1 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.

---------------------------------------------------- STATE OF IDAHO, DEPARTMENT OF HEALTH AND WELFARE,

Petitioner

- Respondent,

v.
JANE DOE (2022

- 36),
Respondent

- Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise, December 2022 Term
Opinion filed: M arch 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, J ustice This appeal addresses the district court’s jurisdiction to hear a n appeal challenging the magistrate court’s decision to change the permanency goals in a C hild Protective Act (“CPA”) proceeding.
Jane Doe , a three

- year

- old child, has been in the custody of the Idaho Department of Health
and Welfar e ( the “ Department ”) since late 2020. She was six days shy of her first birthday when
the S tate 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 th at goal in the s ummer of 2022 so that termi nation of parental rights and adoption2 became the primary goal s for Jane and reunification became the concurrent goal

. Mother filed a n otice of a ppeal to the district court challeng ing the r eview h earing o rder 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 . T he district court dismissed the case and remanded it back to the magistrate

court sua s ponte 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 PROCEDUR AL BACKGROUND In December 2020, law enforcement officers in Lewiston, Idaho removed Jane Doe f rom M other’s custody. When the officers intervened, Jane and her M other 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 h er 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 goal s were termination of Mother’s parental rights and adoption within twent y

- 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 r eview h earing o rde r which changed the primary goal s to termination of parental rights and adoption and m ade 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 ha d 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 r eview h earing o rder, Mother filed a m otion for p ermissive a ppeal with the magistrate court and a n otice of a ppeal 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.3 Before the parties submitted their briefs , the district court entered an o rder d ismissing the

a ppeal and r emand ing the c ase to the m agistrate c ourt after concluding that it lacked jurisdiction

. Specifically, t he district court found that the r eview h earing o rder 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

mot ion for reconsiderati on, 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 need ed to be addressed by this Court to bring cla rity 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 t he statutory provisions at issue confer jurisdiction upon the district court to review the o rder chang i ng 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 r eview h earing o rder does not fall within the scope of reviewable orders under Idaho Code section 16

- 1625 (1)(a)

- (d)

. B oth 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.3 d 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,

n otwithstanding 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 :4 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 appeal ed to th e 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 adjudicato ry 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 r eview h earing o rder is an order that

“ vests ” leg al custody of the child in the D epartment after an adjudicatory decree
, or whether it
authorizes or mandates the D epartment to c ease reasonable efforts toward reunification. Because an order issued following a review hearing does n one of these things, we hold the requirements of
section 16

- 1 6 25 have not been met and the district court correctly concluded it did not have appellate jurisdiction

. 1. Custody vest s with the D epartment at the time an adjudicatory decree is issued , not when the permanency goals chang e . To i nitiate a C PA proceeding
, the D epartment 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 D epartment (which means
the child can remain in the home subject to D epartment oversig ht) or “ vest ” legal custody of the5 c hild in the D epartment 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 c ustody 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
sub s ection 16

- 1625(1)(a). However , i f 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 I daho 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 r eview h earing o rder did not result in a change of custody, and thus, did not “vest” custody in the Department because it already
had custod y . The order merely recited “ [t] he child is currently in the custody of IDHW, and it is
in the best interest of the child ren [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 r eview h earing o rder is not an order that vests legal custody of Jane in the D epartment. Thus, we conclude that section 16

- 1625 (1) (b) does

not provide the district court with appellate j urisdiction

. 2. A change in permanency goals does not authorize or mandate the D epartment 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 D epartment 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, t he Department contends that because the Department6 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 th e Department cease its reasonable reunification efforts and that, because the change in permanency goals allows the S tate to start the process of terminating her parental rights under section 16

- 1624(3), the appeal to the district court was allowed under s ection 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 worki ng 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 th at reunification would remain a concurrent goal of the plan.
The C PA contemplates both a primary an d concurrent goal and expressly addresses when
the D epartment 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 re unification 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 i dentify 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 acco mplish 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 “c ourt 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).
S ection 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 pl an for both o f them with steps to wards both7 goals to be taken simultaneously. While a petition to terminate parental rights was filed by the Department after entry of the r eview h earing o rder , nowhere in that petition or in this case has the magistrate c ou rt authorized the D epartment to suspend further efforts to reunify in response to that petition. Because the r eview h earing o rder does not authorize o r mandate the D epartment 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 permanenc y 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 ad option 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 sadde ned 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 to8 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 c oncurrent 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 stabi lity.
In addition, as the Idaho C ourt 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 decre e, 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 re view 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 contrar y 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 sect ion 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 :9 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

s tatutory 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 te rmination 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 c ontention 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, w e 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. CONCLU SION
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 STEGN ER, MOELLER and ZAHN, CONCUR.