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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 43652

IN THE MATTER OF: JANE DOE,

A Child Under the Age of 18 Years.

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IDAHO DEPARTMENT OF HEALTH 

AND WELFARE,

 Petitioner-Respondent,

v.

JANE DOE (2015-21),

 Respondent-Appellant,

and

AIMEE’ STORS, CASA WORKER,

 Guardian Ad Litem-Respondent.

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Boise, February 2016 Term

2016 Opinion No. 38

Filed: March 24, 2016

Stephen W. Kenyon, Clerk

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

of Idaho, Nez Perce County. Hon. Michelle Evans, Magistrate Judge.

The judgment of the magistrate court is affirmed. Costs on appeal are

awarded to respondent.

Knowlton & Miles, PLLC, Lewiston, attorneys for appellant. Mackenzie

J. Welch argued.

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

respondent Idaho Department of Health and Welfare. Marcy J. Spilker argued.

Nolta Law Office, Lewiston, attorney for respondent guardian ad litem. Paige M. Nolta 

argued.

_____________________

W. JONES, Justice

I. NATURE OF THE CASE

The magistrate court for Nez Perce County terminated Appellant Jane Doe’s (“Mother”) 

parental rights to her nine-year-old child (“Child”) for neglect. Mother raises the following

arguments challenging the magistrate court’s decision: (1) the magistrate court’s finding of 
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neglect is not supported by clear and convincing evidence; (2) the magistrate court should have 

rejected the Idaho Department of Health and Welfare’s (“IDHW”) petition to terminate parental 

rights because IDHW had failed to make reasonable efforts to reunify Mother and Child; (3) the 

magistrate court abused its discretion when it took judicial notice of findings from a prior 

proceeding; and (4) the magistrate court abused its discretion when it admitted evidence of 

IDHW’s efforts to determine whether the Indian Child Welfare Act applied to Child.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant is the mother of three children, including Child who is the middle child. Child 

and Younger Sister are the offspring of Mother and Father. Older Sister is the offspring of 

Mother from a prior marriage. Father is currently serving a fifteen-year sentence for sexually 

abusing Older Sister over a period of eight years. IDHW began its investigation of Mother’s care 

for Child following a one-vehicle collision involving Mother, Child, and Younger Sister.

A. IDHW responds to Child’s needs following a collision.

On April 5, 2014, Mother was driving south on U.S. Highway 95 in a 2006 Jeep 

Commander with Child and Younger Sister when she drove off the road. The Jeep was moving 

fast enough that after traveling down a grassy embankment it ran through a fence, sheared off a 

power pole at ground level, and rolled sideways at least two times. No one was wearing a 

seatbelt and all three occupants were ejected from the Jeep when it rolled over. Mother and Child 

where hospitalized for their injuries and Younger Sister died.

Witnesses at the scene reported that Mother smelled like alcohol. Law enforcement 

“found a 750 ml bottle of Bacardi Gold Rum about 2/3rds full on the floor of the back seat.” The 

toxicology report indicated that Mother’s BAC was 0.102. Mother and Child were transferred to 

Sacred Heart Medical Center for treatment where employees observed that Mother was 

“obviously intoxicated.”

On April 6 and 8, 2014, IDHW interviewed Mother about the collision and her ability to 

care for Child. Mother originally denied drinking before the collision but did admit that she had 

taken a Xanax. She later admitted to “having a couple glasses of wine” in addition to the Xanax. 

Regarding Child’s care after discharge from the hospital, Mother indicated that Grandmother, 

who resides in Oregon, could care for Child.

IDHW assigned social worker Chrissy Edmonson to the case. In determining 

Grandmother’s fitness to care for Child, Ms. Edmonson learned from a child protection social 
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worker in Oregon that Grandmother would be an excellent placement option for Child. The 

Oregon social worker also informed Ms. Edmonson that Father had sexually abused Older Sister

and had recently been charged for those crimes. Before issuing charges, the State of Oregon had 

entered a protection order against Father, but Mother continued to allow him to contact her 

children. Following her conversation with Oregon child protective services, Ms. Edmonson 

called Mother and informed her that the IDHW was asking Grandmother to seek guardianship of 

Child. On April 9, 2014, Child was discharged into Grandmother’s custody.

B. The State commences proceedings under the Child Protective Act.

On May 8, 2014, the Chief Deputy Prosecutor for Nez Perce County filed a petition with 

the magistrate court to determine whether Child was within the jurisdiction of the Child 

Protective Act, Idaho Code section 16-1603(1), and was abused, neglected, or lacking a stable 

home environment. That same day, the magistrate court filed an order that Child would remain in 

the physical custody of Grandmother pending a shelter care hearing.

The magistrate court held shelter care hearings on May 12 and 16 and June 11, 2014,

wherein the magistrate court determined that returning Child to Mother’s custody would be 

contrary to Child’s health and welfare despite IDHW’s “reasonable efforts” to reunify Mother 

and Child. On June 13, 2014, the magistrate court asserted jurisdiction over Child pursuant to 

Idaho Code section 16-1603(1) and issued a temporary custody order pursuant to Idaho Code 

section 16-1615(5). In support of its order, the magistrate court found: (1) there was reasonable 

cause to believe that Child fell within the jurisdiction of the Child Protective Act, based on 

Mother’s stipulation to abuse, neglect, or lack of a stable home environment; (2) it was in the 

best interest of Child to vest legal custody in the IDHW pending an adjudicatory hearing; and (3) 

reasonable efforts had been made, but were not successful, in eliminating the need for placement 

of Child in shelter care.

On July 11, 2014, the magistrate court held an adjudicatory hearing pursuant to Idaho 

Code section 16-1619. On July 17, 2014, the magistrate court issued its findings and decree from 

the adjudicatory hearing. Reaffirming its jurisdiction over Child due to neglect, the magistrate 

court placed Child under IDHW’s legal custody based on the following findings: (1) giving 

custody to Mother would be contrary to Child’s welfare; (2) giving IDHW legal custody was in 

Child’s best interest; and (3) IDHW made reasonable efforts to prevent or eliminate the need for 
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placing Child in foster care, but such efforts were unsuccessful as a result of Child’s safety 

needs.

On July 28, 2014, the magistrate court held a case plan hearing pursuant to Idaho Code 

section 16-1621. On August 1, 2014, the magistrate court approved a case plan for Mother that 

required her to:

[D]emonstrate that substance use (including alcohol use due to its significant 

impact on her family) is not present and that substance use and mental health 

issues do not impact her ability to provide for [Child’s] physical, emotional, and 

developmental needs. [Mother] needs to ensure that her relationships are free 

from domestic violence or other concerning or controlling behaviors and she 

needs to demonstrate safety and stability in her choices and actions. [Mother] 

must also demonstrate an ability to meet [Child’s] needs and provide [Child] with 

safe housing.

Additionally, the case plan required Mother to undergo a substance abuse evaluation and comply 

with treatment recommendations stemming from that evaluation. The magistrate court ordered 

all parties to comply with the case plan on penalty of contempt.

Regarding Child’s care following the case plan hearing, the magistrate court continued 

IDHW’s legal custody based on its findings that: (1) Child is not an Indian child under the Indian 

Child Welfare Act; (2) continuing IDHW’s legal custody was in Child’s best interest; and (3) 

IDHW made reasonable efforts to prevent or eliminate the need for placement of Child in foster 

care.

C. Mother struggles with the Case Plan.

To address her mental health issues, Mother engaged a licensed counselor, Larry 

Terherst, at Nimiipuu Behavioral Health. Mother scheduled weekly sessions with Mr. Terherst 

but from her first meeting on September 12, 2014, to her last meeting on February 10, 2015, she 

attended only six out of twenty-three possible sessions.

On September 15, 2014, Mother submitted a self-reported substance abuse evaluation at 

Nimiipuu Behavioral Health. Based on Mother’s report that she drank on occasion but not very 

often, the evaluator recommended that Mother attend an eight hour Alcohol and Drug 

Information School (“ADIS”) education course. IDHW protested that ADIS would be 

insufficient to address the full extent of Mother’s alcohol abuse but the evaluator declined to 

recommend additional treatment because the evaluation was confined to Mother’s self-reported 

drinking history.
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Between September 15, 2014, and April 6, 2015, Mother admitted that her substance 

abuse evaluation did not fully reflect her alcohol problem and she was arrested twice for alcohol 

abuse related conduct. Pursuant to Idaho Code section 16-1622(1) and in response to these

events, the magistrate court held review hearings through the end of 2014, on September 15, 

November 10, December 22, and on February 9, 2015. Following each hearing, the magistrate 

court found: (1) continuing IDHW’s legal custody was in Child’s best interest; and (2) IDHW 

made reasonable efforts to prevent or eliminate the need for placement of Child in foster care.

The insufficiency of Mother’s alcohol abuse treatment combined with her several arrests 

ultimately culminated in IDHW filing a petition to terminate her parental rights.

On September 29, 2014, Mother was indicted on two felony charges arising out of the 

April 5, 2014 collision—Vehicular Manslaughter and Injury to Children. She posted bond the 

following day.

In October or November 2014, Mother began attending ADIS education classes. She 

completed the course on February 3, 2015. However, in December 2014, IDHW modified the 

case plan to require random urinalysis testing. Ten urinalysis tests were scheduled between 

December 2014 and March 2015. Mother did not fail any test but missed seven tests and 

submitted to only one make-up test.

On February 8, 2015, police arrested Mother for Misdemeanor DUI. Police stopped 

Mother for driving the wrong direction down a one way street, smelled alcohol on her breath and 

arrested her when she failed the standard field sobriety test. The next day, February 9, 2015, 

Mother admitted to IDHW that her alcohol problems were greater than she had reported in her 

substance abuse evaluation. Mother requested IDHW to assist her in obtaining additional 

treatment. IDHW arranged a Global Appraisal of Individual Needs (“GAIN”) assessment for 

Mother which she submitted to on February 25, 2015. The GAIN assessment determined: (1) she 

had last used alcohol on February 21, 2015; (2) her longest period of sobriety during the 

preceding ninety days was four days; (3) of the ninety days leading up to the assessment she had 

used alcohol during twenty of them—thirteen to the point of intoxication. Mother admitted that 

she could not stop using alcohol on her own and that she did not use alcohol just occasionally (as 

she had reported to Nimiipuu Behavioral Health during her initial evaluation). As a result of the 

GAIN assessment, Mother was diagnosed as alcohol dependent.
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In response to Mother’s Misdemeanor DUI arrest, the State filed a motion to revoke 

Mother’s bond. The magistrate court held a bond revocation hearing on March 4, 2015, where it 

denied the motion but modified the terms of Mother’s release by directing her not to consume 

alcohol, not to enter any bars, and not to operate a motor vehicle. The next day, March 5, 2015, 

police arrested Mother for Battery and Disorderly Conduct. Mother had driven to a casino, was 

intoxicated, and assaulted a casino patron by attempting to strike her in the face. During the

arrest, Mother was uncooperative, screaming and yelling, and otherwise noncompliant. The State 

filed a new motion to revoke Mother’s bond which the magistrate court granted. Mother was 

incarcerated on March 6, 2015, where she remained until August 26, 2015. Due to her 

incarceration, Mother was unable to pursue treatment recommended after her GAIN assessment.

On March 9, 2015, IDHW notified Mother of its intent to request that her permanency 

hearing be moved up due to her incarceration. After that meeting Mother refused any further 

communication with IDHW caseworkers. The magistrate court held a permanency hearing on 

April 6, 2015, and on April 10, 2015, entered an order approving a permanency plan for Child 

with the goal of terminating parental rights and subsequent adoption. Additionally, the magistrate 

court suspended IDHW’s duty to make reasonable efforts to reunify Mother and Child.

D. The State commences proceedings to terminate Mother’s parental rights.

On April 15, 2015, IDHW filed a petition to terminate Mother and Father’s parental 

rights. The petition charged Mother with neglecting Child pursuant to Idaho Code sections 16-

2005(1)(b), 16-2002(3)(a), and 16-1602(28)(a). The petition against Father was based on his 

inability to parent due to his incarceration pursuant to Idaho Code section 16-2005(1)(e).

The magistrate court held termination hearings on July 10 and August 10, 2015. Hearings 

began with the magistrate court, on the State’s motion, taking judicial notice of the findings 

entered after the July 11, 2014 adjudicatory hearing to establish the basis for the magistrate 

court’s jurisdiction. Thereafter, the magistrate court heard the testimony of Older Sister, 

Grandmother, Ms. Edmonson, Mr. Terherst, and Father.

Older Sister opined that she had received poor care from Mother when she was young.

She testified that Mother and Father had an extensive and continuous drinking pattern that often 

left her to care for her two younger sisters. She witnessed Father physically abuse Mother on 

multiple occasions and was herself the victim of years of sexual abuse from Father. Older Sister 

believed Mother knew about the sexual abuse because Mother had caught Father in bed with her. 
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After that event, Mother left with Older Sister to Grandfather’s house but returned with Older 

Sister to live with Father a few days later. Older Sister testified that Mother made her and Father 

apologize to each other but made no effort to protect her children.

Grandmother testified to Mother’s inability to care for Child and Child’s condition since 

placement in Grandmother’s custody. When her granddaughters were young, Grandmother had 

frequent contact with them and Mother. However, she did not discover the extent of Mother’s 

alcohol abuse until Older Sister was seven when Mother, calling from a hospital, told her that 

Older Sister was home alone. Grandmother retrieved Older Sister and found candles burning in 

the home.

Regarding Mother’s relationship with Father, Grandmother testified that in early 2013 

Father was arrested and held in custody for physically assaulting Mother and Older Sister. While 

Father was in custody, Mother and daughters fled Idaho to live with Grandmother in Oregon. 

Grandmother helped Mother obtain a grant for victims of domestic violence to move out of 

Father’s home. However, Mother reunited with Father after his release from custody and moved 

back to Idaho with Child and Younger Sister. Meanwhile, Father was under investigation for 

sexually abusing Older Sister. Pursuant to a no contact order between Father and Older Sister, 

Older Sister continued to live with Grandmother.

Grandmother did not see Child again until she took custody of her following the 

collision. Grandmother testified that at that time Child was fearful and scared of noises and 

shadows, cried often, had issues using the toilet, could not sleep by herself, woke in the night 

screaming, exhibited food-hiding behaviors, was very underweight, had poor dental health with 

unresolved cavities and abscessed teeth, and was very fearful of riding in a car. However, Child 

had improved greatly while in her care and no longer exhibited any behaviors of concern. 

Specifically, Child confidently used the toilet, finished second grade with math proficiency at a 

fourth grade level, had five or six good friends, was involved in sports, was regularly seeing a 

pediatric dentist to address dental health issues, and car trips had gotten “90% better.” The only 

concern to which Grandmother testified was that Child refused to contact Mother despite 

Grandmother urging her to do so.

Originally, Mother visited Child twice a month by traveling to Oregon for one visit and 

having Grandmother drive Child to Idaho for the other. Grandmother testified that the Idaho trips 

were extremely stressful for Child, so beginning in September, 2014, Mother agreed to conduct 
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all visits in Oregon. In October 2014, Grandmother caught Mother with a twenty-four pack of 

beer in her hotel. Grandmother and Mother had some positive interactions, including a 

discussion in a later October visit where Mother admitted the April 2014 collision was her fault. 

Other visits involved conflicts between them. On one occasion, Mother yelled profanities at 

Grandmother but later apologized. On another occasion, Grandmother refused to chauffer 

Mother for an entire day and Mother became upset and stormed out.

Representing IDHW, Ms. Edmonson testified that, at the outset of the case plan, Mother 

successfully maintained housing and employment. Additionally, during visits, Mother provided 

Child with food, activities, and usually a gift. However, this progress was countered by Mother’s 

failure to attend mental health treatment sessions, failure to submit to all scheduled urinalysis 

tests, and arrests.

Mr. Terherst, Mother’s mental health counselor, identified sources of her mental health 

issues including physical abuse she suffered from Father, grief and bereavement related to 

Younger Sister’s death, and complications arising from her substance dependence. Mr. Terherst 

testified that Mother would need at least two years of steady treatment before she would heal

from these traumas.

Finally, Father volunteered to terminate his parent rights. He testified as to his belief that 

Mother was unaware of his sexual abuse of Older Sister although she had walked in on him with 

Older Sister after an episode of abuse. However, Father expressed his desire that Grandmother, 

not Mother, keep custody of Child.

On October 16, 2015, the magistrate court entered its order terminating Mother and 

Father’s parental rights to Child. After reviewing the evidence, weighing witness credibility, and 

recognizing its discretion, the magistrate court found that clear and convincing evidence showed 

Mother had “neglected” Child under Idaho Code section 16-2005(1)(b) (the magistrate court 

terminated Father’s parental rights based on his incarceration under Idaho Code section 16-

2005(1)(d) and (e)). In support of its decision and concluding that Mother “continues to lack 

insight into how to exhibit proper parental care and control for [Child’s] well-being. . . [and] 

continues to make destructive choices, putting herself and others at risk,” the magistrate court 

identified the following facts: (1) Mother exposed Child to domestic violence, alcohol abuse, and 

instability by maintaining her relationship with Father, who had physically abused her and 

sexually abused Older Sister; (2) Child was malnourished and had poor dental health under 
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Mother’s care; (3) the circumstances of Mother’s misdemeanor DUI arrest show she drove 

intoxicated; (4) despite efforts to reunite Mother with Child and the terms of her bond 

prohibiting her from drinking, entering a bar, or driving, Mother drove to a casino where she was 

“obviously intoxicated”; (5) Mother battered a casino patron and violently resisted arrest; and (6) 

the GAIN assessment revealed that during November and December 2014, and January 2015,

when Mother-Child visits were occurring, the longest period that Mother had been sober was 

four days. Mother appeals this order.

III. ISSUES ON APPEAL

1. Did the magistrate court err in terminating Mother’s parental rights?

2. Did the magistrate court abuse its discretion by taking judicial notice of findings entered 

after the adjudicatory hearing?

3. Did the magistrate court abuse its discretion by admitting evidence of IDHW’s efforts to 

determine whether the Indian Child Welfare Act applied to Child?

IV. STANDARD OF REVIEW

Due process requires that grounds for termination of parental rights be shown by clear 

and convincing evidence. Dep’t of Health and Welfare v. Roe, 139 Idaho 18, 21, 72 P.3d 858, 

861 (2003). A trial court’s findings based on clear and convincing evidence will not be 

overturned on appeal unless they are clearly erroneous. In re Crum, 111 Idaho 407, 408, 725 

P.2d 112, 113 (1986). Clear error will not be deemed to exist where findings are supported by 

substantial and competent evidence. Id. Evidence is substantial and competent if a reasonable 

mind could accept it as sufficient proof of some fact. Idaho Dep’t of Health and Welfare v. Doe, 

151 Idaho 356, 363, 256 P.3d 764, 771 (2011). When reviewing lower court findings, this Court 

takes all reasonable inferences in support of the lower court’s judgment. In re Aragon, 120 Idaho 

606, 608, 818 P.2d 310, 312 (1991). This deference is particularly important where the State 

seeks to terminate parental rights because the fact finder is better positioned to “observe 

witnesses’ demeanor, to assess their credibility, to detect prejudice or motive, and to judge the 

character of the parties” than an independent review of a cold record. Id.

We review a lower court’s evidentiary rulings for abuse of discretion. Hurtado v. Land 

O’Lakes, Inc., 153 Idaho 13, 18, 278 P.3d 415, 420 (2012). Furthermore, the appellant must also 

show that the ruling affected a substantial right. Id.

V. ANALYSIS
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Mother challenges the sufficiency of the evidence that the magistrate found in 

terminating her parental rights and her conclusion that IDHW had made reasonable efforts to 

reunite her with Child prior to petitioning for termination of her rights. Additionally, Mother 

raises two separate evidentiary challenges concerning judicial notice of prior proceedings and 

evidence of IDHW’s Indian Child Welfare Act (“ICWA”) investigation respectively.

A. The magistrate court did not err in terminating Mother’s parental rights because its 

findings are supported by substantial and competent evidence and IDHW had made 

reasonable efforts to reunify Mother and Child.

Mother raises two arguments against the magistrate court’s decision to terminate her 

parental rights. First, the magistrate court lacked clear and convincing evidence that Mother 

neglected Child. Second, the magistrate court improperly granted the petition to terminate her 

parental rights because IDHW failed to make reasonable efforts to reunite her with Child.

1. Mother’s relationship with Father, alcohol abuse, inconsistent compliance with 

the case plan, and arrests, as well as Child’s condition prior and subsequent to 

placement with Grandmother, are substantial and competent evidence that 

Mother neglected Child.

A court may terminate parental rights if it finds both that termination is in the child’s best 

interests and that the parent has neglected the child. I.C. § 16-2005(1)(b). Mother does not 

challenge the magistrate court’s decision regarding Child’s best interests. Instead, Mother points 

to evidence of mitigating factors to show that she did not neglect Child. For purposes of 

termination under Idaho’s Child Protective Act, Idaho Code section 16-2002(3)(a), a child is 

“neglected”:

(a) Who is without proper parental care and control, or subsistence, medical or 

other care or control necessary for his well-being because of the conduct or 

omission of his parents, guardian or other custodian or their neglect or refusal to 

provide them. . .

I.C. § 16-1602(28)(a).

Mother argues that she was changing her conduct to assume parental responsibilities by 

attending substance abuse treatment and mental health counseling. She supports this claim by 

emphasizing her ability to maintain employment while downplaying her alcohol problems. 

Furthermore, Mother argues that the magistrate court’s consideration of her continual 

relationship with Father effectively punishes her for suffering his physical abuse. Finally, she 

argues that the magistrate court improperly considered Father’s sexual abuse of Older Sister 

because Father testified that Mother was unaware of the abuse.
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We are not persuaded that these assertions and selective observations undermine the 

magistrate court’s decision. To the contrary, these arguments demonstrate Mother’s persistent 

denial of and inadequate efforts to change her destructive habits.

In support of its decision, the magistrate court emphasized that Mother’s completion of 

the ADIS course was “vastly insufficient” to address the full extent of her alcohol dependence. 

Due to Mother’s misleading initial self-reported substance abuse evaluation, she could not even 

begin considering appropriate treatment until six months into the case plan when she finally 

submitted to the GAIN assessment. Particularly concerning, the GAIN assessment revealed that, 

despite her case plan directions, Mother frequently drank to intoxication between visitations,

when efforts to reunite her with Child were greatest. However, the magistrate court did commend

Mother for pursuing mental health treatment and maintaining employment. Unfortunately, her 

alcohol fueled arrests dramatically overshadow these efforts.

Amplifying the magnitude of her poor decision making, Mother argues now that “there is 

nothing illegal about a person over the age of 21 consuming alcohol” and that her arrests cannot 

reflect on her parenting because she lacked custody at the time. First, temporary removal of a 

child is not a license to misbehave. Second, legal drinking age is a non-sequitur that ignores how 

even legal conduct may fail to meet the standard of care a parent owes her child and, while 

responsible drinking may not be illegal, Mother’s conduct was far from responsible.

Similarly, Mother’s poor decision making for Child’s well-being is at the center of the 

magistrate court’s consideration of her relationship with Father. Although Father’s incarceration 

protects Child from continued exposure to his behavior, the magistrate court properly considered 

Mother’s handling of his past behavior to determine her continued inability to protect Child’s 

well-being. In Interest of Dayley, 112 Idaho 522, 525, 733 P.2d 743, 746 (1987). Child neglect 

encompasses a parent’s failure to protect a child from exposure to domestic violence. In re Doe, 

143 Idaho 343, 347, 144 P.3d 597, 601 (2006). Parents who are victims of domestic violence

may face financial, housing, family, and other burdens but a child’s well-being requires they be 

overcome. Here, after one episode of domestic violence where Father was held in custody, 

Mother had access to a grant that would have enabled her to shield Child from his behavior by 

moving out of his home. Instead, upon his release from custody, Mother reunited with Father. 

Furthermore, Mother’s return with her children to live with Father after discovering his sexual 

abuse of Older Sister exemplifies Mother’s inability to prioritize Child’s well-being over her 
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own relationships. The magistrate court was not required to accept Father’s belief that Mother

was ignorant of the abuse and instead found Older Sister’s testimony more credible. Mother’s

argument to the contrary is without merit.

In addition to Mother’s alcohol abuse, arrests, and her relationship with Father, the 

magistrate court found Mother was inconsistent with her case plan and that Child suffered 

physical and mental conditions in her care. Although the magistrate court’s determination of 

neglect is based on Mother’s conduct and not failure to comply with her case plan, her missed 

urinalysis tests and arrests reflect her general inability to care for Child. Finally, Grandmother 

testified that Child’s weight at birth was on the 95th percentile but when she took custody 

Child’s weight was on the 21st percentile. Based on this and the rest of Grandmother’s 

testimony, the magistrate court determined that Child became underweight and had poor dental 

health under Mother’s care. Together, this evidence is substantial and competent support for the 

magistrate court’s finding of neglect.

2. Substantial and competent evidence supports the magistrate court’s finding that 

IDHW made reasonable efforts to reunify Mother and Child.

Mother raises three arguments in support of her claim that IDHW failed to make 

reasonable efforts to reunite her with Child. First, she argues the prosecutor in her criminal 

proceedings prevented her from pursuing substance abuse treatment when he successfully 

objected to her motion for furlough following her arrest at the casino. This confuses the duty of 

the prosecutor in her criminal proceedings with that of IDHW in the child protection 

proceedings. Nothing under the Child Protective Act imposes a duty on prosecutors to assist in 

reunification.

Second, Mother argues IDHW actively obstructed her case plan progress by first 

objecting to the sufficiency of her original substance abuse evaluation and ADIS course 

recommendation and then failing to arrange for her to receive inpatient treatment while in 

custody. We reject this attempt to frame IDHW’s concerns and discretion regarding her case plan 

as obstruction. Based on its investigation and interactions with Mother, IDHW harbored 

substantial doubts about the adequacy of the Nimiipuu self-reported substance abuse evaluation. 

When Mother confessed the greater extent of her alcohol abuse, IDHW assisted her in obtaining 

a GAIN assessment and attempted to secure inpatient treatment at a recovery center for her. 

Mother’s intervening conduct at the casino, which resulted in her being jailed and denied
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furlough, cannot be construed as IDHW’s failure to make reasonable efforts to reunify her with 

Child.

Finally, Mother argues that Child’s placement with Grandmother made achieving her 

case plan goals more difficult because Grandmother lives approximately eight hours from her.

Mother should have anticipated the potential visitation distance when she recommended that 

Grandmother take custody of Child. To its credit, IDHW arranged for Mother to visit Child twice 

a month and paid her travel expenses. Furthermore, IDHW supported Mother’s treatment plan by 

meeting with treatment providers monthly to monitor her progress. IDHW’s pursuit of adequate 

evaluation and treatment for Mother and its facilitation of her visits with Child are substantial 

and competent evidence in support of their reasonable efforts to reunify Mother and Child.

B. The magistrate court did not err in taking mandatory judicial notice of the

adjudicatory hearing transcript.

Mother argues that the magistrate court erred in taking judicial notice of the adjudicatory 

hearing transcript for purposes beyond determining jurisdiction. At the beginning of the 

termination trial, the Prosecutor requested judicial notice pursuant to Idaho Rule of Evidence 

201; particularly,

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable 

dispute in that it is either (1) generally known within the territorial jurisdiction of 

the trial court or (2) capable of accurate and ready determination by resort to 

sources whose accuracy cannot reasonably be questioned.

. . .

(d) When Mandatory. When a party makes an oral or written request that a court 

take judicial notice of records, exhibits or transcripts from the court file in the 

same or a separate case, the party shall identify the specific documents or items 

for which the judicial notice is requested or shall proffer to the court and serve on 

all parties copies of such documents or items. A court shall take judicial notice if 

requested by a party and supplied with the necessary information.

I.R.E. 201(b) and (d) (emphasis added).

Since the Prosecutor properly made an oral request that the magistrate court take judicial 

notice of a transcript from the court file and identified the items sought, Idaho Rule of Evidence 

201(d) compelled the magistrate to take notice.

C. Mother fails to explain how exhibits reflecting IDHW’s efforts to determine whether 

the Indian Child Welfare Act applied to Child affect any of her substantial rights.

Under ICWA, if IDHW has reason to believe that a child is an Indian child, then it must 

notify tribes who may either assert jurisdiction or join the state case. 25 U.S.C. § 1912. During 
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the termination trial, Mother’s counsel objected to the admission of exhibits numbered 4, 5, 6, 

and 11 through 17, on hearsay grounds. These exhibits are tribe responses to IDHW’s ICWA 

notices. The magistrate court overruled all of these objections. Mother raises these objections

again; however, she fails to identify any of her rights that these exhibits may affect or how it may 

have affected them. Since she has not demonstrated a substantial affect to her rights, we affirm 

the magistrate court’s ruling without evaluating its exercise of discretion.

VI. CONCLUSION

For the foregoing reasons, there is substantial and competent evidence supporting the 

magistrate court’s decision to terminate Mother’s parental rights. We affirm the judgment and 

award costs to respondents.

HORTON, J., specially concurring.

I join in the decision of the Court, save for Part V(B), relating to judicial notice of the 

transcript of the adjudicatory hearing. Although I concur in the result reached in that section of 

the Court’s opinion, I cannot join in the Court’s reasoning.

Rule 201, Idaho Rules of Evidence (Rule 201), “governs only judicial notice of 

adjudicative facts.” I.R.E. 201(a). 

Black’s Law Dictionary defines an adjudicative fact as “a controlling or operative 

fact, rather than a background fact; a fact that concerns the parties to a judicial or 

administrative proceeding and that helps the court or agency determine how the 

law applies to those parties. For example, adjudicative facts include those that the 

jury weighs.” BLACK’S LAW DICTIONARY 610 (7th ed. 1999).

State v. Lemmons, 158 Idaho 971, 978, 354 P.3d 1186, 1193 (2015) (W. Jones, J., specially 

concurring).

Rule 201(b) describes the kind of adjudicative facts of which a court may take judicial 

notice: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either 

(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate 

and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” 

There is simply no basis for concluding that the transcript, in itself, constitutes an 

adjudicative fact. Instead, it is a verbatim account of testimony in a prior proceeding. Although 

the document may contain evidence from which a factual determination may be derived, the 

document does not, in itself, prove any particular fact. Further, this Court has no basis for 

deciding whether the transcript contains information “not subject to reasonable dispute,” as 

required by Rule 201(b). That is because the transcript in question is not part of the record on 
15

appeal. This comes as no surprise, as the trial judge’s findings of fact and conclusions of law 

explicitly noted that a copy of the transcript “was not entered into evidence.” 

The Court’s decision rests upon the mandatory language found in Rule 201(d). This begs 

the question, if a transcript does not constitute an adjudicative fact, what do the references to 

“judicial notice of records, exhibits or transcripts from the court file in the same or separate case” 

found in Rules 201(c) and 201(d) relate to? The answer is not to be found in the text of the Rule. 

Instead, it is found in the material presented to the Court prior to its amendment of the Rule in 

2007. The draft amendments to the Rule, which the Court adopted without changes, were 

accompanied by an explanation of the purpose for the amendments. That explanation follows in 

its entirety:

Excerpt from minutes of the Appellate Rules Advisory Committee Meeting of 

January 19, 2007.

“Judicial Notice. The Office of the SAPD brought up the issue of taking judicial 

notice of underlying criminal files in post-conviction cases. In many cases the 

court is just asked or on its own takes judicial notice of the file without specifying 

which documents in the file are really being noticed. This presents a problem on 

appeal because even if the criminal case was appealed to the Supreme Court the 

file retained by the Supreme Court does not contain any exhibits from the 

criminal case. Those are returned to the district court. If the criminal case was 

not appealed the district court clerk is hesitant to attach the original criminal file 

as an exhibit to the post-conviction record. The parties should be offering 

documents or transcripts from the criminal case to the district court as exhibits to 

the post-conviction case and if it is a pro se applicant the burden is on the state to 

do this.

The Committee decided that this was more an evidentiary problem that should be 

dealt with by a rule of evidence requiring that the parties shall designate what 

portions of the file it is requesting the court to take notice of and the court shall 

specify what portions of the file it is noticing. Judge Lansing, who chairs the 

Evidence Rules Advisory Committee, agreed to ask the members of that 

committee to consider an amendment and to circulate the proposal by ballot so it 

could be addressed in July 2007.”

It is clear that the purpose of the amendment was to address a problem with the quality of the 

record on appeal in post-conviction relief proceedings, not to substantively modify the rule as to 

the types of adjudicative facts which are properly subject to judicial notice. Thus, I conclude that 

subsection (b) of the Rule defines the type of adjudicative facts of which a court may properly 

take judicial notice and subsections (c) through (g) establish the procedures governing taking 

judicial notice. Subsections (c) and (d) do not trump or supersede subsection (b); rather, they 
16

complement subsection (b) and provide a mechanism for creating a record for appellate review 

when courts look to records of proceedings in the same or related cases when making a decision. 

For that reason, I believe that the trial court erred when it agreed to take judicial notice of the 

transcript for the purpose of establishing the factual basis for its earlier holding “that [Child] fell 

within the jurisdiction of the Child Protection Act.”

I concur in the result, however, because Mother has not shown that the error relating to 

the transcript resulted in prejudice to a substantial right. Two aspects of Rule 103, I.R.E. are 

implicated by Mother’s claim in this appeal. The first is Rule 103(a), I.R.E., captioned “Effect of 

erroneous ruling,” which explicitly provides that “[e]rror may not be predicated upon a 

ruling which admits or excludes evidence unless a substantial right of the party is affected.” The 

second aspect is Rule 103(a)(1), I.R.E., which additionally requires that “the specific ground of 

objection” must be specified in opposition to the admission of evidence. 

The requirement that a substantial right of a party be affected as a prerequisite to a claim 

of error places a burden on an appellant to “present argument and authority, in their opening 

brief, that a substantial right has been affected by the improper admission” of evidence. Mulford 

v. Union Pac. R.R., 156 Idaho 134, 140, 321 P.3d 684, 690 (2014) (citing Bolognese v. Forte,

153 Idaho 857, 866, 292 P.3d 248, 257 (2012)). The failure to advance argument and authority 

on the effect of a claimed evidentiary error on a substantial right results in a waiver of the claim 

on appeal. Hurtado v. Land O’Lakes, Inc., 153 Idaho 13, 18, 278 P.3d 415, 420 (2012). Although 

Mother has identified an evidentiary error by the trial court, her opening brief is silent as to the 

impact of that error on a substantial right. 

The absence of such argument is understandable. In response to the prosecutor’s request 

that the trial court take judicial notice of the transcript, Mother’s trial counsel responded: “I have 

no objection as to the State [sic] taking judicial notice that they found that the State had proved 

by a preponderance of the evidence that [Child] fell within the jurisdiction of the Child 

Protection Act.”

1 Although the trial court then ruled that judicial notice of the transcript would be 

taken for purposes of establishing the facts underlying that holding, the findings of fact and 

 

1

It is evident that the trial court’s determination “that the State had proved by a preponderance of the evidence that 

[Child] fell within the jurisdiction of the Child Protection Act” was not an “adjudicative fact” for purposes of the 

termination trial. That determination did not contribute to the trial court’s conclusion that Mother was unable to 

discharge her parental responsibilities to Child and that Mother had neglected Child.
17

conclusions of law reflect that the trial court did not, in fact, look to the transcript for that 

purpose: 

An adjudicatory hearing to determine whether or not [Child] fell within 

the jurisdiction of the Child Protective Act was held on July 11, 2014. Following 

testimony of several witnesses, it was determined by a preponderance of the 

evidence that [Child] did fall within the jurisdiction. The State, at the beginning of 

the termination trial, asked the Court to take judicial notice of the findings from 

the adjudicatory hearing, specifically as stated in the certified transcript of that 

hearing from page 130, line 20 through page 136, line 8 (a transcript which was 

prepared for and lodged in [the criminal case], but a copy was not entered into 

evidence in this matter). Counsel for CASA and counsel for the father had no 

objection to this procedure, and counsel for mother had no objection in that by a 

preponderance of evidence the child was found to be within the jurisdiction of the 

Act. Accordingly, the Court has reviewed the transcript. . . . As a result of the 

adjudicatory hearing, [Child] was found to be within the jurisdiction of the Act, 

and was placed in the legal custody of the Department of Health and Welfare. 

In short, the trial court ignored its earlier ruling and considered the transcript solely for the 

purpose which Mother’s attorney had stipulated. In the absence of an objection to the trial court’s 

consideration of the transcript for this purpose, the claimed error was waived. 

For these reasons, I concur in the result reached by the Court in Part V(B) of its opinion.

Chief Justice J. JONES, Justices EISMANN and BURDICK CONCUR.