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In re Doe

Supreme Court of Idaho, Boise

April 24, 2018

In the Matter of: JANE DOE and JOHN DOE (2017-16), Children Under Eighteen (18) Years of Age.

         2018 Opinion No. 39

          Appeal from the District Court of the Second Judicial District of the State of Idaho, Idaho County, Hon. Jeff P. Payne, Magistrate Judge.

         The orders of the magistrate court are vacated and remanded.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant Idaho Department of Health and Welfare. Marcy J. Spilker argued.

          Idaho County Prosecuting Attorney, Grangeville, for appellant Idaho County Prosecuting Attorney. Kirk A. MacGregor argued.

          Law Office of Summer A. Emmert, P.C., Cottonwood, for appellant John Doe. Summer A. Emmert argued.

          Jessup Law, PLLC, Grangeville, for appellant Guardian Ad Litem. Matthew L. Jessup argued.

          Jones, Brower & Callery, PLLC, Lewiston, for respondents. Karin R. Seubert argued.

          HORTON, JUSTICE.

         The Idaho Department of Health and Welfare (the Department), the guardian ad litem, a minor child (L.P.), and the Idaho County prosecuting attorney appeal several orders entered by the magistrate court in a post-termination Child Protection Act (CPA) case. Following termination of the parents' rights to L.P. and his younger half-sister, E.P, the court appointed the Department as the children's guardian. The Department placed the children with Jane Doe, E.P.'s paternal grandmother, and her husband. After the latest permanency hearing, the magistrate court refused to allow the Department to modify the permanency plan for E.P., revoked the Department's guardianship for E.P, and gave direction regarding contact and visitation for E.P. This appeal challenges these orders.


         L.P. and E.P. are half-siblings who lived with their maternal grandmother until her sudden death on March 31, 2014. The Department filed a petition for custody of the children under the CPA and placed both children in the home of the Does, E.P.'s paternal grandmother and step-grandfather. The Department submitted a permanency plan identifying the goal of termination of parental rights and adoption by relative. Early in 2015, the magistrate court approved the permanency plan. After several months of tension between the Does and L.P., the Department acceded to the Does' request that L.P. be removed from their home. The Department did not inform the magistrate court of the change in circumstances for several months. Following a trial on issues of neglect, abandonment, and consent, the magistrate entered an order terminating the parental rights to both children. On September 4, 2015, the Department was designated as guardian of both children.

         In November of 2015, the Does moved to intervene in the CPA case. The magistrate judge denied the motion. The court then entered an order prohibiting the Department from removing E.P. from the Does' home without court approval. On January 8, 2016, the Department filed a report and an expert's sibling assessment that concluded the children should be placed together because of the strong attachment between them. In September 2016, the Department filed a post-termination permanency plan that requested a change in the permanency goal from adoption by relative to adoption by non-relative. Due to factual deficiencies, the magistrate judge rejected that amended permanency plan. In January 2017, the Department filed a second amended permanency plan that sought to move forward with adoption of both children by L.P.'s non-relative foster parents. After a comprehensive review of the case, the magistrate court rejected the amended permanency plan with regard to E.P. but approved it with regard to L.P., removed the Department as guardian of E.P., and appointed Jane Doe as E.P.'s guardian. This Court granted the appellants' motion for permissive appeal.


         This Court exercises free review over questions of law and matters of statutory interpretation. Guzman v. Piercy, 155 Idaho 928, 934, 318 P.3d 918, 924 (2014). We review the discretionary decisions of a trial court for abuse of discretion. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). Under this standard:

[T]his Court asks first whether the magistrate court correctly perceived the . . . issue as one of discretion; then whether the magistrate court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to the court; and finally, ...

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