared a dependent of the court and continued her
placement out of the home with family reunification services to be provided to both
mother and father.
The report stated that Felicity’s maternal aunt gave Okendo a copy of an article
from the Internet supporting the theory that Felicity’s blood sugar levels would increase
when she was menstruating. Okendo told the aunt to discuss the article with Felicity’s
current physician, Dr. Tariq Ahmad, at the next scheduled appointment on July 3, 2012.
On July 25, 2012, Warner, the social worker at Children’s Hospital, reviewed Felicity’s
chart notes that Dr. Ahmad wrote on July 3, 2012. Dr. Ahmed indicated that Felicity’s
blood sugars were running high; he thus increased the amount of insulin she was to
receive. Dr. Ahmad noted on Felicity’s chart that he “ ‘reemphasized’ to the aunt and
Felicity that her ‘menses doesn’t cause DKA but may require more insulin.’ ”
The bureau’s report stated that mother and father “clearly love Felicity” and that
Felicity wanted to return to mother’s home. Okendo declared that it was not safe for
Felicity to return because mother did “not accept the medical findings of the
endocrinologists at Children’s Hospital” that DKA is a life-threatening condition caused
by the omission of insulin. The report stated that Felicity had not required any
hospitalizations for DKA since she had been removed from mother’s care on March 16,
2012.
The juvenile court held the dispositional hearing on October 22, 2012. Mother’s
counsel announced that mother was aware that Felicity did not want to come home at this
time. Munisha Vohra, the current social worker on the case, testified. Vohra confirmed
that Felicity preferred to stay with her sister and advised the court that mother was getting
14
married in November 2012 and might be moving to Europe. Felicity did not want to
move to Europe. Vohra acknowledged that she was new to the case but expressed
concerns about mother’s commitment to Felicity. Vohra left a message with mother the
day before the hearing to call Felicity’s doctor or to give her an update on how Felicity
was doing because Felicity had stated she was not feeling well and had missed a doctor’s
appointment. Mother told Vohra that she would call the doctor but later told the social
worker that she did not call because Sarah informed her that she had already talked to the
doctor. Vohra believed that mother should have called the doctor to ask whether she
“needed to do anything about her child’s medical condition.”
Okendo, the prior social worker on the case, also testified. She stated that Felicity
was placed with Sarah and that she did not believe that Felicity had suffered any DKA
episodes since being placed with Sarah. She did not believe that it was safe for Felicity
to return to mother’s care. She recounted Felicity’s numerous hospitalizations while in
mother’s care, mother’s failure to call 911 when Felicity attempted to commit suicide,
and mother’s refusal to believe that Felicity’s DKA was caused exclusively by inadequate
insulin. She was also troubled with mother’s denial of any marijuana use. She said that
mother had not participated in any drug testing. She was concerned that mother’s
smoking of marijuana might impair her ability to monitor Felicity’s blood sugar reading
and to administer her medication.
Mother testified that Felicity informed her that she wanted to return to mother’s
home. She confirmed that she planned to get married soon and that she planned by
January 2013, to move with her husband to his home in the Czech Republic. Mother
stated that she had a written recommendation from a doctor for the use of marijuana.
Mother acknowledged that Dr. Olson testified that DKA was caused by insulin
omission but mother believed that signified “not enough insulin.” She emphasized that
“insulin omission” did not mean that Felicity did not get insulin but indicated that she did
not get enough. She claimed that she would follow any plan recommended by the
doctors if Felicity were returned to her care.
15
Mother elaborated that she believed her daughter’s hospitalizations in January
2012 were “because she had insulin resistance because of the hormones that were surging
through her body.” Mother added, “She also had an infection that causes insulin
resistance and emotional––something was going on with her at school then and, you
know, emotional stress can also cause insulin resistance.” Mother reiterated that she
believed menses caused insulin resistance, and claimed Dr. Ahmad told her that. When
asked whether she spoke with Dr. Ahmad on July 3, 2012, about Felicity’s menses and its
relationship with DKA, mother said, “Yes.” When questioned whether he emphasized
that menses did not cause DKA, mother answered, “No, he did not.” She claimed that
she always properly supervised Felicity’s administration of her insulin and that she did
everything possible to ensure that Felicity was receiving the right amount of insulin.
At the end of the hearing, the court stated: “Well, I’ve carefully reviewed all of
the documents that have been submitted for evidence and carefully listened to the
testimony of everyone who has testified, and I am satisfied that mother does not get it.
Mother has demonstrated in her testimony a rigidity of her personality and an inability to
recognize what’s really going on.” The court found that there was evidence of marijuana
abuse but no evidence of alcohol abuse, and the court modified the case plan to remove
alcohol testing. The court approved the remainder of the case plan submitted by the
bureau, including the drug-testing requirement. The court adjudged Felicity a dependent
of the court. It also found that reasonable efforts had been made to prevent Felicity’s
removal from the home and that clear and convincing evidence supported the physical
removal of Felicity from the home. The court ordered reunification services.
Mother filed a timely notice of appeal. Subsequently, mother filed a motion to
consolidate her appeal with her petition for writ of habeas corpus. We denied that
motion, but issued an order stating that these actions would be considered together. On
August 22, 2013, we granted the recommendation of FDAP for appointment of counsel
for the minor. This court issued an order telling the parties that this court was
considering on its own motion issuing a stay of the section 366.26 hearing currently set
for September 20, 2013, and instructed the parties to file any response within five days of
16
the order. After considering the responses, this court on August 27, 2013, stayed the
section 366.26 hearing set for September 20, 2013, until October 20, 2013.
On August 29, 2013, counsel for minor requested an extension of time to file her
brief. She reported to the clerk of this court that she needed more time to file the brief
because she wanted to speak with Felicity. Felicity’s guardian told counsel that Felicity
had been to a contested hearing and was very upset and that counsel would have to wait
to speak to her when she became more stable. We extended the time for counsel to file
minor’s brief by 10 days. Counsel for the minor filed a combined brief in the appeal and
in the habeas corpus action. Minor’s brief presented the same arguments urged by
mother’s counsel. On September 20, 2013, counsel for mother left a message for the
clerk of this court stating that mother would not be filing a response to minor’s brief since
minor took the same position as mother. The bureau filed its response to the minor’s
brief on September 23, 2013. On September 27, 2013, we issued an order directing
counsel for minor, S. Lynne Klein, to file a declaration to address four specific concerns
of this court. Klein filed her declaration on October 7, 2013.5
DISCUSSION
I. Jurisdictional Findings
The juvenile court found all of the allegations in the amended petition under
section 300, subdivisions (b) and (c) true. Mother claims that sufficient evidence did not
support jurisdiction on any of the grounds set forth in the petition.6
5
Klein was directed to address: “(1) whether she has had any discussions or
directions from the minor regarding the issues raised on her behalf in the appeal and
habeas petition. (2) Whether she has had communications with the minor’s trial counsel
relating to the appeal or habeas petition. (3) The basis upon which minor’s appellate
counsel has taken a position opposite to that taken by the minor in the trial court. (4)
Why counsel felt it necessary to submit a 75-page brief that essentially reiterates the
positions and legal arguments advanced in the appellate brief filed by mother . . . .”
6
Minor’s arguments in her 75-page brief are substantially the same as those urged
by mother. We therefore address minor’s argument only in those few instances where it
differs from mother’s position. We do not address any of minor’s arguments that are
outside the scope of mother’s appeal.
17
Section 300, subdivision (b) provides that the juvenile court may adjudge a person
to be a dependent child of the court if “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness, as a result of the failure or
inability of his or her parent . . . to adequately supervise or protect the child, or the willful
or negligent failure of the child’s parent . . . to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide
regular care for the child due to the parent’s . . . substance abuse.”7
The juvenile court’s jurisdictional finding that a child is a dependent of the court
must be supported by a preponderance of the evidence. (§ 355, subd. (a); see also
Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 248.) On review, we determine
whether the juvenile court’s jurisdictional finding was supported by substantial evidence.
(In re P.A. (2006) 144 Cal. App. 4th 1339, 1344.) In so doing, we “must accept the
evidence most favorable to the order as true and discard the unfavorable evidence as not
having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D.
(1999) 70 Cal. App. 4th 38, 53.) Under this standard, the juvenile court, not this court,
assesses the credibility of witnesses, resolves conflicts in the evidence, and determines
where the weight of the evidence lies. (Id. at pp. 52-53.) “We affirm the rulings of the
juvenile court if there is reasonable, credible evidence of solid value to support them.
[Citations.]” (In re Matthew S. (1996) 41 Cal. App. 4th 1311, 1319.) We must affirm the
juvenile court’s ruling if sufficient evidence supports any allegation under section 300.
(§ 300; D.M. v. Superior Court (2009) 173 Cal. App. 4th 1117, 1127.)
In the present case, the petition alleged, among other things, that under section
300, subdivision (b), Felicity had suffered, or there was a substantial risk that she would
suffer, serious physical harm or illness because mother was unable to manage Felicity’s
7
The petition also contained one allegation under section 300, subdivision (c).
Section 300, subdivision (c) provides that the child is a dependent of the court if “[t]he
child is suffering serious emotional damage, or is at substantial risk of suffering serious
emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward
aggressive behavior toward self or others, as a result of the conduct of the parent or
guardian or who has no parent or guardian capable of providing appropriate care. . . .”
18
medical or emotional needs. We conclude that the evidence of Felicity’s uncontrolled
diabetes supported a finding of jurisdiction, and the evidence of Felicity’s unmanaged
emotional needs also supported jurisdiction. Thus, we need not address whether specific
allegations, such as Felicity’s missing school and mother’s substance abuse, supported
jurisdiction under subdivision (b) of section 300. We also need not consider whether the
record supported jurisdiction under section 300, subdivision (c).
The record amply supports the finding that mother failed to provide for Felicity’s
medical needs as she did not adequately supervise or monitor Felicity’s testing of her
blood sugar or her injections of insulin. Felicity had to receive emergency care for DKA
on four separate occasions while in mother’s care. Dr. Olson testified that DKA was “life
threatening and 100 percent preventable . . . .” She explained that mother was not
properly supervising Felicity in the home and that it was “highly abnormal” for a child
with type 1 diabetes to have multiple admissions for DKA. Mother’s inability to manage
Felicity’s diabetes threatened Felicity’s life and put her at risk for a cerebral edema,
which could result, according to Dr. Olson, in permanent neurologic injury, brain damage
and death.” Dr. Olson stated that it was mother’s job to supervise Felicity because
Felicity, a preteen, was not “cognitively mature [enough] to understand the consequences
of either not taking [her] medication or taking too much medication.” Dr. Olson
unequivocally stated that “[h]ormonal changes can affect blood sugar but does not lead to
DKA.”
Mother argues that the record contained evidence that she did supervise Felicity’s
treatment and claims that Felicity’s uncontrolled diabetes was a result of menses. She
also claims that Felicity received all of the insulin shots prescribed. Mother cites the
following evidence: Mother’s own testimony that she did everything she was told to do;
Dr. Owens, Felicity’s family doctor, stated that she had known mother for 15 years and
mother was doing “everything within her power to provide care for Felicity”; a public
nurse visited the home and observed mother’s daily log of Felicity’s insulin intake and
blood sugar level and noted that mother was doing what was required; Dr. Dorrell, a
19
clinical psychologist, met twice with mother and Felicity, and found no evidence
indicating that mother was inadequately or negligently supervising Felicity.
The trial court, however, could discount the foregoing in light of Felicity’s
numerous hospitalizations while in mother’s care, which indicated that mother was not
properly monitoring her. Felicity, according to Dr. Olson, came to the hospital very sick
with “so much acid in her blood that without [the] intensive care unit she would have
died.” If properly monitored, Felicity would never have become so ill. Dr. Olson
explained that ketones are an earlier sign than acid of problems and, if Felicity’s ketones
had been checked earlier, she would never have developed acidosis. The dipstick urine
test indicates whether the body is producing ketones and patients were instructed “to call
immediately” if the dipstick revealed positive ketones. At the team decision meeting in
January 2012, it was revealed that mother had not been supervising the urine stick test
and Felicity had been reporting the ketones to mother. Mother insisted that it was
unnecessary for her, personally, to check the ketones.
Additionally, mother testified that she brought Felicity to the hospital in March
and June 2010 because of vomiting. She stated that Felicity was very ill with high blood
sugars and had been vomiting continuously during the month of January 2012 before
mother took her to emergency. Vomiting is a late-stage warning signal and supports a
finding that mother had not adequately monitored Felicity’s tests as Felicity’s dosages
should have been corrected prior to the stage of vomiting. Furthermore, mother’s delay
in addressing the problem clearly supported a finding that Felicity was not safe under
mother’s care.
Appellate counsel for the minor argues that the record does not show that mother
was told that she was to test for ketones in Felicity’s urine and she asserts that mother
received inadequate medical training and education. The record simply does not support
this argument. The record regarding Felicity’s hospitalization for DKA on June 15, 2010,
expressly states: Mother “seems to understand that patient needs to be supervised closely
with blood glucose monitoring and insulin administration.” The notes dated June 17,
2010, written by the nurse at Children’s Hospital reported: “Family instructed that they
20
must always supervise all blood glucose monitoring and insulin administration with their
eyes, i.e., they are not to rely on [Felicity’s] word that she tested or gave insulin.
Discussed developmental issues and needs of preteens and teens to need extra
supervision instead of less.” (Italics added.)
Despite being provided this specific instruction not to rely on Felicity’s reports,
mother told the social worker on January 30, 2012, that Felicity was reporting the ketones
to her. Mother never claimed in the lower court that she received inadequate instruction.
Rather, she specifically said, according to the social worker, that “she did not feel that it
was necessary to have Felicity squat and urinate on a stick for her to check her ketones.”
Thus, even though Felicity had been hospitalized four times for the life-threatening
condition of DKA and ketones are an important early sign of DKA, in January 2012,
mother was relying on her young daughter to test and accurately report her ketones.
Mother urges this court to reject the juvenile court’s findings and Dr. Olson’s
diagnosis based on four articles mother found on the Internet. Mother submitted these
articles with her habeas petition in support of her claim of ineffective trial counsel. In her
habeas petition mother maintains that her trial counsel was ineffective for failing to cross-
examine Dr. Olson on her theory that menses was the cause of DKA and for failing to
present her own medical expert witness in support of this theory.8 On October 8, 2013,
8
As the bureau points out, counsel for mother could not cross-examine Dr. Olson
in regard to the content of these articles because there is nothing in the record to indicate
this was permissible under Evidence Code section 721, subdivision (b). Evidence Code
section 721, subdivision (b) provides: “If a witness testifying as an expert testifies in the
form of an opinion, he or she may not be cross-examined in regard to the content or tenor
of any scientific, technical, or professional text, treatise, journal, or similar publication
unless any of the following occurs: [¶] (1) The witness referred to, considered, or relied
upon such publication in arriving at or forming his or her opinion. [¶] (2) The
publication has been admitted in evidence. [¶] (3) The publication has been established
21
some two months after filing mother’s reply brief and a month after filing her traverse in
the habeas corpus matter, mother filed a declaration from a medical doctor explaining the
conclusions that can be drawn from these articles.
The articles submitted do not support mother’s claim that Felicity’s DKA was
caused by hormones. Although these articles are relevant to mother’s argument in her
habeas petition regarding her claim of ineffective assistance of trial counsel, they cannot
be used to show that menses causes DKA. Any attempt to use them for this purpose
constitutes inadmissible hearsay. Additionally, these articles, only one of which
addresses adolescents, do not state that menses or hormones cause DKA, but note that
there might be an association between menstruation and difficulty in controlling diabetes.
These conclusions are not inconsistent with Dr. Olson’s testimony, as she clearly
acknowledged that hormonal changes impact the control of diabetes and the amount of
insulin needed, because hormones can affect blood sugar.
Furthermore, the evidence in the record supported Dr. Olson’s testimony (and
subsequently, Dr. Ahmad’s conclusion) that the cause of Felicity’s DKA was not
hormones, but inadequate management of Felicity’s diabetes. The record establishes that
Felicity did not need to go to the emergency room for uncontrolled diabetes or to be
hospitalized for DKA between the time of her removal from mother’s home in March
2012, to the time of the jurisdictional hearing in June 2012. If Felicity’s hormones were
the cause of her DKA, she would have continued to require emergency room care after
being removed from mother’s custody.
Mother repeatedly asserts in her brief that the evidence shows that Felicity did not
miss any insulin shots. However, Dr. Sayali Ranadive, at Children’s Hospital, stated in a
report regarding Felicity’s hospitalization on June 15, 2010, for DKA that Felicity
“acknowledges having missed ‘a few’ insulin doses in the past 48 hours but cannot report
which type of insulin.” This report also revealed that Dr. Ranadive examined Felicity
as a reliable authority by the testimony or admission of the witness or by other expert
testimony or by judicial notice.”
22
and “[d]iscussed briefly with [mother] and patient that DKA is a result of lack of insulin
. . . .”
Dr. Olson reported that during one of Felicity’s hospitalizations for DKA, the
hospital was able to stabilize Felicity’s blood sugars and they were, “all within an
appropriate target blood sugar.” However, as Dr Olson explained, “Twenty-four hours
after [Felicity] was discharged [and returned to her mother’s home] with an insulin plan
that included slightly higher doses of insulin, the mother contacted the diabetes team to
report Felicity’s blood sugars were elevated and she had large ketones; a clear sign of
continued outpatient insulin omission.”
Additionally, the evidence was uncontradicted that it was “highly abnormal for a
child with type 1 diabetes” to have multiple admissions for DKA. DKA is uncommon in
children with type 1 diabetes. Dr. Olson testified that her medical practice included about
1,000 patients with diabetes and DKA was not common. She testified that the normal
incident rate of persons actually suffering DKA was “[a]bout 1.5 out of 100 patients per
year.” As trial counsel for the minor argued, if mother rejects the doctors’ diagnosis,
“why is she going to assiduously follow the doctor’s advice as [to] how you prevent the
DKA from happening again.”
Mother argues that after removal from mother’s home, Felicity’s caregivers and
doctors also had trouble controlling Felicity’s diabetes. The record establishes that
Felicity’s glucose levels were not always monitored sufficiently, and the amount of
insulin she needed to receive had to be adjusted. However, as already stressed, there
were no additional visits to the emergency room or instances of DKA between March and
June 2012.
Not only does the record support jurisdiction based on the risk of serious physical
harm because of mother’s inability to manage Felicity’s diabetes, the evidence in the
record also supported jurisdiction under section 300, subdivision (b) based on Felicity’s
suffering and being at risk of serious physical harm as a result of her mother’s failure to
manage her emotional needs. Mother claims that her behavior was appropriate and
maintains that it was not her fault that her daughter had emotional needs or was suicidal.
23
Mother cites to evidence indicating that she loved her child and was acting reasonably
when dealing with Felicity’s emotional problems. She asserts that allegations of
emotional abuse cannot support a section 300, subdivision (b) finding, as jurisdiction
under this section “requires proof that the child suffered or is at substantial risk of
suffering ‘serious physical harm or illness, as a result of the failure or inability of his or
her parent or guardian to adequately supervise or protect the child. . . .’ ” (In re Daisy H.
(2011) 192 Cal. App. 4th 713, 717.)
We agree that emotional harm, absent serious physical harm or a risk of serious
physical harm, cannot be a basis of jurisdiction under section 300, subdivision (b). (In re
Daisy H., supra, 192 Cal.App.4th at p. 718.) Here, however, the record contains
substantial evidence that mother’s inability to manage Felicity’s emotional issues placed
Felicity at risk of physical harm. The question before us is not whether the record
contains some evidence not supporting jurisdiction but whether substantial evidence
supported jurisdiction. Felicity attempted to commit suicide on March 1, 2012, and was
institutionalized about one week later for having suicidal thoughts. When Felicity
attempted to commit suicide, mother did not immediately call 911 but drove home from
the store and then took her to the emergency room.
Mother and minor’s counsel argue that mother acted reasonably by quickly
returning home and then taking Felicity to the emergency room. We disagree; mother’s
behavior clearly put Felicity at risk. Mother should have immediately called 911 and
considered taking her to the hospital herself only if the emergency responders had not
immediately responded to the crisis. Furthermore, as trial counsel for the minor stressed,
there was no evidence that mother ever attempted to telephone the maternal grandmother
to ask her, “what’s going on in the house where you are with the child,” even though she
left Felicity in the grandmother’s care. The delay could have resulted in Felicity’s death.
Dr. Olson testified that overdosing on insulin could be fatal. Warner likened an overdose
of insulin to a “ ‘loaded gun’ ” and noted that a large overdose could have ended
Felicity’s life very quickly. Luckily, Felicity had injected herself with only 60 units of
insulin, which was not as much insulin as Felicity believed she had injected.
24
After the suicide attempt, mother told the social worker that Felicity was fine and
denied Felicity was having suicidal thoughts. By denying the seriousness of Felicity’s
issues, mother’s behavior put Felicity at risk of trying to commit suicide again. As
Warner noted, Mother also initially refused to meet with the Mobile Response Team to
have the team assess Felicity for suicidal thoughts.
Additionally, the record established that mother made hurtful comments to
Felicity, which further jeopardized Felicity’s health. The suspected abuse report dated
February 22, 2012, stated that a tearful Felicity disclosed that her mother yelled that “she
hoped Felicity would tell the court that she had been hit so she could be rid of her.” Dr.
Olson testified that mother’s unkind comments to Felicity created conflict and conflict
was a risk factor for insulin omission and DKA, since it increased the chances of the
child’s not complying with her medical regimen.
We conclude that the evidence sufficiently supports jurisdiction under section 300,
subdivision (b) based on mother’s failure to protect Felicity from the risk of physical
harm due to her inability to manage Felicity’s medical needs and, additionally, because
of her inability to manage Felicity’s emotional needs.
II. Dispositional Findings
In examining mother’s claim that the record does not support removing Felicity
from her custody, we review the record in the light most favorable to the dependency
court’s order to determine whether it contains sufficient evidence from which a
reasonable trier of fact could make the necessary findings by clear and convincing
evidence. (See In re Isayah C. (2004) 118 Cal. App. 4th 684, 694-695.) Section 361,
subdivision (c) provides in relevant part: “A dependent child may not be taken from the
physical custody of his or her parents . . . with whom the child resides at the time the petition
was initiated, unless the juvenile court finds clear and convincing evidence of any of the following
circumstances . . . : [¶] (1) There is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s or guardian’s physical custody. . . .”
25
In the present case, the record supported the juvenile court’s finding that the bureau
presented clear and convincing evidence that removal was necessary. In addition to the
evidence presented at the jurisdictional hearing, the court considered the evidence that mother
still rejected the medical professionals’ determination that DKA was caused by the omission of
insulin. This was despite the fact that in addition to Dr. Olson, Dr. Ahmad told the family that
menses did not cause DKA, but it might require more insulin. Additionally, at the time of the
dispositional hearing on October 22, 2012, Felicity had not suffered any DKA episodes since
being removed from mother’s home on March 16, 2012. As Christopher Judge, trial counsel for
the minor told the court, “I’m just mystified why mother can’t seem to do or hasn’t been able to
seem to do what her own adult children, Felicity’s caretakers, have been able to do[, and] that is
keep Felicity out of the hospital. She’s not been to the hospital since the child was detained. So
whatever’s happening in the home that Felicity is in now, it’s different than what was going on in
mother’s home.”
The record also contained evidence that mother failed to show sufficient interest in
Felicity’s medical needs. Vohra testified that Felicity had missed a doctor’s appointment despite
Felicity’s commenting to her that she did not feel well. Vohra specifically asked mother to call
the doctor; mother said she would, but did not. Mother told Vohra that she spoke to Sarah and
Sarah already talked to the doctor. Vohra testified that mother needed to call the doctor and
mother needed to ask whether she “needed to do anything about her child’s medical condition.”
Mother again cites evidence that she claims showed that she acted reasonably and her
own testimony claiming that she would follow Felicity’s medical plan. The juvenile court,
however, was entitled to accord minimal weight to mother’s promises, as she was often not
truthful when testifying. Thus, for example, mother testified that she spoke with Dr. Ahmand
about Felicity’s menses on July 3, 2012, and claimed that he did not tell her that menses did not
cause DKA. This testimony was clearly contrary to the notes Dr. Ahmad had entered on Felicity’s
chart.
The evidence of mother’s continued belief that hormones were the cause of DKA despite
the diagnosis of Felicity’s treating doctors that Felicity’s DKA was caused by DKA omission, as
well as the fact that Felicity suffered multiple DKA episodes and hospitalizations while in mother’s
care and none once removed from mother’s custody through the time of the dispositional hearing
in October 2012, established by clear and convincing evidence that placing Felicity back in
mother’s home would place her at risk of physical harm. Given mother’s rigidity and refusal to
believe the medical professionals’ opinion, the court properly found that there was no reasonable
means to protect Felicity without removing her from mother’s custody.
III. The Role of Appellate Counsel for the Minor
In the present case, minor did not appeal. FDAP requested appointment of appellate
counsel for minor to ensure that a brief was filed that reflected minor’s best interests. In such
26
situations, we have the discretion under section 395, subdivision (b)(1) to appoint counsel for
the minor. Section 395, subdivision (b)(1) provides in relevant part: “In any appellate
proceeding in which the child . . . is not an appellant, the court of appeal shall appoint
separate counsel for the child if the court of appeal determines, after considering the
recommendation of the trial counsel or guardian ad litem appointed for the child . . . , that
appointment of counsel would benefit the child. In order to assist the court of appeal in
making its determination under this subdivision, the trial counsel or guardian ad litem
shall make a recommendation to the court of appeal that separate counsel be appointed in
any case in which the trial counsel or guardian ad litem determines that, for the purposes
of the appeal, the child’s best interests cannot be protected without the appointment of
separate counsel, and shall set forth the reasons why the appointment is in the child’s best
interests. . . .” (See also Cal. Rules of Court, rule 5.662(c).) Although we received no
recommendation of the trial counsel (and are not aware that FDAP did), we concluded
based upon FDAP’s independent recommendation that appellate counsel should be
appointed in mother’s appeal to ensure that minor’s interests would be protected.
After granting an extension of time to S. Lynne Klein, minor’s appellate counsel, in order
to permit her time to consult with minor, Klein filed a 75-page brief. The brief did not focus on
explaining how the issues raised by mother’s appeal impacted minor’s best interests.
Instead, Klein urged us to reverse the jurisdictional and dispositional orders and raised
essentially the same arguments presented in mother’s appellate briefs and habeas petition. The
brief on behalf of minor made no attempt to justify or explain the reasons for reversing the
position taken by minor’s trial counsel, who was appointed as her guardian ad litem on March 16,
2012, and remains such, or the reasons why such a reversal was in minor’s best interests. Klein
did not provide any declaration with the filing of her brief indicating that she had spoken to
minor or to minor’s trial counsel or obtained the consent of minor’s trial counsel as guardian ad
litem to change minor’s position.9
9
To the contrary, at oral argument, counsel for the bureau advised the court that
Christopher Judge, minor’s trial counsel and guardian ad litem, is “aligned with CFS.”
He was not asked to support minor’s position on mother’s appeal. Klein did not dispute
that statement at oral argument. Further, in her declaration dated September 6, 2013,
attached to the traverse, mother stated that she was unable to obtain Felicity’s medical
records because “Felicity’s trial attorney has not authorized the release of any [medical]
27
Klein’s failure to provide any explanation for taking a position conflicting with that taken
by minor’s trial counsel is highly problematic. Trial counsel for the minor has a significant role.
Once a child is detained because the child can no longer safely remain in the parent’s custody,
an attorney is ordinarily appointed at the first court appearance to represent the child. (§ 317,
subd. (c).) The attorney, who also serves as the child’s guardian ad litem “has a duty to
‘represent and protect the rights and best interests of the child.’ [Citations.]” (In re Josiah Z.
(2005) 36 Cal. 4th 664, 681.)
Here, at the 12-month hearing in June 2012, Christopher Judge as trial counsel and
guardian ad litem for Felicity, told the court: “Your Honor, I think the biggest problem here
is that mother really either can’t or won’t understand the seriousness and the urgency of
this medical situation that her daughter faces. This child has been in the hospital multiple
times with DKAs . . . . Mother says she leaves the child with a trained grandmother.
Grandmother is oblivious to what’s going on while the child is calling the sister and
apparently also the mother asking for help. And we haven’t heard that the mother ever
called the grandmother to say what’s going on in the house where you are with the child.”
Judge added that mother rejected the doctor’s opinion about the cause of DKA and
commented that mother’s refusal to believe the doctor made it unlikely that she was
“going to assiduously follow the doctor’s advice as [to] how you prevent the DKA from
happening again.”
Christopher Judge added: “I don’t feel that the child would be safe returning to
her. I think this mother just believes that it’s one of these things that happens and take
the child to the hospital, they’ll take care of it, and it’s not a big deal. It is a big deal.
And the doctor I think she was emphatic in her concern during her testimony that––and
basically saying that this should not be happening. And it’s happening again and again
and again and again. And I don’t think––even now mother doesn’t buy it. She just
doesn’t buy it. [¶] So I just feel that regardless of whatever the explanations have been
in the past the handwriting is on the wall as far as this mother’s ability to administer
records.” Trial counsel’s refusal to release Felicity’s medical records to mother provides
further support for the conclusion that he has not reversed his position that mother should
not have custody of Felicity.
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medication that this child needs and that she’s just not going to be doing it. So I agree
with the county counsel and submit.”
At the dispositional hearing on October 22, 2012, Christopher Judge again told the
trial court that he did not believe Felicity would be safe in mother’s care. Judge told the
court the following: “Your Honor, my position is simple. I just want Felicity to be safe.
I have to agree with county counsel. There’s a disconnect here between what mother
says she was doing in the past, what she will do in the future if Felicity is returned to her
and what has happened in the past. And mother just doesn’t seem to see a relationship or
her role in all the hospitalizations that Felicity had. [¶] [T]he report by Dr. Ahmad states
at the very bottom in the doctor’s hand [writing] that he reemphasized to mother on July
3rd that menses doesn’t cause DKA, which is something that mother flatly contradicted
on the witness stand today when I asked her.”
Christopher Judge emphasized that Felicity would “face the same dangers in her
mother’s hands now that she did in the past.” He added: “I’m just mystified why mother
can’t seem to do or hasn’t been able to seem to do what her own adult children, Felicity’s
caretakers, have been able to do. And that is keep Felicity out of the hospital. She’s not
been to the hospital since the child was detained. So whatever’s happening in the home
that Felicity is in now, it’s different than what was going on in mother’s home.” As the
foregoing demonstrates, trial counsel for Felicity was very clear that he supported the
bureau’s recommendations as to finding jurisdiction over Felicity and as to removing
Felicity from the home.
As discussed, on September 27, 2013, we issued an order directing Klein to file a
declaration to address, among other things, the interactions she had with minor and the
directions, if any, she received from minor; the communications she had with minor’s
trial counsel; and the basis for taking a position on appeal that reversed the position taken
by minor in the trial court. Klein filed her 25-page declaration on October 7, 2013. In
this declaration, Klein states in a conclusory fashion that she spoke by phone with
minor’s trial counsel. She does not indicate––nor did she suggest at oral argument––that
she changed minor’s position on appeal at the recommendation of minor’s trial counsel or
29
that minor’s trial counsel agreed that an alignment with mother’s position on appeal was
in minor’s best interests.10
Rather than specify whether she had met with minor personally and if so under
what circumstances, and what if any instructions she received from Christopher Judge,
Klein’s declaration focuses on raising new issues, not raised by mother’s appeal, and
improperly cites to postjudgment evidence. Thus, for example, Klein argues that minor’s
statutory and due process rights to be heard at the jurisdictional and dispositional
hearings were violated and that the bureau failed to provide her with basic mental health
care and supportive services. These issues are outside the scope of mother’s appeal.
Minor’s appellate brief and Klein’s declaration amount to a de facto appeal by minor but
she has failed to provide this court with any authority to support this action.11 Klein
10
On the first page of her declaration, Klein states that “the basis for my taking a
position opposite of that taken by the minor’s counsel in the trial court include my
communications with the minor, the minor’s current relative caretaker (paternal
grandmother), and minor’s trial counsel.” Klein also purports to justify reversal of the
minor’s position on the basis of “my experience as a registered nurse (with a current
inactive license) in acute care hospital settings in psychiatry, pediatrics, and intensive
care as well as in inpatient research mental health institute, research and writing a
comment related to mental health issues published in U.C. Davis Law Review in 1984,
and accepting an appointment from a U.S. District Court in a pro bono section 1983 civil
rights prisoner’s case addressing the failure to provide adequate mental health care.”
Klein adds that a “further basis” for her opinion that it was appropriate to change the
minor’s position “is my over 20 years of experience working in California appellate
courts on appeals arising from juvenile dependency proceedings.”
11
We note that the court in In re Jeremy S. (2001) 89 Cal. App. 4th 514 stated that
appellate counsel for the minor, even when the minor does not appeal, might be able to
raise arguments not raised in the trial court or by the parent’s appeal since the court’s
focus is always on what is best for the child. (Id. at pp. 526-527.) To the extent the court
30
states in her declaration that this reversal of minor’s position “was done consistent with
the holdings of In re Josiah Z.[, supra,] 36 Cal. 4th 664 and In re Zeth S. (2003) 31
Cal. 4th 396.”
Klein makes no attempt to explain how either of these cases can be read to permit
her to raise new issues not framed by mother’s appeal and to take a position contrary to
minor’s trial counsel/guardian ad litem without his consent. The Supreme Court in In re
Zeth S. examined whether postjudgment evidence could be considered in an appeal of an
order terminating parental rights after a hearing under section 366.26. After an extensive
review of the well established rule that postjudgment evidence may not be presented to an
appellate court, and the application of that rule to dependency cases because of the
“state’s strong interest in the expeditiousness and finality of juvenile dependency
proceedings” the court concluded that such evidence could not be considered. (Id. at pp.
407, 412-414.)12 Nothing in In re Zeth S. justifies Klein’s unauthorized departure from
minor’s position in the trial court or her attempt to raise new issues.
In re Josiah Z., supra, 36 Cal. 4th 664 acknowledged a limited exception to this
rule when appellate counsel for the minor believes it is in the minor’s best interests to
dismiss the appeal and has the authorization of the guardian ad litem for the minor to do
so. (Id. at pp. 674, 676, 681-684.) However, the Supreme Court made clear that “the
limited issue involved in a motion to dismiss, whether a child should be permitted to
abandon a challenge to the trial court ruling, is distinct from the broader issues resolved
by the trial court, and consideration of circumscribed evidence in this context does not
give rise to the vice we condemned in Zeth S.—an appellate court’s use of new evidence
in In re Jeremy S. relied on postjudgmental evidence, it was disapproved by In re Zeth S.,
supra, 31 Cal.4th at pages 413-414. In any event, we are aware of no case that permits
appellate counsel for the minor, in a situation where the minor has not appealed, to take a
position that is completely contrary to the position taken by minor’s counsel in the trial
court without receiving authorization for taking such a position from the guardian ad
litem and without explaining how this position is in the minor’s best interests.
12
Postjudgment evidence has been permitted to show mootness (see, e.g., In re
B.D. (2008) 159 Cal. App. 4th 1218, 1240).
31
outside the record to second-guess the trial court’s resolution of issues properly
committed to it by the statutory scheme.” (Id. at p. 676.) As with In re Zeth S., nothing
in In re Josiah Z. suggests that new evidence and argument may be introduced by minor’s
counsel on appeal from the trial court’s jurisdictional and dispositional orders. Nor can
In re Josiah Z. be read to permit appellate counsel for the minor without the consent of
the minor’s guardian ad litem, to take a position contrary to that taken by minor’s trial
counsel.
Finally, in addition to the concerns already expressed, Klein goes to great lengths
to differentiate the brief she filed from mother’s briefs in this court in an attempt to
justify filing a 75-page brief that agrees entirely with mother’s arguments. Klein tells us
in her October 5, 2013 declaration, that “I have been instructed by [FDAP] that the
standard of practice of appellate counsel appointed to represent minors is to file a full
brief. I have been informed that this has been the policy of FDAP for more than 15
years.” Klein does not tell us whether FDAP differentiates between counsel appointed to
represent the minor in an appeal to which she is a party and cases like this one in which
she is not. Nor does her conclusory reference to such a policy assist the court in
understanding what the policy is and why it was appropriate for her to write the lengthy
brief that she filed in this case.
In sum, we conclude that when this court exercises its discretion to appoint
counsel for the minor in a situation where the minor has not appealed, it is improper for
the appellate counsel to reverse the position taken by minor’s trial counsel without
authorization by the minor’s guardian ad litem13 and/or without an explanation as to how
the reversal of position is in the child’s best interests. When, after careful analysis of the
record and briefs of the parties, minor’s counsel fully adopts the arguments of a party to
13
In some cases, the minor might be capable of giving informed consent. (See,
e.g., § 317, subd. (f).) Here, although the minor is over the age of 12, there has been no
finding that the minor is of sufficient age and maturity to consent and there is no evidence
that the minor has consented to the position taken by minor’s appellate counsel.
32
the appeal, preparation of a full statement of the case and repetition of that party’s
arguments will rarely be helpful to the court or serve the best interests of the minor.
DISPOSITION
The jurisdictional and dispositional orders are affirmed. Klein is admonished for
improperly taking a position contrary to minor’s position in the trial court and without
direction from minor’s guardian ad litem, for raising issues not encompassed either by
mother’s appeal or habeas petition, and for filing a brief purportedly advocating minor’s
best interest which essentially mirrors mother’s position.
_________________________
Brick, J.*
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
33
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Thomas Maddock
Attorneys for Defendant and Appellant:
Under Appointment by the Court of Appeal
Neale B. Gold
Amy Grigsby
Attorneys for Plaintiff and Respondent:
Real Party in Interest Office of the County Counsel
Sharon L. Anderson
Jacqueline Y. Woods
Attorneys for Minor Under Appointment by the Court of Appeal
S. Lynne Klein
Christopher Judge
34