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In re Doe

November 26, 2010

IN THE MATTER OF JOHN DOE, A MINOR CHILD UNDER EIGHTEEN YEARS OF AGE.
JOHN DOE I AND JANE DOE, PETITIONERS-RESPONDENTS,
v.
JOHN DOE II, RESPONDENT-APPELLANT.



Appeal from the Magistrate Court of the Sixth Judicial District of the State of Idaho, Bannock County. The Honorable David R. Kress, Magistrate Judge.

The opinion of the court was delivered by: J. Jones, Justice.

2010 Opinion No. 120

The judgment of the magistrate court is reversed.

John Doe II appeals the magistrate court‟s judgment terminating his parental rights to his child. We reverse.

I. Factual and Procedural Background

Appellant John Doe II (Father) and Respondent Jane Doe (Mother) married in April of 2002. At the time of the marriage, Father was enlisted in the U.S. Army and the couple lived in Italy, where Father was stationed. Mother became pregnant later that year and gave birth to a son (Son) in 2003.*fn1 Father was later honorably discharged from the Army, and the family moved to Klamath Falls, Oregon, where they lived with Mother‟s parents. While living in Oregon, Father, who had also previously served in the U.S. Marine Corp., decided to re-enlist with the Marines and was temporarily assigned to a position in Klamath Falls pending deployment for training. As a result of continuing marital problems, Mother moved to Pocatello, Idaho, with Son to attend college. Father then filed for a divorce in Oregon in May of 2005. Around this same time, Father received orders from the Marine Corp. and was ultimately stationed in North Carolina. He was also required to attend training in California prior to being permanently stationed in North Carolina.

While the divorce proceedings were pending, Father filed a motion in Oregon court seeking immediate parenting time with Son. The Oregon court entered a temporary parenting time schedule allowing visitation with Son for eight hours during a weekend in July of 2005, as well as eight hours during a weekend in September of 2005. Pursuant to the parenting time schedule, the visitation was to take place in Klamath Falls, and Mother was to be responsible for transporting Son to Oregon. Father exercised his visitation rights in July, but did not exercise his visitation in September because Mother, due to her school schedule, was unable to transport Son to Oregon. The visit in July of 2005 is the last physical contact Father had with Son.

In 2006, Father and Mother stipulated to the terms of a judgment dissolving their marriage and fixing custody of Son. Pursuant to the judgment, Mother and Father were awarded joint legal custody of Son. Mother was designated as the primary residential parent and Father was granted unsupervised visitation rights. Father was responsible for paying the costs associated with traveling to Pocatello for the visits, and was also ordered to pay child support in the amount of $350 per month. In December of 2006, Mother contacted Father‟s commanding officer and arranged for the monthly child support payment to be automatically withheld from Father‟s military pay, which remained in effect up through the conclusion of the termination proceedings.

In July of 2007, Mother filed a petition for termination of Father‟s parental rights alleging that Father had abandoned Son. The termination proceedings were stayed because Father was deployed to Iraq from August 2007 until March 2008. In May of 2008, Mother married John Doe I (Stepfather). Stepfather and Mother had been dating since Son was three years old and Stepfather had developed a good relationship with Son. At some point during the course of Son‟s relationship with Stepfather, Son began to call him "Dad" or "Daddy."

Once Father returned from Iraq, Mother and Stepfather filed a second petition for termination of parental rights, again alleging abandonment.*fn2 In April of 2009, following Father‟s request to visit Son, Mother filed a motion asking the court to suspend Father‟s court-ordered visitation. In support of her motion, Mother argued that Father had not had any contact with Son for the previous four years and she felt a visit would cause Son to suffer psychological trauma. The court granted Mother‟s motion and prohibited Father from having contact with Son for the duration of the termination proceedings. Finally, Mother and Stepfather filed an amended petition for termination of parental rights, this time alleging abuse in addition to abandonment. Specifically, the petition alleged that Father had not had any contact with Son since July of 2005 and that he had previously physically and mentally abused Son. Additionally, Stepfather sought to adopt Son in the amended petition.

After conducting a trial on the petition, the magistrate court issued an order terminating Father‟s parental rights. The court found that while Father had substantially complied with his child support obligations, he had willfully failed to maintain a normal parental relationship with Son by not maintaining regular personal contact with him for a period of at least three years.*fn3 The court further found there was no just cause for Father‟s failure to maintain a normal parental relationship with the child. Additionally, the court found it was in Son‟s best interests to terminate Father‟s parental rights because Son was doing well in the custody of Mother and Stepfather, and termination and adoption were necessary to provide him with permanency and stability. The court rejected the allegations of abuse and based its decision solely on the ground of abandonment.*fn4

II. Appeal

I. Whether there is substantial, competent evidence in the record to support the magistrate court‟s decision to ...


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