April 26, 2012; withdrawn and opinion filed June 20, 2012
Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for Canyon County. The Hon. Brian D. Lee, Magistrate Judge.
The opinion of the court was delivered by: Eismann, Justice.
The judgment of the magistrate court is reversed.
This is an appeal from a judgment terminating the parental rights of a Mexican citizen and resident whose child was born in the United States to a citizen of this country on the ground that he had abandoned the child. We reverse the judgment of the magistrate court and remand this case with directions to order the Department of Health and Welfare to promptly deliver the child to her father in Mexico.
John Doe (Father) is a citizen of Mexico who entered the United States illegally in 2003. In mid-2007, he married Jane Doe (Mother) in Payette, Idaho. Father spoke Spanish and Mother spoke English, and they needed an interpreter to converse with each other. After they were married, Father was arrested in Ontario, Oregon, when he attempted to open a bank account with a false social security number. He served three months in jail in Vale, Oregon, and was then transferred to a jail in Portland to be held for deportation. He agreed to voluntarily leave the United States and did so, returning to his parents' home in Salamanca, Guanajuato, Mexico. Mother also went to Mexico, but she returned to the United States after she became pregnant. Their child (Daughter) was born in the United States in November 2008. Mother also had a four- year-old son by another man. In March 2009, Father reentered the United States illegally in an attempt to be with his wife and Daughter, but he was caught in Arizona and returned to Mexico.
In March, 2009, Mother was living in Middleton, Idaho, with her boyfriend, who had a son who was about seven years old. On March 26, 2009, Mother and her boyfriend took his son to the hospital regarding severe bruising on his head. Because Mother and her boyfriend gave conflicting accounts of how the boy was injured, the medical personnel notified law enforcement. The investigation disclosed Mother's son had struck her boyfriend's son several times with a hairbrush. On March 27, 2009, Daughter and the boyfriend's son were taken into custody by law enforcement, and on the same day the county prosecuting attorney filed a petition under the Child Protective Act with respect to those children. The petition alleged that the name of Daughter's father was unknown and that he was in Mexico at an unknown address.
At the shelter care hearing held on March 31, 2009, Mother and her boyfriend stipulated that there was reasonable cause to believe that Daughter and boyfriend's son were abused and neglected and were therefore within the purview of the Child Protective Act. The children were then ordered to remain in the custody of the Department of Health and Welfare until the adjudicatory hearing.
On April 8, 2009, the prosecuting attorney filed an amended petition under the Child Protective Act. The amended petition added Mother's son as a child within the purview of the Child Protection Act. It alleged that Daughter and boyfriend's son were abused because Mother and her boyfriend should have known that Mother's son was physically and sexually abusing boyfriend's son and failed to protect him and that Mother's son was neglected because his parents were not providing him with necessary medical and behavioral treatment to prevent him from being a danger to others. There were no specific allegations that Daughter had been abused or neglected. The amended petition stated that the name and address of Daughter's father were unknown. On April 24, 2009, the prosecutor filed a second amended petition which added Father's name and his address in Mexico.
On May 27, 2009, Mother and her boyfriend appeared in court for an adjudicatory hearing. They stipulated that Daughter and boyfriend's son should remain in the protective custody of the Department. Pursuant to that stipulation, on June 3, 2009, the court entered a decree of protective supervision ordering that Daughter would be in the custody of the Department of Health and Welfare for an indeterminate period not to exceed her eighteenth birthday.
On June 3, 2009, Father spoke by telephone from Mexico with the Department's caseworker assigned to this case. He told her that he would like to be involved in Daughter's life and to be reunited with Mother and her son. He also said he would like Mother to begin the process that would allow him to come into the United States lawfully. The caseworker asked if he would like to take part in the Department's upcoming meeting to make a plan regarding Daughter, and Father stated that he would be available by telephone. That meeting was held the following day, and Father participated by telephone. The Department's purpose for the meeting was to arrive at a plan to reunify Daughter with Mother, the parent from whom Daughter was taken. Because Daughter had not been taken from Father, there was at that point no consideration of having her live with him. During that meeting, Father stated that he wanted Daughter returned to Mother so they could all be a family.
On June 16, 2009, Mother signed the case plan setting forth what she was required to do in order for Daughter to return to Mother's home. Although Idaho Code section 16-1621(3) states, "The plan shall state with specificity the role of the department toward each parent" (emphasis added), Father was not named as a participant in the plan, and the plan did not specify any role of the Department toward him. Father was not represented by counsel, nor had he even been made a party to the proceedings.
Father maintained monthly telephone contact with the caseworker to keep apprised of how Mother was progressing with the case plan. During the telephone conversation with the caseworker in July 2009, Father stated that Mother had not called him for about two weeks and that she may be upset because he learned that she was living with another man. He added that she had not been honest with him and wondered if she is still serious about their relationship. He also stated that he was very concerned about Daughter's welfare and would like to have some kind of ...