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In re Klein

California Court of Appeals, First District, Second Division

May 1, 2014

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


[As Modified on May 23, 2014]

Contra Costa County Superior Court, No. J12-00173 Hon. Barry Baskin

Page 1390

[Copyrighted Material Omitted]

Page 1391


Arnold & Porter and Sean M. SeLegue for S. Lynne Klein

First District Appellate Project Jonathan Soglin, The National Association of Counsel for Children Janet G. Sherwood, California Appellate Defense Counsel Randi Covin, Sargeant & Conrad and Linda J. Conrad as Amici Curiae on behalf of S. Lynne Klein.

Christopher E. Judge as Amicus Curiae on behalf of Minor.


Brick, J.[*]

Contra Costa County Children and Family Services Bureau (the bureau) filed an amended petition pursuant to Welfare and Institutions

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Code section 300, subdivisions (b) and (c), [1] alleging, among other things, that Felicity S. (Felicity or minor) 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 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 appealed and filed a habeas corpus petition. In our decision filed on October 31, 2013, as amended upon denial of a petition for rehearing on November 26, 2013, we concluded that substantial evidence supported both orders. By separate order we denied the habeas corpus petition.

The only issues before us at this time are those raised by this court in its November 26, 2013 Order to show cause (OSC) why minor’s counsel on appeal should not be publicly admonished for the manner in which she represented minor, and in the response thereto. Having considered counsel’s response to the OSC and the briefs filed by amici, curiae,[2] we conclude that she should not be publicly admonished.

The court is cognizant of the sensitive and sometimes difficult role of counsel for minors in appeals relating to their status, but in which they are not an appellant. The court acknowledges and applauds the essential work performed by the First District Appellate Project (FDAP) and the counsel for minors we appoint based upon FDAP’s recommendation to assure that minors’ best interests are properly represented in this court. In this unusual case, however, appellate counsel for minor took a position completely opposite to that taken by minor’s trial counsel, did not receive authorization from minor’s guardian ad litem to change minor’s position, and did not explain why she had changed minor’s position until we ordered her to do so. We write to provide guidance to FDAP and to those who represent minors in appellate proceedings to clarify the court’s expectations of them in such matters.


In order to put in context our concerns about the conduct of minor’s appellate counsel, we briefly summarize the extensive background portion of

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our October 31, 2013 merits decision in this case: In February 2009, Felicity, a preteen, was diagnosed with type 1 diabetes. Her mother and other family members, received full diabetes education and, subsequently, mother attended most of Felicity’s medical appointments. However, on four separate occasions in 2010, 2011, and January 2012, Felicity was admitted to pediatric intensive care with diabetic keoacidosis (DKA), a life threatening condition caused by not receiving insulin. She also received treatment in emergency rooms on several other occasions after episodes of vomiting.

The bureau’s initial petition pursuant to section 300, subdivision (b), was filed on February 2, 2012, as the result of a report from Children’s Hospital in Oakland. That report indicated 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. Children’s Hospital recommended immediate removal and stated that Felicity’s family was in denial about her care.

The bureau initially recommended that reunification services be commenced and that Felicity remain with mother. On February 6, 2012, the court held a detention hearing and found that it was not necessary to detain Felicity.

On March 16, 2012, however, the bureau filed an amended petition which the court heard that day recommending that Felicity be detained. During the interim, Felicity had reported to a social worker that she was afraid to return home because mother threatened to hit her, said she did not care if the court removed Felicity, and was smoking marijuana in the home. Also, mother’s boyfriend (later to become her husband) was in the home drinking alcohol every night. Most importantly, Felicity had been placed on an involuntary psychiatric hold after attempting suicide in mother’s home with an overdose of insulin. At the hearing, mother submitted to detention. The court found that the bureau had demonstrated substantial danger to Felicity’s physical health and that reasonable efforts had been made to prevent removal.

At the jurisdictional hearing on June 11 and June 20, 2012, the court heard testimony from, among others, Dr. Jennifer Olson, an expert in pediatrics and pediatric endocrinology and from mother. Dr. Olson testified extensively concerning the nature of DKA, how unusual it is for a child with type 1 diabetes to suffer with DKA, how it can lead to cerebral edema, and how it is completely preventable with appropriate insulin management, including for a child going through puberty. Mother testified to her view that the DKA episodes were related to Felicity’s going through puberty. She testified, incorrectly, that the first DKA episode occurred on the first day of her first menstrual cycle (in January 2012). She insisted that Felicity received the normal

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doses of insulin. She acknowledged that she used marijuana with a medical recommendation and denied that she did so in the house when Felicity was present. After closing arguments the juvenile court found all the allegations in the amended petition were true and sustained the entire petition. The court accepted the testimony of Dr. Olson and expressed concern about mother’s testimony. Felicity remained in the care of other family members.

After several continuances, the dispositional hearing took place on October 22, 2012. At that point, mother’s counsel and the current social worker made clear that Felicity did not want to live with mother, at least in part because mother was planning to marry and move to the Czech Republic in the near future. The social worker expressed concerns about mother’s commitment to Felicity. Despite the statement of mother’s counsel and the testimony of the social worker, mother testified that Felicity told her she wanted to return to mother’s home. Mother again expressed her view that Felicity’s hospitalizations in January 2012 were because of insulin resistance caused by her hormones, and not because any scheduled injections had been missed.

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 and a petition for a writ of habeas corpus.[3] On August 13, 2013, after briefing was otherwise complete, FDAP filed a letter requesting that we appoint counsel for Felicity on appeal. We

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granted that request on August 22, 2013, and appointed appellate counsel for minor and, because prompt resolution of these issues was critical to Felicity’s well being, set a 10-day deadline for counsel to file her brief on appeal.[4] On August 29, 2013, Minor’s appellate counsel requested an extension. She reported to the clerk of this court that she needed more time to file the brief so that she could speak with Felicity.[5] We extended the time for counsel to file minor’s brief by 10 days.

Minor’s appellate counsel filed a combined brief in the appeal and in the habeas corpus action on September 13, 2013. 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, an assessment with which the court agrees. The bureau filed its response to minor’s brief on September 23, 2013.

On September 27, 2013, we issued an order directing Minor’s appellate counsel to file a declaration to address four specific concerns about the nature of the position taken in minor’s brief on appeal, which are set forth in the margin.[6] Minor’s appellate counsel ...

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