1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48270

In the Matter of: John Doe II and John Doe III, Children Under Eighteen (18) Years of Age. ) ) ) JANE DOE and JOHN DOE I ,
Petitioners

- Respondents ,

v.
JOHN DOE (2020

- 34) , Respondent

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: January 27, 2021
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the Magistrate Division of the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David R. Kress , Magistrate

. Judgment terminating parental rights, vacated ; and case remanded

.
David R. Martinez
, Bannock County Public Defender; Jessalyn R. Hopkin
, Deputy Public Defender, Pocatello , for appellant.
David K. Penrod, Pocatello , for respondent s

.

________________________________________________ GRATTON, Judge
John Doe appeals from the magistrate court’s order terminating Doe’s parental righ ts to his two minor children

. Doe argues that the magistrate court erred by concluding (1) that Doe
abandoned his children
, and (2) it was in the children’s best interest s for termination. For the reasons set forth below, we vacate the judgment terminating Doe’s parental rights and remand
this case to the magistrate court

. I.

FACTUAL AND PROCEDURAL BACKGROUND
This case arose in October 2019, when Jane Doe (Mother) and John Doe I (Stepfather) (collectively “ r espondents”) filed a petition for adoption and termination of Doe’ s parenta l rights to his two minor children, G.P. and N.P. T he petition alleged that termination was in the2

children’s best interest s and was based on four statutory bas e s : a bandonment
, neglect, inability

to discharge parental responsibilities for a prolonged period, and incarceration for a substantial period of time

. Prior to trial, the magistrate c ourt appointed an expert to con duct interviews of
the children. Evidence from the interviews was presented at the termination trial, which commenced in May 2020. The undisputed trial evidence showed that Doe and Mother were previously married and
are the biological parents of G.P. and N.P

. G.P. was born in December 2008 and N.P. was born
in March 2011. 1 In December 2008, Doe was injured while working and was prescribed pain
medication for his injury. Doe became addicted to the pain medication and acquired a substance abuse problem. In 2009, Doe sought medical assistance for his addiction but it was unsuccessful. In 2011, soon after the birth of N.P., Doe wa s incarcerated for possession of methamphetamine and burglary. Shortly thereafter, Doe and Mother separated. Since his first incarceration in 2011, Doe’s battle with addiction lead to a significant amount of time incarcerated on various charges . Doe was incarcerated on twelve separate occasions from 2011 to 2019 for crimes such as felony possession of methamphetamine, burglary, driving while intoxicated, and numerous probation violations. In 2012, Mother and Stepfather began dating and were married in 2014. In 2016, Mother filed a petition to modify her divorce decree and was awarded sole legal custody of the children. Although Mother was awarded sole custody, she allowed visits and even overnights between
Doe and the children. At the time of trial in this case, the children resided with Mother, Stepfather, and two other siblings. The children refer to both Doe and Stepfath er as “D ad

. ” It is undisputed that Mother and Stepfather provide adequate care for the children and the children are happy and healthy in Mother and Stepfather’s care.
At the time of trial, Doe was incarcerated and worked off

- site at St. Anthony W ork Camp earning $3.04 an hour. Because of his incarceration, Doe was u nable to physically visit with the children but he engaged in phone calls with the children every Sunday. Doe also sent the children gifts and letters. However, the phone calls ceased after Mother filed for termination and stopped answering Doe’s phone c alls. Nonetheless, Doe would inquire a bout the children with

1 The birthdates and ages of the children are inconsistent in the respondent s ’ brief and in the magistrate court’s findings of fact. According to the testimony at tr ial, the appellant’s brief, and portions of the respondents’ brief, N.P. was born in 2011.3

his A unt Terry, whom the children referred to as grandma, and the two would plan gifts to give the children for holidays and birthdays. After trial, the parties filed written closing arguments and the magistrate court issued its
order. In its order, t he magistrate court set forth numbered findings of fact, the relevant law, and

e xpressed the following conclusions :

The Petitioners argue that [Doe] has abandoned his sons by failing to maintain a normal p arental relationship by a lack o f regular personal contact. However, it is necessary to examine this argument in light of [Doe] ’s circumstances. It is clear that since 201 1, [Doe] has had little contac t with his

sons. However, it is necessary to exam this lack of contact in light of [Doe] ’s circumstances. [Doe] has been incarcerated dur ing much o f the min or children’s lives. He has had limited contact when not incarcerated, but cumulatively th e amount of time spent with the boys in not a normal parent child relationship. In fact, b ut for the mother keeping phone calls going while he was incarcerated, [Doe] would not know w hat was going on in the children’s lives. The Court has struggled with these facts and believes the father loves his

sons. The Court knows that the boys know who their real dad is. However, the Court finds it difficult to ignore the fact [Doe] has not had a meaningful relationship with his sons. The Cou rt struggles with the question o f whether the parent has abandoned the ch ild by having willfully failed to maintain a normal parental relationship, because much of the time the father was incarcerated. However, his inability to beat his addictions has created the overall lack of a normal parent child relationship. Therefore, it is in the Court’s opinion, the circumstances the father finds himself in does amount to clear and convincing and competent evidence that [Doe] has abandoned his sons by willfully failing to maintain a normal parental relationship. The Court also conclu des that the [b] est [i] interests of the child would be promoted by having the continuity and stable relationship they have with their step

- father by allowing him to adopt the boys and continue in his positive relationship as their father. Ultimately, the m a gistrate court did not address the other statutory basis but terminated Doe’s parental rights based on a finding of abandonment and best interest s of the children. 2 Doe timely appeals.
II.
STANDARD OF REVIEW A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville , 530 U.S. 57, 65 (2000 ) ; Doe v. State , 137 Idaho 75 8, 760, 53 P.3d

2 Following trial, Doe was released and is no longer incarcerated.4

341, 343 (2002). This interest is protected by the Fourteenth Amendment to the U nited S tates Constitution. State v. Doe , 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the Termination of Parent and Child Relationship Act is the philosophy that
, wherever possible
, family life shoul d be strengthened and preserved

. I.C. § 16

- 2001 (2)

. Therefore, the requisi tes of due process must be met when terminating the parent

- child relationship. State v. Doe , 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminatin g a parent

- child relationship be proved by clear and convincing evidence. Id

. Because a fundamental liberty interest is at stake, the United States Supreme Court has determined that a court may terminate a parent

- child relationship only if that decision is supported by clear and convincing evidence. Santosky v. Kra mer , 455 U.S. 745, 769 (1982); s ee also I.C. § 16

- 2009 ; In
re D oe , 146 Idaho 759, 761

- 62 , 203 P.3d 689, 691

- 92 (2009); Doe , 143 Idaho at 386, 146 P.3d at 652

. On appeal from a decision terminating parental rights, this Court examines whether the decision is supported by substantial and competent evidence, which means such evidence as a reasonable mind might accept as adequate to support a conclusion

. Doe v. Doe , 148 Idaho 243,
245

- 46, 220 P.3d 1062, 1064

- 65 (2009). The appellate court will indulge all reasonable inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test requires a greater quantum of evidence in cases where the trial court’s finding must be supported by clear and convincing evidence than in cases where a mere preponderance is required. In re
Doe , 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood to be evidence indicating that the thing to be proved is highly probable or reasonably
certain. In re Doe , 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further , the magi strate’s decision must be supported by objectively supportable grounds. In re Doe , 143 Idaho at 346,
144 P.3d at 600.
Idaho Code § 16

- 2005 permits a party to petition the court for termination of the parent

child relationship when it is in the child’s bes t interest and any one of the following five factors
exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities for a prol onged period that will be injurious to the health, morals, or well

- being of the child; or (e) the parent is incarcerated and will remain incarcerated for a substantial period of time

. Each5

statutory ground is an independent basis for termination. Doe , 144 Idaho at 842, 172 P.3d at
1117

. III.
ANALYSIS Doe argues that the magistrate court erred by terminating Doe’s parental r ights. Specifically, Doe contends that the magistrate court failed to apply the correct clear and convincing evidence standard of proof, and even if the magistrate court applied the correct
standard of proof, there was not substantial evidence for a finding that Doe w illfully abandoned
the children or that termination was in the children’s b est interests. In response, Mother and Stepfather argue that the magistrate court correctly applied the clear and convincing evidence standard and the magistrate court’s decision to terminate Doe’s parental rights was based on substantial and competent ev idence. As an initial matter , we will address Doe’s contention that the magistrate court failed to apply the correct s tandard of proof. At the close of trial, the magistrate court stated to the parties “I can tell you both I could probably justify my de cision e ither way based on the record.” In addition, in the magistrate
court’s memorandum decision and order
, the court reiterated its struggle writing that it “ has struggled with these facts and believes the father loves his sons. . . . The Court struggles with the question of whether the parent has abandoned the child [ren] by having willfully failed to maintain a normal parental relationship, because much of the tim e the father was incarcerated.”
Based on those statements , Doe argues th at the magistrate court applied a preponderance of the evidence standard instead of the required clear and convincing evidence standard of proof. Further, Doe contends that
, T he court must be clearly convinced that [Doe] abandoned the minor children, not that it is merely likely [Doe] abandoned the minor children. In this case, even though the magistrate court wrote that it used the clear and convincing burden of proof standard, the magistrate court could not have been clearly convinced if the court could have justified a decision to not terminate the rights of [Doe] using the

same evidence. In response, Mother and Stepfather argue that the magistrate court set forth and applied the proper clear and convincing evidence standard. We ag ree with Doe

. We co nclude that , although the court articulated the appropriate standard, the magistrate

court failed to apply the correct clear and convincing evidence standard of proof. Unlike lower standards of proof, the clear and convincing evidence standard requires, after understanding and6

asse ssing the evidence, that the tr i a l court not remain in a struggle but rather be clearly
convinced that it s decision is the correct one. Here the court, b y its own statements , was not clearly convinced that Doe abandoned his children

. This is evidenced by the fact that the magistrate court articulated multiple times that it could “justify [its] decision either way based upon the record

. ” Thus, the evidenc e surely did not clearly convince the court as required by the
standard. Because the magistrate court was not clearly convinced but nonetheless found that Doe abandoned his children, the magistrate court erred in the application of the appropriate
standar d of proof. Next, we will address Doe’s argument on the merits of the magistrate court’s abandonment finding

. Doe argues that there is not substantial and competent evidence to support
the magistrate court’s conclusion that Doe abandoned the children. In this case , the magistrate

court terminated Doe’s parental rights on the ground of abandonment, I.C. § 16

- 2005 (5)

. Pursuant to I.C. § 16

- 2002(5), abandonment occurs when the parent has willfully failed to maintain a normal parental relationship includin g, but not limited to, reasonable support or regular personal contact. The word “or” is a disjunctive particle used to express an alternative and, thus, the willful failure to maintain a normal parental relationship can be based upon either
the failure to pay reasonable support, or the failure to have regular personal contact, or some
other failure. Doe I v. Doe II , 148 Idaho 713, 715, 228 P.3d 980, 982 (2010). When a parent fails to maintain a normal parental relationship without just cause for a perio d of one year, prima facie evidence of abandonment exists. I.C. § 16

- 2002(5). There is no universal standard for what constitutes a normal parental relationship, and whether such a relationship exists depends on the facts and circumstances of each case. Doe v. Doe , 150 Idaho 46, 50, 244 P.3d 190, 194 (2010). The petitioner bears the burden of persuasion to demonstrate that the parent lacks a normal parental relationship with the child and that there is no just cause
for the failure to maintain such a re lationship. Id. If the petitioner is able to meet this burden, the parent then has the burden of production to present evidence of just cause. Id. If the magistrate court finds that just cause has not been established, the petitioning party has met its burden of persuasion. Id

. Here, Doe contends that the magistrate court improperly terminated his parental rights based on its finding that Doe’s inability to overcome his addiction, which led to his numerous incarcerations and amounted to willful cond uct that created the lack of a normal parental7

relationship

. Doe cites Doe , 137 Idaho at 758, 53 P.3d at 341 , and argues that despite his various incarcerations, the magistrate court was required to consider Doe ’s efforts given his
circumstances to maintain a normal parental relationship with the children

. Doe contends that, despite his incarceration, he always paid what he could in child support, provided the children with gifts and letters while incarcerated , and maintained weekly contact with the children via phone calls while incar cerated. Mother and Stepfather argue that substantial and competent evid ence supports the magistrate court’s conclusion that D oe abandoned the children. Specifically, t he r espondents
contend , as the magistrate cour t concluded, that Doe “willfully abandoned the minor children by chronically giving into his addicti ons and criminal proclivities.” They argue that “ B ecause of his willful choices, [Doe] could not help the minor children with homework, take them on trips, participate in extracurricular activities, attend parent teacher conference s, eat meals together, provide adequate financial support, [or] attend doctor appointments and so much more. ” We agree that the magistrate court terminated Doe’s parental rights based on its finding
that Doe ’s addiction and criminal acts , which resulted in repeated incarcerations, constituted
willful abandonment of his children. 3 However, the Idaho Supreme Court has prev iously rejected this reasoning. There fore, we conclude that the magistrate court erred by finding that
Doe abandoned his chi ldren under I.C. § 16

- 2002(5).
U nlike other statutory basis of termination, termination on the basis of abandonment requires a finding of willfulness. See I.C. § 1

. 6

- 2002(5). The Idaho Su preme Court made clear
in Doe I , 148 Idaho at 716, 228 P.3d at 983 that “ F or one to willfully fail to do something, he or she must have the ability to do it.” In addition, the Court made clear in Doe that a trial court cannot rely solely on the fact of a parent’s incarceration to justify a finding of abandonment.
Doe , 137 Idaho at 761

- 62, 53 P.3d at 344

- 45 . Rather, t he trial court must consider what actions the parent took to maintain a normal parental relationship given their circumstances. Id. ; Doe I ,

3 This is evident from the conclusions articulated in the magistrate court’s order, which are

se t forth above, and the magistrate court’s findings of fact. The magistrate co urt’s finding of fact thirty

- seven is particularly illustrative of this point: The Court notes that although much of the lack of relationship was not willful in that the Responde nt was incarcerated, while at the same time noting the Respondent [’ s ] continued involvement with the criminal justice system was his choice, even though addict ions seem to control his life.8

148 Idaho at 716, 228 P.3d at 983. Thus, we must examine Doe ’s efforts to maintain a normal parental relationship given his incarceration and whether Doe could have done more

. First, i t is undisputed that while Doe was incarcerated he sent gi ft s and letters to the
children

. Doe also maintained weekly contact with the children by engaging in phone calls every Sunday

. However, after Mother and Stepfather filed the petition for termination, the phone calls
ceased because Mother no longer answer ed when Doe called . Nonetheless, Doe sought updates regarding the children from his Aunt Terry. It is also undisputed that Doe would send money to
his aunt and the two would arrange gifts for the aunt to give the children on behalf of Doe

. In addition to those factors , the Idaho Supreme Court has indicated that an individual’s desire to parent their children is a factor that the court can consider when assessing termination
on the basis of abandonment. See Idaho Dep't of Health & Welfare v. Doe , 154 I daho 175, 182,
296 P.3d 381 , 388 (2013) (affirming termination on the basis of abandon ment where father was in pris on when the child was born, was released and re

- incarcerated on numerous occasions, and father neither “made an effort to establish a parent

- child relationship with [the child], nor that he appeared to want to do so, whether in or out of prison ”)

. Here, Doe has a desire to parent his
children. This is evidenced by t he record as a whole and the magistrate court ’s finding that the
children “kno w who their real dad is ” and that Doe “ loves his sons .” 4 It appears to be Doe’s inability to beat his addictions that has caused Doe problems and not his lack of want to parent
his children. Second, t here was no testimony, evidence, or argume nt advanced that Doe could have done more in any aspect to provide a normal parental relat ion s hip given his incarceration. Additionally, the magistrate court did not make one finding that Doe could have done more. 5 Thus, n otwithstanding his repeated inca rcerations, Doe used the avenues that were available to
him to maintain con tact with the children; Doe has a desire to parent his children ; and there was
no indication that he could have done more to provide a normal parental rela tionship given his
circums tances

. Accordingly, we conclude that the magistrate court erred b y finding th at Doe

4 It is also undisputed that when he was not incarcerated
, Doe di d have some overnight visits with the children. In addition, although he was in arrears, it is undisputed that Doe always paid what he could in child support. Specifically, Doe testified that he always paid some support when not incarcerated and when he was incarcerated he paid half of his $3.04 an hour salary in child support.

5 Mother and Stepfather argued that Doe’s phone calls with the children could have been longer, but did not show how that fact supported a finding of abandonment.9

abandoned the children. Because we conclude that the magistrate court erred in its application of
standard of proof and in its finding of abandonment , w e need not analyz e whether termination is
in the best interest s of the children.
IV.
CONCLUSION The magistrate court erred by failing to apply the appropriate standard of proof and by terminating Doe’s parental rights based upon its finding of abandonment. Because the

mag istrate court did not consider the other basis of termination a dvanced by Mother and Stepfather, we vacate the magistrate court’s judgment ter minating Doe’s parental rights on the
basis of abandonment an d remand the case for further proceedings consistent with this opinion. Chief Judge HUSKEY and Judge BRAILSFORD CONCUR

.