Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225600
CANTIL-SAKAUYE, J.
B. H., mother of the minor, appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 388, 366.26, 395.) Appellant contends the court abused its discretion in denying her petition for modification, the proof requirements of section 388 are unconstitutional as applied to her, and the court and the Department of Health and Human Services (DHHS) failed to inquire about the minor’s Indian heritage pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the order denying appellant’s petition for modification and reverse the order terminating parental rights and remand for further proceedings regarding the ICWA.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
FACTS
The nine-month-old minor was removed from parental custody in March 2007 due to appellant’s extensive substance abuse history, which included twice giving birth to children who tested positive for drugs and a current allegation of possession of methamphetamine. Appellant’s parental rights for the minor’s half siblings were terminated in 2000. At the detention hearing, appellant identified two men as possible fathers of the minor. The court ordered DHHS to identify the men and inquire about their Indian heritage.
According to the jurisdiction/disposition report, appellant denied both current substance abuse and knowledge that others were using drugs in her home, although a probation search had located methamphetamine, marijuana, scales, and baggies in the residence. DHHS referred appellant to testing shortly after the minor was removed. Appellant tested positive for methamphetamine. Appellant participated in two substance abuse assessments, first denying any drug use and later admitting she used but saying she thought it was long enough before the detention hearing that she would not test positive. Appellant stated she was working on a 12-step program. DHHS had been unable to identify either of the two men appellant suggested were possible fathers because the names were too common. Appellant was referred to substance abuse treatment but “forgot” to test as arranged.
R. H., one of the men identified as an alleged father, attended the jurisdiction hearing in April 2007 but apparently was not questioned about his Indian heritage before the matter was continued.
An addendum report of May 2007 identified R. H. as the biological father based on paternity testing. There was no indication that the social worker inquired about R. H.’s Indian heritage. At the next hearing, the court found R. H. was the minor’s biological father. On May 24, 2007, the court sustained the petition, denied services to both parents and set a section 366.26 hearing. R. H. did not appear at the hearing and, for a time, his whereabouts were unknown. However, the social worker spoke to R. H. in late June 2007.
The report for the section 366.26 hearing stated appellant had regular weekly supervised visitation with the minor and the minor appeared to enjoy the visits. The minor was in a prospective adoptive home and R. H. wanted the minor to be adopted.
Prior to the contested section 366.26 hearing, appellant filed a petition for modification alleging that she had done services on her own and tested several times a week with no positive drug tests. She alleged she was going to Narcotics Anonymous (NA), had attended a parenting class, and was compliant with her substance abuse treatment programs. She alleged she had a stable residence and a positive relationship with the minor. Appellant sought an order for services or for placement of the minor with her.
At the contested hearing in January 2008, appellant testified she began active rehabilitation from her addiction in April 2007 after the minor was removed. She was going to multiple programs, including NA where she was working on the fourth step. While appellant was able to identify the fourth step, she was unable to articulate the principles of the first three. Appellant also had difficulty remembering the issues she addressed in Strategies for Change, which included group and individual therapy, and was only able to discuss her substance abuse, parenting issues and progress in general terms. However, appellant felt the programs had helped her. Appellant testified she continued to visit the minor regularly. Although visits were supervised, she believed they were positive for the minor. Appellant stated she was currently able to care for the minor. She admitted her past use of methamphetamine and identified previous periods of sobriety and relapse. Appellant believed she would stay clean this time because she now accepted that she had a substance abuse problem, a fact she had not admitted in the past. Appellant acknowledged using methamphetamine prior to the minor’s removal but said she was unaware one of the residents of the home was selling the drug.
Various service providers testified about appellant’s progress in the programs she had attended. Family members testified appellant had changed for the better and was unlikely to abuse drugs again.
Appellant argued that her circumstances had changed; she had worked hard on programs and stayed sober. Appellant focused primarily on whether the proposed order was in the minor’s best interests and argued she could provide a stable environment for the minor who would benefit from a continuing relationship with her.
The court stated appellant was in a different position than she was at the time of the dispositional hearing but circumstances were not fully changed and it was not in the minor’s best interest to grant the proposed modification. The court noted that appellant was addressing rehabilitation to the best of her ability, observing appellant was unable to articulate specifics of her accomplishments and that recovery was going to be a long process for appellant due in part to her difficulty in remembering and articulating what she learned. The court considered the seriousness of appellant’s problem, the age of the minor, and the strength of the parent/child bond, then concluded appellant had not met her burden and denied the petition for modification. The court proceeded to adopt the recommended findings and orders and terminated parental rights.
DISCUSSION
I.
Appellant contends the court abused its discretion in denying her petition for modification because she showed changed circumstances and that the proposed order was in the minor’s best interests.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Section 388 provides, in part: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, termination of jurisdiction, or clear and convincing evidence supports revocation or termination of court-ordered reunification services, the court shall order that a hearing be held . . . .”
Among the numerous factors which the court may consider in assessing the child’s best interest are: “(1) the seriousness of the problems which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
The court considered appellant’s testimony about her progress in the context of her history of substance abuse, recovery, and relapse. By appellant’s admission she had previously been actively involved in services for less than a year after having relapsed into substance abuse while the minor was in her care. To prevail on her petition for modification, appellant had to demonstrate more than participation in services. And although it is commendable that appellant sought services on her own, she had participated in services before, and had been drug free before, only to relapse. Appellant had to demonstrate an understanding of her issues, what she had learned from the services and how the information impacted her life. This she was unable to do. Even were we to consider that appellant had demonstrated that these circumstances were changed, appellant did not present evidence that the proposed order either granting her services or returning the minor to her care was in the minor’s best interest. Appellant had a serious substance abuse problem; her potential for relapse was high. The record reflects that the minor was removed at a very young age, and despite ongoing weekly visitation, was not strongly bonded to her. The minor’s interest was in stability and permanence, which appellant was not yet able to provide. The juvenile court did not abuse its discretion in denying appellant’s petition for modification.
II.
Appellant argues that section 388 is unconstitutional as applied to her. She contends that, as a person recovering from substance abuse, her circumstances are always “changing” not “changed” and thus she can never meet the criteria for granting a petition for modification which seeks either return of the minor or renewed services.
“An as applied challenge may seek (1) relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statue or ordinance has been applied . . . . It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
Section 388 requires the petitioner to demonstrate changed circumstances in order to modify a prior court order. (§ 388.) At least one court has held that showing only changing circumstances was inadequate to meet the burden imposed by section 388. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Appellant had to seek relief from an impermissible application of section 388 and demonstrate it was being applied in an unconstitutional manner. No such challenge was raised in the juvenile court and there was no effort made to establish the circumstances of the application of the statute or a pattern of impermissible enforcement. (Tobe v. City of Santa Ana, supra, 9 Cal.4th at pp. 1083, 1085.) Without development of the relevant facts and circumstances, a reviewing court is unable to properly address the issues. (Id. at p. 1092.) The issue has thus been forfeited for failure to assert it in the trial court. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
III.
Appellant contends DHHS and the court failed to inquire about the father’s Indian heritage in violation of statute.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) The purpose of the inquiry requirement is to facilitate notice, in a proper case, to any Indian tribes which may be identified and to permit participation in the proceedings by a tribe in which the child is, or is eligible to become, a member. (25 U.S.C. § 1912; § 224.2; Cal. Rules of Court, rule 5.481(b).)
In this case, the biological father was not identified for a period of time and, until biological fatherhood was determined, no inquiry was required since the ICWA applies, with exceptions not relevant here, only to biological parents. (25 U.S.C. § 1903(9).) However, once biological paternity was established, DHHS and the court did have a duty of inquiry. DHHS had repeated contacts with the minor’s father after testing established paternity but there is nothing in the record to indicate whether any inquiry was made of the father’s Indian heritage. Reversal is required to determine if such heritage exists and, if so, to provide appropriate notice to any tribes identified.
DISPOSITION
The order denying the petition for modification is affirmed. The order terminating parental rights is reversed and the juvenile court is directed to make inquiry of the minor’s father’s Indian heritage and, if any tribe or tribes are identified, to provide notice of the proceedings to the tribe or tribes.
If no Indian heritage is disclosed, or, if after notice, it is determined the minor is not an Indian child, the order shall be reinstated. However, if the tribe determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.
We concur: BLEASE, Acting P. J. SIMS, J.