1 Filed 11/26/13 (note change in publication status) NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re Felicity S., a Person Coming Under the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent,

v. ELIZABETH V., Defendant and Appellant. A137439
(Contra Costa County Super. Ct. No. J1200173)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

BY THE COURT : The petition for rehearing, filed on November 15, 2013, is denied. The opinion, filed on October 31, 2013, is modified as follows: (1) The last sentence of the first paragr aph 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 plac e, the following sentence is substituted:
“We conclude that substantial ev idence supports both orders.” (2) Footnote 4 of the opinion that be gins with “Mother filed a petition for an extraordinary writ . . .” sha ll now be placed immediately after the words “substantial evidence supports both orders” at the conclusion of the re vised introduction.2 (3) Footnote 5 of the opinion that begins with “Klein was directed to address . . .” is deleted and the following new foot note 5 is substituted in its place:
“The court’s concerns with the brief file d on behalf of the minor are addressed in the order to show cause re public admon ition 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 en titled, “The Role of Appellate Counsel for
the Minor” is deleted. (6) The disposition is deleted and th e following is substituted in its place: “The jurisdictional and dispositional orders are affirmed.”

The revised opinion is no longer certified for publication. These changes do not affect the judgment.

Dated:____________ _______

__________________ __________P.J.1 Filed 10/31/13 (unmodified version; note change in publication status) CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT

DIVISION TWO

In re FELICITY S., A Person Coming Under the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,

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 We lfare and Institutions Code se ction 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 ho spitalized for uncontrolled diab etes 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 hear ing, 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 th e exception of part I through part II.

1 All further unspecified code sections refer to the Welfare and Institutions Code.2 services. Mother appeals 2 and contends that insuffi cient evidence supports the jurisdictional and dispositional findings. 3 In the nonpublished por tion of this opinion we
conclude that substantial evid ence supports both orders. 4 In the published portions of this opini on, 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 di scretion to grant the request of the First District Appellate Project (FDAP) to appoin t counsel for the minor. Here, appellate counsel for the minor took a po sition completely opposite to that taken by minor’s trial counsel, did not focus on how th is changed position was in the child’s best interests, and did not receive any authorization from mino r’s guardian ad litem to change minor’s position. Under these circumst ances, we hold that minor’s appellate counsel exceeded her authority.
BACKGROUND The Original Petition and Reco mmendation of No Detention On February 2, 2012, th e bureau filed a petition pu rsuant to section 300, subdivision (b), alleging that Felicity, a preteen, was at substantial risk of harm due to mother’s failure to provide fo r the child’s medical needs. Felicity has, according to the petition, “uncontrolled diabetes and/or diabe tic ketoacidosis, a lif e-threatening condition
that occurs as a result of in sulin omission.” The petition furt her alleged that mother had

2 Mother has filed a habeas petition, claiming ineffective trial counsel at the jurisdictional hearing (A138655). We are fili ng 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 extraord inary writ while this appeal was pending seeking to extend the period for reunification se rvices from 12 to 18 months. (§§ 366.21, (subd.) (g)(1); 361.5, subd. (a)(3); 366.22, su bd. (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 setti ng the section 366.26 hearing. However, on the court’s own motion we have ex tended 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 ju risdiction 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 diab etes in February 2009. At that time, mother received full diabetes e ducation 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, Novemb er 8, 2011, and January 13, 2012. Additionally, Felicity went to the hospital’s emergency room on Ju ly 15, 2011, August 16, 2011, October 3, 2011, Ja nuary 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 Depa rtment of Children’s Hospita l in Oakland (Children’s Hospital), wrote a letter to the bureau indica ting 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 indica tes that the body has been without adequate insulin for days. The Children’s Hospital recommended Felicity’s “immediate removal.” The repo rt stated that Felicity’s fam ily was in denial about her

care. The bureau’s report mentioned that Felic ity’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., Fe licity’s menstrual cycle; they claimed that Felicity did not miss injections. A psychol ogist 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 D r. Owens, Felicity’s family physician, on January 24, 2012. Dr. Owens stated that she ha d known mother for 15 years and mother had been doing “everything w ithin her power to provide ca re for Felicity.” She noted4 that mother needed more s upport 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 ni ght to check Felicity’s blood suga r 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 th at mother was doing what was required.
Mother insisted that the doc tors were not considering Fe licity’s menstrual cycle. On January 26, 2012, the so cial worker spoke to Warner at Children’s Hospital.
Warner believed mother was fo llowing the diabetes instruc tions but was concerned that mother had not addressed Felicity’s possible ma nipulation 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 “f ound no evidence to support a suspicion that Felicity volitionally manipul ated her blood sugar levels and no evidence to support the suspicion that [mother] was in any way negligent or inadequa tely supervising and parenting her daughter.” The court held a detention hearing on Febr uary 6, 2012. It found that it was not necessary to detain Felicity, and granted La rry S. (father) presumed father status. The Changed Recommendation, Amende d Petition, and De tention 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 l ack of ability to stabilize th e minor’s condition.” This
recommendation was based on events that occurre d at the end of February and during the
first week of March 2012. Okendo met with Felicity at school on Febr uary 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 fro m 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.5 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 Fe licity divulged to Oken do on February 29. Felicity, according to the susp ected abuse report, commented that mother had slapped her on many occasions and kicked her once. Th e suspected abuse report indicated that a tearful Felicity described her mother as ye lling 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 soci al worker learned that Fe licity was a patient in the adolescent psychiatric unit at Alta Bates He rrick Hospital (Alta Bates). Mother had failed to notify Dr. Dorrell, the family psyc hologist, 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 ps ychiatric hold pursuant to s ection 5150 after attempting
suicide with an overdos e of insulin. Felicity indicated that the precipitating event was a fight she had with her maternal grandmothe r while her mother was not home. Felicity grabbed an insulin pen and a belt, which she in tended to use to strangle herself. Felicity telephoned her half sister Sarah. She then telephoned her mother and declared, “ ‘I’m gonna kill myself.’ ” Mo ther returned w ithin 15 minutes of Felicity’s overdose. Mother and Sarah drove Felicity to the hospital’s em ergency room. The fo llowing day, March 2, Felicity was transferred to Alta Bates, and was discharged on March 6.
Warner stated that insulin was like a “ ‘l oaded 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 ha d injected.” She noted that a large overdose could have ended Felicity’s life very quickly.
The bureau filed an amende d 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 to6 the home, personnel from Felicity’s school “det ected a strong odor of marijuana in the home” while Felicity was present. Felicity reporte d seeing her mother smoke marijuana. On March 16, 2012, the juvenile court he ld a hearing on the bureau’s request to detain Felicity. Mother submitted to deten tion. The court found that the bureau had demonstrated substantial danger to the physi cal 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 petiti on on May 21, 2012, and a corrected amended petition on June 8, 20 12. This petition contained a llegations under section 300, subdivisions (b) and (c). Under b-1, the pe tition 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 me dical treatment on [f our occasions] for uncontrolled diabetes and/or [DKA], a life-thr eatening condition that occurs as a result of insulin omission”; (b) “Mother has not properly observed the child’s ur ine test . . .”; (c)
“The child did not attend school for the mont h of [January]” 2012; (d) “On March 1, 2012, while in the moth er’s care, the child was 5150d af ter purposely injecting herself with an overdose of insulin”; (e) “On Ma rch 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 regul arly smokes marijuana while caring for the
child.” Under b-2, the petition alleged that mo ther 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 su icide with an overdose of in sulin 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 Co sta Regional Medical Center in Martinez.” (b) “On March 8, 2012, during a visit to th e home mother reported to the social worker
that the child was fine and de nied that the child was having suicidal thoughts. On March 9, 2012, the child’s th erapist reported that the child con tinued 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, th e mother reported to Martinez Junior High School personnel that Felicity was not suicid al and that she just wants attention.” The petition also alleged unde r b-3 that mother has a s ubstance 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 insu lin on March 1, 2012. The Jurisdictional Hearing After a number of continuances, the jurisd ictional hearing occurred on June 11 and June 20, 2012. Dr. Olson testified and all co unsel stipulated that she was an expert in pediatrics and pediatric endocrinology. Sh e first became Felicity’s doctor in January 2012, and stated that Felicity was diagnosed with type 1 diab etes in 2009. She explained that ketones appear when insulin is not administ ered 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 Fe licity in the care of adults who have not been trained in
diabetes.” She also recounte d 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. Ol son noted that her pr actice included about8 1,000 patients with diabetes and DKA was uncommon, “especially after a patient has been diagnosed with diabetes.” She testifie d 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 abou t two to five percent of the cases involve
“incidents of cerebral edemas.” Dr. Ols on explained that a cer ebral edema or the “swelling of the brain” occurs during the treatment of children with DKA. She
maintained that with childre n, not adults, doctors “see the complications of cerebral edemas as permanent neur ologic injury, brain damage and death.”
To ensure that the ch ild receives insulin and that the di abetes is managed, an adult, according to Dr. Olson, must supervise the child. Despite advisi ng mother on multiple occasions that she was to supervise Felicity’s administration of insu lin, mother did not comply. She stated that mo ther’s failure to comply caused Felicity’s DKA. She explained that preteens were not “cognitivel y mature [enough] to understand the consequences of either not taking their medication or taking too much medication.” Dr. Olson elaborated: “[W]e expect pare nts to manage the diabetes with their child. So we expect th at [parents will be] there when the child checks [his or her] blood sugar on the metering and that the [parents ar e] either administeri ng the insulin, . . . or they are eye witnessing the child administer [his or her] own insulin, which means they see the needle go underneath th e 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 sh e must leave her in the care of someone knowledgeable about th e administration of the medication. The court asked Dr. Olson whether a pare nt could determine from a blood test whether the child had been eating candies or chocolates. Dr. Ols on responded that the blood test would provide that information bu t eating sugar or other food would not cause DKA. She emphasized, “Only insulin defici ency does.” The court asked, “So the primary problem is the failure to administer the injection, no t eating out of control?” Dr. Olson answered, “Correct.”9 Dr. Olson added that an unstable home en vironment 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 alcoho l 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 un able to supervise,
which leads to insulin omission a nd that then leads to DKA. When asked about hormonal changes, D r. 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 emergenc y room and had not been hospitalized. Felicity’s overall glucose contro l had improved. Felicity’s diabetes was judged to be controlled at her last doctor’s visit on May 22, 2012.
Dr. Olson confirmed that overd osing on insulin could be fa tal. She explained that the brain needs glucose and oxygen to functio n 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 se izures, 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 ev idence. 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 believe d 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 mo st serious concern the diabetes team has regarding Felicity’s diabetes care is the fami ly’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 w ith an insulin plan th at included slightly higher doses of insulin, the mo ther contacted the diabetes team to report Felicity’s blood10 sugars were elevated and she had large keto nes; a clear sign of continued outpatient
insulin omission. . . .” On cross-examination, Dr. Ol son stated that another do ctor 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 me mbers unknowledgeable about caring for a diabetic child was from moth er’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 ho spitalization. She admitted that both father and the paternal aunt received education about diabetes care in February 20 09, but both of them
declined further education offered in May 2011. Explaining the testing proc edures, Dr. Olson mentione d 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 imme diately” if the dipstick revealed positive ketones. Dr. Olson expressed concern that Felicity’s ketones we re not always being checked. She added, “Felicity actually came to th e hospital several times very, very ill, when if ketones had been checked earlier, sh e 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] inte nsive 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, stre ss, and puberty make the body more resistant to insu lin and then higher amounts must be injected. With regard to the effect of puberty, Dr. Olson explained: “D uring puberty a lot of growth hormone is made which leads to growth spurt, and growth hormone makes you relatively more11 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 suga r, 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 th ree-month period. In February 2012, Felicity’s Hemoglobin A1C was 8.6, and the norm for a pers on 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. Sh e stated that Felicity, fathe r, and she received diabetes education in February 2009. Part of the educ ation was that Felicity should take part in her own testing as much as possible, which included giving herself in jections and testing her own blood. Mother repor ted that she was responsible for administering Felicity’s insulin but Felicity wanted to do the injections herself unde r mother’s supervision. Prior to March 2010, mother was calculating the dosage that Felicity needed and the amount of insulin in the sy ringe. Felicity physically drew the insulin into the syringe under mother’s supervision. Felicity then , according to mothe r, physically injected herself. She usually did this under mother’s supervision, but sometimes she did it under other people’s supervision. She claimed th at from January throu gh March 2012, Felicity did not inject her own insulin. Mother testified that Felicity had her firs t DKA episode on the first day of her first menstrual cycle. She believed that Felicity has resistance to in sulin. She said her research indicated that estroge n and progesterone cause insulin resistance. She insisted that Felicity received the normal doses of in sulin and that her prob lem was with insulin resistance, not insulin defici ency. When asked whether she had discussed this theory with Dr. Olson, she said she had. When questioned whethe r Dr. Olson agreed with her theory, she answered, “N ot completely.”
Mother was in the courtroom while Dr. Ols on testified and the court asked: “Did you hear her say in court that 100 percent of type 1 cases should never have DKA if12 insulin is properly administer ed?” Mother respond ed, “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 mariju ana. She also acknowledged that the principal of Felicity’s school called her in 2011 and informed her th at Felicity was cutting herself. Mother took Felicity to Dr. Gr ace Malonai at Alhambra Valley Counseling Associates in January 2011. After three months, Dr. Grace to ld mother that Felicity was a healthy child and that Felicity did not have any issues that needed to be discussed. Mother claimed that Felicity wa s cutting herself because of issu es 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, testifie d. She reported that Felicity called her on March 1, 2012. Felicity was crying and said, “I need you, I need yo u.” 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 lau ndry 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 amende d petition were true, and sustained the entire amended petition. The court ex plained that it had to evalua te the testimony of mother
and Dr. Olson. If it believed Dr. Olson’s test imony, 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 diagnosi s might be type 2. The cour t found Dr. Olson’s diagnosis was “unquestionable a nd unimpeachable. . . . Her test imony 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. Ol son it’s a 100 percent conclusion.” The court stated that it accepted Dr. Olson’s te stimony that the only explanation for DKA was
the failure to administer medications and trea tment according to the plan and directions. The juvenile court expressed concern about mother’s testimony. Mother did not accept13 Dr. Olson’s reasoning or science and conclude d that her own research on the Internet
indicated that the DKA was related to ho rmonal changes, cramps, or both. The Dispositional Hearing On July 27, 2012, the juvenile court orde r 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, Felic ity responded that her mother was not medically neglecting her and that he r mother was doing everything she could to
take care of her. The letter indicated th at Felicity wanted to return home. The bureau wrote an updated memorand um 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 “una ble to provide 24-hour supervision and that Felicity need[ed] to be responsible.” Th e 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 he r visit with mother. At bedtime, Felicity’s blood sugar was high with a reading of 470. The guidelines fro m 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 cont inuance, the dispositi onal hearing began on August 24, 2012, and Sarah was briefly questioned and informed that Felicity’s placement in her home was being finalized. Sara h stated that she agre ed with her mother that DKA could be caused by factors other th an the improper administration of insulin. The court responded: “So whatever the re asons 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 ma tter 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 has14 been to that effect. So it’s not going to be he lpful to quarrel with th at. . . . So I think what . . . the court is looking for is some acknowledgement that even though you might disagree, you’re going to be approaching th e 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 dis positional report on October 22, 2012. The bureau recommended that Felicity be declared a de pendent of the court and continued her placement out of the home with family reuni fication services to be provided to both
mother and father. The report stated that Felic ity’s maternal aunt gave Ok endo a copy of an article from the Internet supporting th e theory that Felicity’s blood sugar levels would increase when she was menstruating. Ok endo told the aunt to discu ss the article with Felicity’s current physician, Dr. Tariq Ahmad, at the ne xt scheduled appointment on July 3, 2012. On July 25, 2012, Warn er, 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 runn ing 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 a nd father “clearly love Felicity” and that Felicity wanted to return to mother’s home. Oken do 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-threa tening condition caused by the omission of insulin. The report st ated that Felicity had not required any hospitalizations for DKA since she had been removed from mothe r’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 work er on the case, testified. Vohra confirmed that Felicity preferred to stay with her sister and advised the court that mother was getting15 married in November 2012 and might be movi ng to Europe. Felic ity 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 w ith mother the day before the hearing to ca ll Felicity’s doctor or to give her an update on how Felicity was doing because Felicity had stated she wa s 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 be cause Sarah informed her that she had already talked to the
doctor. Vohra believed that mother should ha ve called the doctor to ask whether she “needed to do anything about he r child’s medical condition.” Okendo, the prior social work er on the case, also testifie d. 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 moth er’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 exclus ively by inadequate
insulin. She was also troubled with mother’s denial of any ma rijuana use. She said that mother had not participated in any drug te sting. She was concerned that mother’s smoking of marijuana might impair her abilit y to monitor Felicity’s blood sugar reading
and to administer her medication. Mother testified that Felicity informed her that she want ed 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 us e of marijuana. Mother acknowledged that Dr. Olson tes tified 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 clai med that she would follow any plan recommended by the doctors if Felicity were re turned to her care.16 Mother elaborated that she believed her daughter’s hospitalizations in January
2012 were “because she had insu lin resistance because of the hormones that were surging through her body.” Mother added, “She al so 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, an d claimed Dr. Ahmad told her that. When asked whether she spoke with Dr. Ahmad on July 3, 2012, ab out Felicity’s menses and its relationship with DKA, mother said, “Yes.” When questioned whether he emphasized that menses did not cause DKA, mother answer ed, “No, he did not.” She claimed that she always properly supervised Felicity’s ad ministration of her insu lin 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 fo r evidence and carefu lly listened to the testimony of everyone who has te stified, and I am satisfied that mother does not get it. Mother has demonstrated in her testimony a ri gidity of her personality and an inability to recognize what’s really going on.” The court found that th ere was evidence of marijuana
abuse but no evidence of alcohol abuse, and the court modi fied 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 reasonabl e efforts had been made to prevent Felicity’s
removal from the home and that clear and conv incing evidence supported the physical removal of Felicity from the home. The co urt 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 st ating that these actions would be considered together. On August 22, 2013, we granted the recommenda tion of FDAP for appo intment of counsel
for the minor. This court issued an orde r 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 instru cted the parties to file any re sponse within five days of17 the order. After considering the responses, this court on August 27, 2013, stayed the section 366.26 hearing set for Septembe r 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 counse l would have to wait to speak to her wh en she became more stable . We extended the tim e for counsel to file minor’s brief by 10 days. Counsel for the minor filed a combined brie f in the appeal and in the habeas corpus action. Minor’s br ief presented the same arguments urged by mother’s counsel. On Sept ember 20, 2013, counsel for mo ther 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 a llegations in the am ended petition under section 300, subdivisions (b) and (c) true. Mo ther claims that suffi cient evidence did not support jurisdiction on any of th e 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 co mmunications 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 ta ken by the minor in the trial court. (4) Why counsel felt it necessary to submit a 75-pa ge brief that essen tially 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 ar gument 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 ch ild’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 de pendent of the court must be supported by a prepond erance of the evid ence. (§ 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 find ing was supported by substantial evidence. ( In re P.A. (2006) 144 Cal.App.4th 13 39, 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 sta ndard, the juvenile court, not this court, assesses the credibility of witn esses, resolves conflicts in the evidence, and determines where the weight of th e evidence lies. ( Id. at pp. 52-53.) “We affirm the rulings of the juvenile court if there is reas onable, credible evidence of solid value to support them. [Citations.]” ( In re Matthew S. (1996) 41 Cal.App.4th 1311, 13 19.) 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 wa s unable to manage Felicity’s

7 The petition also contained one allega tion 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 emotio nal damage, or is at substan tial risk of suffering serious emotional damage, evidenced by severe anxi ety, 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 providi ng appropriate care. . . .”19 medical or emotional needs. We conclude that the evidence of Felicity’s uncontrolled diabetes supported a finding of jurisdiction, and the eviden ce of Felicity’s unmanaged emotional needs also supported jurisdiction. Thus, we need not address whether specific allegations, such as Felicity’s missing schoo l and mother’s substa nce abuse, supported jurisdiction under subdivision (b) of section 300. We also need not consider whether the record supported jurisdiction unde r section 300, subdivision (c). The record amply supports th e finding that mother faile d to provide for Felicity’s medical needs as she did not adequately supe rvise or monitor Felicity’s testing of her blood sugar or her injections of insulin. Fe licity 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 an d that it was “highly abnormal” for a child with type 1 diabetes to have multiple admissi ons 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 ne urologic 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 uncontro lled 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 th at she did everything she was told to do; Dr. Owens, Felicity’s family doctor, stated th at she had known mother for 15 years and mother was doing “everything w ithin her power to provide ca re 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 wa s doing what was required; Dr. Dorrell, a20 clinical psychologist, met twice with moth er and Felicity, and found no evidence indicating that mother was inadequately or negligently supe rvising Felicity. The trial court, however, c ould discount the foregoing in light of Felicity’s numerous hospitalizations while in mother’s care, which indi cated that mother was not properly monitoring her. Felic ity, 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 woul d 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 ha d not been supervising the urine stick test and Felicity had been reporting the ketones to mother. Mo ther insisted that it was unnecessary for her, personally, to check the ketones. Additionally, mother testified that she br ought 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 vomiti ng continuously during the m onth 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 corr ected prior to the stag e of vomiting. Furthermore, mother’s delay in addressing the problem clea rly 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 sh e asserts that mother received inadequate medical training and educa tion. The record simply does not support this argument. The record regarding Felicity’s hospitaliza tion 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 Ch ildren’s Hospital reported: “F amily instructed that they21 must always supervise all blood glucose moni toring and insulin administration with their eyes, i.e., they are not to re ly on [Felicity’s] wo rd that she tested or gave insulin. Discussed developmental issu es 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, acco rding to the social worker, th at “she did not feel that it was necessary to have Felicity squat and urinat e on a stick for her to check her ketones.” Thus, even though Fe licity 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 j uvenile court’s findings and Dr. Olson’s diagnosis based on four articles mother foun d 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 tria l counsel was ineffective for failing to crossexamine Dr. Olson on her theory that mens es was the cause of DKA and for failing to present her own medical expert witn ess in support of this theory. 8 On October 8, 2013,

8 As the bureau points out, counsel for mother could not cross-examine Dr. Olson in regard to the content of these articles beca use there is nothing in the record to indicate this was permissible under Evidence Code secti on 721, subdivision (b). Evidence Code section 721, subdivision (b) provides: “If a w itness testifying as an expert testifies in the form of an opinion, he or she may not be cro ss-examined in regard to the content or tenor of any scientific, technical, or professional te xt, treatise, journal, or similar publication unless any of the following occurs : [¶] (1) The w itness 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 established22 some two months after filing mother’s reply br ief and a month after filing her traverse in the habeas corpus matter, mo ther filed a declaration from a medical doctor explaining the
conclusions that can be drawn from these articles. The articles submitted do not support moth er’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 ineffec tive assistance of tria l counsel, they cannot
be used to show that menses causes DKA. Any attempt to use them for this purpose constitutes inadmissible hearsay. Additio nally, these articles, only one of which addresses adolescents, do not st ate that menses or hormones cause DKA, but note that there might be an association between menstr uation and difficulty in controlling diabetes.
These conclusions are not inconsistent w ith Dr. Olson’s testimony, as she clearly acknowledged that hormonal changes impact th e control of diabetes and the amount of insulin needed, because hormones can affect blood sugar. Furthermore, the evidence in the reco rd supported Dr. Olson’s testimony (and subsequently, Dr. Ahmad’s conclusion) th at 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 hearin g in June 2012. If Felicity’s hormones were the cause of her DKA, she would have contin ued to require emergency room care after being removed from mother’s custody. Mother repeatedly asserts in her brief th at the evidence shows that Felicity did not miss any insulin shots. However, Dr. Sayali Ra nadive, at Children’s Hospital, stated in a report regarding Felicity’s hospitalization on June 15, 2010, for DKA that Felicity “acknowledges having missed ‘a fe w’ insulin doses in the past 48 hours but cannot report which type of insulin.” This report also revealed that D r. Ranadive examined Felicity

as a reliable authority by the testimony or ad mission of the witness or by other expert testimony or by judicial notice.”23 and “[d]iscussed briefly with [mother] and patie nt 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 bloo d sugars and they we re, “all within an appropriate target blood sugar.” However, as Dr Olson explained, “Twenty-four hours after [Felicity] was discharged [and returned to her mother’s home] with an insulin plan that included slightly higher do ses of insulin, the mother cont acted the diabetes team to report Felicity’s blood sugars were elevated and she had la rge ketones; a clear sign of continued outpatient insulin omission.” Additionally, the evidence was uncontradict ed 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 do ctor’s advice as [to] how you prevent the DKA from happening again.” Mother argues that after removal from mo ther’s home, Felicity’s caregivers and doctors also had trouble controlling Felicity’s diabetes. The reco rd establishes that Felicity’s glucose levels were not always monitored sufficiently, and the amount of
insulin she need ed to receive had to be adjusted. However, as already stressed, there
were no additional visits to the emergency room or instan ces of DKA between March and
June 2012. Not only does the record sup port jurisdiction based on the risk of serious physical
harm because of mother’s in ability to manage Felicity’s di abetes, the evidence in the record also supported jurisdiction under sec tion 300, subdivision (b) based on Felicity’s suffering and being at risk of se rious physical harm as a resu lt of her mother’s failure to manage her emotional needs. Mother clai ms that her behavior was appropriate and
maintains that it was not her fault that her da ughter had emotional needs or was suicidal.24 Mother cites to evidence indi cating that she loved her ch ild and was acting reasonably when dealing with Felicity’s emotional pr oblems. She asserts that allegations of emotional abuse cannot support a section 300, subdivision (b) finding, as jurisdiction under this section “requires proof that the ch ild suffered or is at substantial risk of suffering ‘serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately s upervise or protect the child. . . .’ ” ( In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) We agree that emotional harm, absent seri ous physical harm or a risk of serious physical harm, cannot be a basis of jurisd iction under section 300, subdivision (b). ( In re Daisy H., supra, 192 Cal.App.4th at p. 718.) He re, however, the record contains
substantial evidence that mothe r’s inability to manage Felicity ’s emotional issues placed Felicity at risk of physical harm. The que stion before us is not whether the record contains some evidence not supporting juri sdiction but whether substantial evidence supported jurisdiction. Felic ity attempted to commit suicid e on March 1, 2012, and was
institutionalized about one w eek 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. Mo ther should have immediately called 911 and considered taking her to the hospital hersel f only if the emergenc y responders had not immediately responded to the crisis. Furtherm ore, as trial counsel for the minor stressed,
there was no evidence that mother ever attempted to tele phone the maternal grandmother to ask her, “what’s going on in the house wher e you are with the chil d,” even though she left Felicity in the grandmother’s care. The de lay could have resulted in Felicity’s death. Dr. Olson testified that overdosing on insulin c ould 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 mu ch insulin as Felicity belie ved she had injected.25 After the suicide attempt, mo ther told the social worker that Felicity was fine and denied Felicity was having suic idal 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 in itially refused to meet with th e Mobile Response Team to have the team assess Felicity for suicidal thoughts. Additionally, the record established that mother made hurtful comments to Felicity, which further jeopardized Felicity’s health. The suspected abuse report dated February 22, 2012, stated that a tearful Felicity disclosed that her mother yelled that “she hoped Felicity would tell the court that she had been hit so she could be rid of her.” Dr.
Olson testified that mother’s unkind comment s 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 complyi ng with her medical regimen. We conclude that the evidence sufficiently supports jurisdiction under section 300, subdivision (b) based on mothe r’s failure to protect Felicity from the risk of physical harm due to her inability to ma nage Felicity’s medical needs and , additionally, because
of her inability to manage Felic ity’s emotional needs.
II. Dispositional Findings In examining mother’s clai m 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 c ontains sufficient ev idence 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.Ap p.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 woul d 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 whic h the minor’s physical health can be protected without removing the minor from the minor’s parent ’s or guardian’s physical custody. . . .”26 In the present case, the record supported the juvenile court’s finding that the bureau presented clear and convincing evidence that removal was necessary. In addition to the evidence presented at the jurisdictional hearing, the court considered the evidence that mother still rejected the medical professionals’ determination that DKA was caused by the omission of insulin. This was despite the fact that in addition to Dr. Olson, Dr. Ahmad told the family that menses did not cause DKA, but it might require more insulin. Additionally, at the time of the dispositional hearing on October 22, 2012, Felicity had not suffered any DKA episodes since being removed from mother’s home on March 16, 2012. As Christopher Judge, trial counsel for the minor told the court, “I’m just mystified why mo ther 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 mo ther 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 testif ied that mother needed to call the doctor and
mother needed to ask whether she “needed to do an ything about her child’s medical condition.” Mother again cites evidence that she claims showed that she acted reasonably and her own testimony claiming that she would follow Felicity’s medical plan. The juvenile court, however, was entitled to accord minimal weight to mother’s promises, as she was often not truthful when testifying. Thus , for example, mother testified that she spoke with Dr. Ahmand about Felicity’s menses on July 3, 2012, and claimed that he did not tell her that menses did not cause DKA. This testimony was clearly contrary to the notes Dr. Ahmad had entered on Felicity’s
chart. The evidence of mother’s continued belief that hormones were the cause of DKA despite the diagnosis of Felicity’s treating doctors that Felicity’s DKA was caused by DKA omission, as well as the fact that Felicity suffered multiple DKA episodes and hospitalizations while in mother’s
care and none once removed from mother’s custody through the time of the dispositional hearing in October 2012, established by clear and convincing evidence that placing Felicity back in mother’s home would place her at risk of physical harm. Given mother’s rigidity and refusal to believe the medical professionals’ opinion, the co urt 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 such27 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 th e child . . . , that appointment of counsel would bene fit the child. In order to a ssist 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 app eal that separate counsel be appointed in any case in which the trial counsel or guardi an ad litem determines that, for the purposes of the appeal, the child’s best interests ca nnot be protected without the appointment of separate counsel, and shall set forth the reason s 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 recommenda tion 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 wi th 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 jurisdiction al and dispositional orders and raised essentially the same arguments presented in mother’s appellate briefs and habeas petition. The brief on behalf of minor made no attempt to justify or explain the reasons for reversing the position taken by minor’s trial counsel, who was appointed as her guardian ad litem on March 16, 2012, and remains such, or the reasons why such a reversal was in minor’s best interests. Klein did not provide any declaration with the filing of her brief indicating that she had spoken to
minor or to minor’s trial counsel or obtained the consent of minor’s trial counsel as guardian ad litem to change minor’s position. 9

9 To the contrary, at oral argument, couns el 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, moth er stated that she was unabl e to obtain Felicity’s medical records because “Felicity’s tria l attorney has not authorized the release of any [medical]28 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 in terests 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 seriousne ss and the urgency of this medical situation that her daughter faces. This child has been in the hospital multiple
times with DKAs . . . . Moth er 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 do ctor’s opinion about the cause of DKA and
commented that mother’s refu sal to believe the doctor ma de it unlikely that she was “going to assiduously follow th e doctor’s advice as [to] how you prevent the DKA from happening again.” Christopher Judge added: “I don’t feel th at 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 ha ppening. And it’s happening again and again and again and again. And I don’t think––ev en now mother doesn’ t buy it. She just doesn’t buy it. [¶] So I just feel that rega rdless of whatever the explanations have been in the past the handwriting is on the wall as far as this mother’s ability to administer

records.” Trial counsel’s refu sal to release Felicity’s medica l records to mo ther provides further support for the conclusion that he has not reversed his position that mother should not have custody of Felicity.29 medication that this child need s and that she’s just not going to be doing it. So I agree with the county coun sel and submit.” At the dispositional hearing on October 22 , 2012, Christopher Judge again told the trial court that he did not believe Felicity woul d 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. Ther e’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 Felicit y had. [¶] [T]he report by Dr. Ahmad states at the very bottom in the doct or’s hand [writing] that he reemphasized to mother on July 3rd that menses doesn’t cause DKA, which is something that mother flatly contradicted on the witness stand today when I asked her.” Christopher Judge emphasized that Felicity would “face the same dangers in her mother’s hands now that she did in the past.” He added: “I’m just mystified why mother
can’t seem to do or hasn ’t been able to seem to do what her own adult children, Felicity’s caretakers, have been able to do. And that is keep Felicity out of the hospital. She’s not been to the hospital since the child was detained. So whatever’s happening in the home that Felicity is in now, it’s different than what was going on in mother’s home.” As the foregoing demonstrates, trial counsel for Feli city was very clear that he supported the bureau’s recommendations as to finding jurisd iction over Felicity a nd as to removing Felicity from the home. As discussed, on September 27, 2013, we i ssued an order directing Klein to file a declaration to address, among other things, th e 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 th at 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 or30 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 rece ived from Christopher Judge, Klein’s declaration focuses on raising new i ssues, not raised by mother’s appeal, and improperly cites to postjudgment evidence. Thus, for exampl e, Klein argues that minor’s statutory and due process rights to be h eard at the jurisdictional and dispositional hearings were violated and that the bureau fail ed to provide her with basic mental health care and supportive services. These issues ar e outside the scope of mother’s appeal. Minor’s appellate brief and Klein’s declarati on amount to a de facto appeal by minor but she has failed to provide this court with any author ity to support this action. 11 Klein

10 On the first page of her declaration, Kl ein states that “the basis for my taking a position opposite of that take n 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 experien ce as a registered nurse (with a current inactive license) in acute care hospital settings in psychiat ry, pediatrics, and intensive care as well as in inpatient research ment al health institute, research and writing a comment related to mental health issues publ ished 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 op inion that it was appropriate to change the minor’s position “is my over 20 years of ex perience working in California appellate courts on appeals arising from ju venile dependency proceedings.”

11 We note that the court in In re Jeremy S. (2001) 89 Cal.App.4t h 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 court31 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 wit hout his consent. The Supreme Court in In re
Zeth S. examined whether pos tjudgment evidence could be cons idered in an appeal of an order terminating parental rights after a heari ng under section 366.26. After an extensive review of the well established rule that postju dgment 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 expediti ousness 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 belie ves it is in the minor’s best interests to dismiss the appeal and has the authorization of the guar dian ad litem for the minor to do so. ( Id. at pp. 674, 676, 681-684.) However, th e Supreme Court made clear that “the
limited issue involved in a motion to dismi ss, 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 consider ation of circumscribed evidence in this context does not give rise to the vice we condemned in Zeth S. —an appellate court’s use of new evidence

in In re Jeremy S. relied on postjudgmental evid ence, it was disapproved by In re Zeth S., supra, 31 Cal.4th at pages 413-414. In any even t, 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 ho w this position is in the minor’s best interests.

12 Postjudgment evidence has been pe rmitted to show mootness (see, e.g., In re B.D. (2008) 159 Cal.App.4th 1218, 1240).32 outside the record to seco nd-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 argu ment may be introduced by minor’s counsel on appeal from the trial court’s juri sdictional and dispositi onal 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 positi on contrary to that taken by minor’s trial
counsel. Finally, in addition to the c oncerns already expressed, Klein goes to great lengths
to differentiate the brief she filed from mothe r’s briefs in this c ourt in an attempt to justify filing a 75-page brief that agrees entirel y 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 appo inted 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 refere nce to such a policy assist the court in understanding what the policy is and why it was appropriate fo r 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 pos ition taken by minor’s trial counsel without authorization by the mi nor’s guardian ad litem 13 and/or without an explanation as to how the reversal of position is in th e child’s best interests. When , after careful analysis of the record and briefs of the parties, minor’s co unsel fully adopts the arguments of a party to

13 In some cases, the minor might be capabl e of giving informed consent. (See, e.g., § 317, subd. (f).) Here, a lthough the minor is over the age of 12, there has been no finding that the minor is of sufficient age an d maturity to consent and there is no evidence that the minor has consented to the pos ition taken by minor’s appellate counsel.33 the appeal, preparation of a full statement of the case and repetition of that party’s arguments will rarely be helpfu l to the court or serve the be st interests of the minor.
DISPOSITION The jurisdictional and dispositional orders are affirmed. Klein is admonished for improperly taking a pos ition 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 essentia lly 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.34 Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Thomas Maddock
Attorneys for Defend ant and Appellant: Under Appointmen t by the Court of Appeal Neale B. Gold Amy Grigsby
Attorneys for Plainti ff 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