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Idaho Department of Health & Welfare v. John (2011-20) Doe

March 16, 2012

IDAHO DEPARTMENT OF HEALTH & WELFARE,
PETITIONER-APPELLANT,
v.
JOHN (2011-20) DOE, DEFENDANT-APPELLANT.



Appeal from the Magistrate Division of the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Ralph L. Savage, Magistrate.

The opinion of the court was delivered by: Melanson, Judge

2012 Opinion No. 15

Stephen W. Kenyon, Clerk

John Doe appeals from the magistrate's decree terminating his parental rights to his two children. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Doe has an extensive criminal history that includes multiple charges of battery, aggravated assault, malicious injury to property, and driving under the influence. Doe also has a history of gang association and controlled substance use. Doe's children were born in 2008 and in 2009. In November 2009, Doe was on probation for a malicious injury to property conviction and absconded from the Wood Project, a therapeutic court for individuals who would otherwise be sentenced to serve a period of incarceration. Thereafter, Mother did not allow Doe to see the children, and Doe did not have physical custody or care of his children.

On March 4, 2010, Doe met with Mother in a car and attempted to flee from police who had outstanding warrants for his arrest. Doe had a firearm in his possession and shot several times at a police officer. Doe then attempted to flee on foot but was arrested and charged with aggravated assault on a police officer. Doe was high on methamphetamine and alcohol at the time of this incident and tested positive for marijuana. Doe remained in jail until he was convicted of aggravated assault with an enhancement for use of a deadly weapon in July 2010, and was sentenced to a unified term of fifteen years, with a minimum period of confinement of six years. Doe's earliest parole eligibility date is March 21, 2016. However, if required to serve his entire sentence, Doe will not be released until March 20, 2025.

Beginning in January 2010, the Idaho Department of Health and Welfare received six referrals regarding neglect, physical abuse, and lack of supervision of the children by Mother. Like Doe, Mother has a history of criminal charges and controlled substance use. The last referral occurred after Mother took one of the children to the hospital in 2010 because the child ingested medication Mother took for substance abuse addiction. Mother left the hospital and did not return until the next evening. After attempting, unsuccessfully, to locate Mother from April to May and determining that the children were being primarily cared for by their teenage aunt, the Department filed a petition under the Child Protective Act (CPA), I.C. §§ 16-1601 to 16-1637, requesting that the children be placed in shelter care. On May 11, the magistrate ordered that the children be placed in shelter care. At the ensuing shelter care hearing, the magistrate court placed the children in the legal custody of the Department. A guardian ad litem was appointed on May 13.

After an adjudicatory hearing on June 10, the magistrate found that the children were Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901 to 1923, and that appropriate notice had been given to the Indian custodian, Indian Tribe, or Secretary of the Interior as required by the Act. The magistrate determined that the children came within the jurisdiction of the court under the CPA due to abandonment, neglect, or lacking a stable home environment. Determining it was in the best interest of the children, the magistrate vested legal custody in the Department. The magistrate concluded that the Department had made reasonable efforts prior to placement of the children in shelter care to prevent the need for such placement. Finally, the magistrate ordered the Department to prepare a written case plan with involvement of Doe, Mother, and the appointed guardian ad litem and scheduled a planning hearing.

After the planning hearing on July 7, the magistrate approved the case plan and ordered Doe and Mother to comply. It was agreed that the children would be placed in foster care with their maternal grandfather.*fn1 The case plan required Doe to attend all visits and doctor appointments with the children when appropriate, maintain stable employment for six months, and maintain a stable residence for more than six months in an environment safe to raise the children. Doe was also required to participate in a substance abuse assessment, receive a mental health evaluation, follow all treatment recommendations, remain free of all substances, deal with his current legal issues, refrain from further criminal activity, submit to random urinalysis tests, and participate in all available classes while incarcerated. Doe was appointed counsel on July 13. After a review hearing on November 9, the magistrate found that it was in the best interest of the children to remain in the legal custody of the Department and scheduled a permanency hearing.

A petition to terminate the parental rights of Doe and Mother was filed by the Department in April 2011. The petition requested termination on several grounds, including abandonment and neglect. After a hearing on May 9, the magistrate approved the Department's permanency plan consisting of termination of the parental rights of Doe and Mother. The magistrate also authorized the Department to suspend further efforts to reunify the children with Doe and Mother given the approved permanency plan, the length of the case, the failure of the parents to comply with their case plans, the pending hearing on the petition to terminate parental rights, and the criminal history and incarceration of Doe and Mother. Mother voluntarily consented to terminate her parental rights on August 15 prior to the hearing on the petition to terminate parental rights. The magistrate terminated Doe's parental rights on November 7. Doe appeals.

II.

STANDARD OF REVIEW

The United States Supreme Court has held that a parent's interest in maintaining a relationship with his or her child is a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982); Quilloin v. Walcott, 434 U.S. 246, 255-56 (1978). See also In re Doe, 146 Idaho 759, 761, 203 P.3d 689, 691 (2009). Concordantly, the Idaho Legislature directed "that the state of Idaho shall, to the fullest extent possible, seek to preserve, protect, enhance and reunite the family relationship." I.C. § 16-1601. Likewise, the Termination of Parent and Child Relationship Act states that "implicit in this chapter is the philosophy that wherever possible family life should be strengthened and preserved." I.C. § 16-2001(2). Additionally, in 1978 Congress passed the ICWA to address concerns surrounding the high incidence of removal of Indian children from their Indian families and tribes and the placement of Indian children in adoptive or foster homes outside of their extended families, tribes, and cultures. 25 U.S.C.A. §§ 1901, 1902.

Both the CPA and ICWA contain formalities required for the termination of parental rights. Idaho Code Section 16-2005 permits the Department to petition the court for termination of the parent-child relationship when it is in the child's best interest and any one of the following five factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities for a prolonged period that will be injurious to the health, morals, or well-being of the child; or (e) the parent is incarcerated and will remain ...


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