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In Re A.S., A Person Coming Under the Juvenile Court Law. v. I.S

March 15, 2011

IN RE A.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
I.S., DEFENDANT AND APPELLANT.



Super. Ct. No. JD229986

The opinion of the court was delivered by: Raye , P. J.

In re A.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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I.S., the father of three-year-old A.S., appeals from an order of the Sacramento County Juvenile Court terminating his parental rights. (Welf. & Inst. Code, § 366.26.)*fn1 On appeal, he contends the court erred at the jurisdiction/disposition hearing by conducting the hearing in his absence, denying him reunification services, and denying him visitation; these matters are reviewable because he was not timely notified of his right to writ review. Father also contends the Department of Health and Human Services (Department) and the court failed to inquire whether he had Indian heritage. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Originating Circumstances

On the morning of July 16, 2009, Sonoma County officials arrested father for check fraud. A.S., who was with him, was taken into protective custody because she had no provisions for support. Her mother's whereabouts were unknown and she had no other family in the area.

Two days later, mother told a social worker that, by informal agreement, she and father have alternated custody of A.S. on a weekly basis since she was eight months old. Father obtained custody two days prior to his arrest and mother has had no further contact with him.

Father's criminal history includes convictions for possession of drugs, possession of a firearm by a felon, receiving stolen property, evading police officers, and possession of a check with intent to defraud.

Petition

On July 20, 2009, a petition was filed alleging that A.S. came within juvenile court jurisdiction because father had been detained and failed to make appropriate arrangements for her care and custody. (§ 300, subd. (g).) The petition also made abuse of sibling allegations against mother.*fn2 (§ 300, subd. (j).)

Mother claimed Cherokee heritage. There was no claim of Indian heritage in father's family.*fn3 Notice of the proceedings was sent to the three Cherokee tribes and the Bureau of Indian Affairs (BIA).

At an initial hearing on July 21, 2009, the juvenile court ordered that A.S. be detained and that father should have no contact with her until further order of the court. The court issued an order to produce father, a state prisoner, for the purpose of testifying on August 21, 2009.

Jurisdiction

On August 11, 2009, a Department social worker sent father a letter requesting an interview. No contact with him had been established as of the writing of the jurisdiction/disposition report.

Father was not present for the August 21, 2009, hearing. The court ordered the Sonoma County Jail to produce father at the continued hearing on September 18, 2009.

The three Cherokee tribes reported that A.S. was not an Indian child or was not eligible for enrollment.

A report addendum indicated that on August 23, 2009, the social worker interviewed father by telephone. He indicated that he had been sentenced to state prison for four years four months and would be incarcerated for two years two months. There is no indication that father was asked about his Indian heritage.

Father was not produced for successive court hearings on September 18, October 16, and November 13, 2009. A contested jurisdiction/disposition hearing was set, but father was not produced for the hearings on December 11, 2009, and January 25, 2010.

On January 25, 2010, father was on a medical quarantine hold in San Quentin State Prison and thus could not be produced. The juvenile court denied his request for a further continuance, citing section 352, subdivision (b). The court sustained the section 300, subdivision (g), allegation against father and sustained the extant allegations against mother.

Disposition

The juvenile court found by clear and convincing evidence that services shall not be provided to father pursuant to section 361.5, subdivision (e)(1), based upon his being incarcerated for a lengthy period of time. The court limited father's visitation with A.S. to "supervised letter contact only," because in-person visitation "would jeopardize the safety of the child." A selection and implementation hearing was set ...


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