Fear Not Law CA Unpub Decisions

In re M.D. CA4/2

Filed 10/1/26 In re M.D. CA4/2
CA Unpub Decisions

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

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

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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.

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