Opinion No. 77
from the District Court of the First Judicial District of the
State of Idaho, in and for Bonner County. Hon. Debra A.
Heise, Magistrate Judge.
judgment of the magistrate court is affirmed.
F. Brennan, James Vernon & Weeks, P.A., Coeur
d'Alene, argued for appellant.
L. Rosen, Deputy Attorney General, Coeur d'Alene, argued
an appeal out of Kootenai County from a judgment terminating
a father's parental rights in his three minor children.
We affirm the judgment of the magistrate court.
2006, John Doe ("Father") and Mother were the
parents of three minor daughters who were approximately 5, 6,
and 7 years of age. On August 8, 2006, a federal grand jury
in Idaho issued an indictment charging Father with
"caus[ing] another to travel in interstate commerce from
California to Idaho, with the intent that murder be committed
in violation of the laws of the United States and the State
of Idaho." The indictment alleged that Father had agreed
to pay another person $10, 000 to murder Mother. A jury found
Father guilty of the offense, and in a judgment entered on
August 8, 2006, the federal court sentenced him to 120 months
in the custody of the United States Bureau of Prisons and
three years of supervision following his release from prison.
The federal court also sentenced him to a fine of $17, 500.
Father's arrest and incarceration, Mother had sole
custody of their three minor daughters. Mother also had
custody of her son from a prior marriage, but he will not be
further mentioned because he turned eighteen years of age
before the termination proceedings were commenced.
21, 2013, the three daughters were approximately 12, 13, and
14 years of age. The oldest daughter was still hospitalized
following her suicide attempt. On that date, a Sandpoint
police officer received information that Mother had stabbed
herself in the face with a pen and had been talking about
killing herself. After investigating the matter, the officer
took Mother to the hospital, and he took the two younger
daughters into shelter care.
23, 2013, the prosecuting attorney filed a petition under the
Child Protective Act (CPA) regarding the two younger
daughters. The shelter care hearing was held the same day
before Magistrate Judge Lori T. Meulenberg. A public defender
had been appointed to represent both Mother and Father.
Father appeared by telephone from prison and requested
appointment of separate counsel. Therefore, the public
defender represented Mother and separate counsel was later
appointed to represent Father. All parties stipulated that
the two children came within the jurisdiction of the court
due to an unstable home environment. The Department of Health
and Welfare ("Department") requested that they
remain in shelter care, but Father objected and requested
that they be placed with his adult son in Arizona. At the
conclusion of the hearing, the court ordered that the two
children be placed in the temporary legal custody of the
adjudicatory hearing regarding the two children was held
before Magistrate Judge Debra A. Heise on August 21, 2013,
with Father and Mother represented by separate counsel. After
the hearing, the court ordered that custody of the two
children be vested in the Department for an indeterminate
period not to exceed each child's eighteenth birthday.
The court later ordered that the petition be amended to
include the oldest daughter in the proceedings. On September
16, 2013, the prosecutor filed an amended petition to add the
Department proposed separate case plans for Father and
Mother. At a hearing held before Judge Meulenberg on
September 17, 2013, Mother appeared with counsel and accepted
her case plan. Father's counsel was present, and Father
appeared by telephone. Father's case plan described the
areas of concern as follows:
[Father] was convicted of Use of Interstate Facilities in
commission of Murder-for-Hire, and has been incarcerated in
Federal prison for 7 years as of the date of this plan. In
addition, there are six reports concerning abuse of a child
and one report of sexual abuse of a child in which [Father]
was named as the alleged perpetrator. [Father] has
demonstrated significant mental health issues through
threatening behaviors, chaotic and intimidating letters
addressed to [Mother], his daughters, and prior Department
social worker. . . .
case plan provided that Father would complete various tasks,
including that he would obtain a full neuro-psychological
evaluation within sixty days of his release from prison; that
he would have no contact with the three daughters until he is
engaged in treatment after his release from prison; and that
he would not attempt to intimidate Mother, the daughters, or
any Department social worker. Father objected to the
recommended tasks and asserted that his conviction had
nothing to do with his parenting abilities. The matter was
scheduled for another hearing on February 25, 2014, to
address Father's objections. On December 12 and 19, 2013,
Father filed requests for appointment of a different attorney
to represent him. On December 30, 2013, the court appointed a
new attorney for Father.
hearing on February 25, 2014, before Judge Meulenberg, Father
appeared by telephone and took the position that he would not
participate in the case plan unless he was permitted to have
contact with his daughters. He also stated that he wanted a
new attorney. The court attempted to discuss the case plan
with Father, but he interrupted the court and stated that the
reports were false and contrived and that he was being asked
to do things that were unnecessary and inappropriate. The
court found that the case plan was the best reasonably
available option for the protection of the children and
adopted the plan. The following day, Father's counsel
moved to withdraw, and several days later Father moved to
discharge his attorney and requested that Monica Flood
Brennan be appointed to represent him. The court granted the
motions and appointed Ms. Brennan to represent Father.
Meulenberg continued having scheduled review hearings in the
case, at which Father appeared by telephone and Ms. Brennan
appeared for him in person. On August 5, September 2, and
September 29, 2014, Judge Meulenberg held a permanency
hearing at which Father appeared by telephone and through Ms.
Brennan. At the conclusion of the hearing, the court adopted
a permanency plan, which included a provision that the
Department commence proceedings to terminate Father's
parental rights in all three children. The court found that
such plan was in the best interests of the children because:
These three young women have been traumatized. They have
depression, post-traumatic stress disorder, behavioral
issues, eating disorders, and suicidal ideation. Sexual abuse
allegations have been made against the father and the mother.
All three children have consistently expressed fear of
[Father] and desire to have no communication with him. This
family is not in a place where reunification is possible at
this time. Further, it is in the best interest of the
children to be in separate homes at this time.
October, Father was released from prison and began residing
with his adult son in Arizona.
January 13, 2015, Ms. Brennan filed a motion asking the court
to reconsider its decision that the Department should
commence termination proceedings. On May 22, 2015, the court
issued an order denying reconsideration.
16, 2015, the Department filed a petition to terminate
Father's parental rights in the children. The evidentiary
hearing on the petition was scheduled before Judge Heise for
five consecutive days, from August 31 through September 4,
2015. The evidentiary hearing extended beyond the scheduled
five days to include three days in October (14–16) and
six days in January 2016 (19–22 and 28–29).
Following the hearing, the court issued a written decision
finding that the Department had proved, by clear and
convincing evidence, three independent grounds for
terminating Father's parental rights. Father then
appealed. Pursuant to Father's request, his appeal also
included the CPA proceedings.
One Ground for Termination Will Be Addressed on
trial court must find that grounds for terminating parental
rights have been proved by clear and convincing
evidence." Dep't of Health and Welfare v.
Doe, 149 Idaho 207, 210, 233 P.3d 138, 141 (2010).
"On appeal, the appellate court does not reweigh the
evidence to determine if it was clear and convincing."
Id. "In an action to terminate parental rights
where a trial court has noted explicitly and applied a clear
and convincing standard, an appellate court will not disturb
the trial court's findings unless they are not supported
by substantial and competent evidence." State v.
Doe, 144 Idaho 534, 535, 164 P.3d 814, 815 (2007).
"Substantial and competent evidence is relevant evidence
that a reasonable mind might accept to support a
conclusion." Anderson v. Harper's, Inc.,
143 Idaho 193, 195, 141 P.3d 1062, 1064 (2006). "It is
the province of the trial court to determine the credibility
of witnesses, the weight to be given their testimony, and the
inferences to be drawn from the evidence." KMST, LLC
v. Cnty. of Ada, 138 Idaho 577, 581, 67 P.3d 56, 60
Department alleged the following six grounds for terminating
Father's parental rights:
a. The parent[s] has/have abandoned the children by willfully
failing to maintain a normal parental relationship, including
but not limited to reasonable support or regular personal
b. The parent[s] has/have abandoned the children by willfully
failing to maintain a normal parental relationship with the
children for a period of one year or longer and/or;
c. The parent[s] has/have neglected the children as defined
in Idaho Code § 16-1602(25) and/or;
d. The parent[s] has/have neglected the children because the
parents have failed to comply with the court's orders in
a children protective act case or the case plan, and
reunification of the children with their parent[s] has not
occurred within the time standards set forth in Idaho Code
§ 16-1629(9) and/or:
e. The parent[s] are unable to discharge parental
responsibilities and such inability will continue for a
prolonged, indeterminate period and will be injurious to the
health, morals or well-being of the children and/or:
f. Termination is in the best interest of the parent[s] and
magistrate court found that the Department had proved three
of those grounds: (1) Father had neglected the children by
engaging in conduct defined in Idaho Code section
16-1602(28), I.C. §§ 16-2005(1)(b), 16-2002(3)(a);
(2) Father had neglected the children by failing to comply
with the case plan in the CPA proceedings, I.C. §§
16-2005(1)(b), 16-2002(3)(b); and (3) termination of the
parent-child relationship was in the best interest of Father
and the children, I.C. § 16-2005(3). The statutory
grounds are independent, and a finding of any one of ...