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In the Matter of the Termination of the Parental Rights of Jane (2012-05) Doe. v. Jane (2012-05) Doe

December 18, 2012

IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS OF JANE (2012-05) DOE. IDAHO DEPARTMENT OF HEALTH & WELFARE,
PETITIONER-RESPONDENT,
v.
JANE (2012-05) DOE,
RESPONDENT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cathleen MacGregor-Irby, Magistrate Judge.

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

2012 Opinion No. 143

Stephen W. Kenyon, Clerk

Magistrate Court order terminating parental rights, affirmed.

This is an appeal from the magistrate court's order terminating the appellant's parental rights with respect to her youngest child. We affirm the judgment on the ground that there was substantial and competent evidence supporting the magistrate court's findings of fact.

I. FACTUAL AND PROCEDURAL BACKGROUND

John Doe was born on September 5, 2011, and declared to be in imminent danger two days later. John's mother, Jane Doe (Mother) has had eight other children, all with her ex- husband (Father). One died shortly after birth, and the others are aged three to fifteen years old. Mother was not caring for any of these children when the Department of Health and Welfare (DHW) removed John from her care. Mother's older children have been in foster care twice and all of her other children currently live with various family members. Father is living in Colorado and does not provide support for any of his children, nor did he appear for any of the termination proceedings relating to John.

Mother was diagnosed with multiple sclerosis in 1998. Multiple sclerosis is a degenerative disease for which there is currently no cure. As Mother's multiple sclerosis progressed, it began to interfere with her ability to safely care for her children. From July 2005 through September 2012, thirty-seven child protection referrals were filed in Idaho concerning Mother and Father and their children. The referrals primarily related to inadequate supervision of the children. These referrals led to the children being placed in foster care twice, but both times Mother and Father sufficiently complied with their case plans to have their children returned to their care. The children were removed from their parents' care the first time in 2005 when Father was in Iraq and Mother was unable to adequately supervise the children on her own. The case was vacated after Father returned from Iraq and DHW placed supportive services in the home.

DHW removed the children from their parents' care for the second time in 2007 in response to reports that Mother was unable to adequately supervise the children while Father was working out of town. The children were in foster care for over a year while DHW worked with both parents to implement appropriate supportive services in their home. During that case, DHW determined that Mother was unable to demonstrate that she could independently provide for her children. Father was made the children's primary caregiver and DHW returned them to his care.

Mother and Father moved to Colorado sometime after the children's second stay in foster care. The Colorado protection agency then began receiving referrals about the family and helped place the children with family members. In 2011, Mother returned to Idaho pregnant with John, but without her husband and children.

After John was declared to be in imminent danger and removed from Mother's care, the court placed John in DHW's temporary custody pending an adjudicatory hearing. On October 10, 2011, Mother underwent a neuropsychological evaluation with Dr. Amy Latta at the court's behest. Dr. Latta found that Mother's I.Q., ability to concentrate, language functioning, and verbal memory all fell within an impaired range. At trial, Dr. Latta testified that Mother's impaired verbal memory would make it difficult for her recall statements 25 minutes after they were made. Further, Dr. Latta expressed concern that this impairment may cause Mother to forget about John and leave him unattended or in a dangerous situation if she became distracted. Dr. Latta acknowledged that there are adaptive technologies that could help a person with memory and cognitive impairments, but that Mother should not live alone or care for a child, even with these technologies. Additionally, Mother scored below the first percentile on the tests relating to executive functioning or problem solving skills. Dr. Latta testified that a person with impaired executive functioning would have significant difficulty in identifying and then meeting a child's daily demands.

Dr. Latta also testified at trial that Mother was functioning within the average range before the onset of multiple sclerosis and that her cognitive decline is likely to continue progressing with her diagnosis of multiple sclerosis. Following her evaluation of Mother, Dr. Latta recommended that the court appoint a legal guardian for her, as she was not able to take care of herself independently and did not comprehend the full extent of her impairments. Dr. Latta also made recommendations concerning medication and physical therapy that would aid Mother in dealing with her multiple sclerosis symptoms.

After the court placed John in the DHW's custody, it issued a case plan that was incorporated into its order on her legal custody of John. This case plan required Mother to follow through with Dr. Latta's recommendations, among other tasks.

A termination hearing was held on May 31, 2012. At this hearing, the social worker assigned to John's case, Pam Derby, testified extensively about her interactions with Mother and how Mother's multiple sclerosis had affected her ability to care for John. Ms. Derby testified that Mother's physical limitations and minimal problem solving skills impaired her ability to parent John. Specifically, Mother could not lift John up nor would she be able to chase after him once he became mobile. Ms. Derby also testified that Mother would need help in her home 24 hours a day, seven days a week, to care for herself and for John, but that Mother's ...


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