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In re Termination of Parental Rights of Doe

Court of Appeals of Idaho

October 2, 2013

IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS OF JOHN (2012-15) DOE.
v.
JOHN (2012-15) DOE, Respondent-Appellant. JANE DOE and JOHN DOE, Petitioners-Respondents,

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 683

Appeal from the Magistrate Division of the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Steven A. Gardner, Magistrate.

Order terminating parental rights, affirmed.

Meacham & Babcock, PLLC, Idaho Falls for appellant. Erika Lessing argued.

Gaffney Law Office, PLLC, Idaho Falls, for respondents. Tracy W. Gorman argued.

GRATTON, Judge

John Doe (Father) appeals from the magistrate's order terminating his parental rights to his two children, A.H. and H.H. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Father and Mother were married on June 26, 1999. They had two children during their marriage: A.H. born in 2000, and H.H. born in 2002. Father and Mother were divorced on February 12, 2003, and, pursuant to a settlement agreement, Mother received physical custody of the children and Father was allowed to have supervised visitation. The divorce decree was modified in 2005 to provide Mother with sole legal and physical custody. Father was allowed supervised visitation, subject to successful drug and alcohol testing at Mother's request.

Father saw his children sporadically from 2002-2004, with his last visit with the children occurring in December 2004. In September 2005, Father was arrested and charged with felony domestic battery, Idaho Code § 18-918(2)(a). Father pled guilty and the district court imposed a unified term of ten years with five years determinate. The court suspended the sentence and placed him on probation subject to 210 days in the Bonneville County Jail as a condition of probation. Father was able to serve his jail time on work release. Additionally, the district court issued a no contact order as to the children for "the duration of his probation."

While serving his jail time on work release, Father failed to report back to jail for a period of ten days. After turning himself in, Father pled guilty to a probation violation, escape, and being a persistent violator. Accordingly, his probation was revoked and he is currently incarcerated with a maximum incarceration date of February 2025.

In December 2006, Father anonymously sent his children Christmas cards from prison. Mother gave the cards to the police, believing they were in violation of the no contact order. Father's last child support obligation was paid in March 2006 as a result of a wage garnishment. He has not had any further contact with his children since his incarceration.

On November 7, 2011, Mother and her current husband (Stepfather) petitioned the magistrate for the termination of Father's parental rights pursuant to I.C. § 16-2005. Stepfather also petitioned to adopt the children. After a hearing, the magistrate granted the petition and terminated Father's parental rights as to his children. Father appeals.

II. ANALYSIS

Father claims that the magistrate erred by: (1) finding statutory grounds for termination; (2) failing to determine the applicability of the Indian Child Welfare Act, 25 U.S.C. 1901-1923 ("ICWA"); and (3) allowing the guardian ad litem to act as advocate and expert witness. Grounds for termination of parental rights must be shown by clear and convincing evidence because each parent has a fundamental liberty interest in maintaining a relationship with his or her child. Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re Aragon, 120 Idaho 606, 608-09, 818 P.2d 310, 312-13 (1991). "Clear and convincing evidence is generally understood to be '[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.'" In re Adoption of Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006) (quoting Black's Law Dictionary 577 (7th ed. 1999)). On appeal, this Court will not disturb the magistrate's decision to terminate parental rights if there is substantial, competent evidence in the record to support the decision. State v. Doe, 143 Idaho 343, 345, 144 P.3d 597, 599 (2006). "Substantial, competent evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. at 345-46, 144 P.3d at 599-600 (quoting Folks v. Moscow School Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997)). This Court is required to conduct an independent review of the magistrate court record, but must draw all reasonable inferences in favor of the magistrate's judgment, as the magistrate has the opportunity to "observe witnesses' demeanor, to assess their credibility, to detect prejudice or motive and to judge the character of the parties." Aragon, 120 Idaho at 608, 818 P.2d at 312.

A. Statutory Grounds for Termination

Father claims that the magistrate erred by finding statutory grounds for termination. Pursuant to I.C. ยง 16-2005(1), the court may terminate the parental relationship if it finds statutory grounds for termination and if it finds termination of parental rights is in the best interests of the children. Both findings must be established by clear and convincing ...


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