Filed 11/23/05 In re Daja V. CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re DAJA V., a Person Coming Under the Juvenile Court Law.
DEL NORTE COUNTY DEPT. OF HEALTH & SOCIAL SERVICES, Plaintiff and Respondent, v. DERAL V., Defendant and Appellant.	A109349 (Del Norte County Super. Ct. No. JV046009)

Deral V. (Father) has filed this appeal from an order terminating his parental rights and finding his daughter likely to be adopted. Father argues his due process rights were violated when the dispositional hearing and a Welfare and Institutions Code section 366.26[1] hearing were held in his absence. He also contends the judgment must be reversed because the Del Norte County Department of Health and Social Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We conclude any error due to Father's absence was harmless, but we agree the case must be remanded to secure compliance with the ICWA.

BACKGROUND

On January 21, 2004, the Department filed a section 300 petition to declare the minor, who was then four months old, a dependent child. The petition alleged the parents had substance abuse problems and a history of domestic violence, to which the minor had been exposed. Specifically, the petition alleged that in September 2003, when the minor was three weeks old, Father struck her on the shoulder with his knee during a domestic violence incident. In addition, the mother, Samantha R. (Mother), had recently been arrested for vandalism, battery and child endangerment following a violent encounter with her sister, and Father's whereabouts and ability to care for the minor were unknown. The minor was detained and placed in the care of a maternal aunt.

The Department's detention report indicated the ICWA did not apply. However, at the detention hearing, Mother told the court the minor's father â€