1

Filed 10/31/13

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,

v.

ELIZABETH V.,

Defendant and Appellant.

 A137439

 (Contra Costa County Super. Ct.

 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.
2

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.
3

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 
4

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. 
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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 
6

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) 
7

“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.” 
9

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 
10

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 
11

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 
13

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 
14

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 
15

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. 
16

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 
17

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. 
18

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. . . .”
19

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 
20

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 
21

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 crossexamine 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, 

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.

 

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 

as a reliable authority by the testimony or admission of the witness or by other expert 

testimony or by judicial notice.”
22

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

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 
23

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. 

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 
24

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. 

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. 
25

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. . . .” 

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 
26

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 
27

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 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 
28

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

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 

 

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] 

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.
29

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 

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 
30

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 

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 

 

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.” 
31

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 

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 

 

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 

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). 
32

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 

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
33

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 

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.

 

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. 
34

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