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In re Termination of Parental Rights of Jane (2013-05) Doe

Court of Appeals of Idaho

July 3, 2013

JANE (2013-05) DOE, Respondent-Appellant. IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent,

2013 Opinion No. 40

Appeal from the Magistrate Division of the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Bryan K. Murray, Magistrate.

Randall D. Schulthies, Bannock County Public Defender; John C. Dewey, Deputy Public Defender, Pocatello, for appellant. John C. Dewey argued.

Hon. Lawrence G. Wasden, Attorney General; James P. Price, Deputy Attorney General, Pocatello, for respondent. James P. Price argued.


Jane Doe appeals from the magistrate's order terminating her parental rights to her child, M.H. We affirm.



Doe gave birth to M.H. in November 2007. The father of M.H. died in an accident in August 2009. Doe and the father used methamphetamine together and following the father's death, Doe abused methamphetamine daily, including intravenous use. During this time, Doe often left M.H. with family members for extended periods of time. On August 29, 2011, Doe picked M.H. up from her maternal grandmother's house, where she had been staying for the previous two weeks, and went to a friend's house. Thereafter, a police officer found Doe outside the home passed out, with M.H. in the vicinity. Doe was arrested and charged with injury to a child, Idaho Code § 18-1501(1), and resisting or obstructing officers, I.C. § 18-705. M.H. was placed in the custody of the Idaho Department of Health & Welfare (Department) and has been in State custody since that time. M.H.'s foster parent is her paternal aunt, who is also the candidate for adoptive parent. Subsequently, a case plan was agreed upon by Doe and the Department and ordered by the magistrate. The case plan focused on several key areas, including parenting skills, stability, mental health, and substance abuse.

Doe was offered the opportunity to join family treatment drug court and a parenting program at Idaho State University, but did not enter either program. Additionally, Doe refused initial drug tests and assessments, but admitted to continual methamphetamine use. In 2012, Doe completed an assessment for substance abuse and qualified for inpatient treatment. However, in February 2012, prior to entering treatment, she was arrested in Bingham County and charged with possession of a controlled substance, I.C. § 37-2732(c)(1); use of a controlled substance, I.C. § 37-2732C(a); and possession of drug paraphernalia, I.C. § 37-2734A(1). As a consequence, she lost the opportunity to participate in the program.

In April 2012, Doe completed a new assessment and qualified for intense outpatient treatment. She entered treatment and was making progress; however, in June 2012, she admitted to using methamphetamine after she was caught falsifying a drug test. Doe admitted to a probation violation and was incarcerated. While in jail, Doe completed a parenting program approved by the Department and she was released from jail in July 2012. On August 27, 2012, Doe completed a substance abuse assessment and thereafter entered intensive outpatient treatment, where she began to make progress.

On September 20, 2012, the Department filed a petition to terminate Doe's parental rights to M.H. The Department sought termination on the grounds of neglect. The trial for termination occurred on November 28, 2012. At the time of trial, Doe's Bingham County charges were still pending. Following the trial, the magistrate ordered Doe's parental rights terminated on three independent grounds. First, the magistrate found grounds for termination based on neglect as defined by I.C. § 16-2002(3)(a), and its corresponding definition of conduct constituting neglect in I.C. § 16-1602(25)(a) and (b). Second, the magistrate found grounds for termination based on neglect as defined by I.C. § 16-2002(3)(b), and its corresponding time standard established by I.C. § 16-1629(9). Third, the magistrate found grounds for termination based on abandonment as defined by I.C. § 16-2002(5) because Doe willfully failed to pay child support.[1] The magistrate also determined that termination was in the best interest of the child. Doe timely appeals.



A. Standard of Review

A parent has a fundamental liberty interest in maintaining a relationship with his or her child. Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). See also Quilloin v. Walcott, 434 U.S. 246, 255 (1978). This interest is protected by the Fourteenth Amendment to the United States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). "Implicit in [the Termination of Parent and Child Relationship Act] is the philosophy that wherever possible family life should be strengthened and preserved . . . ." I.C. § 16-2001(2). Therefore, the requisites of due process must be met when the Department intervenes to terminate the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the Department prove grounds for terminating a parent-child relationship by clear and convincing evidence. Id.

Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent-child relationship only if that decision is supported by "clear and convincing evidence." Santosky v. Kramer, 455 U.S. 745, 746 (1982). See also I.C. § 16-2009; Doe, 146 Idaho at 761-62, 203 P.3d at 691-92; Doe, 143 Idaho at 386, 146 P.3d at 652.

On appeal from a decision terminating parental rights, this Court examines whether the decision is supported by substantial and competent evidence, which means such evidence as a reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243, 245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable inferences in support of the trial court's judgment when reviewing an order that parental rights be terminated. Id. The Idaho Supreme Court has also said, however, that the substantial evidence test requires a greater quantum of evidence in cases where the trial court finding must be supported by clear and convincing evidence than in cases where a mere preponderance is required. Doe v. Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood to be evidence indicating that the thing to be proved is highly probable or reasonably certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate's decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600.

Idaho Code § 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 which will be injurious to the health, morals, or well-being of the child; or (e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at 1117.

In this case, the magistrate terminated Doe's parental rights on the ground of neglect, I.C. § 16-2005(1)(b). Idaho Code § 16-2002(3) defines "neglect" in two ways. First, neglect is defined as any conduct included in section 16-1602(25). I.C. § 16-2002(3)(a). Pursuant to I.C. § 16-1602(25), a child is neglected if he or she "is without proper parental care and control, or subsistence" or if the parents "are unable to discharge their responsibilities to and for the child." Second, neglect is defined as situations where the "parent(s) has failed to comply with the court's orders in a child protective act case or the case plan, and reunification of the child with his or her parent(s) has not occurred within the time standards set forth in section 16-1629(9)." I.C. § 16-2002(3)(b). The time standard established by I.C. § 16-1629(9) is defined as when "a child is placed in the custody of the department and was also placed in out of the home care for a period not less than fifteen (15) out of the last twenty-two (22) months from the date the child entered shelter care." In this case, the magistrate found neglect pursuant to both definitions.

B. Neglect Under Idaho Code § 16-2002(3)(a)

Doe claims that the magistrate committed multiple errors by terminating Doe's parental rights on the grounds of neglect as defined by I.C. § 16-2002(3)(a). Specifically, Doe argues that: (1) the magistrate's decision to terminate was not supported by the evidence; (2) the magistrate erred by finding that the biggest issue in the case was Doe's pending Bingham County charges; (3) the magistrate erred by finding that M.H. would not be returned to Doe in the near future; (4) the magistrate erred by phrasing the issue as "[i]f not for termination is [Doe] ready to have [M.H.] back in her home"; and (5) the magistrate erred by not finding that the Department failed to make reasonable efforts to reunite the family. We discuss each issue in turn.

1. Evidence

Doe contends that the magistrate's decision is not supported by the evidence because the magistrate allegedly emphasized her past history over her recent progress. Doe has a long history of substance abuse, demonstrated inability to parent her children, and, until a few months prior to the termination hearing, failure to comply with the case plan and court orders in this case. However, as the magistrate repeatedly noted, Doe had made progress in the approximately four months prior to the hearing. Therefore, Doe asserts that ...

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