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In re Doe

Supreme Court of Idaho

March 14, 2019

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

          Appeal from the Magistrate Court of the Fifth Judicial District, State of Idaho, Lincoln County. Hon. Daniel Dolan, Magistrate Judge.

         Decree terminating parental rights, affirmed.

          Brown Law Office, PLLC, Gooding, for appellant.

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

          BURDICK, Chief Justice.

         John Doe ("Father") appeals from a Lincoln County magistrate court's judgment terminating his parental rights to his minor children. The judgment also terminated the parental rights of the children's mother ("Mother"). She appeals in a separate action.

         The children were placed in the custody of the Department of Health and Welfare (the "Department") following a March 2016 petition under the Child Protection Act ("CPA"). In June 2016, the court ordered the parents to follow case plans provided by the Department. Eight months later, the State filed a motion to terminate the parental rights of both parents based on failure to comply with the case plan and on prior neglect. After holding a trial, the court terminated both parents' parental rights.

         Father timely appeals arguing that the magistrate court's finding of neglect is not supported by substantial, competent evidence and that the court erred by not considering how Father's periods of incarceration affected his ability to comply with the case plan. We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This appeal concerns the termination of Father's parental rights to his two minor children. Father and Mother are the biological parents of the minor children. Prior to the termination, the children and parents were the subject of a CPA proceeding for over two years. When the prosecutors first filed a petition under the CPA, the parents were listed with separate addresses, but were living together. However, the parents ended and rekindled their relationship at various times prior to and during the CPA proceeding. By the time of trial, Father and Mother were permanently separated.

         The Department became involved in early March 2016 after receiving reports of drug use and neglect involving the children. Prior to this, the Department had received referrals for the family on two occasions in 2013 and 2014. The Department's investigation revealed that both children had been born premature, exposed to drugs in-utero, and tested positive for methamphetamine at birth. Based on these concerns, the Lincoln County Prosecutor's Office filed a petition under the CPA in March 2016.

         In April 2016, the Lincoln County magistrate court opened a CPA proceeding and placed the children in the legal custody of the Department. However, the court ordered the children to remain with the parents for the time being. A week later, the Department and a Lincoln County law-enforcement officer conducted an unannounced home visit. The officer declared that the children were in imminent danger based on the condition of the home and Mother's statements about the parents' drug use and domestic disputes around the children. The officer removed the children from the parents' custody and placed them in foster care. At the subsequent shelter-care hearing, the court ordered the children to remain in the Department's custody. At the adjudicatory hearing in May 2016, both parents stipulated to an unstable home environment as the basis for the CPA proceedings and the children remained in the Department's custody.

          About a month later, Father agreed to participate in and accomplish a case plan provided by the Department. The case plan contained 14 tasks for Father to complete which would demonstrate his "ability to obtain and maintain sobriety" and provide the children with "a safe and drug-free home environment." The tasks were aimed at addressing "all original areas of concern that brought the family to the attention of the Department" and ensuring "the children will have a safe, stable, sanitary and drug-free home environment." Paraphrased, some of the tasks were: coordinating with the Department to complete a GAIN assessment; completing the GAIN assessment and abiding by the resulting recommendations; participating in drug testing; providing for the children financially; obtaining and maintaining safe and satisfactory housing for the children; allowing the Department to conduct unscheduled home visits; coordinating with the Department and housing-assistance services; caring for the children's health and educational needs; and completing a parenting class and demonstrating the ability to apply those skills. The Department placed a social worker, D.W., on the CPA case to assist and monitor the parents' progress.

         Beginning in March 2017, almost a year after the children were first placed in the Department's custody, a few events took place. First, the court held a permanency hearing in late March 2017. The court extended the disposition of the permanency hearing for 30 days to allow the parents time to show improvement. Second, K.S., the owner of a private company which contracts with the Department to provide services, began coordinating supervised visitations between Father and the children. Third, in early April 2017, a few days after the court extended the permanency hearing, the Department moved to terminate parental rights. The original 30-day extension was lengthened to almost 90 days after the permanency review hearing was moved to June 2017. Lastly, in May 2017, a new social worker, E.D., took over for D.W. on the case.

         It is difficult to establish a concrete timeline for Father's activities during the year following the children's placement with the Department, but a few things can be gleaned from the record. In that year, Father missed various scheduled drug tests, tested positive for methamphetamine and benzodiazepine in others, and tested clean a small amount of the time. He was employed for a few months in Pocatello. The only proof of stable housing he provided to the Department was a motel in Gooding where he stayed for a brief period, but he also lived with his mother, and in a tent. He was incarcerated at various intervals for an estimated total of three months because of probation violations stemming from misdemeanor crimes. In May 2017, Father reported that he attended parenting classes, but when D.W. followed up on his report, the clinic had no record of his attendance. After rescheduling and postponing appointments during the year, Father participated in a mental-health assessment for the first time in May 2017 but did not continue with treatment following the assessment. He attended some supervised visits with the children, but missed more than half of those scheduled.

         In June 2017, the court accepted the Department's recommendation for adoption as the permanent placement plan. The court directed the parties to begin preparing for trial. However, the trial was delayed until October because of Father's lack of communication with his attorney. The October trial date was then continued because there was no proof that the parents had been served process at the time it was scheduled to begin.

         Commencing in January 2018, the termination trial was split over three days in January and March. Father testified, as well as D.W., E.D., K.S., the children's foster parent, Mother's parents, and Mother's physician. The parties submitted written closing arguments in July 2018 and the court issued its memorandum decision and a final judgment in October 2018. The court terminated both parents' parental rights. The court found, by clear and convincing evidence, that Father neglected his minor children by failing to complete his case plan and termination was in the children's best interests. Father timely appeals.

         II. ISSUES ON APPEAL

         1. Does substantial, competent evidence support the magistrate court's finding that Father neglected the minor children by failing to comply with his case plan under Idaho Code section 16-2002(3)(b)?

         2. Did the magistrate court properly consider Father's periods of incarceration when it determined that Father neglected the children by failing to comply with his case plan?

         III. STANDARD OF REVIEW

         Under Idaho Code section 16-2005(1), a court may terminate parental rights if it finds that at least one of the grounds for termination is present and termination is in the best interest of the child. In re Doe (2014-23), 157 Idaho 920, 923, 342 P.3d 632, 635 (2015). The grounds for termination of parental rights must be proved by clear and convincing evidence. Idaho Dep't of Health & Welfare v. Doe (2016-14), 161 Idaho 596, 598, 389 P.3d 141, 143 (2016). Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably ...


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