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In re Doe

Supreme Court of Idaho, Boise

August 22, 2018

In the Interest of: JANE DOE II, a Child Under Eighteen (18) Years of Age. JANE DOE (2018-11), Plaintiff-Appellant, and JANE and JOHN DOE I, Counter Petitioners-Respondents and JOHN DOE, Third Party Petitioner.


          Appeal from the Magistrate Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Christopher Bieter, Magistrate Judge.

         The final decree appointing Aunt as Jane's permanent guardian is vacated. This case is remanded for a new trial.

          Whitney Welsh, Boise, and W. Christopher Pooser, Stoel Rives, LLP, Boise, attorneys for Petitioner Jane Doe. W. Christopher Pooser argued.

          C.K. Quade Law, PLLC, Boise, and Sandra L. Clapp & Associates, PA, Eagle, attorneys for Counter Petitioners-Respondents Jane and John Doe I. Charlene K. Quade argued.

          BEVAN, JUSTICE


         This appeal concerns the guardianship of a ten-year-old child, Jane Doe II ("Jane"). Both of Jane's parents passed away in 2017. Thereafter, a family friend with whom Jane and her mother had been living, ("Friend"), petitioned for guardianship. Jane's father's twin sister ("Aunt") also petitioned for guardianship. During proceedings the magistrate court appointed a local attorney, Auriana Clapp-Younggren ("Clapp-Younggren"), to serve as both the attorney and the guardian ad litem for Jane. After trial the magistrate court followed Clapp-Younggren's recommendation and awarded temporary guardianship to Friend so that Jane could finish the school year, but appointed Aunt as Jane's permanent guardian. Friend appealed the magistrate court decision.


         Jane was born in 2007. Throughout her childhood, both of Jane's parents struggled with substance abuse and had multiple encounters with the criminal justice system. Jane's parents both tried to co-parent Jane, while relying on other family members to assist them with raising her. In 2011, Jane's mother ("Mother") developed a romantic relationship with Friend's son while residing in the Idaho State Hospital. Following Mother's release from the hospital, she and Jane began living with Friend and Friend's son. Jane was four-years-old at that time. Friend is Jane's godmother, and assisted in helping Mother raise Jane while they lived with her. Evidence at trial showed that they all lived together in Boise and operated as a family unit, i.e., attending school functions, helping with homework, and providing discipline for Jane. As a result of Jane's parents relying on various family and friends to help raise Jane, Friend knew Jane's father ("Father") and his family, including Aunt.

         Aunt had a friendly relationship with Mother. Aunt was familiar with the struggles that both parents had with substance abuse, but remained supportive of their desire to co-parent Jane. In January 2017, Father suddenly and unexpectedly died. Following Father's death, in May 2017, Mother arranged for Jane to visit Aunt in Montana. After Father's death Jane and Mother continued to live with Friend. Then, on August 30, 2017, Mother relapsed and died as a result of a drug overdose.

         On Friday, September 1, 2017, Friend filed a pro se petition for guardianship of Jane. After filing the petition, Friend notified Jane's paternal family of Mother's passing. Aunt filed a petition for guardianship on the following business day, September 5, 2017.[1] The magistrate court immediately appointed Clapp-Younggren to act as a guardian ad litem and attorney for Jane. After a hearing on September 19, 2017, Friend was granted temporary guardianship of Jane until trial, which was set for January 2018.

         On November 22, 2017, Friend moved to have an attorney appointed to represent Jane pursuant to Idaho Code section 15-5-207. On November 28, 2017, the judge summarily denied the motion during a telephonic conference. Also in November, Friend and Aunt entered into a Preliminary Agreement regarding Aunt's contact with Jane, which was mediated by Clapp-Younggren. On December 10, 2017, Friend filed a motion requesting Jane be allowed to testify at the guardianship proceeding.

         On December 7, 2017, Clapp-Younggren filed the Guardian Ad Litem Initial Report. The report stated that Jane's best interests would be served by her moving to Montana with Aunt at the end of the school year. As part of determining what would be in Jane's best interest, Clapp-Younggren interviewed several people including Jane's third and fourth grade teachers, her school counselor, an outside counselor, Jane, Friend, Aunt, and Jane's grandfather. Clapp-Younggren did not visit Montana or interview anyone from Montana other than Aunt; however, Aunt provided pictures of her Montana residence as well as ...

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