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In re Doe Children

Supreme Court of Idaho

June 2, 2017

In the Matter of the DOE CHILDREN, Children Under Eighteen (18) Years of Age.
v.
JANE DOE (2016-47), Respondent-Appellant. IDAHO DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent,

         2017 Opinion No. 58

         Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. Clark A. Peterson, Magistrate Judge.

         The termination of Doe's parental rights is affirmed.

          Douglas A. Pierce, Coeur d'Alene, attorney for appellant.

          Hon. Lawrence G. Wasden, Idaho Attorney General, attorney for respondent.

          JONES, Justice.

         I. Nature of the Case

         Jane Doe ("Doe") appeals from the magistrate court's judgment granting the Idaho Department of Health and Welfare's ("IDHW") petition to terminate her parental rights. Doe asserts that the magistrate court erred by: (1) terminating her parental rights notwithstanding its finding that her mental health issues made it impossible for her to comply with the case plan; and (2) considering evidence outside of the record during the termination trial.

         II. Factual and Procedural Background

         Doe has three children, Z.C. (born 2007); J.C. (born 2008), and D.C. (born 2012) (collectively, the "Children"). On May 31, 2013, Doe voluntarily placed Z.C. and D.C. at a group foster home in Coeur d'Alene called the Children's Village. On July 17, 2013, Doe placed J.C. at the Children's Village as well.

         On January 27, 2014, a petition under the Child Protective Act was filed alleging that the Children came within the purview of the act based on neglect, abandonment, homelessness, and/or an unstable home environment. In an accompanying affidavit, IDHW social worker, Heather Johnson ("Ms. Johnson"), testified that the Children had resided at the Children's Village since their respective drop off dates in 2013. Further, Ms. Johnson related that from November 2013 through January 2014, IDHW had received several referrals from the Children's Village, including the following: (1) on November 25, 2013, it was reported that Doe had disclosed that Z.C. and J.C. were sexually abused by their father years ago (Doe later claimed this was only a misunderstanding) and that Doe was homeless at that time; (2) on January 8, 2014, it was reported that, on a weekend visit with Doe, the Children had stayed in a house with many other people, including six other children, a heater had fallen on top of D.C., Doe had failed to give D.C. his medication for an infection, D.C. returned to Children's Village with a double ear infection and cigarette butts in his toys, and concerns were raised that Doe's appearance and behavior indicated that she was under the influence of a substance; and (3) on January 17, 2014, it was reported that Doe took D.C. to the doctor for a face rash, which was a staph infection, and failed to pick up the prescription when called. Ms. Johnson's affidavit also reviewed the various child protection referrals regarding Doe and the Children, which included concerns regarding Doe's residence not having heat; Doe not being able to afford a phone, a vehicle, or food; the presence of cigarettes, and marijuana at Doe's residence; Doe left drug paraphernalia at a shelter home; Doe and the Children were homeless; Doe wanted to give up the Children because she was depressed; and a burn mark was found on Z.C.'s neck with no explanation provided by Doe.

         On January 27, 2014, IDHW moved for the removal of the Children alleging that it was contrary to the welfare of the Children to remain in the home and in the Children's best interests to vest legal custody with IDHW pending further proceedings. The magistrate court granted the motion that same day ordering that the Children be placed in the temporary custody of IDHW pending a shelter care hearing. On February 4, 2014, after a shelter care hearing, the magistrate court found it appropriate to shelter the Children based on neglect and an unstable home environment. Further, the magistrate court found that IDHW had made reasonable efforts prior to the placement of the Children in shelter care to prevent the need for such placement.

         On February 28, 2014, the magistrate court held an adjudicatory hearing and issued findings of fact, conclusions of law, and an order for legal custody. Therein, the magistrate court found that the Children had been subjected to an unstable home environment and that continuation of residence in the home would be contrary to their welfare. Prior to the adjudicatory hearing, Ms. Johnson submitted an adjudicatory report of investigation, which found as follows, in pertinent part: Doe had refused to engage in services to ensure the safety of the Children; IDHW had offered assistance to Doe to address the housing, substance abuse, mental health, and parenting concerns; Doe appeared to be under the influence of a substance during a recent visit with the Children; Doe refused to submit to a drug test; IDHW requested a mental health assessment to assess any mental health issues that may impact Doe's daily functioning, relationships, and/or ability to work or engage in meaningful activities; and an ongoing concern existed that Doe was actively using drugs.

         Ultimately, the magistrate court concluded that the Children's continuation of residence in Doe's home would be contrary to their welfare; vesting legal custody with IDHW would be in the best interests of the Children; and reasonable efforts were made by IDHW to eliminate the need for foster care, but were not successful. Accordingly, the magistrate court ordered that the Children be placed in the legal custody of IDHW; a case plan be submitted within 30 days; and reasonable efforts continue to be made to reunify the family in a timely manner in accordance with the case plan or, alternatively, the initiation of the finalization of the permanent placement of the Children. Id. During the hearing, the magistrate court noted Doe's history of drug use, mental health issues, homelessness, and her refusal to submit to drug tests or receive assistance or services from IDHW.

         On March 19, 2014, IDHW submitted a proposed case plan, which identified the following six areas of concern: (1) Doe's ability to protect the Children from further abuse, considering the fact that IDHW had received referrals regarding Doe's physical abuse, sexual abuse, neglect, homelessness, and failure to seek medical attention for D.C; (2) Doe's homelessness; (3) Doe's employment; (4) the concern that Doe had been suspected of arriving to visitations under the influence of drugs and/or alcohol and had refused to drug test or engage in substance abuse services; (5) Doe's mental health issues and her refusal to provide information of her mental health, or engage in services with IDHW; and (6) the need for a concurrent case plan in the event that reunification was unsuccessful. For each area of concern, the case plan listed a desired result and required tasks.

         On March 25, 2014, the magistrate court held a case plan hearing. The hearing log notes indicate that Doe objected to several requirements of the case plan; namely, the drug testing and the mental health assessments. The magistrate court approved the drug testing requirement because Doe had tested positive for marijuana at the time of J.C.'s birth and previously disclosed her recreational use of marijuana. The magistrate court modified the case plan's requirement for mental health assessments and required Doe to provide releases of mental health records from prior assessments instead of submitting to new assessments. The magistrate court noted that IDHW would be permitted to request further mental health assessments if it was not satisfied with Doe's release of prior assessments. Lastly, the magistrate court warned Doe that failure to comply with the case plan could result in termination of her parental rights. Following the hearing, a revised case plan was issued in accordance with the magistrate court's modifications. On April 3, 2014, the magistrate court issued an order corresponding with its findings and conclusions at the hearing.

         Four review hearings were held between June 17, 2014 and November 25, 2014. Prior to the first review hearing, the Guardian ad litem and IDHW submitted progress reports. The Guardian ad litem concluded that Doe was making only minimal progress on her case plan and was unable to appear for a drug and alcohol evaluation because she was in jail on the evaluation date. The Guardian ad litem recommended that the Children remain in the legal custody of IDHW. IDHW's progress report expressed concern regarding Doe's erratic behavior, high anxiety, and drug use. Further, IDHW noted that Doe refused to submit to drug tests and blamed IDHW for her noncompliance. IDHW reported that the Children's Village employees claimed that Doe scared them, was disrespectful, and lied. Children's Village asked that the Children be removed because they felt that they could not protect other children from Doe's poor behavior. IDHW reported that Doe had yet to prove her employment by providing pay stubs. Doe was also convicted for possession of drug paraphernalia with intent to use.

         On June 17, 2014, at the first review hearing, IDHW asserted that the mental evaluation that Doe released was incomplete; accordingly, IDHW requested that the case plan be amended to require an entire mental evaluation. Doe objected to IDHW's request and argued that she was apprehensive of IDHW's efforts for reunification because IDHW was not communicating with her, nor was it completing its required tasks. Doe also blamed the specific case worker for failing to communicate with her and for physically and emotionally abusing her. Doe admitted that she had recently spent six days in jail, but argued that her jail time was irrelevant. The magistrate court reviewed each case plan item and concluded as follows: (1) Doe had failed to provide proof of employment; (2) Doe had refused to submit to random drug testing; (3) Doe must submit to a full mental evaluation; and (4) IDHW had made reasonable efforts to accomplish reunification.

         On September 2, 2014, the magistrate court held a second review hearing. The Guardian ad litem and the IDHW case worker again submitted progress reports. The Guardian ad litem's report provided that Doe's behaviors had "progressively gotten worse since the last hearing." IDHW's report provided that Doe had failed to make progress on her case plan. IDHW's report and the hearing log notes indicate that Doe had continued to refuse to submit to a drug test; however, at the hearing, Doe agreed to submit to a drug test on the spot. She tested positive for THC. Out of a concern for Doe's mental health condition, the magistrate court scheduled a review hearing for three days later to facilitate the signing of releases and to further encourage Doe to make progress on her case plan.

         On October 14, 2014, a third review hearing was held. The Guardian ad litem reported that the Children were improving dramatically while living with the foster parent and attributed the improvement to the consistency and positive training that the Children were receiving. Further, the Guardian ad litem reported that Doe was "not addressing the most important aspects of her case plan, drug testing and a mental health assessment." Ultimately, the Guardian ad litem recommended that the magistrate court "move forward with the termination of parental rights so that permanency may be pursued." IDHW's report provided that Doe had made progress with housing because she was living with her husband in Rathrdrum, Idaho, and that the home was physically appropriate; however, Doe had failed to make progress with regard to her employment, her visitation behavior, substance abuse, parenting classes, or mental health evaluations. The hearing log notes indicate that Doe had continued to refuse drug testing and, although she had made progress by meeting with a mental health evaluator, she had yet to complete a full mental health evaluation.

         On November 25, 2014, a fourth reviewing hearing was held. The Guardian ad litem and IDHW case worker noted that the Children were progressing, but that Doe's noncompliance had continued. Accordingly, it was again recommended that the magistrate court move forward with the termination of Doe's parental rights. A letter from a mental health evaluator was attached to IDHW's report. The evaluator concluded that clear symptomology was present, but it was not possible to render an opinion on a diagnosis of mental illness because of the inability to rule out substance abuse as a primary cause of said symptomology.

         Five permanency hearings were held between January 6, 2015 and December 15, 2015. Prior to the first permanency hearing, the Guardian ad litem again reported that while the Children were progressing, Doe was failing to comply with her case plan. Accordingly, it again recommended that the magistrate court move forward with the termination of Doe's parental rights. IDHW's report was substantially similar to its previous report; that is, Doe had continued her noncompliance with the case plan. On January 12, 2015, the magistrate court issued an order regarding the permanency hearing in which it found that IDHW had made reasonable efforts to prevent or eliminate the need for placement of the Children in foster care. Further, the magistrate court approved the permanency plan of termination with the continuation of reunification efforts. IDHW filed its petition to terminate Doe's parental rights on January 16, 2015.

         On March 31, 2015, a second permanency hearing was held. The Guardian ad litem again recommended that the magistrate court move forward with the termination of Doe's parental rights due to continued noncompliance with the case plan. IDHW reported that the Children's behavior was being negatively affected by Doe's visits. Accordingly, IDHW asked the magistrate court to reconsider its approval of visitation. The magistrate court concluded that reunification should not be suspended yet, and emphasized the need for Doe to submit to the necessary services and treatment.

         On June 23, 2015, a third permanency hearing was held. Prior to the hearing, IDHW submitted a review, which ...


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