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In re Doe

Supreme Court of Idaho

November 28, 2018

JANE DOE, Respondent-Appellant. STATE OF IDAHO Petitioner-Respondent,

          Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Courtnie R. Tucker, Magistrate Judge.

         Doe's appeal is dismissed.

          Canyon County Public Defender's Office, Caldwell, for appellant. Marc Bybee argued.

          Idaho Attorney General's office, Boise, for respondent. Matthew Thompson, Deputy Attorney General argued.

          STEGNER, Justice.

         Jane Doe (Doe) appeals from an order of the magistrate court in which it awarded protective custody of Doe's three nieces and three nephews to the Idaho Department of Health and Welfare (Department). Following an adjudicatory hearing, the magistrate court found the children fell within the jurisdiction of the Child Protective Act (CPA) based on neglect, homelessness, and an unstable home environment. Doe stipulated during the hearing that it was in the best interests of the children to vest their custody with the Department. Doe appeals alleging that the judge erred in concluding the children were neglected and that the Department made reasonable efforts to prevent removal. Doe also contends her right to due process was violated because she was unable to conduct substantive discovery. Based on the reasons set out in this opinion, we conclude there is not a justiciable controversy presented. As a result, we dismiss Doe's appeal because the issues raised are moot.


         Doe is the maternal aunt and legal guardian for her sister's six biological children, who at this writing are fifteen, fourteen, eleven, eight, six, and five years of age. The children had lived with Doe for over four years at the time of the judge's ruling. Doe obtained legal guardianship over the children in April 2017. The guardianship of each of the six children was sanctioned by courts of competent jurisdiction; however, the Department was apparently not involved as a party in Doe being awarded guardianship of her sister's children.

         On March 21, 2018, Nampa City police officers, which included Officer Joel Woodward, arrived at the Starlite Motel in Nampa to serve a warrant on Doe. (The warrant was a "serve and release" warrant, the basis for which was an allegation that Doe had committed a petit theft.) At the time, Doe was living at the motel with the six children and her mother. Prior to opening the door to the unit, the officers smelled the odor of burnt marijuana. Upon the door being opened, the smell of marijuana became noticeably stronger. The unit was described as approximately twelve feet by fifteen feet, with one queen-sized bed and one bathroom. Inside the unit, the officers found clothing, trash, a deflated air mattress, and what they perceived as visible black mold on the windows and in the bathroom. The only sink, which was in the bathroom, was piled with dirty dishes. More dirty dishes were strewn about the living area. Doe and the seven other members of her household had been living in the room since August 2017.

         With the permission of Doe, the officers searched the squalid motel room. In it, they found a small amount of marijuana, two devices for smoking marijuana, and a marijuana grinder located on a nightstand. All of these items were within easy reach of the five-year-old boy who was present with his aunt (Doe) and grandmother during the search. Officer Woodward cited Doe for possession of marijuana and paraphernalia, but chose not to arrest her, nor did he serve her with the warrant for petit theft.

         Officer Woodward declared the six children to be in imminent danger, requiring their immediate removal based on Idaho Code section 16-1608. He later testified that his reasons for declaring the children to be in imminent danger included the presence of a substance he believed to be black mold, the deplorable living conditions of the motel room, and that the room and its furnishings were insufficient to house eight individuals.

         Shortly after the children were taken into State custody by the police, a multi-day shelter care hearing was conducted by the magistrate court. In addition to the facts established by Officer Woodward's report, [1] testimony was elicited that upon being placed in shelter care, the youngest child had such a severe case of head lice it necessitated his visit to a hospital emergency room because the lice were on his eyelashes and getting in his eyes. (He was prescribed medication to address the problem.) At the conclusion of that hearing, the judge found the children subject to the court's jurisdiction under the CPA due to an unstable home environment. In addition, the judge found it contrary to the children's best interests to remain in the motel room until an adjudicatory hearing could be conducted.

         The adjudicatory hearing that was held on multiple days in late-April and early-May 2018. During that hearing, Doe stipulated that it would be in the children's best interests for their custody to vest with the Department. The foster parent for two of the children also testified at the hearing that a second child (in addition to the youngest) required treatment for head lice. Further testimony was elicited that one of the children, who is legally blind without glasses and had been prescribed them, had gone two months without glasses. Finally, all but one of the other five children needed corrective lenses, but had not gotten them.

         Theresa Torres (Torres), a Child Safety Assessor with the Department, testified that the room in which the eight family members lived was kept in a "hazardous" condition. At the time of the children's removal, Torres had asked Doe about whether there were any other family members with whom the children could reside until the adjudicatory hearing, and was advised there were not. Torres testified that "given the issues with the mold, lack of storage, lack of proper food storage abilities, there was nothing immediate that could have been done" to allow the children to remain with Doe. Following the children's removal, Doe was referred to Navigation (a service operated by the Department to provide information and assistance with accessing Department resources) and an appointment had been scheduled to assist her in obtaining funding from the Department; however, Doe was unable to appear for the appointment because it conflicted with the shelter care ...

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