IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS OF JOHN (2013-17) DOE.
JOHN (2013-17) DOE, Respondent-Appellant. IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent,
Term 2014 Opinion No. 3
Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Ralph L. Savage, Magistrate Judge.
The judgment of the magistrate court terminating Doe's parental rights is vacated and the case is remanded for further proceedings on IDHW's petition for termination.
Bonneville County Public Defender's Office, Idaho Falls, for appellant.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.
This appeal arises from a termination of parental rights based on a Consent in Abeyance (Consent). The Idaho Department of Health and Welfare (IDHW) filed a Petition for the Termination of Parental Rights after a prolonged child protection proceeding involving John Doe and his two children, S.M. and C.M. In the Consent, Doe agreed to the conditional termination of his parental rights in exchange for the magistrate court vacating the hearing set on the termination petition and having his children returned to his care on an extended home visit. Doe was subsequently arrested and the magistrate court entered a judgment terminating Doe's parental rights to both children on the grounds that Doe had signed the Consent and failed to substantially comply with its terms. Doe timely appealed. We vacate the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Doe is the father of two children, S.M., born in 2008, whose mother is Jane Doe I, and C.M., born in 2011, whose mother is Jane Doe II. The termination action arises from a child protection case that began in regard to S.M in May 2010, at which time S.M. was placed under the protective supervision of IDHW. S.M. lived in and out of foster care until July 2011, at which time the court authorized an extended home visit for S.M. in the home of Doe and Jane Doe II. In April 2012, Doe and Jane Doe II were arrested for probation violations. Both S.M. and C.M. were removed from the home and both children alternated between living with Doe and Jane Doe II and foster care placements through January of 2013.
IDHW filed a Petition to Terminate the Parental Rights of Doe as to both S.M. and C.M on January 9, 2013, alleging abandonment, neglect, and abuse. Petitions to terminate parental rights were also filed against Jane Doe I and II, however, neither is a party to this appeal.
The magistrate court directed the parties to engage in a settlement conference. As a result of negotiations, on March 18, 2013, Doe appeared before the magistrate judge and executed the Consent. The Consent provided, in pertinent part, as follows:
I understand that, upon my signing this consent, IDHW will (1) request that the termination trial set for April 22-24, 2013, be vacated, (2) withdraw its motion to suspend reunification efforts pursuant to Rule 41(j) of the Idaho Juvenile Rules (IJR) and request that the resulting order suspending reunification efforts be rescinded, and (3) request authorization to immediately commence an extended home visit, in accordance with IJR 42.
I agree to sign this consent with the understanding that it will be held in abeyance until the child protection case is dismissed, at which time the consent will also be dismissed, or until the court finds that I have failed to substantially comply with the tasks pertaining to me in the court orders and case plans listed above, at which time the consent shall be implemented by the court, or until a hearing is held on the petition to terminate my parental rights.
I agree that this consent will only be implemented if the court finds that I have not substantially complied with the requirements set forth in the case plans and court orders of the child protection case. To the extent noncompliance is alleged, the court may sua sponte make its determination, following a hearing, that I have failed to comply, or in the alternative, IDHW and/or the guardian ad litem may bring a motion in which allegations of noncompliance are raised. I understand that the determination of whether this consent is implemented shall rest with the court, and that such determination shall not be made until a hearing on the allegations of noncompliance has occurred. I agree that IDHW and/or the guardian ad litem will need to prove by a preponderance of the evidence or the court will need to find by a preponderance of the evidence that I have failed to substantially comply with all of the tasks in the case plans and the requirements set forth in the court orders from the period of time commencing on the date I sign this consent.
If the court determines, following a hearing, that I have failed to substantially comply with the tasks in the case plans and the requirements in the court orders, I agree that termination of my parental rights will be in the best interest of my children. I agree that being arrested and incarcerated
would may be a substantial violation of the requirements pertaining to this agreement. I also agree that positive urinalysis results would be a substantial violation.
In exchange for the benefits set forth herein, by signing this consent I hereby agree that IDHW has exercised reasonable efforts to reunify me with my children throughout the life of this child protection case, and I waive any requirement that may have existed that would have required IDHW to prove that such reasonable efforts were satisfied.
I understand that, absent allegations of noncompliance, this consent shall be vacated when the child ...