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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. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent,
ELIZABETH V., Defendant and Appellant.


Order Filed 11/26/13

Contra Costa County Superior Court No. J1200173 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.



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.

(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.

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.


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 ...

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