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In the Matter of the v. John (2012-06) Doe

February 22, 2013

IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS OF JOHN (2012-06) DOE. IDAHO DEPARTMENT OF HEALTH & WELFARE, PETITIONER-RESPONDENT,
v.
JOHN (2012-06) DOE, RESPONDENT-APPELLANT.



Appeal from the Magistrate Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. Scott Wayman, Magistrate Judge.

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

2013 Opinion No. 25

Stephen W. Kenyon, Clerk

Order terminating parental rights is affirmed.

On November 3, 2011, the Idaho Department of Health and Welfare (the Department) initiated this action to terminate the parental rights of John Doe. The matter proceeded to trial where the magistrate court found that Doe had neglected and abandoned his minor child, D.C., and that it was in the best interest of the child that Doe's parental rights be terminated. We affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

Doe is the biological father of D.C., who was born on January 25, 2008.*fn1 At the time of D.C.'s birth, Doe was incarcerated at the Idaho State Correctional Institution in Boise. Doe was released from prison on June 23, 2008, but returned to custody on July 19, 2008, due to a parole violation. Doe was released on February 26, 2010, only to reviolate his parole and to be returned to prison on June 25, 2010.

D.C. was sheltered by the Post Falls Police Department on November 9, 2010, when he was found living in a home where drugs and stolen property were discovered. At the time, he was in the custody of his paternal grandmother. The following day, the Kootenai County Prosecutor filed a petition under the Child Protective Act (CPA), requesting that the court grant temporary custody of D.C. to the Department. The petition named Doe as D.C.'s father, but Doe was apparently not served with a copy.*fn2 The petition alleged that D.C. was within the jurisdiction of the CPA due to (1) neglect; (2) abandonment; and (3) an unstable home environment.

A shelter care hearing was held on November 12, 2010. At the hearing, the court found that it was contrary to D.C.'s best interests to be returned to the home of his paternal grandmother. The court ordered that D.C. be sheltered with the Department pending further proceedings. At the shelter care hearing, the magistrate judge stated, "[w]e also have to notify the father. Even though he's incarcerated, he's entitled to have notice of these proceedings."

On December 3, 2010, the magistrate court held a hearing to adjudicate the CPA petition. Neither Doe, nor D.C.'s mother, were present at the hearing. At the conclusion of the hearing, the court ordered that the petition be granted and that D.C. be placed in the custody of the Department. A case plan hearing was held for D.C.'s mother on December 27, 2010. The court issued its case plan order for the mother on January 3, 2011, wherein it ordered the Department to take all reasonable steps, including DNA testing of Doe, to determine the identity of D.C.'s biological father.

On March 29, 2011, based on DNA testing, it was determined that Doe was the biological father of D.C. The Department informed Doe of the paternity results in a letter dated April 13, 2011. On July 18, 2011, the Kootenai County public defender filed a substitution of counsel, indicating that Daniel G. Cooper, Doe's appellate counsel, was being substituted as counsel for Doe in the CPA proceeding.*fn3 Attorney Cooper provided counsel for Doe through the remainder of the CPA proceeding, including a case plan hearing held for Doe on July 19, 2011, wherein Mr. Cooper was present before the court and Doe participated telephonically from prison. At that hearing, the court informed Doe that a case plan which had been proposed for him on May 11, 2011, would be approved by court order and that he would be expected to perform in accordance with the plan.

On October 11, 2011, during a permanency hearing for D.C., the Department requested that the court grant a permanency plan of termination of parental rights as to both parents. The magistrate found that reunification was not in the best interests of D.C., that the Department had made reasonable efforts to finalize a permanency plan, and that none of the efforts had led to a stable living situation for D.C. Thus, the magistrate authorized the filing of a petition for termination of the parental rights of both parents.

On November 3, 2011, the Department filed a petition to terminate the parental rights of the parents. Attorney Cooper filed Doe's answer to the petition on January 23, 2012. The matter was tried during seven days in May and July of 2012, and on July 9 the magistrate judge announced his decision on the court record (Decision). The magistrate found that sufficient grounds existed to terminate Doe's parental rights based on both abandonment and neglect. The magistrate also found that termination of Doe's parental rights was in D.C.'s best interests.*fn4

Doe filed a notice of appeal to this Court under I.R.C.P 83(a) and I.A.R. 12.2.

II.

ISSUES ON APPEAL

In his opening brief, Doe states the "issues presented," as follows: Did the Court and/or Idaho Department of Health & Welfare violate [Doe's] statutory rights under the Child Protection Act, thereby denying him a meaningful and adequate opportunity to reunify with his son?

This statement implies that alleged infirmities in the CPA proceeding carried over into the termination proceeding and were of sufficient magnitude to invalidate the termination order. The magistrate found that Doe's parental rights should be terminated because he neglected and abandoned D.C., and that termination was in D.C.'s best interest. Doe does not directly attack these findings but, rather, focuses his challenge to the termination order upon the Department's alleged failure: to serve a summons upon Doe in the CPA proceedings; to promptly ...


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