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In re Doe

Supreme Court of Idaho

December 23, 2019

In the Matter of: John Doe I, A Child Under Eighteen (18) Years of Age.
v.
JOHN DOE (2019-19), Respondent-Appellant. STATE OF IDAHO, DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent,

          Appeal from the Magistrate Court of the Fifth Judicial District of the State of Idaho, Twin Falls County. Thomas H. Borresen, Magistrate Judge and Calvin H. Campbell, Magistrate Judge.

         Decree terminating parental rights is affirmed.

          Timothy J. Williams, Williams Law Office Chtd., Twin Falls, for appellant.

          Lawrence G. Wasden, Idaho Attorney General, Twin Falls, for respondent.

          BRODY, Justice.

         John Doe ("Father") appeals from the magistrate court's judgment granting the Idaho Department of Health and Welfare's ("the Department") petition to terminate his parental rights to his son, A.V. The magistrate court concluded that the Department proved by clear and convincing evidence that Father and Jane Doe ("Mother") neglected A.V. and that termination was in A.V.'s best interests. Mother's termination is the subject of a separate appeal (Dkt. No. 47190). Father's main argument on appeal is that the magistrate court erred in terminating his parental rights because it is not in A.V.'s best interests to be separated from his siblings.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A.V., the child at issue in this case, went into foster care in November 2017, when he was approximately two-and-a-half years old. Mother acknowledged that A.V. went into care after she had left him alone in an apartment. One Department social worker testified that he met with Mother a few days later and talked with her about the fact that A.V. was malnourished. He testified that Mother indicated A.V. previously had a hiatal hernia and that he was always going to have a problem gaining weight. However, after a Department investigation, and having A.V. examined by doctors, that did not turn out to be the case.

         A.V. had been in shelter care once before from the time he was ten months old until he was about eighteen-months old. While in care, A.V. received physical therapy from a board-certified pediatric physical therapist. She worked with A.V. from July 2016 until he was returned to his parents in October of 2016. She testified that when she first began working with A.V., he was approximately four to six months developmentally delayed. Additionally, she learned from the nurse who had worked with A.V. that he was very malnourished when he first went into care. However, she saw significant improvement in A.V. during the time that she worked with him. In October of 2016 when he returned to his parents' care, A.V. was slightly delayed but, adjusting for his age and prematurity, "he looked really good." She did not think that further skilled therapy was needed. At that time, A.V. weighed eighteen pounds.

         In November of 2017, when A.V. went into foster care for the second time, he weighed only sixteen pounds-two pounds less than he weighed when he left foster care a year before. He was placed with the physical therapist who had worked with him in 2016, and she became his foster mother. The foster mother testified that when she became his foster mother, A.V. was more than a year delayed, as he was at the level of a ten-month-old. She believed that, even given he was born prematurely, he should have weighed between twenty and twenty-five pounds. A.V. had very little muscle mass, was not walking, and was babbling and making sounds but not talking. Likewise, another Department social worker testified that when she first saw A.V. in November of 2017, he appeared to be the size and weight of a twelve-month-old, his overall development was that of an eleven or twelve-month-old, and he was not walking. She agreed that most children take their first step around one year old.

         Father testified that he was aware that A.V. was malnourished and not developing as he should have been while he was in Father's care, and that he did not obtain services to help A.V. with walking and talking. However, Father did not realize that A.V. had lost weight when he came back into their care. One Department social worker testified that Father feels that it is his responsibility to work and provide financially for the family, and it is Mother's responsibility to ensure the children are getting their medical and emotional needs met and to feed and care for them during the day. She further testified that she had talked with Father about his observing A.V. being underweight or not gaining weight, and Father said that he told Mother she needed to take care of it.

         A Department social worker developed a case plan for Mother and for Father. Both parents were present at the case plan meeting in which the case plans were designed. One task on each parent's case plan was to attend as many of A.V.'s physical therapy, speech, and occupational therapy sessions as possible. The social worker testified that each parent attended only eleven out of forty scheduled speech and occupational therapy visits.

         Regarding A.V.'s relationship with his parents and two sisters, the Department employee who supervised visits with A.V. testified that A.V. loves seeing his sisters, and that his sisters are very happy to see him. Similarly, the Department social worker testified that A.V. is close with his sisters; he engages with them and plays with them very well. She agreed that it is important to promote sibling relationships and that it would be in A.V.'s best interests to maintain a relationship with his sisters. Additionally, she had spoken at length about that with the foster mother, who was selected as a permanency plan placement, and the foster mother indicated that she would continue to encourage those relationships and A.V.'s relationships with his parents. The social worker further testified that A.V. loves his parents and goes to them and gets hugs from them, but in her opinion, his bond with them is more that of a child with an aunt or an uncle.

         The magistrate court issued a memorandum decision and order, determining by clear and convincing evidence, that the Department had established statutory grounds for termination under Idaho Code section 16-2002(3)(b), neglect through failure to complete a case plan, and under section 16-1602(31), neglect through conduct or omission of the parents. The magistrate court also determined that termination was in A.V.'s best interests. A final judgment and a decree ...


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