Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. JUV084719, Charles J. Koosed, Judge.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, Acting P.J.
Father appeals from a judgment rendered at a combined jurisdiction/disposition hearing in a juvenile dependency proceeding. (Welf. & Inst. Code, § 300.) He challenges (1) the court’s authority to order multiple psychological or psychiatric evaluations, (2) the denial of his motion to continue the combined jurisdiction/disposition hearing, and (3) the finding that the Indian Child Welfare Act (ICWA) did not apply. Respondent concedes there was noncompliance with ICWA. Except for a limited remand with directions to comply with the notice requirements of ICWA, we find no errors.
All further references are to the Welfare and Institutions Code, unless otherwise specified.
BACKGROUND
On September 27, 2007, a Department of Public Social Services (DPSS) social worker responded to a referral at father’s trailer. There, the immediate response social worker found deplorable conditions, including piles of trash and debris scattered throughout the front yard, an open septic tank with raw sewage, piles of trash, newspapers, empty soda cartons, clothes and other articles at the front door. Inside, there was a wall of trash inside the front door, and trash, debris, clothing and other articles strewn about in every room of the structure. The trailer was also infested with mice. In addition, there was no electrical power to the trailer, no gas, no hot water, and the toilet did not flush. The 12-year-old minor, S.W., was taken into temporary custody.
On October 1, 2007, a dependency petition was filed alleging general neglect by the parents with respect to the conditions of the residence. The petition included an allegation that the parents had received family maintenance services in 1995, and had been provided family reunification services on more than one occasion between 1998 and 2003, but had not benefitted from services. As a result, one child remained in a permanent placement. At the detention hearing, the court removed S.W. from the custody her parents. Because father indicated he had Indian heritage, the court also determined that ICWA may apply.
The court ordered the removal of the minors and placed them in the temporary custody of DCS. However, prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to “remove” a child from a parent’s custody. A child may be taken into temporary custody by a peace officer or social worker (§§ 305, 306), and at the detention hearing, the court is empowered to determine whether the minor shall be “further detained.” (§ 315.) It is only after the jurisdictional hearing that a court may consider whether it should “limit the control to be exercised over the dependent child” at the disposition phase. (§ 361, subd. (a).) Because “removal” is a milestone in juvenile court proceedings, it is important to accurately reflect the court’s actions in the minutes.
The jurisdiction/disposition hearing was conducted on March 3, 2008. Father did not appear, and mother submitted on the social worker’s reports for jurisdiction. The court made a true finding on the allegations S.W. had been neglected, found that ICWA did not apply, approved the case plan, and ordered the parents to participate in reunification services. Father appealed.
DISCUSSION
1. The Father Was Not Aggrieved by the Pre-Jurisdictional Order to Submit to Psychological or Psychiatric Evaluation.
Father argues that his right of privacy was violated when the court granted the requests of DPSS, mother, and S.W. for an order that he submit to a psychological evaluation. On November 28, 2007, DPSS, mother, and S.W. joined in a request that father be ordered to submit to a psychological evaluation. After some discussion in which father’s trial counsel asked what facts would support a request for two evaluations, the court ordered father to participate in two psychological evaluations. Father did not file a petition to seek extraordinary relief from that order. (See Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195.) Nor did he comply with the court order.
It is true that at the pre-jurisdictional stage, an allegation by DPSS that a parent is mentally ill or the fact of mental illness alone does not justify a psychological examination of that parent. (Laurie S. v. Superior Court, supra, 26 Cal.App.4th at p. 202.) For this reason, it has been held that a court has no authority to order a psychological evaluation of a parent until it has exercised dependency jurisdiction. (In re C.C. (2003) 111 Cal.App.4th 76, 91.)
However, a parent must establish he or she is a “party aggrieved” to obtain a review of a ruling on its merits. (In re Silvia R. (2008) 159 Cal.App.4th 337, 344-345.) A nominal interest or a remote consequence of the ruling does not satisfy this requirement. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) To be aggrieved or affected, a parent must have a legally cognizable interest that is affected injuriously by the juvenile court’s decision. (In re D.S. (2007) 156 Cal.App.4th 671, 674.)
Here, the court exceeded its authority by ordering the psychological evaluations prior to establishing jurisdiction over S.W. However, because father violated that order by refusing to submit to the evaluation, his right to privacy was not violated in any way. Further, father was not prejudiced in any way: the purpose of the order for psychological evaluations was to determine if father would benefit from reunification services (see In re Rebecca H. (1991) 227 Cal.App.3d 825, 839-840 [two evaluations are required to provide guidance on the question of whether reunification services must be provided]), but the court did not deny reunification services. Absent injury or prejudice, reversal is not required.
2. The Juvenile Court Did Not Abuse Its Discretion in Denying a Continuance of the Jurisdiction/Disposition Hearing.
Father claims the trial court order denying his request for a continuance deprived him of due process of law by preventing him from showing the falsity of DPSS’s allegations. However, to show a denial of due process, father needs to show he lacked notice of the hearing date. Father does not—and cannot—claim he lacked notice of the hearing date. He was present at the January 9, 2008, hearing and was ordered to return on February 27, 2008. He did not appear on the continued date. On February 27, 2008, father failed to appear although his counsel was present. On that date, minor’s counsel requested a continuance, and it was granted. On March 3, 2008, father was again absent and his trial counsel informed the court he had not had contact with his client and did not know why father was not present.
The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. (§ 352, subd. (a).) Because reviewing courts have interpreted this policy to be an express discouragement of continuances, a juvenile court’s denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
Although father argues on appeal that the denial of the continuance prevented him from showing the falsity of some of the allegations of the petition, in the trial court he made no such showing. To the contrary, his attorney requested the continuance because he had not heard from his client and he had no knowledge of the reason for father’s absence. This explanation did not establish good cause for a continuance. There was no abuse of discretion.
3. The ICWA Notices Contained Inadequate Information to Assist the Tribes in Determining if S.W. Was an Indian Child.
At the time of the detention hearing, father informed the court and DPSS that he may have Indian heritage. Notices were sent with incomplete or incorrect information about S.W.’s father and paternal grandfather. Because incomplete and inaccurate information was provided to the tribes, father claims the court’s finding that ICWA does not apply was reversible error. Respondent concedes this point and we agree.
The social worker has a duty to inquire about and obtain all information about a child’s family history in order to assist the tribe in determining if the child is an Indian child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) Indeed, the court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child in all dependency proceedings. (In re A.B. (2008) 164 Cal.App.4th 832, 838.) Thus, the suggestion that a child “might” be an Indian child is sufficient to trigger the notice obligation. (In re Antoinette S. (2002)104 Cal.App.4th 1401, 1406, 1408.)
The notice requirements are mandatory and cannot be waived by the parties. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707.) The failure to provide proper notice is prejudicial error requiring reversal and remand. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
To enable the juvenile court to determine whether sufficient information was supplied, the social worker must file with the court the ICWA notice, return receipts and responses received from the tribe. (In re Karla C. (2003) 113 Cal.App.4th 166, 175, 178-179.) Notice must be adequate. A notice sent to a tribe at the wrong address does not satisfy the mandatory notice requirements. (See In re Mary G. (2007) 151 Cal.App.4th 184, 211.) A notice that does not include sufficient information, or includes incorrect information about the dependent child’s ancestors, is meaningless, and does not satisfy the notice requirements of ICWA. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.)
The failure to provide proper notice is prejudicial error requiring reversal and remand. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Therefore, we will conditionally reverse the judgment and remand the matter to the trial court for the limited purpose of complying with ICWA. (In re Veronica G. (2007) 157 Cal.App.4th 179, 188.)
DISPOSITION
The judgment is reversed for the limited purpose of complying with ICWA notice requirements. On remand, father is directed to provide DPSS with all information available to him regarding his Indian ancestry, including the names of the tribes, names of relatives known to be enrolled as members of the Chickasaw Nation, and the names of the ancestors from whom father claims Indian ancestry. DPSS is then directed to provide proper notice to each tribe and to file copies of the corrected notices as well as any responses thereto in the juvenile court. If after receiving proper notice, an Indian tribe intervenes, the trial court shall proceed in accordance with ICWA. If no Indian tribe intervenes after receiving proper notice, the judgment shall be reinstated.
We concur: King J., Miller J.