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Filed 2/17/21 In re Layla S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sutter)

----

In re LAYLA S., a Person Coming Under the Juvenile 

Court Law.

C092165, C092506

SUTTER COUNTY HEALTH AND HUMAN 

SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

S.S. et al.,

Defendants and Appellants.

(Super. Ct. No. 

DPSQ190000053)

S.S. (father) and T.J. (mother), parents of the minor, appeal from the juvenile 

court’s order terminating parental rights and freeing the minor for adoption. (Welf. & 

Inst. Code, §§ 366.26, 395; statutory section references that follow are found in the 

Welfare and Institutions Code.) The parents contend the juvenile court failed to apply the 

correct standard of proof -- beyond a reasonable doubt -- at the selection and 

implementation hearing given that the minor is an Indian child within the meaning of the 
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Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The Sutter County 

Department of Human Services (Department) argues the parents failed to object and 

therefore forfeited their claim on appeal.

We agree with the Department and affirm the juvenile court’s orders.

FACTS AND PROCEDURAL HISTORY

Given the limited nature of the claims on appeal, we dispense with a detailed 

recitation of the facts and procedural history in the case.

The Department filed a dependency petition on behalf of the newborn minor 

Layla S. pursuant to section 300, subdivisions (b) and (j), alleging the parents had 

substance abuse problems rendering them incapable of providing care and supervision to 

the minor, the minor tested positive at birth for methamphetamines and opiates after 

mother sought no prenatal care and used heroin and methamphetamines three days prior 

to the birth, father was previously discharged from a drug abuse treatment program after 

testing positive for opiates, father failed to engage in any other available programs to 

address his continued substance abuse, and the parents had recently had their parental 

rights over the minor’s sibling C.S. terminated due to their continued drug abuse and 

failure to participate in reunification services. It is undisputed that the minor is an Indian 

child with the Cherokee Nation of Oklahoma. 

On August 8, 2019, the court ordered the minor detained in out-of-home 

placement. Once the minor was discharged from the hospital, she was placed with the 

paternal grandparents who also provided care for the minor’s sibling, C.S. 

On August 29, 2019, the court sustained the first amended petition (the original 

petition having been amended to correct the minor’s name) and adjudged the minor a 

dependent of the juvenile court. 

On December 2, 2019, the Cherokee Nation filed a notice of intervention in the 

dependency proceedings. The attached declaration of the Cherokee Nation’s child 
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welfare specialist, Nicole Allison, stated mother was an enrolled member in the Cherokee 

Nation and the minor was eligible for citizenship in the Cherokee Nation through the 

mother. Allison also declared that, in her opinion, the parents’ continued custody of the 

minor was “likely to result in serious emotional or physical damage to the child” due to 

the parents’ long history of substance abuse, the fact that the parents’ previous receipt of 

services as to C.S. for the same issues did not prevent removal of the minor, and the 

parents were currently incarcerated and unable to care for the minor. Allison also noted 

the minor was placed with her sibling in the home of the grandparents and that the 

placement was ICWA compliant and the Cherokee Nation’s preferred placement. 

The disposition report filed December 17, 2019 stated that, due to their “out of 

control drug use” including heroin, methamphetamines, and marijuana, the parents 

remained homeless and unemployed, continued to lack an appropriate support network, 

and were not regularly drug testing or visiting the minor. The parents refused to 

participate in any intensive substance abuse treatment programs and resorted to the 

Salvation Army Depot to address their drug issues, refusing to accept that the Depot was 

insufficient to meet their needs or address the reasons for their continued substance 

abuse. The parents appeared to suffer from grief from the death of their oldest child, 

R.S., and had been unable to progress in their lives due to their grief. Despite having had 

“plenty of opportunities to participate in continued mental health treatment and 

counseling services,” the parents failed to attend appointments. The Department 

provided the parents with information on substance abuse and mental health services. 

However, both parents were using heroin in combination with methamphetamines and 

marijuana and were not in a position to provide a safe environment for the minor. 

Although the Department arranged visitation, the parents were not regularly visiting with 

the minor. The Department recommended that the court bypass the parents for 

reunification services pursuant to section 361.5, subdivisions (b)(10), (b)(11), and 

(b)(13), and set the matter for a section 366.26 hearing. 
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An addendum report filed by the Department the same day included the 

declaration of Cherokee Nation representative Allison, who opined that the continued 

custody of the minor by the parents was likely to result in serious emotional or physical 

damage to the minor due to the parents’ continued abuse of illegal substances and their 

failure to avail themselves of reunification services previously offered to them in the case 

of the minor’s sibling, C.S. The report noted that Allison agreed, “that the Department 

made reasonable efforts to assist the parents and the parents have not participated in 

services in order to avoid the removal of [the minor],” and the Cherokee Nation agreed 

reunification services should not be offered to the parents due to their continued drug 

abuse and risk to the minor if placed in their care. In that regard, Allison’s declaration 

stated in part that it was her opinion, “that active efforts were made by the state workers 

to provide remedial services, referral services and rehabilitative programs designed to 

prevent the breakup of this Indian family.” 

Neither parent was present at the disposition hearing on December 17, 2019. 

Cherokee Nation representative Allison appeared telephonically. The parents’ respective 

attorneys informed the court they had had no contact with the parents and requested that 

the court follow the Department’s recommendations. The court read and considered the 

Department’s reports and adopted the recommended findings and orders. In particular, 

the court found, “by clear and convincing evidence that there is a substantial danger to 

the physical, health, safety, protection, or physical or emotional well-being of the child or 

will be if the child is returned home, and there is no reasonable alternative means to 

protect the child.” The court further found that “continued placement of the child is 

necessary and appropriate” and “the agency has complied with the case plan by making 

reasonable efforts to make it possible for the child to safely return to the child’s home and 

to complete whatever steps are necessary to finalize the permanent placement of the 

child.” The court bypassed reunification services to the parents pursuant to section 361.5, 

subdivisions (b)(10), (b)(11), and (b)(13), and set the matter for a section 366.26 hearing. 
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In her second declaration filed on June 12, 2020, Cherokee Nation representative 

Allison again stated it was her opinion that the Department made “active efforts . . . to 

provide remedial services, referral services and rehabilitative programs designed to 

prevent the breakup of this Indian family.” Allison opined that, based on her knowledge 

of Indian culture and her personal knowledge of the minor’s case, “continued custody of 

the child by [the parents] is likely to result in serious emotional or physical damage to the 

child. Both parents have a long history of substance abuse that places [the minor] in 

danger if placed with them. [The minor] is currently placed in a relative placement with 

her sister and doing well. This home is willing to adopt her along with her sister.” 

Allison recommended the court find that “beyond a reasonable doubt continued custody 

would likely result in serious emotional or physical damage to the child,” that “active 

efforts were made by the department to prevent the breakup of an Indian family and those 

efforts should [sic] failed,” and that the placement was in compliance with the ICWA 

placement preferences and was in the best interest of the minor. Finally, Allison 

recommended the court terminate parental rights and identify adoption as the appropriate 

permanent plan for the minor. 

According to the section 366.26 report, father was residing in a sober living home 

and engaging in an outpatient substance abuse treatment program. Mother was in 

custody at the Sutter County jail. The Department recommended the court terminate 

parental rights, identify adoption as the permanent plan, and make a number of findings 

and orders including that “reasonable services had been provided to the parent designed 

to facilitate reunification of the family and to eliminate the circumstances which 

necessitated the detention of the child.” 

Father appeared by telephone for the section 366.26 hearing on June 16, 2020. 

Mother was not present. Both parents were represented by counsel. Cherokee Nation 

representative Allison appeared telephonically and stated her position as follows: “I’m in 

agreement with the Department’s plan for termination and a plan of adoption. . . . I did 
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submit a declaration for the need of expert testimony and hope that had made that into the 

file. We do believe that it is in the best interests of the [minor] for the parental rights of 

both parents to be terminated and the child be set free for adoption in a current relative 

placement.” 

The court adopted the recommended findings and orders, including the following: 

“The Court found at the dispositional hearing that reasonable services had been 

provided to the parents designed to facilitate the reunification of the family and to 

eliminate the circumstances which necessitated the detention of the [minor].

“The Court does find the [minor’s] placement is necessary and appropriate.

“The Court finds the agency has complied with the case plan by making 

reasonable efforts including whatever steps are necessary to finalize the permanent 

placement of the minor child.

“The Court finds by clear and convincing evidence that the permanent plan of 

adoption is appropriate.

“The Court finds by clear and convincing evidence that it is likely the [minor] will 

be adopted. The likely date by which the permanent plan will be achieved is December 

the 15th, 2020.

“The Court finds the [minor] is an Indian child as defined by 25 U.S.C. 1903(4).” 

The court also adopted the recommended order that “[a]ll previous Orders, not herein 

modified, remain in full force and effect.” Finally, the court renewed and continued its 

prior orders, terminated parental rights, and ordered adoption as the permanent plan. 

DISCUSSION

The parents contend the juvenile court failed to apply the correct standard of proof 

-- beyond a reasonable doubt -- when it found there was a likelihood of serious emotional 

or physical damage to the minor if returned to the parents’ care and custody and 

terminated parental rights. In addition, mother claims the court failed to consider the 
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Indian expert’s opinion before terminating parental rights. The Department argues the 

parents forfeited their claims by failing to raise them below and, in any event, any error 

was harmless. We agree with the Department.

Where, as here, the information before the juvenile court is sufficient to show that 

the child is a member of a tribe, or is eligible for membership and is the child of a 

member, Rules of Court, rule 5.482(d)(2) requires compliance with all of the provisions 

of the ICWA. (In re L.B. (2003) 110 Cal.App.4th 1420, 1427, superseded by rule on 

other grounds.) These provisions include the requirement that, “No termination of 

parental rights may be ordered in [a dependency proceeding] in the absence of a 

determination, supported by evidence beyond a reasonable doubt, including testimony of 

qualified expert witnesses, that the continued custody of the child by the parent . . . is 

likely to result in serious emotional or physical damage to the child.” (25 U.S.C. 

§ 1912(f); see also § 366.26, subd. (c)(2)(B)(ii).)

It was never disputed that the minor is an Indian child within the meaning of the 

ICWA. As such, before terminating parental rights, the juvenile court was required to 

make a determination, supported by evidence beyond a reasonable doubt, that the minor’s 

continued custody by the parents was likely to result in serious emotional or physical 

damage to the minor.

At the December 17, 2019 disposition hearing, the court found “by clear and 

convincing evidence that there is a substantial danger to the physical, health, safety, 

protection, or physical or emotional well-being of the child or will be if the child is 

returned home, and there is no reasonable alternative means to protect the child.” That 

prior order was renewed and continued by the court at the June 2020 section 366.26 

hearing. 

It is undisputed that the juvenile court applied the clear and convincing standard of 

proof rather than the beyond a reasonable doubt standard when finding the minor was at 

risk of serious emotional or physical damage if returned to the parents’ custody. 
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However, neither parent objected, at either the December 2019 hearing or the June 2020 

hearing, to the court’s use of the clear and convincing standard, or to the court’s receipt 

and consideration of Cherokee Nation representative Allison’s declaration in lieu of her 

testimony. “ ‘An appellate court will ordinarily not consider procedural defects or 

erroneous rulings in connection with relief sought or defenses asserted, where an 

objection could have been, but was not, presented to the lower court by some appropriate 

method.’ [Citation.]” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) This is the 

general rule, because any other rule would allow a party to deliberately stand by in 

silence and permit the proceedings to reach a conclusion in which the party could 

acquiesce if favorable and avoid if unfavorable. (In re Riva M. (1991) 235 Cal.App.3d 

403, 412 (Riva M.), citing In re Christian J. (1984) 155 Cal.App.3d 276, 279.) The 

forfeiture doctrine has been applied in dependency proceedings in a wide variety of 

contexts, including cases involving failure to require expert testimony and to make the 

required findings using the beyond a reasonable doubt standard as mandated by the 

ICWA. (See Riva M., at p. 411.)

The forfeiture doctrine is applicable here. The minor was identified as an Indian 

child early on in the proceedings. The Cherokee Nation intervened in the case in earlyDecember 2019, and representative Allison filed a declaration stating the parents’ 

continued custody of the minor was “likely to result in serious emotional or physical 

damage to the child” due to the parents’ long history of substance abuse, the fact that the 

parents’ previous receipt of services as to C.S. for the same issues did not prevent 

removal of the minor, and the parents were currently incarcerated and unable to care for 

the minor. The notice of intervention and Allison’s declaration were attached to the 

Department’s addendum report filed the day of the disposition hearing. Allison filed a 

second declaration on June 12, 2020, repeating her previous opinion and recommending 

that the court “find that beyond a reasonable doubt continued custody would likely result 

in serious emotional or physical damage to the child.” The Department’s section 366.26 
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report referred the court to Allison’s declaration in support of its recommendation to 

terminate parental rights. The court found continued custody would likely result in 

serious emotional or physical harm to the minor, but by clear and convincing evidence 

rather than beyond a reasonable doubt. By failing to object, however, the parents 

forfeited their claim on appeal. (Riva M., supra, 235 Cal.App.3d at p. 412.)

The parents’ reliance on In re Matthew Z. (2000) 80 Cal.App.4th 545 (Matthew Z.) 

and In re Barbara R. (2006) 137 Cal.App.4th 941 (Barbara R.) does not compel us to 

decide otherwise. Matthew Z. and Barbara R. both discuss the proper timing of the 

requisite ICWA findings by the juvenile court, namely, that the agency made active 

efforts to provide services and rehabilitative programs and that the continued custody of 

the minor by the parents is likely to result in serious emotional or physical damage to the 

minor. Both agree that the required findings should be made at the final review hearing 

at which the section 366.26 hearing is set and need not be readdressed unless the parents 

present evidence of changed circumstances or show that the earlier findings were stale. 

(Matthew Z., supra, at pp. 554-555; Barbara R., supra, at pp. 949-950.) They provide no 

guidance on the issue presented here and do nothing to undermine the holding regarding 

forfeiture in Riva M.

In any event, we have the authority to decide whether the error in this matter was 

harmless. The question is whether there is a reasonable probability the outcome would 

have been different absent the court’s error. (Riva M., supra, 235 Cal.App.3d at pp. 411-

412.) We hold that there is not.

Section 366.26, subdivision (c)(2) provides: “The court shall not terminate 

parental rights if: . . . [⁋] (B) In the case of an Indian child: [⁋] . . . (ii) The court does 

not make a determination at the hearing terminating parental rights, supported by 

evidence beyond a reasonable doubt, including testimony of one or more ‘qualified 

expert witnesses’ as defined in Section 224.6, that the continued custody of the child by 

the parent is likely to result in serious emotional or physical damage to the child.”
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The record provided the requisite level of evidence to support the court’s 

determination. The declaration authored by Allison and referenced in the section 366.26 

report stated, among other things, that Allison was an employee of the Cherokee Nation

in the capacity of a Child Welfare Specialist; her duties included intervening on behalf of 

the minor to determine if the minor’s best interests were being served by the agency, 

court, and extended family as to compliance with the federal ICWA; she was the 

specialist assigned to the minor, who was eligible for citizenship with the Cherokee 

Nation through mother; it was her opinion that “active efforts were made by the state 

workers to provide remedial services, referral services and rehabilitative programs

designed to prevent the breakup of this Indian family”; mother tested positive for illegal 

substances during pregnancy with the minor and failed to obtain needed prenatal care 

which resulted in the minor being born premature and suffering from withdrawal 

symptoms; prior to removal of the minor, the Department had been providing active 

efforts to the parents with regard to the minor’s older sibling, but those efforts failed and 

parental rights were terminated; and the parents had not yet corrected the conditions that 

led to removal of the minor’s sibling. Allison also stated: “It is in my opinion, based 

upon my knowledge of Indian culture and my personal knowledge of this case, that 

continued custody of the child by [the parents] is likely to result in serious emotional or 

physical damage to the child. Both parents have a long history of substance abuse that 

places [the minor] in danger if placed with them. [The minor] is currently placed in a 

relative placement with her sister and doing well. This home is willing to adopt her along 

with her sister.” 

Allison’s opinion that return of the minor to the parents would likely result in 

serious emotional or physical damage was supported by facts in the record regarding the 

parents’ continuing problems. For example, prior to being bypassed for services, the 

parents’ drug use was described as “out of control,” as they continued to use heroin, 

methamphetamine, and marijuana. They remained homeless and unemployed and were 
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not regularly drug testing or visiting the minor. They refused to participate in any 

intensive substance abuse treatment programs and, despite having had “plenty of 

opportunities to participate in continued mental health treatment and counseling 

services,” they failed to do so. By the time of the section 366.26 hearing, mother was in 

custody at the Sutter County jail and had not maintained visitation or occupied a parental 

role in the minor’s life. Father reportedly moved to Tarzana to participate in an 

outpatient substance abuse treatment program while residing in a sober living home. 

While he maintained regular contact with the minor through video chats, he lived over 

400 miles away and had not occupied a parental role with the minor on a daily basis. 

Notwithstanding that the parents received 12 months of reunification services in the 

sibling’s case to address their continued substance abuse, they failed to engage in those 

services and continued to abuse drugs resulting in termination of their parental rights over 

the sibling. 

The record also makes plain that the Cherokee Nation fully supported the minor’s 

placement with her sister in the home of the grandparents, “an ICWA compliant 

placement and the preferred placement by the Cherokee Nation,” and determined such 

placement was in the minor’s best interest. We conclude the record contains substantial 

evidence to support the court’s finding and therefore any error by the juvenile court was 

harmless.

The parents also claim the juvenile court erred when it failed to make a finding 

regarding the Department’s “active efforts” as required by 25 U.S.C. section 1912(d), 

which provides: “Any party seeking to effect a foster care placement of, or termination 

of parental rights to, an Indian child under State law shall satisfy the court that active 

efforts have been made to provide remedial services and rehabilitative programs designed 

to prevent the breakup of the Indian family and that these efforts have proved 

unsuccessful.” We are not persuaded.
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Neither the ICWA nor its California counterpart, section 361.7, subdivision (b), 

defines “active efforts.” The standards for determining whether active efforts were made 

are “essentially undifferentiable” from those for assessing whether reasonable services 

under state law were provided. (See In re Michael G. (1998) 63 Cal.App.4th 700, 712 

[both the federal and state statutes are aimed at ensuring the provision of reasonable 

reunification services and preserving the family whenever possible, thus the “clear and 

convincing standard is also consistent with the ICWA’s goals” and application of that 

standard to a 25 U.S.C. section 1912(d) analysis is proper]; accord C.F. v. Superior Court

(2014) 230 Cal.App.4th 227, 238-239.) Further, the parents provide no authority, and we 

are not aware of any, that requires that the juvenile court use the phrase “active efforts” 

rather than “reasonable efforts” in its findings regarding an agency’s efforts to provide an 

Indian family with tools to prevent the breakup of the family. Instead, 25 U.S.C. section 

1912(d) requires only that the agency “satisfy the court that active efforts have been 

made.”

Here, the juvenile court twice found that the Department made reasonable efforts 

to facilitate reunification of the family and eliminate the circumstances which 

necessitated the minor’s detention, finding so first at the disposition hearing and then 

again at the section 366.26 hearing. The court’s findings were supported by the record. 

For example, the Department provided the parents with reunification services in the case 

involving the minor’s sibling, C.S., but the parents failed to engage and continued to 

abuse drugs. As for the minor, the Department again provided the parents with substance 

abuse and mental health services and arranged visitation. Again, the parents refused to 

participate and continued to abuse drugs and failed to visit the minor regularly or, 

eventually, at all. The court’s findings were consistent with the Department’s 

recommendations as well as those made by Cherokee Nation representative Allison, who 

specifically recommended the court find the Department made “active efforts” with 

regard to providing services to the parents. The parents do not challenge the sufficiency 
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of the court’s findings, only that those findings did not expressly state that “active 

efforts” had been made without success. We see nothing that compels us to elevate form 

over substance in this instance. Thus, we find sufficient the court’s findings that the 

Department made reasonable efforts to provide the parents with services designed to 

facilitate reunification of the family and eliminate the circumstances which necessitated 

the detention of the minor.

DISPOSITION

The juvenile court’s orders are affirmed. 

 

HULL, Acting P. J.

We concur:

 

ROBIE, J.

 

MURRAY, J.