Filed 10/1/26 In re M.D. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.D., et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E088265
Plaintiff and Respondent, (Super.Ct.No. DPSW2300341)
v. OPINION
A.D. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Sean P. Crandell, Judge.
Conditionally reversed with directions.
Emily Uhre, under appointment by the Court of Appeal for Defendant and Appellant
A.P.
Jill Smith, under appointment by the Court of Appeal for Defendant and Appellant A.D.
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Minh C. Tran, County Counsel, Jamila T. Purnell and Prabhath Shettigar, Deputy
County Counsel for Plaintiff and Respondent.
Defendants and appellants Abby P. (Mother) and Adrian D. (Father; collectively,
Parents) appeal after the termination of their parental rights to Me.D. (a girl, born
December 2024) at a Welfare and Institutions Code section 366.261 hearing. They also
appeal the jurisdiction/disposition findings as to Ma.D. (a boy, born March 2026),
removing him from their care and custody.
Mother gave birth to Me.D. in a parking lot, and Parents never obtained medical
care for her after her birth. When Me.D. was 26 days old, Parents and Me.D. were found
by law enforcement in a parking lot and she was taken to the hospital. She was tested
and found to have fentanyl in her system and had to be given methadone to manage her
withdrawal symptoms; she was detained by plaintiff and respondent Riverside County
Department of Public Social Services (DPSS). While the dependency for Me.D. was
ongoing, it was discovered that in 2023 Mother had given birth to twins prematurely and
they had passed away. Mother had used illegal substances during the pregnancy and
never sought prenatal care. DPSS became aware that Mother gave birth to Ma.D. in
March of 2026.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
At a section 366.26 hearing, the juvenile court found the Indian Child Welfare Act
of 1978 (ICWA)2 did not apply, terminated the parental rights of Parents and freed Me.D.
for adoption. At a jurisdiction/disposition hearing, the juvenile court found the section
300, subdivision (b) and (j) allegations true against Parents for Ma.D., ICWA did not
apply, and it placed Ma.D. with paternal grandmother (PGM).
On appeal, Mother contends there was insufficient evidence to support the
jurisdictional findings for Ma.D. pursuant to section 300, subdivisions (b) and (j) as there
was no showing that there was a current risk to Ma.D. based on her resolving her
substance abuse and there was no evidence she was at a substantial risk of suffering the
same abuse or neglect as Me.D. Mother also contends there was no substantial evidence
to support the juvenile court’s disposition order removing Ma.D. from her care. Mother
claims as to both children that the juvenile court’s finding that ICWA did not apply to
Ma.D. and Me.D. should be reversed, and the matter remanded for further ICWA inquiry
as there is reason to believe that the children had Cherokee heritage and nothing in the
record supports that DPSS made further inquiry pursuant to section 224.2, subdivision
(e). Father contends on appeal that substantial evidence did not support the jurisdictional
findings for Ma.D. pursuant to section 300, subdivisions (b) and (j), as there was no
showing there was a current risk to Ma.D. based on his substance abuse history and no
evidence she was at a substantial risk of suffering abuse or neglect. Father also contends
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even
though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are
preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
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there was no substantial evidence to support the juvenile court’s disposition order
removing Ma.D. from his care. Parents join in each other’s arguments on appeal. We
conditionally reverse
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION OF ME.D.
Parents first came to the attention of DPSS in October 2023. On October 21,
2023, an emergency response referral was received alleging general neglect based on
Mother giving birth to twin boys. One of the twins was born in the parking lot of a gas
station and weighed 3 pounds and 11.3 ounces. He tested positive for opioids and
fentanyl. He had kidney failure, respiratory failure and hypoxemia. The second boy was
born in the hospital and weighed 3 pounds and 15.3 ounces. He also tested positive for
fentanyl. A section 300 petition was filed, and a detention hearing was held but Parents
were not present. The twin boys passed away on October 27, 2023. The section 300
petition was dismissed.
On January 2, 2025, DPSS received an immediate response referral alleging
neglect of Me.D. Me.D. was less than a month old. Mother, Father and Me.D. were
found on the side of the road in a homeless encampment. Me.D. was transferred to the
hospital by law enforcement based on her being born in a car and never receiving
newborn care. Mother confirmed they were homeless. Me.D. tested positive for fentanyl
and remained in the hospital.
When Mother and Me.D. were initially taken to the hospital, Mother was
disoriented and Me.D.’s diaper was soaked in urine. Mother did not know how Me.D.
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would test positive for fentanyl but admitted she used methamphetamine after Me.D. was
born. Father claimed he had been clean for 16 months. Mother was interviewed. She
gave birth to Me.D. in December 2024 in a parking lot. The birth was never recorded,
and Me.D. had no birth certificate. Mother blamed DPSS for the death of her twin boys.
Mother admitted she used methamphetamine early in her pregnancy but denied she ever
used fentanyl. She refused a saliva drug test.
Father stated he and Mother were in the process of obtaining permanent housing.
They had been living in their inoperable car. He was the biological father and was
present at Me.D.’s birth. He had one prior arrest for possession of methamphetamine.
He claimed he “quit abruptly” using methamphetamine 16 months ago, and denied ever
using fentanyl. He appeared lethargic and fidgety; he refused a saliva drug test. Father
was “shocked” that Me.D. tested positive for fentanyl.
Parents were arrested for willful harm to a child. Law enforcement had found foil
and baggies in the front seat of their car. Me.D. was taken into protective custody. Both
parents had histories of possession of controlled substances and being under the influence
of controlled substances.
It was discovered by DPSS that Mother had given birth to another child in Ohio a
few years prior who also “passed away after birth.”
On January 4, 2025, Me.D. began showing signs of withdrawal. She was
administered methadone every six hours to manage her withdrawal symptoms. As of
January 5, 2025, the methadone had been discontinued.
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DPSS stated there was a substantial danger to the physical and emotional health of
Me.D. and she must be removed from the custody of Parents. Parents had failed to
benefit from prior DPSS involvement when Mother “gave birth to [twin boys] who were
born drug exposed and who passed away due to their drug exposure in utero.” DPSS did
not recommend visitation or that services be provided to Parents based on their
statements that they would not benefit from services.
As for ICWA, DPSS stated that it did not apply. On October 27, 2023, in a prior
proceeding, the juvenile court made an inquiry with relatives who denied any Indian
ancestry. At the time, it was found that ICWA did not apply. On January 2, 2025,
Parents denied any Indian ancestry. On January 3, 2025, maternal aunt B.C. (Aunt)
denied any Indian ancestry. Aunt wanted placement of Me.D. with her in Ohio.
On January 6, 2025, a section 300 petition (Me.D. petition) was filed against
Parents for Me.D. It was alleged under section 300, subdivision (b), against Mother that
(b-1) she neglected the health and well-being of Me.D. by failing to obtain prenatal care,
not taking her to the hospital when she was born, and Me.D. tested positive for fentanyl;
(b-2) she has an extensive history of substance abuse, including methamphetamine and
fentanyl placing Me.D. at risk of harm; (b-3) she was homeless and did not have a stable
living environment for Me.D.; (b-4) she had a criminal history for drug-related charges
which placed Me.D. at risk; (b-5) she had unresolved mental health issues, including
anxiety without taking medication; and (b-9) she had a prior referral with DPSS for
allegations of general neglect due to her substance abuse, with two children passing away
due to in-utero drug exposure. It was alleged against Father pursuant to section 300,
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subdivision (b), that (b-6) he neglected the health, safety and well-being of Me.D. in that
he should have been aware Mother was abusing controlled substances while pregnant and
caring for Me.D. putting her at risk of harm; (b-7) he has a criminal history for drug-
related charges; and (b-8) he was homeless and could not provide a stable living
environment for Me.D. It was alleged as to Parents pursuant to section 300, subdivision
(g) that they were currently incarcerated with their exact release date unknown making
them unable to provide care and support for Me.D.
The detention hearing was held on January 7, 2025. At the hearing, Mother stated
that her grandmother had Indian ancestry but “they don’t recognize that in the state of
California.” Mother did not know the name of the tribe but suggested that her sister
would know the name of the tribe. Father denied any Indian ancestry. Aunt was present
by telephone. She stated their great-grandfather “had Cherokee,” but it was several
generations back. The juvenile court directed DPSS to conduct further inquiry based on
the information provided by the parties.
The juvenile court noted that it had previously been assigned to the case involving
the twin boys. They had severe brain damage and organ failure. Parents never came to
court. The juvenile court noted that Parents could possibly be charged with murder of the
twin boys. The juvenile court found a prima facie case was established and Me.D. was
detained from Parents. No visitation was ordered while Parents were incarcerated; once
released, they were allowed visitation but had to complete drug testing prior to any visit.
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B. JURISDICTION/DISPOSITION REPORT AND HEARING FOR ME.D.
The jurisdiction/disposition report was filed on February 3, 2025. The Department
sought a 30-day continuance for paternity testing. Me.D. had been placed with a foster
family. DPSS stated that ICWA did not apply based on Mother, Father and Aunt denying
any Indian ancestry. Parents were living in a hotel.
In July 2023, Father was arrested for possession of narcotics. Mother was present
and confessed to being addicted to fentanyl and heroin. Mother was seven months
pregnant. Mother had been arrested for drug-related offenses in 2020, 2022 and 2025;
Father also had been arrested for several drug-related offenses in 2023 and 2025.
Counsel for Parents did not allow them to be interviewed by DPSS. Mother had
requested to visit Me.D. but had not communicated with DPSS in order to schedule the
visit. Parents had not made themselves available to be provided services. DPSS was
concerned based on Mother having given birth to three babies who died based on her
substance abuse, and that she and Father had failed to address their substance abuse
despite these deaths.
On February 6, 2025, the matter was continued to March 20, 2025. An addendum
report was filed on March 17, 2025. DPSS recommended that section 300, subdivision
(b), allegations in the petition all be found true, and that the juvenile court strike the
section 300, subdivision (g), allegations as Parents had been released from custody. It
recommended that Me.D. remain out of custody of Parents, and that reunification
services be given to Parents, including a psychological evaluation. It also sought an order
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authorizing an “Interstate Compact on the Placement of Children” (ICPC) with Aunt in
Ohio. Paternity testing showed Father was the father of Me.D.
Parents spoke with a social worker after the prior court hearing. They claimed
they did not have cellular telephones but could be contacted through PGM. Both were
drug tested and Parents tested positive for methamphetamine, and there was a faint
showing of fentanyl. Mother stated she and Father had relapsed after being released from
jail. Despite denying that they had cellular telephones, during the interview, the social
worker heard a cellular telephone ring; it was in Father’s pocket. He appeared “shocked”
that it was in his pocket. Mother claimed they had borrowed the phone. Parents wanted
to be treated at a methadone clinic, but DPSS recommended a residential treatment
program. Mother was resistant to the residential treatment.
DPSS sent notice to Parents for an in-person meeting to be held on February 20,
2025. They were advised that visitation with Me.D. was every Tuesday. Parents did not
attend the in-person meeting. They also never confirmed their first visit with Me.D. as
required, and the visit had to be cancelled. Parents confirmed they would attend the next
visit on March 4, 2025, but they were 15 minutes late and the visit had to be cancelled.
Parents did not contact DPSS after this missed visit. They had never visited with Me.D.
since she was removed from their care. Parents were sent notice by mail of the services
available to them but they never responded.
Mother had a pending criminal case for possession of drug paraphernalia and there
was a bench warrant issued for the case on February 11, 2025. Parents were no-shows
for on-demand drug test on February 21, 2025. Me.D. had been referred to the Inland
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Regional Center (IRC) based on concerns of developmental delays. Aunt had maintained
contact with DPSS and wanted placement of Me.D.
DPSS concluded there was substantial evidence to corroborate the allegations in
the Me.D. petition under section 300, subdivision (b).3 DPSS was concerned that Parents
had failed to engage in any case plan services, visit with Me.D., or communicate with
DPSS. It recommended that the juvenile court find the section 300, subdivision (b),
allegations true and strike the section 300, subdivision (g), allegations. Me.D. should
remain out of Parents’ custody but they would receive reunification services. DPSS
stated that ICWA did not apply but provided no further information as to what additional
inquiries had been made regarding the Cherokee tribe.
A first amended Me.D. petition was filed on March 20, 2025. It updated the
Parents address and struck the section 300, subdivision (g) allegations. It also added to
the b-3 and b-8 allegations that Me.D. had to be referred to IRC to address developmental
delays caused by lack of prenatal care. It also added a b-10 allegation, that Parents
neglected the health and safety of Me.D. by currently abusing controlled substances
including methamphetamine and fentanyl.
The matter was set contested. On April 21, 2025, DPSS filed declarations of due
diligence as to Parents, who could not be found. DPSS filed an addendum report on
April 23, 2025, prior to the jurisdiction/disposition hearing. The recommendations
remained the same. Me.D. remained in a foster home. DPSS stated that it believed
3 Parents do not contend that the removal of Me.D. at the section 366.26 hearing
was erroneous, so we need not detail all the supporting evidence.
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Parents were avoiding contact. Parents had made no attempt to begin services and had no
visits with Me.D. Parents were both no-shows for on-demand drug tests on March 19,
2025, and April 11, 2025. DPSS was having trouble obtaining a birth certificate for
Me.D. based on no proof of where she was born.
The jurisdiction/disposition hearing on the amended Me.D. petition was heard on
April 28, 2025. Parents were not present. DPSS submitted on its reports and
recommendations. The juvenile court found the section 300, subdivision (b), allegations
in the amended Me.D. petition true by a preponderance of the evidence. The juvenile
court granted Parents reunification services and adopted all of the DPSS
recommendations including that ICWA did not apply. DPSS was to conduct an ICPC
with Ohio for placement of Me.D. with Aunt.
C. SIX-MONTH REVIEW REPORT AND HEARING FOR ME.D.
The six-month status review report was filed on October 14, 2025. It was
recommended that reunification services for Parents be terminated and a section 366.26
hearing regarding termination of parental rights be set. Me.D. was to be placed with
Aunt in Ohio upon approval, which was anticipated to be completed in December 2025.
DPSS noted that, in a prior detention hearing on October 27, 2023, ICWA inquiry
was made of “relatives” and they denied any Indian ancestry. Mother, Father and Aunt
denied Indian ancestry in January 2025.
Parents had been arrested on August 16, 2025, based on open felony cases,
charging them with willful child cruelty and drug possession. Parents had no contact
with DPSS during the reporting period. Parents had not completed any of their
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reunification services. There were no visits with Me.D. during the reporting period.
Me.D. was receiving services from IRC to help with developmental delays. The six-
month review hearing was set contested for March 20, 2025. The juvenile court ordered
placement of Me.D. with Aunt.
At the hearing setting the six-month review contested hearing, a paternal aunt was
present in court. She denied that there was any Indian ancestry in their family. PGM was
also present and said she had no idea if there was any Indian ancestry in their family.
The juvenile court stated that based on the information, it continued to find that ICWA
did not apply.
An addendum report was filed on December 10, 2025. On November 23, 2025,
Me.D. was placed with Aunt in Ohio. A social worker spoke with Mother on November
26, 2025, who reported she was staying in a sober living facility. Mother was upset that
Me.D. had been placed with Aunt instead of PGM. Mother wanted Me.D. returned to
California so that she could reunify with her. Mother told the social worker, “she only
agreed to go into [the] treatment program to get [Me.D.] back.”
DPSS confirmed Mother was receiving substance abuse treatment. Mother was
being drug tested at the facility. She was negative for illegal substances but was testing
positive for methadone. Mother’s mental health was evaluated by the facility. She was
found to suffer from severe opioid use disorder and amphetamine-type substance use
disorder, prolonged grief disorder, and post-traumatic stress disorder (PTSD). The
facility reported on December 15, 2025, that Mother was showing consistent engagement
in her recovery by regularly attending support meetings and NA/AA meetings. She was
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benefitting from individual and group therapy. Father also reported being enrolled in a
drug program. He was tired of using drugs and living on the street. He wanted to change
his life to reunify with Me.D. Parents had video visits with Me.D. on November 30,
2025, and December 4, 2025.
The six-month review hearing was conducted on December 15, 2025. Parents
were present. DPSS submitted on its reports. Parents requested additional reunification
services based on their participation in drug treatment programs. The juvenile court
commended the progress of Parents in treating their substance abuse but felt it was in the
best interest of Me.D. to terminate reunification services and set the matter for a section
366.26 hearing. Paternal aunt was present and stated that she was unsure if there was any
Indian ancestry. The juvenile court found that ICWA did not apply. Parents were
allowed one video visit with Me.D. each month.
D. SECTION 366.26 REPORT AND BIRTH OF MA.D.
1. DETENTION REPORT, PETITION AND HEARING FOR MA.D.
On March 17, 2026, DPSS filed a detention report for Ma.D. who Mother gave
birth to in March 2026. DPSS recommended detention of Ma.D. pursuant to section 300,
subdivisions (b) and (j), that he remain out of the custody of Parents. Ma.D. was still in
the hospital and was to be placed with PGM upon his release from the hospital. Mother,
Father and PGM reported they had no Indian ancestry on March 12, 2026.
Mother’s urinalysis test upon admission to the hospital was negative for all
substances. It was unknown by DPSS if toxicology screens were given to Ma.D. and
Mother after the birth. Mother was in sober living, but DPSS had been advised she was
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only in the program to avoid jail. There were no known complications for Ma.D. at the
time of his birth. Mother was interviewed on March 12, 2026. She reported receiving
prenatal care and that she was negative for all substances at the time of the birth of Ma.D.
She insisted she had been sober since August 15, 2025. She was drug testing and was
taking suboxone through a monitored program. She was participating in therapy to
manage her PTSD and prolonged grief disorder. She had to complete a 52-week, court-
ordered child batterers program. Mother stated she had been approved to have Ma.D. in
her care at the sober living facility. She was on probation. Mother was breastfeeding and
bonding with Ma.D., who had no withdrawal symptoms. Mother had completed her in-
person substance abuse program but chose to live at a sober living facility. The sober
living facility reported that Mother was engaged in her treatment and appeared committed
to her sobriety. Mother completed a parenting program. The sober living facility had a
baby shower for Mother, and she was provided with all of the provisions she would need
to care for Ma.D.
Father reported being sober since August 15, 2025. He was living in a sober
facility and participating in daily classes. Father insisted all of his drug tests were
negative. He was in the process of enrolling in a 52-week child batterers class. He had
received his six-month sobriety chip from participation in NA/AA meetings. He also was
taking prescribed suboxone. Father was on probation.
It was determined that Ma.D. could not safely stay in Parents’ care based on their
history of fentanyl use, their failure to reunify with Me.D., and they were new in their
sobriety so it could not be determined that their sobriety could be sustained outside a
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controlled environment. Ma.D. was detained on March 13, 2026. Father reported he was
the biological father of Ma.D. and was present at the birth. He was in the hospital room
with Ma.D. every day.
DPSS was concerned that Parents had been offered services with Me.D. starting in
February 2025. It was not until November 2025 that Father entered substance abuse
treatment, and he was still in the process of enrolling in a court-ordered child batterers
program. His recent drug tests were negative. Mother had entered substance abuse
treatment in October 2025. She was participating in therapy and completed a parenting
class.
A section 300 petition was filed for Ma.D. on March 17, 2026 (Ma.D. petition). It
was alleged pursuant to section 300, subdivision (b), for Mother that (b-1) she has an
extensive history of substance abuse including fentanyl use; (b-2) she had a criminal
history for drug-related charges; and (b-3) she had a history of prior child welfare
referrals for allegations of general neglect related to substance abuse and failed to benefit
from previously offered services resulting in the termination of her reunification services.
It was alleged pursuant to section 300, subdivision (b), for Father that (b-4) he had a
substance abuse history; (b-5) he had a criminal history for drug-related charges; and (b-
6) he had a history of prior child welfare referrals for allegations of general neglect
related to substance abuse and failed to benefit from previously offered services resulting
in the termination of his reunification services. It was alleged as to both parents pursuant
to section 300, subdivision (j), that Ma.D.’s sibling, Me.D., was currently a dependent of
the juvenile court as described in section 300, and Ma.D. was at risk of similar harm.
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On March 18, 2026, DPSS provided information that Ma.D. had to remain in the
hospital until March 18, 2026, due to neonatal opioid withdrawal syndrome. Mother was
allowed to stay in the hospital with Ma.D. to care for him until his release.
A detention hearing on the Ma.D. petition was held on March 18, 2026. DPSS
recommended that Ma.D. be detained from Parents, and set the matter for a
jurisdiction/disposition hearing.
Father’s counsel argued against detaining Ma.D. from Father based on the
allegations pertaining only to a history of substance abuse, criminal history, and history
with DPSS, but there was no current risk to Ma.D. Father had stayed at the hospital with
Ma.D. for six straight days. Father had been clean for seven months and was compliant
with his probation. There was no prima facie evidence to detain Ma.D. It would violate
Father’s due process and fundamental right to be a parent to detain Ma.D. based solely on
Father’s history.
The juvenile court inquired about the section 300, subdivision (j), allegation and
whether it permitted the court to find risk once there had been harm inflicted on a sibling.
Parents were both on probation based on the harm to Me.D. Father’s counsel responded
that if there had not been a change of circumstances that it could support harm but
currently it did not support detaining Ma.D. from Father. Mother joined in Father’s
argument. Mother’s counsel noted that Mother had taken care of Ma.D. while he was in
the hospital. Mother was breastfeeding Ma.D. and bonding with him. She had completed
her parenting class and was in a residential recovery program, which she would remain in
with Ma.D. She was in several support groups including a mother’s program and
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substance abuse program. Given Mother’s current situation, there was not a current risk
of harm to Ma.D.
Counsel appointed for Ma.D. expressed concern based on Parents’ history. It did
not “sit well” with counsel to place Ma.D. with Parents and “hope for the best.” Counsel
noted that in a vacuum, based on Parents being sober and appropriate at the time of
Ma.D.’s birth, the case may not be before the court. However, based on the “severe”
history of Parents, DPSS was justified in filing the section 300 petition. However,
counsel felt the standard for filing a petition and detention were different and the facts
may not support detention. The juvenile court could condition having Ma.D. stay with
Parents as long as they continued in their drug programs and continued testing negative
for illegal substances.
Counsel for DPSS stated that the section 300, subdivision (j), allegation supported
the detention of Ma.D. based on the circumstances surrounding the abuse and neglect of
Me.D. and that Ma.D. was at risk of similar harm. This provision afforded the juvenile
court greater “latitude” to exercise jurisdiction as to a child whose sibling has been
abused. Counsel for DPSS reminded the juvenile court of the history of Parents, having
three children pass away based on Mother’s substance abuse, and Me.D. was born
positive for fentanyl, and stated “[t]hese are very, very scary circumstances.”
The juvenile court then noted that based on Mother’s date of sobriety, it appeared
she may have been using illegal substances while pregnant with Ma.D. The juvenile
court noted that Mother got sober because she was taken into custody. Mother’s counsel
argued that Mother was unaware she was pregnant while using and it was not
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appropriately before the court. The juvenile court confirmed that if Ma.D. was released
to Parents’ care, he would be placed with Mother in her sober living facility, which
allowed her to have Ma.D. in her care. DPSS pointed out that Mother was utilizing
medically assisted treatment for her sobriety, which was taking suboxone. Ma.D. was
still in the hospital because of withdrawal from the suboxone.
Both parents denied Indian ancestry. PGM also denied Indian ancestry. Mother
signed an ICWA-020 form denying Indian ancestry. Father checked the box on the
ICWA-20 form that Ma.D. may be a member of a tribe but did not name any.
The juvenile court stated that it was very aware of the history of the cases
involving Parents. The juvenile court believed that section 300, subdivision (j), allowed
it to consider prior cases and circumstances surrounding the abuse or neglect of a sibling.
The juvenile court noted that Ma.D. was not born with illegal substances in his system,
but that he did have suboxone in his system, which may have caused medical
complications. The juvenile court also noted that based on the date of Ma.D.’s birth and
past history of substance abuse by Parents, that Ma.D. was likely exposed to controlled
substances during the time that Mother was pregnant. The juvenile court noted that “I
don’t believe that changes in the parents’ circumstances is significant enough at this stage
for the Court to not detain” Ma.D. The juvenile court also felt that their sobriety was
somewhat “artificial” based on both parents being in programs and they were on
probation, which required their sobriety. The juvenile court also noted that despite the
death of their twins, they continued to use controlled substances with Me.D. being born
positive for fentanyl. It found that the sobriety environment was artificial and Parents’
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sobriety was not of a sufficient length in light of their history of substance abuse.
Mother’s history of substance abuse dated back to 2020 and Father’s to at least 2023.
The juvenile court also took judicial notice of the criminal court case involving Me.D.,
and that Parents were using illegal substances after her birth. Further, the twin boys who
died likely passed due to Parents’ drug use.
The juvenile court found that there was substantial danger if it were to order return
of Ma.D. to Parents’ care. It found a prima facie showing had been made that Ma.D.
came with section 300. It ordered standard visitation with authorization for DPSS to
liberalize.
2. SECTION 366.26 REPORT FOR ME.D.
On March 24, 2026, DPSS filed its section 366.26 report for Me.D. DPSS
recommended termination of reunification services and placement of Me.D. outside her
home. Me.D. was living with Aunt in Ohio. DPSS noted that Parents denied Indian
ancestry on January 2, 2025, and Aunt denied Indian ancestry on January 13, 2025. It
was reported that Me.D. was sometimes suffering from shaking, which was most likely a
result of drug exposure during Mother’s pregnancy. Me.D.’s development was slightly
delayed; she was receiving services. Parents had monthly video visits with Me.D. in
January and February but no visit in March. Aunt wanted to adopt Me.D.
DPSS filed an addendum report on March 17, 2026, providing an adoption
assessment for Aunt and her husband. Aunt was willing to adopt Me.D.
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3. JURISDICTION/DISPOSITION REPORT FOR MA.D.
DPSS filed their jurisdiction/disposition report for Ma.D. on April 6, 2026. It
recommended that the juvenile court find section 300, subdivision (b) and (j), allegations
in the petition true and that family reunification services be offered to Parents. It also
recommended that the juvenile court find that ICWA did not apply. Ma.D. had been
placed with PGM. DPSS continued to report that Mother, Father and other family
members denied any Indian ancestry.
DPSS recounted Parents’ criminal history and history with child protective
services. Ma.D. was doing well now that he was released from the hospital. DPSS
insisted that the allegations in the section 300 petition filed for Ma.D. were true by
preponderance of the evidence. Both parents had extensive histories of substance abuse
and criminal charges. Further, under section 300, subdivision (j), there was substantial
evidence of severe neglect and harm to Ma.D.’s siblings and that he was a risk of
suffering similar harm.
Mother had a strong support system in her substance abuse program and she was
attending church. Parents were regularly visiting with Ma.D. Mother was still attending
substance abuse classes, was engaged in therapy and drug testing. She completed a
parenting class and residential substance abuse program. Father was attending AA
meetings and was drug testing. Father was beginning therapy. Mother was living in a
sober facility that was appropriate for Ma.D.
DPSS expressed concern for the well-being of Ma.D. in the care of Parents based
on their history of fentanyl use, they did not reunify with Me.D., and they were new in
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their sobriety. They only recently completed some services and addressed their substance
abuse. There had not been sufficient time to determine whether their sobriety would be
sustained outside a controlled setting and whether lasting behavioral changes had
occurred. Although it recognized that Parents had made progress, DPSS was still
concerned about Ma.D.’s safety in their care.
D. COMBINED SECTION 366.26 AND JURISDICTION/DISPOSITION
HEARING
The jurisdiction/disposition hearing for Ma.D. was conducted on April 9, 2026.
DPSS submitted on its reports. It recommended liberalized visitation for Parents if they
were appropriate and drug tested. Mother’s counsel submitted on the juvenile court’s
jurisdiction but asked to be heard on the allegations and disposition.
Mother’s counsel argued that the b-1, b-2 and b-3 allegations were accurate, but
they should be found not true based on there being no substantial risk of harm to Ma.D. at
the current time. Mother had taken substantial steps to change her circumstances. She
had housing and a support system. Ma.D. was born without any effects of Mother’s drug
use. Ma.D. should be placed with her on a family maintenance plan. Father’s counsel
stated that if Father was called to testify at the hearing, he would state that he had a
sobriety date of August 15, 2025. He was participating in a substance abuse program and
drug testing. He was taking suboxone for his substance abuse. There was no current risk
of harm to Ma.D. to support the section 300, subdivision (b) allegations. Father asked
that the allegations be found not true and that the Ma.D. petition be dismissed. Counsel
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for Ma.D. believed the juvenile court should find the jurisdictional findings true based on
Me.D. having a pending section 366.26 hearing, and the recency of Parents’ sobriety.
DPSS argued the Ma.D. petition should be found true based on the subdivision (j),
allegation. This allowed the juvenile court to consider the totality of the circumstances.
Mother never acknowledged that her drug use led to the death of her other children.
Parents had the pending section 366.26 hearing for Me.D. Further, DPSS noted that
Mother appeared to have used while pregnant with Ma.D.
The juvenile court stated it had read all the reports, considered the arguments by
counsel, and reviewed the authority provided by counsel. It noted that this case involved
the use of “hardcore” and dangerous drugs. Parents were on probation for neglecting
Me.D., who was born drug positive. The juvenile court commended their sobriety but
found it “was a large result of their incarceration and them facing a potential state prison
sentence.” It was impossible to tell if their current sobriety would continue into the
future. Their long record of using controlled substances made their current sobriety a
“fragile status.” Further, it appeared Mother used controlled substances in the presence
of Father at the beginning of her pregnancy with Ma.D.
The juvenile court concluded that based on a “totality of the circumstances” that
there was clear and convincing evidence of current risk of harm within the meaning of
section 361. The juvenile court found the allegations in the section 300 petition true.
Ma.D. would remain of out of the custody of Parents. Reunification services were
ordered for Parents. The juvenile court hoped that Parents continued in their sobriety and
22
were able to reunify with Ma.D. Visitation was ordered at a minimum of nine hours each
week and could be liberalized if appropriate.
The section 366.26 hearing was conducted on April 13, 2026. The parental rights
of Parents as to Me.D. were terminated and she was freed for adoption.
Parents filed notices of appeal from the jurisdiction/disposition findings at the
April 9, 2026, hearing, and from the termination of parental rights at the section 366.26
hearing for Me.D.
DISCUSSION
A. ICWA
Mother, joined by Father, claims that DPSS failed to conduct adequate inquiry
pursuant to section 224.2, subdivision (e), after Aunt mentioned distant Cherokee
ancestry at the beginning of Me.D.’s case.
“ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes and families by establishing minimum federal standards in
juvenile dependency cases.” (In re M.B. (2010) 182 Cal.App.4th 1496, 1502.) “The
issue of whether ICWA applies in dependency proceedings turns on whether the minor is
an Indian child.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1129 (Dezi C.).) “Section 224.2
codifies and expands on ICWA’s duty of inquiry to determine whether a child is an
Indian child.” (Id. at p. 1131, fn. omitted.)
Section 224.2, subdivision (a) provides, that the juvenile court have “an
affirmative and continuing duty” in every dependency proceeding “to inquire whether
[the] child ... is or may be an Indian child.” (§ 224.2, subd. (a).) “This ‘duty to inquire
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begins with the initial contact, including, but not limited to, asking the party reporting
child abuse or neglect whether the party has any information that the child may be an
Indian child.’ ” (Dezi C., supra, 16 Cal.5th at p. 1132.)
Mother, joined by Father, does not claim that DPSS and the juvenile court failed in
its initial duty of inquiry. The juvenile court inquired of every family member who came
to court whether the children had Indian ancestry. They asked Mother, Father, and Aunt
several times whether there was any Indian ancestry and asked several paternal relatives.
Rather, Parents claim that DPSS failed in its duty of further inquiry pursuant to section
224.2, subdivision (e), after Aunt mentioned that great, great grandfather may have
Cherokee ancestry and the juvenile court ordered DPSS to make further inquiry. Nothing
in the record shows that further inquiry was made.
“[R]eason to believe that an Indian child is involved in a proceeding” triggers the
duty of further inquiry. (§ 224.2, subd. (e).) “[R]eason to believe” exists “whenever the
court or [the agency] has information suggesting that either the parent of the child or the
child is a member or citizen, or may be eligible for membership … in an Indian tribe.” (§
224.2, subd. (e)(1).) The required further inquiry includes interviewing the parents and
extended family members to gather the information necessary for an ICWA notice,
contacting the Bureau of Indian Affairs and State Department of Social Services to gather
the names and contact information of the pertinent tribes, contacting the tribes, and
contacting any other person who may reasonably be expected to have information
regarding the child's membership status or eligibility. (§ 224.2, subd. (e)(2)(A)-(C).)
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The juvenile court may make a finding that ICWA does not apply, if it finds “that
proper and adequate further inquiry and due diligence as required in this section have
been conducted and there is no reason to know whether the child is an Indian child.”
(§ 224.2, subd. (i)(2).)
We agree with Mother, joined by Father, that the inquiry here was inadequate.
Aunt stated in court that there may be Cherokee ancestry through a great-grandfather.
The juvenile court ordered DPSS to make further inquiry. There is nothing in the record
supporting that DPSS made any further inquiry. DPSS could easily speak with Aunt
regarding the possibility of Indian ancestry and detail the inquiry in its reports, as she had
custody of Me.D. Despite Aunt thereafter stating there was no Indian ancestry, DPSS did
not follow the juvenile court’s order to make further inquiry based on Aunt’s statement
that there may be Cherokee ancestry.
“ ‘ “On a well-developed record, the court has relatively broad discretion to
determine whether the agency’s inquiry was proper, adequate, and duly diligent on the
specific facts of the case. However, the less developed the record, the more limited that
discretion necessarily becomes.” ’ [Citations.] [¶] If, upon review, a juvenile court’s
findings that an inquiry was adequate and proper and ICWA does not apply are found to
be supported by sufficient evidence and record documentation as required by California
law [citation], there is no error and conditional reversal would not be warranted even if
the agency did not inquire of everyone who has an interest in the child. On the other
hand, if the inquiry is inadequate, conditional reversal is required so the agency can cure
25
the error and thereby safeguard the rights of tribes, parents, and the child.” (Dezi C.,
supra, 16 Cal.5th at 1141.)
Here, there simply is nothing in the record showing any further inquiry by DPSS
was made as was ordered by the juvenile court. Upon remand, the further inquiry should
be relatively quick given that Aunt can easily address the comments she made in court
and DPSS is likely in contact with her on a regular basis. The matter as to Me.D. is
conditionally remanded in order for DPSS to comply with the juvenile court’s order to
make further inquiry regarding potential Cherokee ancestry with Aunt, and if after
adequate inquiry it is found there is no Indian ancestry, the juvenile court orders
terminating parental rights shall be affirmed. 4 As for Ma.D., the duty of inquiry is
ongoing and can be completed at the same time. There is no need to disturb the
jurisdiction/disposition orders.
B. JURISDICTION
Mother claims the juvenile court’s finding of jurisdiction over Ma.D. pursuant to
section 300, subdivision (b) and (j), was not supported by substantial evidence based on
her addressing her substance abuse by the time of the jurisdiction hearing. There was no
current risk of harm to Ma.D. Father claims there was no evidence that Ma.D. was at risk
of harm due to Father’s history, as by the time of the jurisdiction hearing, he was not
using illegal substances, and there was no evidence that the prior issues were likely to
continue.
4 We note that Me.D. was placed with maternal aunt but as found in In re S.S.
(2023) 90 Cal.App.5th 694, 711, that does not dispel prejudice to tribes.
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“ ‘ “We review the juvenile court’s jurisdictional findings for sufficiency of the
evidence. [Citations.] We review the record to determine whether there is any
substantial evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the court’s
orders, if possible. [Citation.] ‘However, substantial evidence is not synonymous with
any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not
be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may
consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must
rest on the evidence’ [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of the
whole record.” ’ ” ’ ” (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) The burden of
proof at the jurisdictional hearing is a preponderance of the evidence. (In re I.C. (2018) 4
Cal.5th 869, 876; In re B.H. (2024) 103 Cal.App.5th 469, 479-480.)
“[S]ection 300, subdivision (b)(1), authorizes dependency jurisdiction where ‘[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 ... [¶] ... [¶] ... [t]he inability of the parent or guardian to
provide regular care for the child …. Jurisdiction under section 300, subdivision (b),
requires proof of (1) the specified parental condition or conduct (2) that has caused
(3) ‘serious physical harm or illness’ or a ‘substantial risk’ of such harm or illness.” (In
re L.W. (2025) 109 Cal.App.5th 1012, 1019; see also In re Cole L. (2021) 70 Cal.App.5th
591, 601.) “[T]he juvenile court may consider past events when determining whether a
27
child presently needs its protection [citations] [a]lthough ‘[e]vidence of past conduct may
be probative of current conditions,’ past conduct standing alone does not establish a
substantial risk of harm” (In re M.D. (2023) 93 Cal.App.5th 836, 848.) A parent’s past
conduct “ ‘may be probative of current conditions’ if there is reason to believe that the
conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th 453, 461.)
Subdivision (j) of section 300 “applies if (1) the child’s sibling has been abused or
neglected as defined in specified other subdivisions and (2) there is a substantial risk that
the child will be abused or neglected as defined in those subdivisions.” (In re I.J. (2013)
56 Cal.4th 766, 774.) “The court shall consider the circumstances surrounding the abuse
or neglect of the sibling, the age and gender of each child, the nature of the abuse or
neglect of the sibling, the mental condition of the parent or guardian, and any other
factors the court considers probative in determining whether there is a substantial risk to
the child.” (§ 300, subd. (j).)
“When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009)
171 Cal.App.4th 438, 451.)
Here, the trial court properly found the allegations in the section 300 petition filed
for Ma.D. true. Specifically, pursuant to subdivision (j), the juvenile court could be
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concerned based on the recency of the sobriety of Parents that Ma.D. was at risk of
similar harm as Me.D.
Initially, as to the circumstances surrounding the neglect and nature of abuse of
Me.D. (§ 300, subd. (j)), Parents had a long history of drug use, and they used hard drugs
like fentanyl. Despite having given birth to twin boys who died likely based on Mother’s
drug use, Parents continued to use drugs while Mother was pregnant with Me.D. Me.D.
had to be administered methadone at birth to help ease her withdrawal symptoms. The
juvenile court was faced with Parents, who had lost twin boys based on their failure to
obtain proper prenatal care and due to Mother’s drug use during pregnancy. Parents
blamed DPSS for the death of their twins. The juvenile court believed that Mother was
still using illegal substances while pregnant with Ma.D. The risk here to Ma.D. was great
based on the extensive history of drug use by Parents, and the recency of their sobriety
that seemed to be due to being actively enrolled in substance abuse treatment, which
provided them with suboxone to control their drug addiction. Based on the abuse and
neglect of Me.D., there was substantial evidence that Ma.D. was at risk of suffering the
same harm.
Further, the mental condition of Parents, and their recent sobriety, supported that
Ma.D. was at risk of suffering similar harm as Me.D. The juvenile court found that
Parents were in the substance abuse programs in part to avoid any prison sentence
because they were on probation. Mother stated to a social worker that she only entered
the program in order to get back custody of Me.D. Both Parents were taking suboxone to
support their sobriety and they had only been sober for six months while their issues with
29
drug abuse went back for Mother to 2020, and for Father at least three years. They had
relapsed when released from jail the first time showing that there was a risk they would
relapse again once they were out of the substance abuse treatment programs or stopped
taking suboxone. Further, during the dependency of Me.D., they failed to contact DPSS,
never had visits with Me.D. and they completed none of their services.
The juvenile court understood the risk was high to Ma.D. as there had already
been two, possibly three, children lost due to Mother’s drug use and Me.D. was born
positive for fentanyl. The stakes in this case were high as there had already been children
lost because of Parents. The juvenile court “need not wait until a child is seriously
abused or injured” before intervening. (In re Cole L. (2021) 70 Cal.App.5th 591, 602.)
The evidence supports jurisdiction based on the true finding on the section 300,
subdivision (j) allegation.
Mother claims she had “fully” addressed her substance abuse so there was no risk
of similar neglect and abuse of Ma.D. However, Mother had used narcotics—based on
the date she provided of her sobriety—while pregnant with Ma.D. She was taking
suboxone to help with her drug addiction. Although she was in a substance abuse
program, she had not acknowledged that her prior drug use caused harm to Ma.D.’s
siblings. Mother had not “fully” addressed her substance abuse. Her recent sobriety was
somewhat tainted, as noted by the juvenile court, based on her being on probation for
using drugs while pregnant with Me.D.
In addition to her substance abuse, Mother did not seek prenatal care for her twin
boys or Me.D. She did not go to the hospital with these three children. She had an
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extensive criminal history involving substance abuse and her current conviction of
cruelty to a child. She also had very few visits with Me.D. and delayed participating in
any services for Me.D. The juvenile court properly found that Ma.D. was at risk of
similar harm supporting the juvenile court’s assertion of jurisdiction under section 300,
subdivision (j).
Because we have found that substantial evidence supported the juvenile court’s
jurisdiction under section 300, subdivision (j), we need not consider the other allegations.
C. DISPOSITION
Parents contend that even if this court concludes that the juvenile court properly
found jurisdiction over Ma.D., that removal from their care and placement with PGM
should be reversed as there was not clear and convincing evidence that there was
substantial danger to Ma.D.’s well-being.
“ ‘At the dispositional hearing, a dependent child may not be taken from the
physical custody of the parent under section 361 unless the court finds there is clear and
convincing evidence there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if returned home, and that
there are no reasonable means to protect the child’s physical health without removing the
child.’ [Citations.] The juvenile court must determine ‘whether reasonable efforts were
made to prevent or to eliminate the need for removal of the minor from his or her home’
and ‘shall state the facts on which the decision to remove the minor is based.’ ” (In re
D.P. (2020) 44 Cal.App.5th 1058, 1065.) “In determining whether a child may be safely
maintained in the parent’s physical custody, the juvenile court may consider the parent’s
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past conduct and current circumstances, and the parent’s response to the conditions that
gave rise to juvenile court intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.)
“We review a dispositional order removing a child from a parent for substantial
evidence, ‘keeping in mind that the trial court was required to make its order based on the
higher standard of clear and convincing evidence.’ [Citation.] ‘[A]ppellate review of the
sufficiency of the evidence in support of a finding requiring clear and convincing proof
must account for the level of confidence this standard demands.’ [Citation.] In applying
this standard of review, ‘the question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact finder could have
found it highly probable that the fact was true.’ [Citation.] We view the record in the
light most favorable to the prevailing party and give due deference to how the trier of fact
may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.” (In re M.V. (2022) 78 Cal.App.5th 944,
960.)
The juvenile court properly concluded that there was a substantial danger to Ma.D.
if he was placed in the care of Parents, and there were no reasonable alternatives to
removal. The juvenile court was skeptical of their sobriety based on them being on
probation for cruelty to a child (Me.D.), and that there was no way to determine if their
sobriety would continue. The juvenile court found that their sobriety was “fragile” and it
would not take “much” for them to relapse. The juvenile court found there was an
“ongoing consistent pattern of conduct that’s been dangerous and detrimental to multiple
children.” It found there was “clear and convincing evidence” of circumstances within
32
section 361.5 It cannot be emphasized enough that the drug use in this case was severe,
causing the death of at least two infants and possible long-term effects to Me.D. who was
suffering from shaking caused by exposure while Mother was pregnant. There was a
substantial danger to Ma.D. if he was returned to the custody of Parents.
Mother insists the disposition order could have been conditioned on Mother
remaining in the sober living facility and continuing to test negative. Mother had a
history of failing to contact DPSS. Parents disappeared during the dependency for Me.D.
Parents did not attend the detention hearing for their twin boys. They also immediately
relapsed when released from jail the first time. The juvenile court could find that Ma.D.
was at substantial risk of harm if Mother were to leave the facility and fail to keep in
contact with DPSS. Arguably, it would have been error for the juvenile court to allow
Ma.D. to be cared for by Parents given that they were, in all likelihood, responsible for
the death of two infants, and exposed Me.D. to fentanyl with long-lasting effects. The
evidence supports the disposition order removing Ma.D. from the care of Parents.
DISPOSITION
We conditionally reverse the juvenile court’s findings at the section 366.26
hearing for Me.D. and the jurisdiction/disposition hearing for Ma.D., that ICWA does not
apply. We remand the matter to the juvenile court with directions to order DPSS to
5 Mother refers to legal authority finding that the juvenile court cannot presume
based on the jurisdictional findings that removal is required under section 361 unless the
jurisdictional finding is based on section 361, subdivision (e), severe physical abuse of a
child. (See In re E.E. (2020) 49 Cal.App.5th 195, 219.) The record does not support that
the trial court “presumed” that removal was required after making jurisdictional findings
but rather it found by clear and convincing evidence that removal was proper.
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inquire, if reasonably possible, of Aunt as to whether Me.D. may be an Indian child based
on Aunt’s statement in court that there may be Cherokee ancestry. If this inquiry
produces information showing ICWA applies, the court shall proceed in compliance with
ICWA and related California law. If, on the basis of the inquiry, the juvenile court
instead finds that ICWA does not apply, its ICWA finding shall be reinstated for both
Ma.D. and Me.D. In all other respects, we affirm the juvenile court’s orders terminating
parental rights for Me.D. and findings at the jurisdiction/disposition hearing for Ma.D.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
RAPHAEL
J.
34