A.S. v. Superior Court

















Filed 5/3/10
A.S. v. Superior Court CA5



NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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A.S., Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; MERCED COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.

F059483 (Super. Ct. No. JV27863) O P I N I O N

THE COURT^*

ORIGINAL
PROCEEDINGS; petition for extraordinary writ review. Harry L. Jacobs, Commissioner.

A.S., in
pro. per., for Petitioner.

No
appearance for Respondent.

James N.
Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real
Party in Interest.

-ooOoo-

Petitioner seeks an extraordinary
writ (Cal. Rules of Court, rule 8.452) from respondent court's order issued at
a contested 12-month review hearing setting a Welfare and Institutions Code
section 366.26^[1] hearing as to his daughter A. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In July
2008, then three-year-old A. was removed from petitioner's custody and placed
in foster care by the Merced County Human Services Agency (agency) after
petitioner was arrested for suspicion of committing lewd acts with a
13-year-old girl. This was not
petitioner's first sexual offense. He
was convicted in 1991 of a lewd and lascivious act on a child under the age of
14 pursuant to Penal Code section 288, subdivision (a) and ordered to register
as a sex offender. At the time of A.'s
removal, petitioner had sole custody of her.
A.'s mother, Arielle,^[2] was then and would continue to reside in the
state of Washington.

The agency
filed a dependency petition on A.'s behalf and asked petitioner and Arielle if
they had Native American heritage.
Arielle said she did not.
Petitioner stated he was not a registered member but believed he had
Native American heritage through the Blackfoot Indian Tribe.

The
juvenile court ordered A. detained and set the jurisdictional/dispositional
hearing for September 2008. The hearing
was continued several times and conducted in November 2008. Meanwhile,
the agency notified the Blackfeet Tribe^[3] and
the Bureau of Indian Affairs (BIA) in the Department of the Interior that A.
might be an Indian child under the ICWA.^[4] The agency also notified the BIA and relevant Cherokee
Tribes after Arielle claimed Native American heritage through them. In October 2008, the agency received a letter
from the Blackfeet Tribe that A. was not listed in the Blackfeet Tribal
Enrollment Records and therefore not an â€