Benjamin J. v. Sup. Ct.

Filed 6/28/06 Benjamin J. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Nancy C. Staggs, Judge.

Benjamin J., in pro. per. for Petitioner.

No appearance for Respondent.

David A. Prentice, County Counsel, Miranda Neal and David L. Herman, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner seeks extraordinary writ review (Cal. Rules of Court, rule 38), claiming the juvenile court erred at the dispositional hearing when it denied him reunification services, terminated visitation and set a Welfare and Institutions Code section 366.26 hearing^[1] as to his daughter K. He also contends the juvenile court erred in failing to ask him whether he had any Native American heritage, as required by the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). While we will affirm the court's dispositional orders and findings, we agree the court erred in failing to comply with the ICWA. Accordingly, we will remand the matter with directions to vacate the section 366.26 hearing and to comply with the ICWA.

STATEMENT OF THE CASE AND FACTS

Petitioner and Samantha, husband and wife, are the parents of K. who, in October 2005 at the age of 10 months, was removed from Samantha's custody by the Madera County Department of Public Welfare (department) for suspected child abuse. K. had bruises on her cheek and forehead and, according to the family, previously had a red and purple mark next to her eye.

In the months prior to K.'s removal, Samantha's family noticed Samantha's behavior was becoming increasingly erratic and suspected she was using methamphetamine. In September 2005, Samantha was arrested for making terrorist threats after she told a family member that she hated her children, referring to her two daughters, K. and 12-year-old D., and wanted to kill them. At the time of K.'s removal, petitioner was serving a four-year prison sentence for stabbing Samantha with a knife in July 2004 when she was around five months pregnant with K.

Upon K.'s removal, the department filed a dependency petition on her behalf,^[2] alleging Samantha physically abused and neglected her. (§ 300, subds. (a) & (b).) At the detention hearing on the petition, the court asked Samantha if she had any Native American ancestry. She stated her mother's ancestors were members of the Chippewa Tribe. Since petitioner was not personally present at the hearing, the court also asked Samantha if petitioner was a member of a Native American tribe. Samantha stated her belief that he was not. The court found that â€