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Dep't of Health and Welfare v. Doe

May 28, 2010


Appeal from the District Court of the Second Judicial District of the State of Idaho, in and for Nez Perce County. The Hon. Jeff M. Brudie, District Judge; Hon. Kent J. Merica, Magistrate Judge.

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

2010 Opinion No. 58

The judgment of the district court is affirmed.

This is an appeal from a judgment terminating the parental rights of a father in three of his children. We affirm the decision of the district court upholding the judgment of the magistrate judge.


While Father and Mother (Parents) were residing in Pierce County, Washington, they had a daughter (Child One) born on July 6, 2005. The Washington Department of Social and Health Services (DSHS) removed Child One from Parents' custody on September 30, 2005. Mother has epilepsy that causes frequent seizures, ranging from dizziness and difficulty speaking to full grand mal seizures that cause convulsions and unconsciousness. DSHS removed Child One from Parents' custody because they would not follow precautions necessary to protect the baby from the consequences of those seizures. Mother refused to refrain from carrying and picking up the baby. She also refused to stop breastfeeding her baby even though her anti-seizure medication could cause neurological and organ damage to her baby. Mother became pregnant again, and Parents moved from Washington to Lewiston, Idaho, to avoid having DSHS become involved with their unborn child.

Child One remained in the custody of DSHS, which ultimately filed a petition in Washington to terminate Parents' parental rights. That matter was tried during July 2007, and on October 22, 2007, the Washington court issued a decision terminating Parents' parental rights in Child One.

Prior to the termination, DSHS had provided a variety of services to Parents, as did the Idaho Department of Health and Welfare (DHW) after Parents had moved to Idaho. The Washington court found that Parents have complex developmental disabilities, including low intellectual abilities and a lack of knowledge and skills to survive, to conduct their lives independently, and to care for their child in a safe manner. Father was diagnosed with oppositional-defiance disorder, schitzotypal personality disorder, and organic brain syndrome. His anger outbursts and behavior towards service providers caused three public health nurses to stop providing services to the family. Mother was diagnosed with depressive disorder and mild mental retardation. Although Parents completed parenting classes, they had difficulty implementing the instructed skills. The court concluded that termination of the parental relationship was in Child One's best interest and that Parents will not be able to remedy their parental deficiencies within the near future.

On November 1, 2006, Mother gave birth to a boy and a girl (Twins). The hospital personnel discussed with Parents numerous times the potential risk of organ and neurological damage to Twins from Mother's anti-seizure medication if she breast-fed them. Father became very upset during these discussions, clenching his fists and refusing to listen, and he threatened to sue anybody who tried to take Twins away. Parents stated that Mother was going to breastfeed anyway, and she began doing so while still in the hospital. DHW took Twins into custody, and on November 2, 2006, it commenced proceedings under the Child Protective Act. The matter was set for a shelter care hearing, and at that hearing the magistrate judge found that it was contrary to the health, safety, and welfare of Twins to be returned to Parents' home. The adjudicatory hearing was held on January 29, 2007. The magistrate found that Parents were unable to discharge their parental responsibilities with regard to Twins, and the court vested their custody in DHW.

After working with Parents for over a year, on February 22, 2008, DHW filed a petition to terminate Parents' parental rights in Twins. The evidentiary hearing on that petition was held during three days in April and June, 2008.

The magistrate found that Father has a low-average to borderline range of intellectual functioning, and oppositional-defiance disorder, and a schitzotypal disorder. People with these personality disorders are generally very resistive to direction, have trouble warming up to personal relationships, tend to be suspicious and paranoid, and suffer from emotional extremes. The court found that Mother suffers from a depressive disorder, has mild retardation, and epilepsy. Because of her depressive disorder and mild retardation, she tends to be tearful and unable to cope with stressful situations. With her epilepsy, she is subject to frequent and severe seizures.

Parents had case managers in their home about forty hours per week to assist with day-today living skills. Father showed one of the providers a gun and stated that he wanted to kill child protection workers in Seattle and Lewiston. As a result, DHW terminated in-home visits with Twins.

A DHW caseworker attempted to teach Parents about infant care, but she found herself repeating the same things from week to week. Parents were not receptive to instruction or direction and were unable to retain what they had been taught.

At some point during the Child Protective Act proceedings, Parents moved from Lewiston to Orofino. They did not give a credible reason for doing so. That move limited their visits with Twins and removed Parents ...

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