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In re Doe

June 28, 2010

IN THE INTEREST OF: JANE DOE, A MINOR CHILD UNDER 18 YEARS OF AGE (2009-12).
JOHN DOE AND JANE DOE I, PLAINTIFFS-RESPONDENTS,
v.
JOHN DOE I, DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District of the State of Idaho, Bonner County. Hon. Debra A. Heise, Magistrate Judge.

The opinion of the court was delivered by: Horton, Justice

2010 Opinion No. 70

The decision of the magistrate court is affirmed.

This case involves the termination of John Doe I‟s (Father) parental rights. Father is the unmarried biological father of a minor child (GP). GP‟s biological mother, Jane Doe I (Mother), together with her unmarried partner, John Doe (Step-Father), seek to terminate Father‟s parental rights in order to permit Step-Father to adopt GP. They argue that Father abandoned GP and, in the alternative, Father‟s consent was not required for Step-Father‟s adoption of GP as Father‟s parental rights never ripened. The magistrate judge found that Father had abandoned GP and terminated his parental rights. Father now appeals. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother met in 2004 and began living together in April, 2005. During that period, Mother became pregnant with GP. In July, 2005, Father‟s substance abuse and emotional instability led to a self-described breakdown. When Mother attempted to end the relationship, Father began stalking Mother, which led to entry of a no contact order. Father‟s conduct eventually resulted in misdemeanor convictions for Second-Degree Stalking and Violation of a No Contact Order, for which he was placed on supervised probation. During Mother‟s pregnancy, Father was involuntarily committed and, following his release, again hospitalized for psychiatric treatment.

GP was born in 2006. Father has never met or seen GP. Father was aware of GP‟s birth, but did not go to the hospital because of the existence of the no contact order. After GP‟s birth, Father had difficulties with probation, including failing a drug test. In April, 2006, Father finally began to address his substance abuse issues and in May, 2006, he entered and completed an in-patient treatment program. Although he had a relapse following the death of his father, he has not used alcohol since 2008 or drugs since April, 2006.

During Mother‟s pregnancy she met and began dating Step-Father. Since GP‟s birth, Mother and Step-Father have lived together and have been GP‟s care-givers.

Father has testified that he contacted an attorney to seek custody of GP but that the attorney requested a $5,000 retainer that he could not afford. He has not filed a voluntary acknowledgement of paternity with the Idaho Department of Health and Welfare. Although he testified that he filed a petition to establish paternity in 2008, the magistrate court was unable to locate a case in Bonner County or in the ISTARS (Idaho Statewide Trial Court Automated Records System) repository in which Father is named as a petitioner or plaintiff. Father also testified that he attempted to send two $200 checks to the Department of Health and Welfare but those checks were returned as there was no account to which they could apply the checks.

In November, 2008, social worker Kristina Brennan conducted a home study for GP‟s potential adoption by Step-Father. She found that Step-Father had no criminal history and none of the references Ms. Brennan contacted had any reservations about Step-Father adopting GP. She testified that GP‟s adoption would provide a sense of permanency, that she saw no detriment to the adoption, and that because Step-Father was the only father figure GP has ever known, that adoption would be in GP‟s best interests. However, Brennan testified that she did not know anything about Father; rather, her role was simply to evaluate Step-Father‟s suitability as an adoptive parent.

On October 10, 2008, Step-Father filed a petition for the termination of Father‟s parental rights. The petition acknowledged that Father was GP‟s biological father. Mother was later joined as a party to the proceedings. Trial was scheduled for April 20, 2009. On April 13, 2009, the magistrate court held a final pre-trial conference. At that time, the court ordered that all prospective witnesses and exhibits be disclosed by April 15, 2009. On April 19, 2009, counsel for Father filed a motion for a continuance alleging that the testimony of Kristina Brennan was "inherently biased" and sought the appointment of a guardian ad litem. The magistrate judge denied the motion as untimely.

The trial took place on April 20 and 29, 2009. At the opening of the second day, counsel for Father faxed the magistrate court a witness list indicating the intention to call a previously undisclosed expert witness to testify about Father‟s mental health issues. Counsel for Father argued that, because earlier testimony discussed Father‟s mental health and because of the constitutional dimensions of a termination of parental rights, the expert should be permitted to testify despite the late notice. The magistrate judge excluded the testimony as untimely and noted that the only reason that a second day of trial was required was that all of the scheduled witnesses could not be heard on the first day.

On June 29, 2009, the magistrate court entered a Memorandum Decision, Order and Judgment terminating Father‟s parental rights.*fn1 The magistrate judge found that it was undisputed that Father had not had contact with GP, nor had he ever provided any support for her, and that Father‟s mental health and substance abuse issues did not constitute just cause that justified his failure to develop a parent-child relationship. This, the magistrate judge found, constituted abandonment as defined by I.C. § 16-2002. The magistrate judge further found that termination of Father‟s parental rights was in GP‟s best interests, reasoning that Step-Father‟s adoption "will provide her with the continued stability of a ...


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