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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 46182

In the Matter of: DOE CHILDREN,

Children Under Eighteen (18) Years of Age.

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IDAHO DEPARTMENT OF HEALTH AND

WELFARE,

 Petitioner-Respondent,

v.

JANE DOE,

 Respondent-Appellant.

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Boise, November 2018 Term

Opinion filed: December 19, 2018

Karel A. Lehrman, Clerk 

Appeal from the Magistrate Court of the Fifth Judicial District of the State of 

Idaho, Twin Falls County, Hon. Thomas D. Kershaw, Jr., Magistrate Judge. 

The judgment of the magistrate court is affirmed.

Twin Falls County Public Defender, Twin Falls, for Appellant.

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

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HORTON, Justice. 

Jane Doe (Mother) appeals from a judgment of the Twin Falls County magistrate court 

terminating her parental rights to her three minor children: PG, KG, and BG. Mother argues that 

the magistrate court abused its discretion in determining that she neglected her children and that 

it is in the children’s best interest to terminate the parent-child relationship. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the termination of Mother’s parental rights to her three minor 

children—PG, KG, and BG—on July 17, 2018. Father previously consented to termination of his 

parental rights.

Near the end of February 2017, Mother, who was thirty-five weeks pregnant with BG, 

went into preterm labor while in jail. She was transported to a hospital but did not have the baby 

at that time. While at the hospital, she tested positive for methamphetamines. Around that time, 
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KG was hospitalized to receive treatment for Respiratory Syncytial Virus (RSV). Because 

Mother appeared to be under the influence of drugs when she visited KG in the hospital, the 

doctor called Child Protective Services over concerns that Mother could not adequately care for 

her child. After an investigation, the State of Idaho filed a petition to remove PG and KG from 

their home and they were placed into emergency shelter care on March 1, 2017. The children 

were three years old and one year old, respectively. BG was then born and placed in emergency 

shelter care on March 29, 2017, after testing positive for three kinds of opiates. She was four 

days old when she went into care.

In early April 2017, a detailed case plan was developed and approved by the magistrate 

court specifying the tasks that Mother needed to accomplish to regain custody of her children. 

Because Mother continued to use drugs, have other criminal issues, and made only minimal 

progress on her case plan after eight months, the State filed a petition to terminate her parental 

rights on November 28, 2017. On January 22, 2018, the magistrate court entered an order 

approving a permanency plan of adoption for the children in the event that Mother’s parental 

rights were terminated. The foster parents agreed to adopt all three children. A termination trial

was held at the end of June 2018, and on July 17, 2018, the magistrate court entered an order 

terminating Mother’s parental rights. A final judgment to that effect was entered on July 24, 

2018. Mother timely appealed.

II. STANDARD OF REVIEW

The Fourteenth Amendment to the United States Constitution protects the fundamental 

right of parents “to maintain a familial relationship, and to the ‘custody, care and control’ of their 

children.” In re Termination of Parental Rights of Doe (2013-17), 155 Idaho 896, 902, 318 P.3d 

886, 892 (2014) (quoting State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006)).

“Therefore, when the State intervenes to terminate the parent-child relationship the requisites of 

due process must be met.” Doe, 143 Idaho at 386, 146 P.3d at 652. To satisfy due process, the 

State must prove by clear and convincing evidence that at least one of the statutorily approved 

grounds for terminating the relationship is satisfied and that termination is in the child’s best 

interest. In re Doe (2011-02), 151 Idaho 356, 362, 256 P.3d 764, 770 (2011); I.C. § 16-2005(1).

“Whether a matter has been proved by clear and convincing evidence is primarily a matter for 
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the trial court.” Id. at 363, 256 P.3d at 771 (quoting In re Doe (2009-19), 150 Idaho 201, 203, 

245 P.3d 953, 955 (2010)).

When reviewing a termination decision, this Court reviews the trial court 

record to determine whether substantial and competent evidence supports the 

magistrate court’s findings of fact and whether the conclusions of law follow from 

those findings. Substantial and competent evidence is such evidence as a 

reasonable mind might accept as adequate to support a conclusion.

Matter of Doe II, 163 Idaho 399, 401, 414 P.3d 221, 223 (2018) (internal citations and quotations 

omitted). A court’s decision is not an abuse of discretion where it is supported by substantial and 

competent evidence. See Woods v. Woods, 163 Idaho 904, 907, 422 P.3d 1110, 1113 (2018). 

However, where the trial court’s findings must be supported by clear and convincing evidence, 

“the substantial evidence test requires a greater quantum of evidence . . . than in cases where a 

mere preponderance is required.” Doe v. Doe (2016-45), 162 Idaho 194, 197, 395 P.3d 814, 817 

(2017) (quoting In re Doe, 143 Idaho at 346, 144 P.3d at 600). “This Court will indulge all 

reasonable inferences in support of the trial court’s judgment when reviewing an order that 

parental rights be terminated.” Matter of Doe II, 163 Idaho at 401, 414 P.3d at 223.

III. ANALYSIS

Mother argues that the magistrate court abused its discretion in determining that she 

neglected her children under Idaho Code sections 16-1602(31) and 16-2002(3)(b) and that it is in 

the children’s best interests to terminate her parental rights. We address these arguments in turn. 

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

Mother neglected the children.

The magistrate court found that Mother neglected the children under Idaho Code sections 

16-1602(31) and 16-2002(3)(b). Mother argues that the magistrate court abused its discretion in 

determining that she neglected the children. Although Mother does not describe how the 

magistrate court abused its discretion or recite the abuse of discretion standard in her brief,

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we 

take her argument to be that substantial and competent evidence does not support the magistrate 

court’s findings. We disagree.

 1 Ordinarily, the failure to attempt to apply the applicable standard of review is fatal to a claim that the trial court 

erred. Mortensen v. Berian, 163 Idaho 47, 53, 408 P.3d 45, 51 (2017). However, given the liberty interests 

implicated by termination proceedings, we have attempted to discern Mother’s basis for claiming that the magistrate 

court abused its discretion.
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Idaho Code section 16-2005(1)(b) provides that a parent-child relationship may be 

terminated if the parent has neglected the child and it is in the child’s best interest to terminate 

the relationship. Idaho Code section 16-2002(3) states that “neglected” means conduct as defined 

in Idaho Code sections 16-1602(31) or 16-2002(3)(b). Substantial and competent evidence 

supports the magistrate court’s finding that Mother’s conduct amounts to neglect of the children 

under both statutes defining neglect; therefore, the magistrate court did not abuse its discretion.

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

Mother neglected the children as defined by Idaho Code section 16-1602(31).

The magistrate court found that Mother neglected the children under Idaho Code section 

16-1602(31) because she failed to provide the “necessary care, control or subsistence for the 

children.” Substantial and competent evidence supports this finding. 

Under Idaho Code section 16-1602(31)(a), a “neglected” child is one “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 . . . or their neglect or refusal 

to provide them . . . .” “This Court has recognized that a drug problem, which interferes with 

parental abilities, supports a finding of neglect.” Idaho Dep’t of Health & Welfare v. Doe (2016-

32), 161 Idaho 754, 760, 390 P.3d 1281, 1287 (2017). We have also “recognized that unstable 

employment or housing supports a finding of neglect.” Id. Further, “[t]his Court has noted that 

‘evidence of incarceration is competent evidence’ establishing neglect.” Id. at 760–61, 390 P.3d 

at 1287–88 (quoting Idaho Dep’t of Health & Welfare v. Doe (2015-01), 158 Idaho 764, 768, 

351 P.3d 1222, 1226 (2015)).

This case began as a result of a doctor calling Child Protective Services because Mother 

appeared to be on drugs and incapable of caring for her children. As a result of that call, Mother 

and her eldest child, PG, were tested for drugs—both tested positive for methamphetamine.

Mother has admitted to relapsing on drugs three or four times in the past two years. In addition, 

the magistrate court found that although Mother had approximately fifteen months to obtain 

stable housing and employment before the termination trial, Mother had obtained neither. 

Further, not only was she incarcerated several times before the children were placed in foster 

care, she was also in and out of jail on multiple occasions during the fifteen months that she was 

given to work on her case plan before her parental rights were terminated. Indeed, Mother was 

serving time in jail at the time of the termination trial. She is still serving that sentence and will 
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be incarcerated for several months, at minimum. As the magistrate court noted, Mother’s 

optimistic estimate is that she may be in a position to care for the children in two years.

These facts constitute substantial and competent evidence that Mother neglected her 

children as defined by Idaho Code section 16-1602(31). Therefore, the magistrate court did not 

abuse its discretion in finding that the children were neglected under that statute. 

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

Mother neglected the children as defined by Idaho Code section 16-2002(3)(b). 

The magistrate court found that Mother neglected the children under Idaho Code section 

16-2002(3)(b) because “she ha[d] not completed, or even made a significant start on, her case 

plan” since she had agreed to it and the children had been in the custody of IDHW for the 

previous year and a half. Substantial and competent evidence supports the magistrate court’s 

finding of neglect on these grounds.

Under Idaho Code section 16-2002(3)(b), a child is “neglected” where:

The parent(s) has failed to comply with the court’s orders or the case plan in a 

child protective act case and:

(i) The department has had temporary or legal custody of the child 

for fifteen (15) of the most recent twenty-two (22) months; and

(ii) Reunification has not been accomplished by the last day of the 

fifteenth month in which the child has been in the temporary or 

legal custody of the department.

The statutory requirements for a finding of neglect under Idaho Code section 16-2002(3)(b) are 

satisfied in this case. 

Mother was notified by a Child Protective Act Summons filed on March 2, 2017, that:

[T]here shall be a rebuttable presumption that if a child is placed in the custody of 

IDHW and was also placed in care out of the home for a period not less than 

fifteen (15) out of the last twenty-two (22) months from the date of Adjudication, 

the IDHW shall initiate a Petition for Termination of Parental Rights.

IDHW took custody of PG and KG on March 1, 2017, and it took custody of BG on March 29, 

2017. In April 2017, Mother agreed to a case plan that set forth a number of tasks for her to 

accomplish before she could regain custody of the children. The magistrate court found that “[a]s 

of the time of trial, [Mother] had been given about 15 months to work on these tasks.” It also 

found that:

[S]he had made almost no progress on the major case plan tasks like obtaining 

stable housing and employment, completing drug treatment, having a history of 

negative drug tests, getting mental health treatment and an anger assessment, 

completing parenting classes and applying what she learned, meeting the medical 
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and dental needs of the children and generally staying out of criminal trouble. It 

now appears that she will be in jail for at least six to nine months and would, if 

she is successful in the retained jurisdiction program, then be back on felony 

probation. She would need to begin again the process of working on her case plan. 

Simply stated, Mother did not comply with her case plan. 

Regarding the next two statutory requirements: IDHW took custody of the children in

March 2017, the termination trial occurred on June 26, 2018, and the magistrate court ordered 

termination of Mother’s parental rights on July 17, 2018. Thus, the children were in the custody 

of IDHW for fifteen of the most recent twenty-two months at the time that the magistrate court 

ordered termination of Mother’s parental rights and reunification had not been accomplished by 

the last day of the fifteenth month. As a result, substantial and competent evidence supports the 

magistrate court’s finding that Mother neglected the children as defined by Idaho Code section 

16-2002(3)(b). 

Having concluded that substantial and competent evidence supports the magistrate 

court’s finding that Mother neglected the children under both Idaho Code section 16-1602(31) 

and section 16-2002(3)(b), we next consider the best interests of the children. 

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

termination of Mother’s parental rights is in the children’s best interest.

“Once a statutory ground for termination has been established, the trial court must next 

determine whether it is in the best interests of the child to terminate the parent-child 

relationship.” In Interest of Doe (2018-24), 164 Idaho 143, 147, 426 P.3d 1243, 1247 (2018). 

Mother argues that the magistrate court abused its discretion in determining that termination is in 

the children’s best interest because termination of her parental rights may not provide 

permanency that is in their best interest. The magistrate court found that termination is in the 

children’s best interest because Mother needs at least two more years before she may be in a 

position to care for the children and their need for permanency outweighs Mother’s parental 

rights in this case. Substantial and competent evidence supports the magistrate court’s finding.

“The best interest analysis considers the reality that children need ‘stability and 

certainty.’ ” In Interest of Doe (2018-24), 164 Idaho at 148, 426 P.3d at 1248 (quoting In re Doe

(2013-15), 156 Idaho 103, 112, 320 P.3d 1262, 1271 (2014)). 

When determining whether termination is in the child’s best interests the trial 

court may consider the stability and permanency of the home, unemployment of 

the parent, the financial contribution of the parent to the child’s care after the 

child is placed in protective custody, improvement of [the] child while in foster 
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care, the parent’s efforts to improve his or her situation, and the parent’s 

continuing problems with the law.

Id. at 147–48, 426 P.3d at 1247–48 (quoting In re Doe (2013-15), 156 Idaho at 111, 320 P.3d at 

1270). Each of these factors supports the magistrate court’s determination that termination of 

Mother’s parental rights was in the children’s best interests. 

The magistrate court found that at the earliest, Mother may be able to care for her 

children two years from July 2018 due to continued legal problems and instability. That would 

leave the children in foster care for more than three years before Mother possibly could care for

them. Mother has failed to obtain stable housing or employment since IDHW took custody of the 

children and has not provided for the children financially—at the time of the termination trial, 

Mother stated that she was $2,000 in arrears on child support. She was incarcerated at that time

and thus was unemployed. 

Mother’s case plan required her to improve her situation by, among other things,

obtaining stable, drug-free housing and stable employment, completing parenting skills courses

and applying those skills, completing mental health and anger assessments and following all 

recommendations, and participating in the children’s medical, dental, and therapy appointments 

and following all recommendations. Aside from attending seven of the children’s 706 medical 

and therapy appointments since they went into foster care, Mother has done none of these things. 

Further, after IDHW took custody of the children, Mother continued to have problems with the 

law and missed visits with the children due to being in and out of jail. She is currently 

incarcerated after being discharged from drug court for associating with an inmate. 

All three children have improved since going into foster care. When IDHW initially took 

the children into custody, PG, who was three years old, tested positive for methamphetamine. 

Although Mother also tested positive for methamphetamine at that time, she refused to accept

responsibility for exposing PG to drugs. The magistrate court found that when PG first went into 

foster care, she was significantly delayed in her speech, motor skills, social interaction, and 

ability to process emotions. She had a lazy eye, needed extensive dental work, was on 

medication for ADHD, and was hyperactive. She had serious abandonment issues and would 

gorge on food. The foster mother also testified that PG had recurring nightmares, typically five 

or six a night, and that she would wake up screaming and begging foster mother to hold her. 

Foster mother testified in the fifteen months that PG was in her care leading up to the 

termination trial, PG has improved dramatically. She is more at peace and is able to eat normally. 
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When PG first went into care, her speech therapist could only understand ten percent of what PG

said; now she can understand eighty-five percent of what she says. PG’s abandonment issues 

have improved dramatically, and she rarely has nightmares. At first, PG needed speech therapy, 

occupational therapy, feeding therapy, and counseling. Now, PG only needs counseling and 

speech therapy. In addition to taking PG to her appointments, foster mother works with PG for at 

least an hour a day at home. Further, both foster mother and the social worker assigned to the 

child protection case testified that PG is thriving with her foster parents. Regarding PG, the 

social worker testified that “the change has been remarkable. I’ve noticed recently a calmness in

[PG].” “[S]he’s happy. She’s more self-assured. She’s more self-confident. She’s able to regulate 

herself. She is able to listen to direction . . . so yes, in a positive way I’ve seen positive growth in 

her.” 

The magistrate court found that KG was especially affected by eating problems when she 

went into care. In addition, she was isolated and did not want to be touched, was very delayed in 

her motor skills, and had problems with vision and social skills. She needed substantial 

emotional and medical assistance. The social worker testified that “[i]t was evident that [KG]

suffered from severe neglect.” She was diagnosed with reactive attachment disorder and is going 

to require extensive counseling to treat it. She was also receiving daily injections of growth 

hormone because she was born prematurely and previously did not receive the treatments she 

needed. The foster mother testified that at fourteen months, KG was functioning at the level of a 

six-month-old. “She was not cruising along furniture. She was not walking. She was not even 

doing multisyllabic babbling . . . .” When she went into care, KG needed treatment for auditory 

processing, occupational therapy, feeding therapy, speech therapy, and counseling. In addition, 

she may need to go to Salt Lake City for additional therapies in the future. Foster mother testified 

that she and her husband spend two to three hours a day with KG working on basic skills, and 

that although KG’s motor skills are still severely delayed, she has made substantial progress. The 

magistrate court found that although she suffers from the effects of severe neglect, KG is now 

“talking, walking and seems happy and secure.” 

The magistrate court found that BG suffered from withdrawals from drugs when she 

entered foster care at four days old. Effects of the withdrawals caused BG to be unable to turn 

her head for a time after she was born. As a result, her head was misshapen and she had to wear a 

helmet. The treatment was effective and she no longer needs the helmet. The magistrate court 
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also found that although exposure to drugs in the womb may have caused damage to BG’s eyes, 

she “seems to be above her age level in development at this time.” 

These facts establish that Mother has not obtained employment or safe housing, quit 

taking drugs, stayed out of criminal trouble, or attempted to improve her situation since the 

children went into foster care—all of which favor a finding that termination is in the children’s 

best interest. They also establish that the children have improved significantly with the foster 

parents who have agreed to adopt all three of them. Thus, we conclude that substantial and 

competent evidence supports the magistrate court’s finding that termination of Mother’s parental 

rights is in the children’s best interest.

IV. CONCLUSION

The magistrate court did not abuse its discretion by terminating Mother’s parental rights. 

Accordingly, we affirm the magistrate court’s judgment.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER CONCUR.