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David B. v. Superior Court9/8/2004
Petitioner David B. (father) seeks writ relief from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing regarding his son David W. (David). Father asserts that the juvenile court erred in finding that it would be detrimental to place David in his custody. We find substantial evidence in the record to support the court's finding and deny the petition.
I. Background
David was removed from the custody of his mother in April 2003, when he was less than a week old. At that point, father's paternity had not been established. Father promptly sought paternity testing and asked for custody of David if the child proved to be his son. At the detention hearing, the court ordered paternity testing.
In May 2003, the juvenile court took jurisdiction over David based on allegations regarding mother's conduct. Paternity was established in June 2003, and counsel was appointed to represent father. Father, who resides in Idaho, visited David twice in June and once in July, but he told the social worker that he believed visitation was unimportant for such a young child. In August 2003, David's relative caretakers were granted de facto parent status.
Father told the Santa Clara County Department of Family and Children's Services (the Department) that he had been clean and sober for five years after a three-year period of drug use but was not attending any support programs to maintain his sobriety. However, the Department learned that father had an extensive criminal history of theft and narcotics arrests and convictions dating back to 1984. His most recent conviction was a July 2000 felony conviction for possession of methamphetamine, and he had also suffered a possession of methamphetamine conviction in 1995. Father completed his probation for the 2000 conviction in May 2003. Father's fiancee, who lived with him, had served a jail term in April 2003 for a 2001 DUI conviction and was now attending AA. She also had suffered a DUI conviction in 2000. An Idaho evaluation of father's home was in progress and was reported to be favorable.
At the social worker's request, father began random drug testing and started attending AA/NA. An early July 2003 drug test came back positive for marijuana. Father insisted that the positive result was false. All of his other drug tests were negative. Father resisted the social worker's suggestions that he pursue other services. He maintained that he required no services. In his dealings with the social worker, father demonstrated a "low frustration tolerance" and a "lack of impulse control."
At the August 2003 contested dispositional hearing, the Department sought an order granting father reunification services. It opposed father's request for immediate custody with or without services. The Department recommended that mother be denied reunification services due to her paranoid schizophrenia and that her visits be terminated because the visits were detrimental to David.
*2 The social worker testified at the dispositional hearing as an expert on risk assessment. She asserted that father's criminal history, positive drug test, lack of candor regarding his criminal and substance abuse history, volatility, low tolerance for frustration and lack of impulse control demonstrated that he was at risk for relapse and lacked the tolerance for frustration that is necessary to raise a child. The social worker was also concerned about father's attitude that visitation was unimportant.
Father and his fiancee both testified at the dispositional hearing. His fiancee minimized her alcohol problems but reluctantly admitted that she had suffered two DUI convictions in 2000 and 2001. She had been attending AA meetings for a few months as a condition of her probation. Father was also attending AA/
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