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In re Doe

Supreme Court of Idaho

March 12, 2019

In the Matter of: John Doe I and Jane Doe I, Children Under Eighteen (18) Years of Age.
JANE DOE, Respondent-Appellant. IDAHO DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent, In the Matter of: John Doe I and Jane Doe I, Children Under Eighteen (18) Years of Age. IDAHO DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent,
JOHN DOE, Respondent-Appellant

          Appeal from the Magistrate Division of the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Michael Lojek, Magistrate Judge.

         The judgments of the magistrate court are affirmed.

          Anthony R. Geddes, Ada County Public Defender, Boise, Joshua M. Wickard, Deputy Public Defender, attorney for Appellant, Mother.

          Ellsworth, Kallas & DeFranco, Boise, John C. DeFranco, attorney for Appellant, Father.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for Respondent.

          BEVAN, Justice.

         I. Nature of the Case

         John Doe ("Father") and Jane Doe ("Mother") appeal judgments from the magistrate court terminating their parental rights to two children ("D.E." and "T.E."). The magistrate court terminated Mother and Father's parental rights on the grounds of neglect and found that termination would be in the best interests of the children. Mother challenges the termination of her parental rights to both children, alleging the magistrate court's decision was not supported by substantial and competent evidence and that her due process rights were violated when a microphone malfunctioned on days three and four of the termination hearing, resulting in no audio recording for those days. Father asserts the magistrate court erred in denying him a jury trial and in allowing admission of a police video over his objection. He also alleges that the magistrate court erred in finding that he failed to comply with his case plan and that the magistrate court's decision to cease reasonable efforts and visitation was unreasonable. We affirm the magistrate court's judgments.

         II. Factual and Procedural Background

         On about June 3, 2015, the Idaho Department of Health and Welfare ("IDHW") received a report from a confidential source that there was a potential methamphetamine lab or possible methamphetamine use in Mother and Father's residence. The report included concerns for the safety of a child also residing in the home. The house was described as a "hoarder home."

         On June 5, a safety assessor visited the home and expressed concerns for the safety of then two-year-old, D.E., whom Mother and Father agreed should reside with Father's parents while IDHW, Mother, and Father developed a safety plan. In an effort to eliminate the need for shelter care, IDHW scheduled a Family Group Decision Making Meeting for June 9. Neither Mother nor Father appeared for the meeting. At the meeting, D.E.'s maternal grandmother informed the safety assessor that D.E. had been at Mother and Father's home the day before and law enforcement had been called. D.E.'s maternal grandparents also disclosed that a hair follicle from D.E. had been tested recently by a local drug-testing company which revealed very high amounts of methamphetamine in D.E.'s system. The magistrate court noted that the safety assessor suspected, because of the high levels present in D.E.'s system, that D.E. had suffered prolonged exposure to the drug. This belief was premised, in part, on information the safety assessor had received that such high levels could only result from direct ingestion. Mother and Father were given the opportunity to have D.E. tested again and submit to testing themselves, but they declined. IDHW noted that the next time it saw D.E., his head had been shaved.

         Based on the hair follicle test and the safety assessor's determination that Mother and Father were undermining efforts to get D.E. the help needed, IDHW entered violations of the safety plan and sought an order to bring D.E. into the legal custody of IDHW. On June 12, 2015, the court signed an order to remove D.E. from the care of both parents. A hearing was conducted on June 16, which resulted in D.E. being placed in the temporary legal custody of IDHW. Once D.E. was brought into care, IDHW considered the paternal grandparents as a possible placement for D.E., but ultimately ruled them out due to concerns that the paternal grandmother had previously not honored the informal safety plan. Instead, D.E. was placed with Mother's parents, who remained the foster parents of D.E. (and later T.E.) through the life of the case.

         On August 21, 2015, the magistrate court convened for a disposition and case plan hearing. The court awarded custody of D.E. to IDHW and approved case plans for both Mother and Father. This decision was memorialized in an order filed on September 21, 2015.

         Mother's case plan required her to participate in substance abuse treatment, domestic violence support services, and obtain support for her unaddressed mental health issues. Mother conceded that substance abuse and domestic violence were issues that needed to be addressed. Father's case plan required him to seek and complete substance abuse treatment, obtain a domestic violence evaluation and treatment, provide for D.E. financially, and establish stable housing.

         On October 9, 2015, the court ordered Mother and Father to submit to urinalysis testing. Father was unable to produce urine and never completed the test, but Mother tested positive for methamphetamine.

         While the case was pending, both Mother and Father began work on their case plans. In December 2015, Mother finally reported for in-patient substance abuse treatment. She attended for about one week and then reported that she was pregnant, that her pregnancy was making her tired, and that she was unable to complete the treatment program. In February 2016, Mother gave birth to a second child, T.E. By this time, D.E. had been in custody for about seven months. After T.E.'s birth, Mother submitted to a urinalysis test which was positive for one or more controlled substances. Since Mother and Father had made very little progress on their case plans, IDHW's case worker sought an order to remove T.E. from her parents' care and vest legal custody with IDHW.

         After the order to remove T.E. was granted and IDHW was given temporary legal custody, both Mother and Father expressed a greater understanding of the need to complete substance abuse treatment. By March 11, 2016, Mother was enrolled in treatment. Unfortunately, she relapsed, tested positive for methamphetamine, and was asked to leave. She was asked to return some days later, provided she tested clean at the time of re-admittance. In April 2016, Mother admitted she had relapsed again due to boredom.

         By spring of 2016, Father's efforts at treatment were noted to have been unproductive. He had attempted various substance abuse treatments with minimal success. For example, in late December 2015, Father discontinued programming at Ascent Behavioral Health and instead checked into Allumbaugh House. Father also signed up for substance abuse treatment, but was not participating or going to groups. Father reported that he continued to use methamphetamine during this treatment attempt. Father then went to another facility and attended for some time. IDHW was unable to obtain records from this second facility since Father refused to sign a release form. Because of his lack of progress, Father was discharged from his treatment. IDHW then requested that Father submit to a urinalysis test, but Father was unable to produce urine and the test was never completed.

         A short time later, Father began treatment at Recovery 4 Life because "it would alleviate transportation issues" and he could attend with Mother. After four or five months there, he was discharged from the program due to not attending his classes and providing positive drug tests. In May or June 2016, when the case had been active for about one year, Father checked back into Ascent, this time at a different campus. He was "almost immediately" asked to leave, though his recollection of what exactly happened was vague at the time of the termination hearing. Staff reported, however, that his behavior was particularly concerning and law enforcement was called, resulting in Father being asked to leave the program.

         During this time, both Mother's and Father's supervised visits with D.E. and T.E. were transitioned out of the community and into IDHW offices. Mother was seen as affectionate toward her children, but both Mother and Father would arrive for the visits under the influence of drugs. As a result, they behaved in a manner that could harm the children. For example, during one visit, Mother accused Father of putting drugs in her water and expressed concern that D.E. might have ingested some. D.E. was taken to the hospital and tested for exposure, which was traumatic for D.E., though it is unclear whether D.E. tested positive at that time. After this incident, however, the court amended the case plans to require both parents to provide a clean drug test before each visit. From that point, many visits were cancelled because one or both of the parents provided positive urinalysis tests, or they outright refused to submit to the testing at all.

         Not only was ongoing drug use a constant struggle for Mother and Father, but in December 2016, violence was reported between Mother and Father, resulting in Mother being criminally charged with domestic battery.

         The parents then made some progress. By April 2017, IDHW documented sufficient progress made by both parents to approve 48-hour visits between Mother, Father, and both children, which eventually expanded into an extended home visit. In June 2017, IDHW ended the extended home visit after Mother reported to the case worker that she and Father had been using the drug commonly known as "bath salts."

         In November 2017, Garden City Police made contact with Father after threats to D.E. and T.E's foster parents were reported. About a week later, the court ordered that Father's two reported residences be searched for weapons. At the first residence, police located several hundred Ziploc-style bags, a package of MSM (a cutting agent used in the production of methamphetamine), and several unused syringes. At the second residence, a package of "bath salts" was found and a pipe was located in Father's sock.

         In December 2017, approximately two and a half years after the case began, IDHW requested that the court change the permanent plan from reunification to termination. It also requested that the court authorize the cessation of visitation between the children and the parents due to several alarming concerns: (1) D.E. was aggressive toward T.E. during the visits; (2) the parents brought toys, food, and other items for D.E., but not for T.E. during the visits; (3) the parents focused on D.E. while leaving T.E. in a corner; (4) the parents failed to bring diapers or wipes to the visits; (5) D.E. was often brought to a visit only to have both parents fail to appear or test positive for controlled substances, prompting negative behavior in D.E. who was old enough to understand what was happening; and (6) the children were having trouble with the visits and suffered a general negative impact as a result. When Mother was questioned about this behavior, she replied that visits with T.E. were difficult for her, since T.E. had been in foster care since birth and Mother and T.E. had "not bonded."

         Further, Mother and Father had been only sporadically employed throughout the two and a half year period, failed to maintain stable and approved housing (sometimes living in a car), and continually tested positive for controlled substances or failed to show up for appointments. One case worker testified at trial that during her time supervising visitation between the parents and the children, D.E. and T.E. missed visits with Mother and Father twelve times because of no-shows or positive urinalysis tests. Neither parent ever completed a plan for relapse prevention. Mother continually struggled with addressing her mental health issues. She testified at the termination hearing, claiming she struggles with anxiety and hears voices. Although she did obtain a prescription for antipsychotic medication, it was given with a recommendation to ...

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