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In re Felicity S.

California Court of Appeals, First District, Second Division

October 31, 2013

In re FELICITY S., A Person Coming Under the Juvenile Court Law.
v.
ELIZABETH CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v.

CERTIFIED FOR PARTIAL PUBLICATION [*]

Contra Costa County Superior Court, Hon. Thomas Maddock, Trial Judge

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

Brick, J. [*]

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 services. Mother appeals[2] 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 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 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.

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 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) “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 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 ...


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