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In re Termination of Parental Rights of Doe

Court of Appeals of Idaho

August 30, 2013

IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS OF JOHN (2013-09) DOE.
v.
JOHN (2013-09) DOE, Respondent-Appellant. JOHN DOE I and JANE DOE, Petitioners-Respondents,

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 650

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. George G. Hicks, Magistrate.

Order terminating parental rights, affirmed.

Terry S. Ratliff of Ratliff Law Offices, Chtd., Mountain Home, for appellant.

Brian B. Peterson of Hall, Friedly & Ward, Mountain Home, for respondents.

GUTIERREZ, Chief Judge

John Doe (Father) appeals from the magistrate's order granting John Doe I and Jane Doe's (Stepfather and Mother or Respondents) petition for termination of Father's parental rights to his minor daughter (Child). For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Child was born to Father and Mother in December 2007, in Albuquerque, New Mexico. Father and Mother were never married, and Father never resided with Mother and Child after Child's birth. Father was stationed in Virginia from July 2007 to December 2010, during which time he was deployed to Iraq for a year. Father was adjudicated to be Child's father in an order establishing custody, timesharing, and child support that was entered in August 2008 in New Mexico. In May 2009, Mother married Stepfather and moved to Mountain Home Air Force Base in Idaho. Mother provided Father with her new contact information, but Father has not had any contact with Child since, at the latest, May 2009.

In January 2012, Respondents filed a petition for termination of Father's parental rights to Child on the grounds that Father abandoned Child and that it was in Child's and Father's best interests for Father's rights to be terminated. The petition also requested Stepfather be allowed to adopt Child. Father was not represented by counsel during the initial proceedings, including at the first evidentiary hearing on the petition on May 18, 2012. In the midst of this hearing, however, the magistrate realized it neglected to advise Father that, pursuant to Idaho Code § 16-2009, Father had a right to counsel and if Father could not afford to employ counsel, counsel would be provided. After he was given this notice, Father declined counsel and the hearing proceeded. The case was continued until August 10. On August 9, Father requested a continuance, which the magistrate granted on the conditions that Father accept appointed counsel and pay for the Respondents' costs associated with the delay. Father agreed and a second hearing was held in December 2012, with Father's counsel present.

In March 2013, the magistrate issued an order terminating Father's parental rights, finding clear and convincing evidence that Father abandoned Child by failing to maintain a normal parental relationship and that it was in Child's and Father's best interests that Father's parental rights be terminated. Father now appeals the termination of his parental rights.

II.

ANALYSIS

A. Appointment of Counsel

Father contends the magistrate erred by failing to notify him of his right to counsel upon initiation of the proceedings pursuant to Idaho Code § 16-2009:

The parent . . . shall be notified as soon as practicable after the filing of a petition and prior to the start of a hearing of his right to have counsel, and if counsel is requested and the parent . . . is financially unable to employ counsel, counsel shall be provided.

Father argues the magistrate's notification of this right mid-way through the testimony of the first witness at the second hearing on May 18, was too late and resulted in a violation of his due process right to counsel. The Respondents do not dispute that the magistrate did not inform

Father of his right to counsel until the May hearing, but contend that, for various reasons, Father's due process rights were not violated.[1]

At the May 18 hearing, while Father was in the midst of his cross-examination of the first witness, Mother, the magistrate called a recess to consider another issue. Upon resumption of the hearing the magistrate indicated it reviewed the applicable statute during the break and realized that pursuant to section 16-2009, it mistakenly failed, prior to commencement of the hearing, to advise Father of his right to counsel. The magistrate then asked how Father wished to proceed upon being advised of that fact. Father indicated he attempted to obtain representation, but could not afford it and was told after he contacted various parties, including the "Court, " that he could not be appointed one or the party could not assist him. The following exchange occurred:

[Magistrate]: [A]s I read the statute, it's my duty to inform you of your right to have an attorney and it's my duty and responsibility to let you know that if you cannot afford an attorney the Court will appoint one for you at public expense. Knowing that information, I will once again ask you do you wish to have an attorney represent you? Do you want to think about that and then let me know or do you have an answer for me at this time?
[Father]: Would this have to be continued if I get an attorney or if you have to appoint an attorney?
[Magistrate]: Yes, I can't pull an attorney in here
[C]learly there would be a need to continue the matter. I mean we're talking about a matter that . . . if the Court rules against you that's pretty permanent. . . . The matter would be set over and [we would] give an opportunity for an attorney to get up to speed. We would have to reset it sometime convenient to that attorney and to [Respondents' counsel] and to the Court. So, matters would be held in abeyance until that time. This Court would also--probably . . . have to give consideration to the fact that evidence has been presented in Court in a situation where you had not been advised of that right and so, this Court may very well be in a position where it would have to recuse itself.
[Father]: I really don't want that. . . .
[Magistrate]: Well, I've created this mess myself ...

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