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In the Matter of John Doe and v. Jane Doe I (2009-21

February 25, 2011

IN THE MATTER OF JOHN DOE AND JANE DOE, MINOR CHILDREN UNDER EIGHTEEN YEARS OF AGE. IDAHO DEPARTMENT OF HEALTH & WELFARE, PETITIONER-RESPONDENT,
v.
JANE DOE I (2009-21), RESPONDENT-APPELLANT.



Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Bryan Kenneth Murray, Magistrate.

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

2011 Opinion No. 23

Stephen W. Kenyon, Clerk

Order taking jurisdiction over children pursuant to Child Protective Act, affirmed; decree vesting custody of children in Idaho Department of Health and Welfare, vacated.

Jane Doe's two children (Son and Daughter) were placed in shelter care and foster care after Son was hospitalized for physical injuries inflicted by their father, John Doe. At the shelter care hearing for each child, John and Jane Doe stipulated to their children being placed in shelter care. At the adjudicatory hearing held on October 21, 2009, the magistrate placed the children in the legal custody of the Idaho Department of Health and Welfare (the Department). At the planning hearing held on November 13, 2009, the magistrate court returned the children to Jane Doe's physical custody under an extended home visit effective November 16, 2009, while keeping the children under the legal custody of the Department. Jane Doe appeals on multiple grounds. We affirm the magistrate in taking jurisdiction over the children at both the shelter care hearings and the adjudicatory hearing; however, we reverse and vacate the magistrate's order vesting legal custody in the Department upon the conclusion of the adjudicatory hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

John and Jane Doe admitted Son to the hospital on August 26, 2009, suspecting that his leg was broken. X-rays indicated Son had a broken femur and two fractured clavicle bones and that the injuries resulted from at least two separate incidents. Initially, neither parent took responsibility for the injury. On September 29, 2009, law enforcement declared Son to be in imminent danger, and the Bannock County Prosecutor's Office filed a petition under the Child Protective Act (CPA) asking the magistrate court to: (1) determine whether Son should be placed in shelter care; and (2) place Son in the legal custody of the Department. On September 30, 2009, John Doe admitted to the police that he purposely injured Son on multiple occasions due to anger problems he had when Son would not stop crying. John Doe explained that none of the incidents took place in the presence of Jane Doe but that Daughter was present during each incident.

On October 1, 2009, the Bannock County Prosecutor's Office filed a CPA petition asking the magistrate to place Daughter in shelter care, place her in the legal custody of the Department and remove her from her home. In an affidavit attached to the petition, a Department social worker recommend that Daughter be placed in temporary custody, pending a shelter care hearing, due to Son's injuries and the risk of harm to Daughter. That day, the magistrate court ordered that Daughter be taken into the temporary custody of the Department and found that Daughter should be removed from the home in order to protect her welfare, that Daughter's continuation in the home would be contrary to her welfare and that the Department made reasonable efforts to eliminate the need for removal. On October 6, 2009, the magistrate consolidated the children's cases.

The notice for both shelter care hearings sent to John and Jane Doe provided "you have the right to appear at the Shelter Care Hearing and to be represented by legal counsel." On September 30, 2009, the magistrate appointed public defenders to both parents. The order appointing counsel notified Jane Doe that she should call the public defender's office within two days to set up an appointment and stressed the importance of contacting the office in order to be fully represented.

On October 13, 2009, the magistrate issued shelter care orders consistent with the stipulations of the parties, ordering that Daughter and Son be placed in the Department's legal custody until the adjudicatory hearing. On October 15, 2009, the Bannock County Public Defender's Office submitted a motion to withdraw from representing Jane Doe on the ground that it had a conflict of interest because it was representing John Doe. The magistrate granted the motion to withdraw. Also on October 15, Reed Bradley Willis filed a notice of appearance on behalf of Jane Doe.

On October 21, 2009, an adjudicatory hearing was held pursuant to the CPA. Willis appeared as Jane Doe's attorney at the hearing. One of the officers to whom John Doe confessed testified that he thought Jane Doe was aware of Son's injuries but that she did not know how they occurred and that she promptly took Son to the hospital. The magistrate issued a decree on October 28, 2009, vesting legal custody of the children in the Department. The magistrate found that it had jurisdiction over Son because of the abuse inflicted by John Doe and that it had jurisdiction over Daughter pursuant to I.C. § 16-1603(2) because Daughter lived in the same house as Son and was exposed to or was at risk of being a victim of abuse, neglect or abandonment. The magistrate also found that it was contrary to their welfare for the children to remain in the home, that no safety plan was advanced by any party as to how the children could go home and that it was in the children's best interest to vest legal custody in the Department. In deciding to vest legal custody in the Department, the magistrate stated that while there were no allegations or evidence that Jane Doe abused the children, her apparent innocence did not stop the Court from acting to protect the children. The magistrate ordered the Department to make reasonable efforts to return the children to Jane Doe.

On November 10 and 13, 2009, the magistrate held disposition hearings pursuant to the CPA. While the magistrate kept the children in the Department's legal custody, the magistrate ordered an immediate thirty-day extended home visit for the children. On December 9, 2009, at the Case Plan Review Hearing, the magistrate extended the home visit from thirty days to sixty days. Jane Doe appealed to this Court.

II. STANDARD OF REVIEW

The Supreme Court reviews the magistrate court record to determine whether there is substantial, competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008).

A "decision will be upheld if it appears that the trial court (1) correctly perceived the issue as discretionary, (2) acted within the boundaries of its discretion and consistent with the applicable legal standards, and (3) reached its determination through an exercise of reason." Eby v. State, 148 Idaho 731, 734, 228 P.3d 998, 1001 (2010).

III. ANALYSIS

A. The magistrate did not violate Jane Doe's right to counsel at the shelter care hearings.

Jane Doe argues that the magistrate violated her right to counsel at both shelter care hearings. Jane Doe acknowledges that the magistrate appointed counsel to her for both cases, but she claims that she was never given a meaningful opportunity to exercise that right because she was not afforded an opportunity to meet with her attorney and seek legal advice prior to stipulating to each child's placement in shelter care. Constitutional issues are questions of law over which this Court exercises free review. City of Idaho Falls v. Fuhriman, 149 Idaho 574, ,237 P.3d 1200, 1202 (2010).

When a child is taken into shelter care, the court must hold a shelter care hearing within forty-eight hours to determine whether the child should be released or held in shelter care. I.C. § 16-1608. Each parent from whom the child was removed must be given notice of the shelter care hearing, and that notice shall include "that such person is entitled to be represented by legal counsel." I.C. § 16-1615(2). In compliance with I.C. § 16-1615(2), the notices for Son's and Daughter's shelter care hearings were sent to Jane Doe and included the following language, "you have the right to appear at the Shelter Care Hearing and to be represented by legal counsel." Idaho Juvenile Rule 39(g) provides that at the time of the shelter care hearing, the court must advise the parent of the right to be represented by counsel and, if they are financially unable to hire counsel, of the right to be represented by a court-appointed attorney. At the outset of the Son's shelter care hearing on September 29, 2009, the magistrate had the following exchange with John and Jane Doe:

COURT: In civil cases, we normally don't appoint attorneys to represent parents, but in child protection cases because it involves a child, parental rights, those types of things, the law allows me to appoint attorneys to represent parents because they are conflict type cases. Are you going to hire your own attorneys to represent you?

[JOHN DOE]: No.

COURT: It would be important to have an attorney. Can you afford an attorney?

[JOHN DOE]: Not right now.

COURT: Okay. Do you want me to appoint an attorney to represent you? [JOHN DOE]: Yes, sir.

COURT: I can appoint an attorney to represent [you and Jane Doe] or a different attorney to represent each of you individually. Sometimes parents have different opinions as to what should happen.

[JOHN DOE]: Just an attorney for the both of us.

COURT: Okay, and then I'll let that attorney decide if they think after meeting with you that two attorneys would be more appropriate, they can refer it out to a separate. So, I'll appoint a public defender to represent you. I have a booklet for each of you that reviews child protection cases. If you could read that and then review it, it will answer some of your questions and also help you in communicating with your attorney about this proceeding. You do not have attorneys with you here today though. I didn't receive a request or anything for them as was provided in the notice. At this time the State is still requesting shelter care and I have to decide what happens with the child until we can have another hearing. Do [sic] either of you have an objection to [Son] remaining in the custody of the State temporarily until we can fully review this matter?

[JANE DOE]: No, sir.

[JOHN DOE]: No, sir.

The magistrate appointed an attorney to the Does and ordered them to contact the public defender's office within forty-eight hours to meet with their attorney.

At the outset of Daughter's shelter care hearing on October 2, 2009, the magistrate had the following exchange with Jane Doe:

COURT: [A]s you're aware, an attorney is available. Can I appoint an ...


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