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In re Termination of Parental Rights and Adoption of: Doe

March 16, 2010


Appeal from the Magistrate Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. O. Lynn Brower, Magistrate Judge.

The opinion of the court was delivered by: Eismann, Chief Justice

2010 Opinion No. 21

The judgment of the magistrate court is affirmed.

This is an appeal from a judgment dismissing a petition to terminate parental rights based upon a finding that the petitioners had failed to prove that the children‟s father had willfully failed to maintain a normal parental relationship with them. We affirm the judgment.


Father and Mother were married on September 20, 1997, and divorced on January 12, 2004. They had two children during their marriage: a daughter who was about five and one-half years old at the time of the divorce and a son who was almost four years old. The divorce decree awarded joint legal and physical custody of the children to Father and Mother, with Father having overnight custody of the children about 35% of the time. Following the divorce, Father continued to have regular involvement with the children and to pay child support.

Although Father and Mother were divorced, they continued dating for several months. In April 2004, Father had a confrontation with Mother, during which he pushed her. He was charged with domestic battery, but the charge was later reduced to simple battery. He pled guilty, and Mother specifically requested that the court not enter a no contact order*fn1 so that Father could continue his regular contact with their children, which he did.

On September 11, 2004, Father engaged in a sexually explicit email "chat" with a person he believed to be a twelve-year-old girl. He made plans to meet her on September 13, 2004, in the town where she lived in order to engage in sexual conduct. When Father drove to that town to meet the twelve-year-old, he was arrested and charged with Internet Enticement of Children, a felony. The State later amended the charge to felony Injury to a Child, which avoided him having to register as a sex offender.

Father pled guilty to the amended charge, and on May 3, 2005, he was sentenced to ten years in the custody of the Idaho Board of Correction, with five years fixed and five years indeterminate. That sentence was suspended, and Father was placed on supervised probation for ten years. The conditions of probation included that he "at all times remain truthful with everyone with whom [he] deals" and that he "promptly enroll [in] and complete the SANE [Sexual Abuse Now Ended] program." The terms and conditions of the SANE program included that Father not have contact with any minor children, including his own, during the first three phases of the program. The program typically takes about three years to complete. Father did not tell Mother of these criminal charges until a few days after he was sentenced, when he informed her of what he had done and the terms and conditions of his probation.

Early in the program, Father received permission from SANE to have telephone contact with the children. Mother consented to him having limited telephone contact with the children twice, but she later revoked that consent. Father last saw the children on May 20, 2005, and he last spoke to them on September 20, 2005.

In August 2005, Mother filed a motion to modify the divorce decree by increasing child support, granting Mother sole legal and physical custody of the children, and permitting Father to have contact with the children as permitted by his terms of probation. She suggested that it include monitored telephone conversations with the children. Father stipulated to the suspension of his visitation, and on February 6, 2006, the divorce court issued orders suspending Father‟s visitation rights with the children until further order of the court and modifying the divorce decree to increase child support from $363 per month to $437 per month.

After these orders were entered, Father and Mother continued to be in contact regarding issues such as toys for the children, day-care expenses, and medical insurance. Father promptly paid debts that were brought to his attention regarding the children.

Father‟s mother (Grandmother) frequently cared for the children before and after the divorce. After April 2006, Mother prohibited Grandmother from having any contact with the children and refused to deliver gifts from Grandmother to the children. In early January 2007, Mother agreed to permit Grandmother to have limited contact with the children, but Mother ended that contact in August 2007.

On December 16, 2005, the State filed a motion to revoke Father‟s probation, apparently because he was not truthful during a polygraph examination on November 29, 2005, in which he stated that he had had sexual contact with and sexual fantasies about the parties‟ daughter. In a subsequent polygraph examination, Father admitted that those admissions were false. Father testified that he made the false admissions because it was his understanding from talking with his counselors that he had to identify a victim of his sexual misconduct and there was no actual victim. He therefore made up the false admissions concerning sexual conduct with and fantasies about his daughter. ...

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