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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49659

In the Interest of:

Jane Doe I and Jane Doe II, Children 

Under Eighteen (18) Years of Age.

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STATE OF IDAHO, DEPARTMENT OF 

HEALTH AND WELFARE,

Petitioner-Respondent,

v.

JOHN DOE (2022-13),

Respondent-Appellant.

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Filed: November 16, 2022

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Elmore County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Theodore 

Fleming, Magistrate.

Judgment of the district court, on intermediate appeal from the magistrate court, 

affirming finding of aggravated circumstances, affirmed.

Davis & Walker; Layne Davis, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Peter A. Mommer, Deputy Attorney 

General, Boise, for respondent.

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GRATTON, Judge 

John Doe (Doe) appeals from a decision of the district court, on intermediate appeal from 

the magistrate court, affirming the magistrate court’s finding of aggravated circumstances. Doe 

argues that the district court erred by affirming the magistrate court when the magistrate court: 

(1) improperly considered its witness credibility determination in Doe’s criminal preliminary 

hearing for purposes of the aggravated circumstances hearing; (2) denied Doe his right to an 

impartial adjudicator by considering its prior witness credibility determination in the aggravated 

circumstances hearing; and (3) applied the incorrect standard to the aggravated circumstances 

determination by applying the preponderance of the evidence standard rather than the clear and 

convincing evidence standard. For the reasons set forth below, we affirm.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

Doe is the natural father of Jane Doe I and Jane Doe II, the children who are the subjects 

of this Idaho Protective Act (CPA) proceeding. The petition under the CPA included affidavits 

alleging that Doe violated Idaho Code § 18-1506 by virtue of various sexual acts involving his 

daughter and that he suffered from substance abuse while the children were in his care. The 

children were declared in imminent danger and placed into the custody of the Idaho Department 

of Health and Welfare (Department).

Doe was subsequently charged in a related criminal matter with one count of sexual abuse 

of a child under the age of sixteen years, I.C. § 18-1506. At the preliminary hearing, Jane Doe I 

testified under oath and was subject to cross-examination. During her testimony, which was found

to be credible, Jane Doe I recounted specific instances of sexual conduct that she was forced to 

perform for Doe. Based upon the preliminary hearing, Doe was bound over to the district court.

An adjudicatory hearing was held in the CPA case. Doe stipulated to an unstable home 

environment and agreed it was in the best interests of the children for them to remain in the legal 

custody of the Department. Prior to the adjudicatory hearing, the Department filed a motion for a 

finding of aggravated circumstances based upon Doe’s conduct violating I.C. § 18-1506. A finding 

of aggravated circumstances relieves the State of its burden of establishing that it employed 

reasonable efforts to reunify the family. I.C. § 16-1619(6)(d). Aggravated circumstances 

“includes, but is not limited to: [s]exual abuse against a child of the parent. Sexual abuse . . . 

includes any conduct described in section 18-1506 . . . .” I.C. § 16-1602(6)(a)(ii). 

The preliminary hearing in the criminal case and the aggravated circumstances hearing in 

this child protection case were conducted by the same magistrate court. At the aggravated 

circumstances hearing, the only evidence presented was a transcript of Jane Doe I’s testimony 

during the preliminary hearing. The magistrate court determined that aggravated circumstances 

existed based on the facts established at the preliminary hearing and its determination that Jane 

Doe I was credible. Doe timely appealed to the district court, which affirmed the magistrate court. 

Doe timely appeals.
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II.

STANDARD OF REVIEW

For an appeal from the district court, sitting in its appellate capacity over a case from the 

magistrate court, we review the record to determine whether there is substantial and competent 

evidence to support the magistrate court’s findings of fact and whether the magistrate court’s 

conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.2d 

214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal 

will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s 

findings and conclusions, whether the district court affirmed or reversed the magistrate court and 

the basis therefore, and either affirm or reverse the district court.

When a trial court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the 

issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently 

with any legal standards applicable to the specific choices before it; and (4) reached its decision 

by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).

Over questions of law, we exercise free review. State v. O’Neill, 118 Idaho 244, 245, 796 

P.2d 121, 122 (1990). Constitutional questions are reviewed de novo. State v. Smalley, 164 Idaho 

780, 783, 435 P.3d 1100, 1103 (2019).

III.

ANALYSIS

Doe argues that the district court erred by affirming the magistrate court’s decision which: 

(1) improperly considered its witness credibility determination in Doe’s criminal preliminary 

hearing for purposes of the aggravated circumstances hearing in this case; (2) denied Doe his right 

to an impartial adjudicator by considering its prior witness credibility determination in the 

aggravated circumstances hearing; and (3) applied the incorrect standard to the aggravated 

circumstances determination by applying the preponderance of the evidence standard rather than 

the clear and convincing evidence standard. The Department argues that the magistrate court 

correctly relied on the properly admitted transcript from the preliminary hearing in the separate 

criminal proceeding and that the magistrate court correctly determined aggravated circumstances 

existed under a preponderance of the evidence standard.
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A. Reliance on the Preliminary Hearing Testimony and Credibility Determination

Doe argues that the district court erred by affirming the magistrate court’s aggravated 

circumstances decision. Doe expressly acknowledges that he is not arguing that the certified 

preliminary hearing transcript was inadmissible or that the Confrontation Clause was violated. 

Further, Doe acknowledges that the substance of the preliminary hearing testimony may have been

enough to establish aggravated circumstances, if true. Rather, Doe argues that the truth of the 

preliminary hearing testimony is dependent upon the credibility of Jane Doe I. Doe asserts that 

the magistrate court could not properly rely on its credibility finding in the preliminary hearing 

decision in its determination of aggravating circumstances.

As noted, Doe does not argue that the magistrate court erred in admitting the transcript for 

consideration in the aggravated circumstances hearing. Doe does not challenge any of the facts 

from the transcript. Doe argues the “the evidence at the aggravated circumstances hearing--a ‘cold 

transcript’--was not ‘the same’ as the live testimony presented at the preliminary hearing.” Doe 

asserts the district court erred in finding that the magistrate court had the same testimony to 

consider because the reasoning relies on a false equivalence between the transcript presented at 

the hearing and the live testimony presented previously. According to Doe, the cold transcript was 

not the same as the live testimony presented at the preliminary hearing because a judge in a position 

to see and hear the witness speak is in a better position to judge their credibility than a judge only 

having before it a cold transcript. Doe argues that Idaho courts have rejected the notion that 

credibility determinations be may made equally well from a transcript as compared to live 

testimony. See, e.g., Wolf v. Kaufman Broad Home Systems, 106 Idaho 838, 683 P.2d 874 (1984). 

In addition, Doe argues that the “live” testimony at the preliminary hearing is “extrajudicial” to 

the record in this case and the “live” testimony could not and was not admitted in this case. In 

essence, Doe contends that the facts established in the preliminary hearing are dependent upon the 

credibility determination made there and that the credibility determination could not be properly 

relied on in the aggravated circumstances proceeding. Doe concludes that “It is simply unknown 

whether the magistrate would have reached the same credibility determination from a cold 

transcript as he did when presiding over the preliminary hearing.” 

Doe’s arguments are unpersuasive. The district court reviewed the magistrate court’s 

decision and determined that the fact that the magistrate court weighed the same testimony and 

found the child credible does not establish that it considered facts not in evidence. The district 
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court found that the magistrate court did not err in the aggravated circumstances determination 

because this case was based on substantial, competent evidence; the child testified at the 

preliminary hearing; she was cross-examined; the testimony was the only evidence presented; and 

the magistrate court found the child’s testimony credible. Like the other factual findings from the 

preliminary hearing, the credibility finding is supported by substantial evidence in the record. In 

fact, Doe has not attempted to argue that the credibility finding is not supported by the record in 

the preliminary hearing proceeding. Moreover, distinct from the case cited by Doe, this is not a 

situation where a judge is asked to make a credibility determination--in the first instance--from a 

cold record. Here, the determination was made by the magistrate court upon hearing and seeing 

the witness testify. That unchallenged factual determination was then properly relied upon by the 

same magistrate court in the subsequent proceeding.

As a corollary, Doe argues that he was denied his right to an impartial adjudicator because 

the same magistrate court conducted the preliminary hearing and the aggravated circumstances 

hearing and, in so doing, considered the “live” testimony from outside the record and from its own 

personal experience. Doe contends that this establishes actual bias. The district court, citing State 

v. Jones, 146 Idaho 297, 300, 203 P.3d 1203, 1206 (Ct. App. 2008), held that bias or prejudice is 

not automatically established by virtue of the fact that a judge had previously dealt with an issue. 

Doe acknowledges that the magistrate court was not automatically biased because it previously 

presided over a separate case with overlapping facts, but contends the magistrate court exhibited 

actual bias by explicitly acknowledging that it had prejudged the case and was unconstitutionally 

biased because the determination was based on observations outside of the record. As noted above, 

the magistrate court did not base its determination on observations outside of the record, but relied 

on an unchallenged finding regarding credibility and a determination that the facts from the 

properly admitted transcript demonstrated aggravated circumstances. There is no evidence that

the magistrate court prejudged the aggravated circumstances finding. 

B. Standard of Proof

Doe argues that a clear and convincing evidence standard should be applied to an 

aggravated circumstances determination. In cases in which a child is in the legal custody of the 

Department, the Department generally is required to set forth its reasonable efforts to reunify the 

child or children with the parent. I.C. § 16-1621(3). As noted, a finding of aggravated 
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circumstances relieves the State of its burden of establishing that it employed reasonable efforts to 

reunify the family. I.C. § 16-1619(6)(d). 

Due process requires that the grounds for terminating a parent-child relationship be proved by 

clear and convincing evidence. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). The 

magistrate court found that an aggravated circumstances hearing in a child protection action case 

is not a termination proceeding and requires only proof by a preponderance of the evidence. The 

magistrate court explained that the difference is an aggravated circumstances finding only results 

in not requiring reasonable efforts to reunify the parent and child. Standards are specifically set 

forth by the legislature for the adjudicatory hearing and the termination of parental rights hearing, 

but the legislature does not provide a standard for finding aggravated circumstances. The 

magistrate court found the standard of proof is a preponderance of the evidence because the 

aggravated circumstances hearing is typically in conjunction with the adjudicatory hearing, where 

that is the applicable standard. The magistrate court found it reasonable that the legislature did not 

intend to specifically require an evidentiary standard greater than a preponderance of the evidence. 

The court was not provided with authority to the contrary or that a parent’s due process rights are 

violated by the Department ceasing to use reasonable efforts to reunify.

Doe argues that the magistrate court erred in applying a preponderance of the evidence

standard because, like a finding of grounds for termination, a finding of aggravated circumstances 

should require clear and convincing evidence.1 Doe’s argument relies on Nebraska case law which 

states “that dispensing with reasonable efforts at reunification frequently amounts to a substantial 

step toward termination of parental rights. It follows that the requisite standard of proof for such 

determination should be at the level required for a termination of parental rights.” In re Interest 

of Jac’quez N, 266 Neb. 782, 789, 669 N.W.2d 429, 435 (Neb. 2003). The Nebraska court 

determined that clear and convincing evidence is the required standard of proof for a finding of 

fact that excuses the requirement of reasonable efforts at reunification. Id. Doe acknowledges 

that Idaho has not directly addressed the burden of proof, but argues that the appropriate standard 

is clear and convincing evidence given a parent’s fundamental right to parent and the adverse effect 

a finding of aggravated circumstances has on a parent’s ability to utilize the Department’s services 

 

1 Doe does not argue that aggravated circumstances were not shown and found under the 

preponderance of the evidence standard.
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to conform behavior and change circumstances such as to achieve reunification and avoid 

termination.

The district court found that the magistrate court did not err. The district court 

acknowledged the Washington Court of Appeals’ determination in In re Dependency of J.W., 90 

Wash.App. 417, 426, 953 P.2d 104, 109 (Wash. Ct. App. 1998) that although a proceeding for 

termination of parental rights requires clear and convincing evidence, this standard does not apply 

to dependency proceedings. Additionally, a finding of aggravated circumstances does not compel 

termination but triggers a more stringent standard of proof to the key determinations made by the 

court. In re Dependency of C.B., 79 Wash.App. 686, 690, 904 P.2d 1171, 1174 (Wash. Ct. App. 

1995). The district court found this reasoning to be persuasive and that the burden of proof for 

aggravated circumstances in a Child Protective Act proceeding is a preponderance of the evidence. 

The district court further stated that although a permanency plan may lead to termination of 

parental rights, it does not change the burden of proof. As a result, the district court found the 

magistrate court properly determined the burden of proof is a preponderance of the evidence.

Aggravated circumstances are determined in conjunction with the adjudicatory hearing and 

an aggravated circumstances hearing does not occur unless the child is found to come under the 

jurisdiction of the court, which finding is based on a preponderance of the evidence. I.C. § 16-

1619(4). Numerous findings and orders are made during the course of a CPA proceeding in 

conjunction with adjudicatory hearings. See I.C. § 16-1619. These orders are made in the best 

interests of the child. While, in the normal course, the Department has the obligation to use 

reasonable efforts toward reunification of the parent and child, the magistrate court has control and 

authority to enter orders requiring and/or prohibiting conduct of the parent as well as the 

Department. As a part of the CPA proceeding, the magistrate court may conduct a hearing and 

determine whether aggravated circumstances exist, relieving the Department of its responsibility 

to make efforts toward reunification. Certainly, the existence of such aggravated circumstances 

dictates that usual reunification efforts may be detrimental to the child and thus, the legislature has 

recognized that the Department should be relieved of its reunification obligations. This and other 

findings and decisions in the CPA proceeding are not akin to termination of the parent/child 

relationship. They are designed to ensure the best interests of the child during the time the child 

is under the jurisdiction of the magistrate court and the Department. While proceedings in the 

CPA action may have an effect on an eventual termination proceeding, the decisions in the CPA 
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adjudicatory hearing context are made by a preponderance of the evidence. At the termination 

stage, the clear and convincing standard is appropriate given the fundamental rights at stake. But

in the interim stage, before any such termination proceeding, the magistrate court is authorized to 

make best interests decisions and orders therefore, which require a preponderance of the evidence 

for their support. No binding case law or statute requires that a clear and convincing standard be 

applied in adjudicatory hearings in the CPA case. The district court and the magistrate court 

correctly held that a preponderance of the evidence standard applies to the aggravated 

circumstances determination. 

IV.

CONCLUSION

Accordingly, the judgment of the district court, on intermediate appeal from the magistrate 

court, affirming the finding of aggravated circumstances, is affirmed.

Judge HUSKEY and Judge BRAILSFORD CONCUR.