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In the Matter of the v. Jane (2010-28) Doe and John Doe

March 17, 2011

IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS OF JANE (2010-28) DOE AND JOHN DOE. IDAHO DEPARTMENT OF HEALTH & WELFARE, PETITIONER-RESPONDENT,
v.
JANE (2010-28) DOE AND JOHN DOE, RESPONDENTS-APPELLANTS



Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Fremont County. Hon. Gregory W. Moeller, District Judge. Hon. Penny J. Stanford, Magistrate Judge.

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

2011 Opinion No. 34

Stephen Kenyon, Clerk

The decision of the district court is affirmed.

ON THE BRIEFS

This case is an appeal from the district court's decision affirming the termination of Jane Doe's (Mother) and John Doe's (Father) parental rights. This appeal was filed prior to the rule change in 2009 that allows for a direct appeal to this Court from a magistrate's decision granting or denying a petition for termination of parental rights. I.A.R. 11.1. Bearing in mind the concerns for both the children and the parents in such cases that motivated our decision to adopt rules expediting such appeals, we have attempted to adhere to the expedited time-frame of I.A.R. 12.2. We affirm the decision of the district court which, in turn, affirmed the magistrate court's orders terminating Mother's and Father's parental rights.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father are the parents of two children and Mother is the parent of a third child by a different father.*fn1 Between April, 1999 and April, 2006, the Idaho Department of Health and Welfare (IDHW) received nine separate reports alleging that the children were being neglected. These reports related to the conditions in the family home. Beginning in 2004, IDHW was actively involved with the family, with a caseworker visiting the home and IDHW providing financial assistance by paying bills for overdue utilities, purchasing items needed for home repairs, and supplying cleaning materials. The family was also assisted by the children's teachers and teachers' aides, who would take the children to the bathroom to clean them and comb their hair before school. In April, 2006, IDHW took the children into custody. In August, 2006, Mother and Father divorced. Mother and Father briefly lived apart before Father permanently moved back into the family home and they remarried.

IDHW developed a case plan to attempt to reunite the children with their parents. Over the next two years, the children were repeatedly placed back in the home, only to have the conditions in the home rapidly deteriorate, again necessitating removal of the children. On March 2, 2008, IDHW filed the present Petition to Terminate Parental Rights. The children have been placed with Father's sister who allows Mother and Father to visit the children.

In the summons, Mother and Father were notified of their right to counsel and the right to have counsel appointed. The trial court granted their request for a court-appointed attorney who jointly represented Mother and Father throughout these proceedings. During the pendency of the proceedings, four different magistrate judges were assigned to the termination proceedings. Of these, the state moved for a recusal of the first judge under I.R.C.P. 40(d)(1) and the second and third judges issued orders of self-disqualification. A trial occurred in October, 2008, and the magistrate judge subsequently issued a memorandum decision and order terminating Mother's and Father's parental rights. The magistrate judge found that the state had shown, by clear and convincing evidence, that the children were neglected, as defined by I.C. § 16-1602(25), and that it was in the best interests of the children that Mother's and Father's parental rights be terminated. Accordingly, the trial court terminated Mother's and Father's parental rights.

Mother and Father appealed to the district court. On appeal, they did not challenge the basis for the magistrate judge's determination that their parental rights should be terminated.

Rather, they argued that separate counsel should have been appointed for Mother and Father and that the magistrate judge should have recused herself.*fn2 The district court rejected these arguments, finding that the arguments were waived as they were not raised before the magistrate judge. In the alternative, the district court held that Mother and Father had failed to show a conflict that adversely affected their representation and that they had failed to demonstrate bias on the part of the magistrate judge. The district judge consequently affirmed the magistrate court's termination order. Mother and Father now appeal to this Court.

II. STANDARD OF REVIEW

In an appeal from the district court, acting in its appellate capacity, this Court: reviews the trial court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district ...


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