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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 50023

In the Interest of: Jane Doe I,

A Child Under Eighteen (18) Years of Age.

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STATE OF IDAHO, DEPARTMENT OF

HEALTH AND WELFARE,

 Petitioner-Respondent,

v.

JANE DOE (2022-36),

 Respondent-Appellant.

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Boise, December 2022 Term

Opinion filed: March 2, 2023

Melanie Gagnepain, Clerk

Appeal from the District Court of the Second Judicial District of the State of Idaho, 

Nez Perce County, Jay Gaskill, District Judge and Victoria Olds, Magistrate Judge.

The decision of the district court is affirmed. 

Sarah A. McDowell-Lamont, Public Defender, Lewiston, for Appellant. Sarah A. 

McDowell-Lamont argued.

Raúl R. Labrador, Idaho Attorney General, for Respondent. Briana Allen argued.

Jones, Brower & Callery, PLLC, Lewiston, for Respondent GAL.

_____________________

BRODY, Justice

This appeal addresses the district court’s jurisdiction to hear an appeal challenging the 

magistrate court’s decision to change the permanency goals in a Child Protective Act (“CPA”) 

proceeding.

Jane Doe, a three-year-old child, has been in the custody of the Idaho Department of Health 

and Welfare (the “Department”) since late 2020. She was six days shy of her first birthday when 

the State removed her from the custody of her mother and placed her with a foster family. Her 

mother’s attempts to stick to a permanency plan have been inconsistent, and while for the majority 

of the life of this case the magistrate court held fast to a permanency goal of reunification, it 

modified that goal in the summer of 2022 so that termination of parental rights and adoption 
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became the primary goals for Jane and reunification became the concurrent goal. 

Mother filed a notice of appeal to the district court challenging the review hearing order in 

which the permanency goals were changed. She also filed a motion for permissive appeal 

requesting permission from the magistrate court to appeal to the district court. The magistrate court 

granted the motion. The district court dismissed the case and remanded it back to the magistrate 

court sua sponte after determining it did not have jurisdiction to hear the appeal. This appeal 

followed. We affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 2020, law enforcement officers in Lewiston, Idaho removed Jane Doe from 

Mother’s custody. When the officers intervened, Jane and her Mother were staying at a motel and 

Mother appeared to be having a “mental health situation,” after chopping up her hotel room

mattress with a small hatchet because she believed people were calling out from under the bed. 

Since that time, Jane has primarily resided with the same foster family and has mostly thrived 

under their care. Mother, on the other hand, has struggled to show a consistent commitment to her 

treatment plan for the dual diagnosis of mental illness and substance abuse. 

Initially, the primary permanency goal was reunification of Mother and Jane, while the 

concurrent goals were termination of Mother’s parental rights and adoption within twenty-four

months. However, in June 2022, about eighteen months after Jane was initially placed in shelter 

care, circumstances changed. The magistrate court, after conducting an evidentiary hearing, issued 

a review hearing order which changed the primary goals to termination of parental rights and 

adoption and made reunification a concurrent goal. The magistrate court’s decision was based on

several factors: the inconsistency of Mother’s efforts to stick to her case plan, the fact that she had 

left a substance abuse treatment facility after completing only one phase of a four-phase program, 

purportedly to pursue a housing voucher but had yet to secure housing, that Mother remained 

unemployed, that Jane was thriving after nearly a year and a half in foster care, and reunification 

did not appear to be imminent.

Following entry of the review hearing order, Mother filed a motion for permissive appeal 

with the magistrate court and a notice of appeal to the district court challenging the magistrate 

court’s finding that the Department had made reasonable efforts toward reunification and changing

the case plan’s goals from reunification to termination of parental rights and adoption. Shortly 

thereafter, the magistrate court granted the permissive appeal to the district court.
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Before the parties submitted their briefs, the district court entered an order dismissing the 

appeal and remanding the case to the magistrate court after concluding that it lacked jurisdiction.

Specifically, the district court found that the review hearing order did not meet the criteria for an 

appeal set forth in Idaho Code section 16-1625(1) and was not the proper subject of a permissive 

appeal because it did not constitute a “final judgment.” The district court subsequently denied a 

motion for reconsideration, acknowledging in a footnote that the conclusion it reached was 

contrary to a non-binding, unpublished Court of Appeals’ decision and that this case presented an 

important issue that needed to be addressed by this Court to bring clarity to appeal rights in CPA 

cases statewide.

This appeal followed the district court’s decision. Both parties take the position that the 

district court erred when it dismissed Mother’s appeal, although they disagree as to which statutory 

subsection provides the correct procedural avenue for the appeal. Today, we hold the district court 

did not err when it dismissed Mother’s appeal because none of the statutory provisions at issue

confer jurisdiction upon the district court to review the order changing permanency goals. We have 

also referred this matter to the Child Protection Committee to consider whether any changes should 

be made to the permissive appeal standard set forth in Idaho Appellate Rule 11.1(b)(2).

II. ANALYSIS

A. The district court did not err when it dismissed Mother’s appeal because the review 

hearing order does not fall within the scope of reviewable orders under Idaho Code 

section 16-1625(1)(a)-(d).

Both parties take the position that the district court erred when it dismissed Mother’s appeal 

due to lack of jurisdiction; they only disagree about the legal basis of jurisdiction. Whether a court 

lacks jurisdiction is a question of law that is freely reviewed by this Court. Doe v. Doe, 158 Idaho 

614, 616, 349 P.3d 1205, 1207 (2015). Importantly, even if all parties to an action agree, they

cannot confer or create subject matter jurisdiction upon a court if in fact it does not exist. Fairway 

Dev. Co. v. Bannock Cnty., 119 Idaho 121, 125, 804 P.2d 294, 298 (1990). Therefore, 

notwithstanding the parties’ agreement to the contrary, we hold the district court correctly 

dismissed Mother’s appeal due to lack of appellate jurisdiction.

The Idaho Juvenile Rules govern the procedures that apply to CPA proceedings. I.J.R. 1.

Juvenile Rule 49 governs appeals as a matter of right to the district court and incorporates the 

statutory appeal framework set forth in Idaho Code section 16-1625: 
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An aggrieved party may appeal to the district court those orders of the court 

in a C.P.A. action specified in I.C. § 16-1625. A party may also seek a permissive 

appeal to the Supreme Court pursuant to Idaho Appellate Rule 12.1.

I.J.R. 49(a) (emphasis added).

Section 16-1625 sets forth four separate orders or decrees that can be appealed to the 

district court as a matter of right:

(1) An aggrieved party may appeal the following orders or decrees of the 

court to the district court, or may seek a direct permissive appeal to the supreme 

court as provided by rules adopted by the supreme court:

(a) An adjudicatory decree entered pursuant to section 16-1619, Idaho 

Code;

(b) Any order subsequent to the adjudicatory decree that vests legal custody 

of the child in the department or other authorized agency;

(c) Any order subsequent to the adjudicatory decree that authorizes or 

mandates the department to cease reasonable efforts to make it possible to return 

the child to his home, including an order finding aggravated circumstances; or

(d) An order of dismissal.

I.C. § 16-1625(1)(a)-(d) (emphasis added). Mother contends that her appeal to the district court 

was proper under subsection (c), but the Department contends the appeal was proper under 

subsection (b). Given the parties’ respective positions, the question of whether the district court 

had jurisdiction to hear Mother’s appeal turns on whether a review hearing order is an order that 

“vests” legal custody of the child in the Department after an adjudicatory decree, or whether it 

authorizes or mandates the Department to cease reasonable efforts toward reunification. Because 

an order issued following a review hearing does none of these things, we hold the requirements of 

section 16-1625 have not been met and the district court correctly concluded it did not have 

appellate jurisdiction.

1. Custody vests with the Department at the time an adjudicatory decree is 

issued, not when the permanency goals change. 

To initiate a CPA proceeding, the Department must create and file a petition with the 

magistrate court. I.C. § 16-1610(1). Within thirty days of filing the petition, the court must set an 

adjudicatory hearing to determine whether it has jurisdiction over the child under Idaho Code 

section 16-1603. I.C. § 16-1619(1). If the magistrate court determines that it has jurisdiction over 

the child, it can either place the child under protective supervision of the Department (which means 

the child can remain in the home subject to Department oversight) or “vest” legal custody of the 
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child in the Department or another authorized agency. I.C. § 16-1619(5). An adjudicatory decree 

which vests custody of the child in the Department is an appealable order under Idaho Code section 

16-1625(1)(a).

Section 16-1625(1)(b), the provision the Department contends gives the district court 

appellate jurisdiction in this case, exists because custody of a child involved in a CPA proceeding 

is not necessarily static. For example, at the time the adjudicatory decree is entered the magistrate 

court may make the decision to allow a child to remain in the home subject to the Department’s 

protective supervision. Certainly, the parent has the right to challenge the entry of that decree under 

subsection 16-1625(1)(a). However, if protective supervision fails and the child is taken into the 

State’s custody, another hearing must take place and the magistrate court must once again make 

the decision whether to “vest” custody of the child in the Department. I.C. § 16-1623(4)-(5). If the 

magistrate court makes that decision, such an order would be appealable under section 16-

1625(1)(b). 

In this case, the magistrate court had already “vested” legal custody of Jane in the 

Department when it entered the adjudicatory decree on February 16, 2020. The adjudicatory decree 

stated: “The child is placed in the legal custody of IDHW.” Mother had the right to challenge the 

entry of that decree under Idaho Code section 16-1625(1)(a) but did not do so. Jane has remained 

in the Department’s custody pursuant to that decree ever since. The review hearing order did not 

result in a change of custody, and thus, did not “vest” custody in the Department because it already 

had custody. The order merely recited “[t]he child is currently in the custody of IDHW, and it is 

in the best interest of the children [sic] to remain in the custody of IDHW.”

Because there is no basis to hold that custody vested at a time other than when the 

adjudicatory decree was initially entered in this case, the review hearing order is not an order that 

vests legal custody of Jane in the Department. Thus, we conclude that section 16-1625(1)(b) does 

not provide the district court with appellate jurisdiction. 

2. A change in permanency goals does not authorize or mandate the 

Department to cease reasonable efforts toward reunification. 

Idaho Code section 16-1625(1)(c) provides that any party may appeal from “any order 

subsequent to the adjudicatory decree that authorizes or mandates the Department to cease 

reasonable efforts to make it possible to return the child to his home. . . .” I.C. § 16-1625(1)(c). 

Consistent with the district court’s findings, the Department contends that because the Department 
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did not request and the magistrate court did not authorize a suspension of reunification efforts, 

Idaho Code section 16-1625(1)(c) does not apply. Mother argues that the change in permanency 

goals effectively authorizes and mandates that the Department cease its reasonable reunification 

efforts and that, because the change in permanency goals allows the State to start the process of 

terminating her parental rights under section 16-1624(3), the appeal to the district court was 

allowed under section 16-1625(1)(c). 

While the practical impact of the change of reunification goals is to focus the Department’s

efforts on adoption rather than reunification, nothing in the magistrate court’s order authorizes or 

mandates that the Department stop working toward the concurrent goal of reunification. In fact, 

the transcript from the review hearing shows that the magistrate court wanted visitation to continue 

for Mother and Jane and that reunification would remain a concurrent goal of the plan.

The CPA contemplates both a primary and concurrent goal and expressly addresses when 

the Department may cease efforts toward reunification. First, in section 16-1621, the Act provides

that at the initial case plan hearing, a permanency plan must include both a reunification goal and 

a concurrent goal, along with plans to accomplish both. I.C. § 16-1621(3)(d). Section 16-1621 

further explains that the “concurrent plan” shall address all placement options, address advantages 

and disadvantages of those options, and identify actions to implement the option among other 

requirements. Moreover, section 16-1621(d)(6) requires that once a case plan is approved by the 

court and entered as an order, that order shall “require the department to simultaneously take steps 

to accomplish the goal of reunification and the concurrent permanency goal.” I.C. § 16-1621(d)(6) 

(emphasis added).

Next, section 16-1622 provides that upon an annual review hearing, permanency plans can 

have both primary and concurrent goals. I.C. § 16-1622(2)(a). It goes on to clarify that the “court 

may authorize the department to suspend further efforts to reunify the child with the child’s parent, 

pending further order of the court, when a permanency plan is approved by the court and the 

permanency plan does not include a permanency goal of reunification.” I.C. § 16-1622(2)(k).

Section 16-1624(6) of the CPA provides that the “court may authorize the department to suspend 

further efforts to reunify the child with the child’s parent, pending further order of the court, when 

a petition to terminate parental rights has been filed with regard to the child.” I.C. § 16-1624(6). 

In this matter, the case plan for Mother complied with section 16-1621(d)(6) because it 

included both a primary and concurrent goal and a plan for both of them with steps towards both 
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goals to be taken simultaneously. While a petition to terminate parental rights was filed by the 

Department after entry of the review hearing order, nowhere in that petition or in this case has the

magistrate court authorized the Department to suspend further efforts to reunify in response to that 

petition. Because the review hearing order does not authorize or mandate the Department to cease 

reasonable efforts toward reunification, we hold that section 16-1625(c) does not apply, and the 

district court correctly determined that it was without appellate jurisdiction.

B. Mother’s due process rights are not violated by a lack of immediate appellate review.

Mother contends that a lack of viable appeal rights is an affront to her due process rights 

under the United States Constitution. She argues: “Mother, like all parents, [has] the fundamental 

right to the care, custody and control of her child. That fundamental right is effectively taken away 

when the permanency goals are changed from reunification to termination and adoption.” 

(Citations omitted.) Mother’s claim sweeps too broadly.

To begin, Mother’s claim that there are no appeal rights when a permanency goal is 

changed from reunification to termination and adoption reflects the appeals process established by 

the legislature. As explained, there is a right to appeal if the magistrate court enters an order 

authorizing or mandating the Department to stop reunification efforts. At no time did the 

magistrate court enter such an order in this case. In fact, the transcript from the review hearing 

revealed the magistrate court continued to encourage Mother to comply with the case plan and 

work toward reunification:

Every conversation we’ve had... [Mother] was saying it was really hard and

that she questioned whether she should stay [in the program]. And now we have --

although we have proof of some sobriety, we still have proof of instability, ongoing 

instability. Things are taking a lot longer than they should and continual prompting 

and hand holding by the attorney and the Department and CASA to help [Mother], 

because we all want her to be successful. Did everything we could to encourage her 

to stay at [the program]. But, in my opinion, as of the April hearing, she had already 

decided she was going to leave and talked herself into it. And I -- after all the effort 

to get you into a long-term program where you would, after Phase 1, then be 

phasing into overnight visits, it was very disappointing, and I was very saddened 

by it.

[It] was pretty tough on you, no doubt, saying, nope, we’re not going to do 

that until you get into another phase because you need to get past this first phase. 

We need to get you longer in the program, trying to provide that motivation. Now 

we have a housing voucher that hasn’t been filled out, hasn’t been completed 

because there were barriers there. We have the person you’re living with who hasn't 

bothered to call the landlord back to give you a good reference. And that was June 

14th when you applied. So that’s over two weeks. We have -- we kind of had to 
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drag you back into treatment, which recommended intensive outpatient three times 

a week. I know that you can succeed, but you have this resistance to fully wanting 

to stick with the case plan.

So, I’m going to change the goal because I do not see compelling 

circumstances. I saw it when you were at [the program]. I saw a light at the end of 

the tunnel. I don’t see it at this point. Maybe two years down the road, but this child 

needs permanency one way or the other long before that. In other words, there has 

been progress, but not substantial progress. And I see this latest -- the latest progress

as some, but not substantial. A setback, really, is what I see it as. And there’s 

nothing you can do about your medical condition, [Mother]. I hope that that turns

out for you. I wish the best for you on that. But I’ve got to change the permanency 

goal to [termination of parental rights] with adoption.

Reunification efforts remain a secondary goal, the concurrent goal, because 

we want to still encourage you to continue to work hard and get that housing and 

get your medical taken care of, continue in treatment, continue to have those 

negative UAs and work on long-term stability.

In addition, as the Idaho Court of Appeals has explained, there are multiple stages at which 

a parent may challenge the Department’s failure to make reasonable efforts to reunify:

The Department’s reasonable efforts, and a magistrate court’s findings 

regarding reasonable efforts, are subject to appellate review. There is a statutory 

right to appeal at several points during the pendency of the child protection 

proceeding. I.C. § 16-1625(1). An aggrieved parent may appeal an adjudicatory 

decree, any order subsequent to the adjudicatory decree that vests legal custody in 

the Department, and any order subsequent to the adjudicatory decree that authorizes 

or mandates the Department to cease reasonable efforts. Id. Although Doe 

acknowledges that review of reasonable efforts is provided for in the child 

protection case pursuant to I.C. § 16-1625(1), she does not explain why this review 

does not satisfy due process. It appears Doe’s argument is instead premised on a 

preference for review of reasonable efforts following termination rather than from 

the appealable orders entered following proceedings during the child protection 

case in which reasonable efforts are required. This preference does not, however, 

implicate due process. Moreover, it is contrary to the statutory scheme enacted by 

the legislature.

Matter of Doe I, 166 Idaho 357, 360–61, 458 P.3d 226, 229–30 (Ct. App. 2020). Like the mother 

in Matter of Doe I, Mother has not explained why the statutory framework that is provided in Idaho 

Code section 16-1625(1) does not satisfy the process she is due. 

Finally, and perhaps most importantly, we recently rejected the same type of due process 

argument Mother makes here because even if the Department moves forward with a petition to 

terminate Mother’s parental rights, it must prove the basis for termination by clear and convincing 

evidence:
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Here, the parents stipulated to jurisdiction under the CPA and the court placed the 

children in the Department's legal custody. Thereafter, the Department had the 

statutory authority to petition for termination. I.C. § 16-1624(1). Once the 

Department petitioned to terminate Mother's parental rights, the Department still 

had to prove the statutory basis for termination by clear and convincing evidence. 

I.C. § 16-2005. Thus, her due process rights were protected. Accordingly, Mother 

fails to present a compelling argument for why a lack of immediate appellate 

recourse for a court's determination of the Department's reasonable efforts impacts 

her due process rights for termination of parental rights.

Matter of Doe I, 164 Idaho 883, 890, 436 P.3d 1232, 1239 (2019).

On a final note, Mother has requested “guidance” from this Court on the issue of whether 

Mother had a right to pursue a permissive appeal to this Court under Idaho Juvenile Rule 49 and 

Idaho Appellate Rules 11.1 and 12.1. Because no motion for a permissive appeal to this Court was 

filed and Mother has not pursued any contention that the district court had jurisdiction to undertake 

a permissive appeal, we decline to issue what would be, in effect, an advisory opinion under the 

guise of “guidance.” However, we will refer this question to the Child Protection Committee for

further study because in reviewing Rules 11.1(b)(2) and 12.1(a)(2), we noted that the “final 

judgment” language used in those rules does not appear to be consistent with the language used in 

Idaho Juvenile Rule 49 and Idaho Code section 16-1625(1).

III. CONCLUSION

Based on the foregoing, we affirm the district court’s decision to dismiss the appeal and 

remand the case with instructions to remand to the magistrate court for further proceedings 

consistent with this opinion.

Chief Justice BEVAN, and Justices STEGNER, MOELLER and ZAHN, CONCUR.