Opinion
In this dependency proceeding, the juvenile court declared A.R. a dependent of the court and ordered him to remain in the custody of both parents under the supervision of the Santa Clara County Department of Family and Children’s Services (Department). J.R. (father), A.R.’s presumed father, and E.R., A.R.’s mother (mother) (together, parents), were not married. At disposition in January 2014, the court also ordered family maintenance services for both parents. In March 2014, father moved out of the home not pursuant to any court order. He eventually disengaged from all services without addressing his alcoholism or marijuana use. Using the Request to Change Court Order form (Judicial Council form JV-180), the Department requested modification of the court’s dispositional order that both parents receive family maintenance services. (Welf. & Inst. Code, § 388.) 1
A September 12, 2014 order made removal findings concerning removing A.R. frоm father’s physical custody. The order continued A.R. under the care, custody, and control of mother under the Department’s supervision, provided family maintenance services for only A.R. and mother, and provided supervised visitation with A.R. for father.
I
Procedural History and Facts
A. Background
On October 8, 2013, a dependency petition was filed on behalf of A.R., then four years old, under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). The initial hearing report recommended that A.R. and his half siblings remain in the home. The report stated: “While there are significant concerns regarding [father’s] alcohol abuse, domestic violence against [mother], the emotional stability of the mother, and past use of inappropriate discipline, the children appear well-dared for, and state that they feel safe in the home at this time.” It was reported that parents “acknowledge the concerns and express willingness to participate in services to make the needed changes.” At the initial hearing on October 9, 2013, the court ordered A.R. to remain released to mother and father and A.R.’s half siblings to remain released to mother on the condition that parents cooperate with the home supervision program.
On October 24, 2013, a first amended petition was filed on A.R.’s behalf under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). On November 20, 2013, a second amended petition was filed on behalf of A.R. under subdivisions (b), (c), and (j) (abuse of sibling) of section 300.
On November 22, 2013, the court issued a restraining order against father to protect mother, A.R., and two half siblings. By its own terms, the order expired at midnight on November 15, 2014.
Father and mother submitted the pending dependency petition for decision on documentary evidence. The court considered the jurisdiction/disposition
In the second addendum report to the jurisdiction/disposition report, the social worker reported that both parents “continue to demonstrate a willingness to cooperate with the Department and to make the changes needed to address the concerns that brought them to the attention of child welfare” and “[b]oth parents continue to communicate well with the Department, and to participate in all the services that have been recommended.” In her assessment, father was “committed to drug treatment and to his sobriety from alcohol at this time.”
In the second addendum report, the social worker further indicated that, on November 14, 2013, father had completed his intake at the Department of Alcohol and Drug Services and he had been referred to Pathway for treatment. He was scheduled to begin outpаtient treatment on December 31, 2013. As directed, father had been calling in every day to Norchem Sentry and he had not missed any calls since November 20, 2013. Father’s urine tests had been positive for marijuana. He had a medical marijuana card. The results of the other screens had been negative. The social worker stated that there was “no evidence that [father’s] marijuana use negatively impacts his parenting or puts his child at risk.”
According to the second addendum report, on December 17, 2013, father informed the social worker that he was attending AA meetings at least three times per week. Father was also continuing to attend the weekly parenting without violence class and weekly individual counseling sessions. He was taking Zoloft for anxiety and depression as prescribed.
In the second addendum report, the social worker continued to recommend that the juvenile court find that A.R. was a child described by subdivisions (b) and (j) of section 300, adjudge A.R. to be a dependent child of the court, and order that A.R. remain in his parents’ custody subject to the Department’s supervision. The social worker further recommended, “[b]ased upon the parents’ engagement and progress in services since the last [c]ourt hearing,” that A.R. and his parents receive family maintenance services and A.R. remain in his parents’ home.
On January 3, 2014, the juvenile court found that the allegations of the second amended petition as further amended were true and determined that A.R. was a child described by section 300, subdivisions (b) and (j). The court found the following allegations were true. “[F]ather has repeatedly perpetrated domestic violence against the mother in the family home, the father abuses alcohol, and the mother has mental health issues that interfere
The court also found true the following allegations. “[F]ather . . . has a long history of alcohol abuse including drinking to the point of blacking out on oсcasion. The father admits to having a drinking problem which he has been unable to control. The father has not been able to maintain sobriety for longer than a two to three month period. [Father’s] alcohol abuse, and resulting impaired judgment and impulse control, has contributed to the domestic violence with [mother], and places the children at risk of harm in his care.” “[M]other and father have used inappropriate disciplinary measures on the child’s half-siblings .... On at least one occasion, each sibling has been forced to kneel on beans or rice for up to twenty minutes, been forced to squat against the wall for ten to twenty minutes, and been hit five times each on the palms and backs of both the right and left hands.”
At the same hearing, the juvenile court adjudged A.R. a dependent child of the court and made the dispositional orders concerning custody and family mаintenance services. The court specifically ordered father to complete a 16-week parenting without violence class, participate in random substance abuse testing at least once a week and on-demand testing, undergo a substance abuse assessment and complete the recommended drug treatment programs, complete an aftercare drug treatment program, and develop an aftercare relapse prevention plan. It also required father to complete a 12-step program, attend meetings a minimum of three times a week with written proof of attendance, and obtain a sponsor.
On June 23, 2014, the social worker filed a “Request to Change Court Order” (hereinafter section 388 petition), seeking modification of the order providing family maintenance services to father. The basis for the rеquest was that father had not addressed substance abuse and domestic violence issues in that he continued to use alcohol and marijuana. Subsequent to November 2013, father had received positive drug tests and missed drug tests. He was not attending AA/NA meetings, he had been terminated from outpatient substance abuse treatment because he continued to use alcohol and marijuana, he had
On September 12, 2014, the court held a hearing on the section 388 petition and conducted family maintenancе review.
B. The September 12, 2014 Hearing
At the September 12, 2014 hearing, the court admitted documentary evidence, including a status review report dated May 9, 2014, and two addendum reports thereto and the report in support of 388 petition dated July 2, 2014, and two addendum reports thereto.
The status review report regarding family maintenance review indicated that on or about March 19, 2014, father had moved out of the family home at mother’s request. A.R. was residing with mother in Gilroy; father was residing in Watsonville. The social worker had asked “parents to come up with a temporary custodial agreement so that [A.R.] could continue to have his father in his life.” She reported that parents had been “civil and able to communicate” regarding A.R. The social worker was recommending that family maintenance services continue for both parents.
The status review report also disclosed that father was “having difficulties in participating fully in his case plan.” He had been “resistant to attending a 12 step program and working with a sponsor.” He was “drinking alcohol again and abusing marijuana on a daily basis.” Although father had expressed a willingness to engage in services, “his actions show that he is only willing to some extent.”
The first addendum report to the status review report stated that father had “not participated in drug testing since March 20, 2014.” The social worker had asked father to “speak with mother regarding custodial time with [A.R.]” but he had “not made the effort to come up with a schedule.” Mother estimated that father had seen A.R. about once a week and mother was usually present. Father came to dinner at her home and he had twice stayed overnight. At this point, the social worker was still recommending that family maintenance services continue for both parents.
The second addendum repоrt to the status review report stated that, although “father has shown resistance to substance abuse services, he has
In that second addendum report, the social worker further indicated that mother had shown that “she is willing and able to maintain safety for [A.R.], as she has acquired temporary restraining orders in the past and extended a peaceful contact order against the father.” Father had “not shown any violent tendencies throughout this case, even while the mother asked him to leave the home.” The social worker was recommending that the dependency case be dismissed with custody orders giving legal and physical custody to both parents and making mother’s home A.R.’s primary residence.
In the report in support of the 388 petition, dated July 2, 2014, the social worker changed her recommendations. As to the section 388 petition, she recommended that A.R. be “removed from the father,” father be allowed supervised visitation, and mother continue receiving family maintenance services. As to family maintenance review, she was recommending dismissal of the dependency case with final orders granting mother sole physical and legal custody.
The social worker reported that, since the May 23, 2013 court hearing, “father has shown a significant decline in his interest [in] spending] time with [A.R.] and an increase in risk factors regarding his ability to meet [A.R.’s] needs.” “Since testing began in November 2013, the father has tested positive for [m]аrijuana 23 times out of 34 tests.” He was no longer participating in drug testing. In June 2014, father’s substance abuse counselor
The July 2, 2014 report further disclosed that father admitted his alcohol relapse began in April 2014. In June 2014, father told the social worker that he planned to continue to drink and use marijuana. The social worker stated that father wаs “making no effort to get sober.” On a number of occasions in May and June 2014, father failed to follow through with scheduled visits. Mother did not allow A.R. to see father on Father’s Day because, when mother and father spoke the day before, father admitted he was drinking alcohol and mother’s understanding was that father would abstain from alcohol and marijuana for 24 hours prior to seeing A.R.
Father had many excuses as to why he was not following through with services and with respect to A.R. Father had not “made an effort to spend time with [A.R.]” or developed a schedule for seeing A.R. In addition to failing to show up for planned visits with A.R., father had failed to show up for a scheduled June 11, 2014 meeting with the social worker to develop a custody plan regarding A.R. Father had subsequently indicated to the social worker that his plan was to continue drinking alcohol and using marijuana except during the 24 hours before а visit with A.R. He presently wanted to see A.R. every other weekend. Father indicated that he eventually wanted to have A.R. half time when he had a house and money but he had no money and no driver’s license.
In an August 8, 2104 addendum report, the social worker made the same recommendations as she had in the previous report. She stated that father had not addressed the underlying issue of substance abuse but, in her assessment, father had made more of an effort to have contact with A.R. “By his own admission, he will continue to use alcohol though he is fully aware of his alcoholism and his tendencies to be violent, blackout, to have bad judgment and to lack control when he is under the influence.”
In a September 12, 2014 addendum report, the social worker’s recommendations with regard to the Department’s section 388 petition were unchanged. As to family maintenance review, however, the social worker now recommended continued family maintenance services for mother and supervised visitation for father.
On a more positive note, the report disclosed that father had “displayed more of an interest in seeing [A.R.] since July 2014.” In July and August 2014, father participated in several supervised visits with A.R. at the Department’s office. Fathеr had requested unsupervised visits on two occasions in July 2014 but mother had not allowed the unsupervised visits. Overnight visits with father, supervised by the paternal grandmother, had taken place every other weekend during August 2014.
The Department made the social worker available for cross-examination at the September 12, 2014 hearing. The social worker indicated father had been smoking marijuana throughout the case. Up until about March 2014, father had been complying with some of his case plan. Recently, however, father was not “doing any services.”
The social worker acknowledged that, shortly before the court-ordered family maintenance services, father “had a very violent blackout drunk episode in the household.” But she acknowledged that, to her knowledge, he had not had any subsequent drunken episodes of violence and A.R. had not ever returned “from a visit uncared fоr.” The social worker indicated that, during their visits, father played with A.R., A.R. was warm toward father, and they read together.
After being qualified as an expert in risk assessment, the social worker testified that, as far as she knew, father had been continually engaging in alcohol abuse. She indicated that father had blackouts due to alcohol consumption, he could not control his drinking when he drank, and he became violent when drinking. She was concerned that father was not in recovery, he was an alcoholic, and there was a high “potential” that he would drink again and become violent again.
As to A.R.’s visits with father, the paternal grandmother had been supervising them. If father had unsupervised contact with A.R., the child was at risk because of father’s untreated alcoholism, his ongoing substance abuse, and father’s alcohol-related behaviors, such as violence, blackouts, and impatience. She acknowledged that “when this case began and [father] also had family maintenance, [father] had an untreated drinking problem.”
At the end of the school year in June 2014, father was supposed to attend A.R.’s school field trip to visit A.R.’s new school but father did not show up. A.R. was very upset with father and refused to see or talk to him for approximately two to three weeks. The social worker subsequently supervised some visits between father and A.R.; A.R. was able to warm up to father. Since that time, A.R. had looked forward to visits with father.
Father was allowed to visit A.R. only if he had not used alcohol or marijuana within the prior 24 hours. Since father had not been drug testing, the social worker could not say whether father had been complying with that visitation restriction. Mother had disallowed a visit with A.R. because father had been drinking.
In the social worker’s opinion, the paternal grandmother could provide the structure and supervision to keep A.R. safe during visits with father. Since the court had ordered family maintenance services, the social worker had not personally seen father under the influence while he was with, or attempting to take, A.R. and she did not personally know of any reports of such behavior.
In its September 12, 2014 written order, the juvenile court found: “By clear and convincing evidence, the welfare of the child requires that his physical custody be taken from the father because there is or would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the child from the father’s physical custody.” As indicated, the court ordered A.R. to “continue under the care, custody, and control of the mother, with supervision by the Department . . . .” It also ordered, “[t]he child and the mother shall continue to receive Family Maintenance Services.” The court provided for visitation by father, supervised by the paternal grandmother, “a minimum of every other weekend, Friday-Sunday.”
The juvenile court retained dependency jurisdiction and scheduled the case for further review under section 364.
Discussion
A. Background and Governing Law
1. Child Retained in Parental Custody
“In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court mаy limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. Any limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. The limitations may not exceed those necessary to protect the child.” (§ 361, subd. (a).)
“If a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court.” (§ 362, subd. (a).) “If a child is adjudged a dependent child of the court, on the ground that the child is a person described by Section 300, and the court orders that a parent or guardian shall retain custody of the child subject to the supervision of the social worker, the parents or guardians shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court.” (§ 362, subd. (c); see
In re Pedro
Z. (2010)
“Every hearing in which an order is made placing a child under the suрervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months
At a family maintenance review hearing, “[t]he court must determine whether continued supervision is necessary.” (Rule 5.706(e)(1); see § 364, subd. (c).) It “must terminate its dependency jurisdiction unless the court finds that the petitioner has established by a preponderance of the evidence that existing conditions would justify initial assumption of jurisdiction under section 300 or that such conditions are likely to exist if supervision is withdrawn.” (Rule 5.706(e)(1).) “Failure of the parent ... to participate regularly in any court-ordered treatment program constitutes prima facie evidence that the conditions that justified initial assumption of jurisdiction still exist and that continued supervision is necessary.” (Ibid.) “If the court retains jurisdiction, the court must order continued services and set a review hearing within six months under this rule.” (Rule 5.706(e)(2); see § 364, subd. (d).) “ ‘There is no statutory [time] limit on the provision of family maintenance services if the court believes the objectives of the service plan are being met.’
(Bridget A.
v.
Superior Court
(2007)
2. Removal of a Child from Parental Custody
Section 361, subdivision (c), provides in pertinent part: “A dependent child shall not be taken
from the physical custody
of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds
clear and convincing evidence
of any of the following circumstances . . . : [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . .
The court shall consider, as a reasonable means to protect the minor, each of the following: [¶] (A) The option of removing an offending parent or guardian from the home. [¶] (B) Allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she
“The elevated burden of proof for removal from the home . . . reflects the Legislature’s recognition of the rights of parents to the care, custody and management of their children, and further reflects an effort to keep children in their homes where it is safe to do so. (See
In re Jasmine G.
(2000)
The “clear and convincing” standard specified in section 361, subdivision (c), governs the trial court but it is not the standard for appellate review.
(In re
3. Petition for Modification of Prior Order Based upon Changed Circumstances
Section 388, subdivision (a)(1), provides in pertinent part: “Any . . . person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new еvidence, 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 court previously made . . . .” “The change of circumstances may be a change in the circumstances of a parent which may make the modification of a prior order appropriate.”
(In re Daijah T.
(2000)
“The petitioner requesting the modification under section 388 has the burden of proof.” (Rule 5.570(h)(1); see
In re Stephanie M.
(1994)
A petition for modification is “committed to the sound discretion of the juvenile court, and the trial court’s mling should not be disturbed on appeal
B. Analysis
Father challenges the September 12, 2014 order, arguing that there was no relevant change in circumstances after the January 3, 2014 disposition to support modification. He asserts that, at the time of disposition, he was an admitted alcoholic, he had not yet begun treatment, he was only sporadically attending AA meetings and he had no sponsor, he was using marijuana, and he was sporadically drug testing. Father further argues that there had been a fairly recent domestic violence incident between parents (Sept. 16, 2013) at the time of disposition but there was no recent incident of domestic violence when the court ruled on the section 388 petition. Father also maintains that the court’s removal findings were not supported by substantial evidence, removаl was unnecessary because he was no longer living with mother and A.R., and the court failed to consider a less drastic alternative than removal. The Department asserts that it made the necessary showing and the September 12, 2014 order should be affirmed.
We agree that the court abused its discretion by making removal findings. We first observe that the section 388 petition did not seek to remove A.R. from father’s physical custody pursuant to section 361, subdivision (c). Rather, it asked the court to order “[t]hat the child be removed from Family Maintenance with the father and that the child remain in Family Maintenance with the mother” and that father be provided supervised visitation with A.R.
Second, although parents retained custody subject to the Department’s supervision at disposition, the evidence established that parents themselves had subsequently made custodial changes and were no longer sharing рhysical custody of A.R. In response to this court’s request for supplemental
The evidence was insufficient to support findings that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor
if the minor were returned home .
. .” and there are
no reasonable means
of protecting the minor without removal. (§ 361, subd. (c)(1), italics added.) As indicated, the statute specifies that “removing an offending parent or guardian from the home” may under the particular circumstances constitute “a reasonable means to protect the minor” without removing a child from a parent’s physical custody. (§ 361, subd. (c)(1)(A).) Here, father had already removed himself from the home. There was no evidence that father intended to move back into the home where A.R. resided with mother or that father was not abiding by mother’s limits on his visitation. Although the social worker testified that A.R. would be at risk
if
father had unsupervised contact with A.R. because of father’s untreated alcoholism, his ongoing substance abuse, and his past alcohol-related conduct, in the recent months preceding the hearing mother had not allowed father to have unsupervised visits and father had been participating in supervised visits. The September 12, 2014 addendum report indicated that “father’s visits have been appropriate.” Even viewing the evidence in a light most favorable to the juvenile court’s removal findings as required (see
In re Mariah T.
(2008)
We do not agree, however, with father’s characterization of the changed circumstances as insufficient to support modification. The Department’s dispositional recommendation that the juvenile court allow A.R. to remain in the home with family maintenance services for both parents was based on the social worker’s assessment that parents were already engaging in services and making progress. That circumstance was no longer true for father at the time the court granted the section 388 petition. Father was no longer engaging in services, he was making no progress toward achieving sobriety, and he apparently had no intentiоn of working toward the elimination of the problems giving rise to the dependency. In addition, as discussed, parents had changed their custodial arrangements in that father had moved out of the
To support modification of a prior order, “[t]he change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citation.]”
(In re S.R.
(2009)
Insofar as we can discern, the Department nevertheless suggests that the juvenile court was obligated to make removal findings before modifying its prior orders because the court’s dispositional order allowed both parents to retain сustody of A.R. and the dispositional order did not distinguish between physical custody
5
and legal custody.
6
We see no principled basis for that position under the particular circumstances of this case. With regard to family maintenance review, the Department was no longer recommending that the court terminate dependency jurisdiction and make exit orders placing A.R. in
“When a child is adjudged a dependent of the juvenile court, any issues regarding custodial rights between his or her parents shall be determined solely by the juvenile court, as specified in Sections 304, 361.2, and 362.4, so long as the child remains a dependent of the juvenile court.” (§ 302, subd. (c).) “While the child is under the jurisdiction of the juvenile court all issues regarding his or her custody shall be heard by the juvenile court. In deciding issues between the parents . . . regarding custody of a child who has been adjudicated a dependent of the juvenile court, the juvenile court may review any records that would be available to the domestic relations division of a superior court hearing that matter.”
7
(§ 304.) It is up to the Department to properly present the issue of legal custody to the court. (See
Troxel
v.
Granville
(2000)
We conclude that the juvenile court’s removal findings must be stricken because they are unsupported by substantial evidence. The error is harmless, however, because the court did not actually remove A.R. from the physical custody of father and A.R. continues in the physical custody of mother, who has always been a custodial parent.
The September 12, 2014 order is modified by striking the removal findings. As modified, the order is affirmed.
Notes
All further references are to the Welfare and Institutions Code unless otherwise specified.
All further references to the rales are to the California Rules of Court.
“When the court orders removal pursuant to Section 361, the court shall order the care, custody, control, and conduct of the child to be under the supervision of the social worker who may place the child in any” of a number of specified placements. (§ 361.2, subd. (e), italics added.) One of the placement options is “[t]he home of a noncustodial parent.” (§ 361.2, subd. (e)(1).) “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the сhild.” (§ 361.2, subd. (a).) If the child is placed with a previously noncustodial parent, the court has a number of available options, including but not limited to ordering reunification services for the parent from whom the child is being removed or ordering family maintenance services solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision. (§ 361.2, subd. (b)(3).)
Prior to its January 2014 amendment, former rule 5.570(h)(1)(A) provided: “If the request is for the removal of the child from the child’s home, the petitioner must show by clear and convincing evidence that the grounds for removal in section 361(c) exist.”
“ ‘Joint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject tо Sections 3011 [(considerations in determining a child’s best interest)] and 3020 [(legislative declaration of public policy)].” (Fam. Code, § 3004.) One of the considerations in determining a child’s best interest is “[t]he habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent.” (Fam. Code, § 3011, subd. (d).) “ ‘Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.” (Fam. Code, § 3007.)
“ ‘Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3003.) “ ‘Sole legal custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3006.) Sole physical custody to one parent can be consistent with joint legal custody. (See Fam. Code, § 3085.)
In its final order terminating dependency jurisdiction, the juvenile court may determine custody of, and visitation with, the child. (See § 362.4; rule 5.700; Judicial Council form JV-200 [mandatory Judicial Council form]; Judicial Council form JV-205 [mandatory Judicial Council form].) “Any custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4 regarding a child who has been previously adjudged to be a dependent child of the juvenile court shall be a final judgment and shall remain in effect after that jurisdiction is terminated. The order shall not be modified in a proceeding or action described in Section 3021 of the Family Code unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child.” (§ 302, subd. (d).)