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In v. John (2011-02) Doe

July 12, 2011

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS OF JOHN (2011-02) DOE. IDAHO DEPARTMENT OF HEALTH &
WELFARE, PETITIONER-RESPONDENT,
v.
JOHN (2011-02) DOE, RESPONDENT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Honorable Carolyn M. Minder, Magistrate Judge. Honorable Mark A. Beebe, Magistrate Judge.

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

2011 Opinion No. 85

Stephen W. Kenyon, Clerk

The judgment of the magistrate court is affirmed.

John Doe appeals the magistrate court's judgment terminating his parental rights to his three minor children. We affirm.

I.

Factual and Procedural History

The magistrate court found that Appellant, John Doe (Father), neglected his children by

(1) failing to provide them with proper parental care within the meaning of I.C. § 16-

1602(25) (a), and (2) being unable to discharge his parenting responsibilities under I.C. § 16- 1602(25) (b). The court found it to be in the children's best interests to terminate his parental rights because, although there is a bond between Father and the children, the children need a stable environment that Father cannot provide.

Father is the biological father of three minor children: M.V. (approximately 14 years old), D.B. (approximately 13 years old), and A.B. (approximately 12 years old). Father has had primary custody of the children since approximately 2000, when their mother (Mother) took the children to social services in Virginia. Mother continues to reside in Virginia and is not challenging the termination of her parental rights.

Father brought the children to Idaho in approximately 2008. Mother has not seen the children since the summer of 2009 when they visited her in Virginia. Mother returned the children to Father in Idaho "because they were so violent and disruptive in her home. She said that they 'destroyed' her house putting holes in the walls, etc."

Shortly after the children's return to Idaho, Father was arrested on domestic violence charges for assaulting his then-girlfriend, Bambi, in the presence of his children. After the arrest, Bambi took the children to the residence of Karrie Lytle (Lytle), the girlfriend of Father's nephew, James Dixon. However, Lytle called the Department of Health and Welfare (the Department) on October 22, 2009, because she was unable to further care for the children. Lytle claimed M.V. assaulted her own daughter, giving her a black eye, and claimed "she could no longer care for the children due to their violent outbursts." The children were declared to be in imminent danger and placed in temporary foster care. On October 26, 2009, the Department filed a Child Protective Act petition, requesting that the children be placed in its custody. A shelter care hearing was held that same day, with Father present, and on November 3 the court entered an order granting the Department temporary custody of the children on grounds of neglect. An adjudicatory hearing was held on November 12, which Father failed to attend, resulting in an Order of Legal Custody as to Father.

The Department created a case plan for Father in December of 2009, which addressed four main areas of concern, including: (1) unstable housing and income; (2) violence while under the influence of alcohol; (3) Father's strict disciplinary practices; and (4) failure to address the children's health and educational needs. The corresponding tasks regarding these concerns required the following: (1)(a) Father must obtain and maintain a safe and stable home for himself and his children, submit to random home visits conducted by the Department, and not allow unapproved guests to stay the night at the home; (1)(b) Father must maintain employment and a source of "legitimate income" that is sufficient to support himself and his children, and provide documentation of this income; (1)(c) Father must complete an approved domestic violence evaluation and comply with its recommendations; (2) Father must complete an approved substance abuse assessment and follow treatment recommendations, and submit to random drug testing; (3) Father must complete an approved parenting class and demonstrate his learned skills during visits with the children; and (4) Father must attend medical, dental, educational, and counseling appointments for his children, maintain regular contact with the children's service providers, and cooperate with them to ensure the children's needs are being met. The magistrate court held a hearing on Father's case plan on December 21, which Father failed to attend, and the case plan was approved in January 2010. The case plan was further amended in May of 2010 to require Father to participate in a family group decision-making meeting, and to provide the Department with contact information for Father's siblings, cousins, aunts, and uncles.

In February 2010, Father completed a Risk to Child Assessment with Camilla Cafferty (Cafferty) in order to satisfy the Department's domestic violence evaluation task. This assessment identified "a history of neglectful and under-involved parenting" by Father and a denial and minimization of domestic violence, substance abuse, and anger management issues. The assessment report indicates that Father moved the children on a regular basis to the homes of his then-girlfriend. However, these relationships would end abruptly due to "an argument fueled with alcohol," leaving the family without a place to live and disrupting the children's living environment. The report also notes that Father's incarceration, as well as the placement of the children in Lytle's care after his arrest, "suggest neglect and an escalation of neglect resulting in the childrens' placement in foster care." The report indicates that Father did not accept responsibility for the children's placement in the custody of the State, which "suggests that he is in extreme denial and minimizes his lack of responsibility for protectively parenting his children." Father also expressed his expectation that M.V. "make meals and care for the younger children."

During the assessment, Father admitted to a history of drug and alcohol abuse and poor impulse control, particularly with regard to liquor. At the time of the report, Father had not completed the recommended substance abuse evaluation. Father suggested that he could continue to be around alcohol and could quit cold turkey, even though he admitted that his violent tendencies were generally associated with drinking. The report indicates that Father's own admission to substance abuse and continued noncompliance with treatment recommendations "displays extreme denial and minimization of his substance abuse issues." Furthermore, Father indicated that he does not have anger issues and that others provoke him, despite his admissions to several previous assaults. The report concludes that Father's denial of his anger management and domestic violence problems present serious issues of denial and minimization.

The assessment report recommended that Father address his lack of accountability by completing: (1) cognitive self-change programs, (2) parenting programs for behaviorally disordered children, (3) protective parenting classes, (4) a 52-week domestic violence treatment program, (5) a psychological evaluation, and (6) a substance abuse evaluation. The magistrate court held a permanency hearing on September 30, 2010, and, despite Father's objections, issued an order on October 7 approving adoption as the permanent plan for the children. In its findings, the court noted that Father had made little progress on his case plan. The children's guardian ad litem, Lynn Mattison (Mattison), recommended in her permanency report to the court that it was not in the best interest of the children to return them to Father because he had not completed a significant portion of his case plan at that time. In April 2010, Father completed a substance abuse evaluation with Sue Salmon (Salmon), after failing to show up for his first two appointments. Salmon's report indicates that Father only felt the need to address his substance abuse issues because of pressure by the State: [Father's] responses indicate minimal motivation for treatment, which suggests that motivational problems are of high clinical significance for treatment planning, and some resistance to treatment. [Father] agrees to treatment because of his CPS case. He does not think he needs treatment for ongoing support for abstinence.

It was recommended that Father attend an outpatient treatment program, complete anger management and parenting classes, and comply with his case plan. Father enrolled in an outpatient treatment program but was discharged for failing to attend a single group meeting over a thirty-day period.

The State filed a petition to terminate Father's parental rights in November of 2010. At the subsequent trial, the children's guardian ad litem testified that, although Father loves his children very much, and they love him, they continue to live in a "very chaotic existence" requiring repeated moves and stays with Father's then-girlfriend, they have inconsistent school attendance, and they have never had dental care. Mattison further testified that, even if the children were not able to find adoptive families, foster care would be preferable because "there is some structure and consistency and predictability that their lives would have that they wouldn't have if they were with their father."

All three children have documented behavioral problems, which "place them at a higher risk for future neglect and abuse" due to their heightened needs for help and support. Specifically, M.V. exhibits violent tendencies, including destroying property and assaulting other children. M.V. has been involved in the juvenile correction system with charges of fighting and shoplifting, and violated her probation as recently as October of 2010 for threatening staff at her shelter. M.V. was also diagnosed by psychologist Kimberly Parks (Parks) as a sexual abuse child victim,*fn1 and was also diagnosed with disruptive behavior disorder. D.B. "has been diagnosed with adjustment disorder with mixed anxiety and depressed mood . . . ." D.B. has also had two instances of engaging in conduct at school that would constitute sexual harassment. Finally, A.B. exhibits physically and verbally aggressive behavior towards others, and Parks testified that A.B. is diagnosed with "an adjustment disorder with mixed disturbance of emotions and conduct."

Parks testified that both D.B. and A.B.'s disorders are impacted by the added stress of foster care. Parks also testified that all the children were struggling with being in foster care, and that all three children have expressed an interest in reuniting with their Father. In fact, M.V. testified that she did not want Father's rights to be terminated and that she wants to live with him. She testified that her father is a good person, has quit swearing, and that "everything was just fine when we were all a family."

However, the children indicated that prior to their custody with the State, they had never been to a dentist or doctor. Since visiting a doctor, M.V. has been identified as suffering from gastroesophageal reflux disease (GERD), and signs of pre-diabetes. M.V. had nine fillings since entering the State's custody. Furthermore, all three children are at least one grade level behind in school.

Father's probation officer, Rick Lopez (Lopez), testified regarding Father's criminal record, which included the following: arrest for domestic battery in April of 2009 and in September of 2009; resisting an officer in 2008; misdemeanor larceny in 1998; contempt of court in 1999; trespassing in 1999; possession of marijuana in 1999; and an assault and battery in 1999 that was amended to a domestic assault. Lopez also testified that Father admitted to having a problem with alcohol and was required to submit to random urine analyses, three of which he completed successfully, but all of which were performed several days after being notified of the required test. Lopez indicated that as of July 2010, Father was not in compliance with the terms of his probation due to his failure to complete a domestic violence treatment program. Cory Cook (Cook), a licensed clinical social worker and substance abuse counselor, testified that it was only after notifying Lopez that Father had not yet enrolled in treatment that Father finally enrolled in a 52-week domestic violence program. At the time of the termination hearing, Father had attended three sessions and, although Cook testified that there was no reason to believe Father could not finish the treatment program, Cook was unwilling to recommend that Father be the primary caregiver or be allowed unsupervised visitation with the children.

Cafferty, who conducted the risk assessment, testified at trial about the findings in the assessment report. She stated that Father's profile "reflected a high risk for continued maltreatment and neglect of his children" because of his history of domestic violence, the reports of neglect and maltreatment, and a lack of accountability and responsibility on Father's behalf. The family's case worker, Julie Stadler (Stadler), also testified at trial, recommending that Father not be reunited with his children. Stadler testified that Father did not make meaningful and timely progress on his case plan. She further testified that termination was in the best interest of the children because Father is unable to meet his own basic needs and is incapable of meeting the needs of his children, particularly because the children all have behavioral problems requiring special attention. Stadler's biggest concern with reunification was the lack of stability for the children while living with Father.

Stadler testified that Father's completion of the Risk to Child Assessment did satisfy the domestic violence evaluation in Task 1(c) of his court-approved case plan. However, she testified that he did not comply with the recommendations of the assessment report, as further required by Task 1(c) of the case plan. Specifically, Father did not complete a cognitive self- change program, or an age-appropriate parenting program for children with behavior disorders. He was enrolled in a parenting program, Love and Logic, at the time of the trial,*fn2 but failed to provide a certification of completion. Father also did not complete a protective parenting class, despite having received a referral for the program. Father also failed to complete a 52-week domestic violence treatment program,*fn3 and failed to complete a psychological evaluation. Father had failed to pursue outpatient treatment for substance abuse by the time of trial.

Regarding Father's task for stable housing, Stadler testified that, upon release, Father lived in a mobile home with four other people and admitted the home was not suitable for children. In December of 2009, Father told Stadler that he would move to a female friend's three-bedroom home but never attended the meeting with Stadler following up on that move. Shortly thereafter, Father told Stadler he had an apartment in Boise but would be moving to a house with more property because he had a dog. It appears from the transcript that Father did find another home in June of 2010, but Stadler was never able to view it due to Father's unavailability. Father moved to yet another home in Meridian, in July of 2010, and continued to live there at the time of the December 2010 trial. Stadler was unable to schedule a viewing of the home until November of 2010, after the State initiated termination proceedings. Stadler identified the home as a three-bedroom double-wide trailer without any furniture. The yard contained a kennel with four pit bulls. Father was living with a woman who had not submitted to a background investigation. The woman is the mother of the person who is alleged to have sexually abused M.V. Stadler determined that Father had partially completed his housing task because he obtained a suitable residence as of July 2010, but was living with an unapproved female, who is linked to M.V.'s sexual abuser.

Regarding Father's employment task, Stadler testified that Father's initial plan was to sell cell phones with a business partner shipping the products from Japan, and that it was unlikely he could produce pay stubs for this income. Father also informed Stadler that he needed to wrap up the termination proceedings in order to move to Virginia where he had an offer to be a producer for his nephew at Def Jam Records for "hundreds of thousands of dollars." Stadler also testified that Father was unwilling to work an eight to ten dollar an hour job "when he could be making hundreds of thousands of dollars." Father did not leave the State for this employment and eventually enrolled in flagging school in June of 2010. However, Father informed Stadler in September that he had been hit by a vehicle and was receiving worker's compensation. Father never produced any proof of income and Stadler concluded that Father did not demonstrate that he was able to provide a stable source of income to support the children's needs. Stadler also testified that Father had not completed the task of his case plan regarding the parenting program required by the Department, nor the protective parenting class. Regarding the fourth task, Stadler testified that Father had not attended any of the children's dental or schooling appointments, nor had he ...


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