### IN THE COURT OF 

### APPEALS OF

### THE STATE OF 

### IDAHO
Docket 

### No.42140



### IDAHO DEPARTMENT OF 

### HEALTH

# & ) Stephen 

### W. Kenyon, 

### Clerk IN THE 

### MATTER OF

### THE TERMINATION OF 

### THE PARENTAL RIGHTS OF 

### JOHN (2014-TT) 

### DOE



### WELFARE, Petitioner-Respondent,
and 

### GUARDIAN AD 

### LITEM, Respondent,



### JOHN (2014-11) 

### DOE, Respondent-Appellant. 

# ) 2014 

### Unpublished Opinion No.692 ) 

# ) X'iled:

### August 25,2014 )
) 

# ) THIS IS 

### AN 

### UNPUBLISHED 

# ) OPINION 

### AI\D SHALL NOT 

# ) BECITEDASAUTHORITY

Appeal 

### fromthe Magistrate 

### Division 

### of the 

### District Court

### of the 

### Fifth Judicial 

### District, State of ldaho,

### Twin Falls 

### County. Hon. Thomas Kershaw, Magistrate.
Order terminating parental rights, affrrmed. 

### Williams Law Office, Chtd., Timothy J.

### Williams,Twin Falls, 

### for appellant.
Jamie

### A. Lamure, 

### Kimberly, for respondent guardian ad litem. 

### Hon. Lawence G. Wasden, 

### Attomey General; James 

### T. Baird, Deputy 

### Attomey General, 

### Twin Falls, for respondent. 

### GRATTON, Judge John 

### Doe (Father) appeals 

### fiom the magishate's order 

### terminating 

### his parental rights. We 

### affirm.

### I. FACTUALAIID PROCEDURAL BACKGROUND 

### In 201l, the Idaho Department 

### of Health

## & Welfare (the Department) 

### filed a petition 

### alleging 

### that Father 

### and Jane 

### Doe (Mother) exposed

### their eight-month-old 

### child, M.F., to methamphetamine.

### A lengthy child protection action 

### followed. 

### ln20l3, the termination hearing
was held 

### in which the magistrate found that Father had neglected 

### M.F. The magistrate found that the parents had failed to complete the parenting 

### plan. Father's plan included requirements to obtain treatment 

### for substance abuse, mental health treatment, and random 

### drug

### testing. The caseworkers had 

### difliculty throughout the proceedings 

### locating Father, and Father made 

### little effort 

### to contact 

### the caseworkers 

### or the guardian 

### ad

## litem. Once

### visitation was established, Father attended

### six out

## of eighteen scheduled

### visits 

### with M.F. and 

### his visitation plan was canceled due

### to lack

### of participation. Father

### did not attempt 

### to re-establish

### visitation. The magistrate 

### specifically found that Father never meaningfrrlly participated 

### inthe case 

### plan. The magistrate also found that both parents exposed 

### M.F.to methamphetamine. Before the hearing 

### to terminate Father's parental 

### rights, Father was anested 

### for aggravated assault 

### for pointing a 

### gun

### at an 

### individual. He was released 

### on bond, 

### butwas again arrested

### for possession 

### of methamphetamine. That charge was dismissed 

### in exchange 

### for his

### guilty plea on the aggravated assault charge, 

### for which he continued to be incarcerated at the time of

### trial. Despite a

### finding

### of neglect, 

### the court denied the 

### petition to terminate Father and 

### Mother's parental 

### rights due to Mother's effortsto rehabilitate. 

### In May 2013, 

### the Department

### filed another 

### petition 

### to terminate 

### Mother and Father's parental 

### rights because 

### Mother was believed

### to be

### drinking again, she was 

### in violation 

### of her probation, and was 

### "on the

### run." Mother failedto panicipate in the proceedings and her parental rights were terminated 

### by default 

### in August 

### 2013. Father objected 

### to termination and a hearing
was held 

### in February 

### 2014. Basedon the evidence presented atthe

### first hearing, 

### in addition to 

### the evidence presented 

### at the February 

### 2014 hearing,

### the court made

### the

### following findings. 

### over the course

## of the parental proceedings, Father 

### was generally uncooperative 

### with the Department and never made

### significant progress 

### on any case 

### plan. once incarcerated, Father 

### refused

## to sign

## a release 

### that would allow the Department 

## to get information about his performance 

### in the 

### prison system. He also refused 

### to provide proof

### to the Department 

### of the
courses he completed and he had 

### not completed 

### a drugtreatment

### program. Father had beenapproved

### for parole 

### on the condition that he

### would complete the 

### prison system's therapeutic

community program; however, he was discharged 

### from the program 

### roughly 

### halfuay through. 

### He testified 

### that he had again 

### enrolled 

### in the programand

### would be eligible 

### for parole 

### in December 

### 2014. Father admitted 

### into evidence several certificates at the hearing showing he completed classes in anger management, parenting, and on being a role model. Father has never beenthe 

### primary caregiver

### of M.F., 

### or supported her

### financially. His 

### child support arrearage 

### is over 

### $6,000. Father has sent 

### birthday and 

### christmas 

### gifts

### to M.F. 

### while he has been incarcerated, wriften cards and at least one letter, and recorded a story and sent 

### itto 

### M.F. Father has had 

### limited contact 

### with M.F. since his incarceration in June 

### 2012. Father and 

### M.F. have hadtelephone calls, 

### but 

### M.F. does 

### not enjoy the 

### calls and prefers

### to do other 

### things. Father's 

### failure to make more calls 

### is likely due

### to his lack

### of funds 

### requiring 

### himto make collect calls, which are refused. 

### M.F. has been 

### in foster care since September 

### 2011. Her current foster parents are her great rmcle and aunt, 

### who live in

### califomia. They have had 

### M.F. since september 

### 2012. M.F. refers to them as her mommy and 

### daddy. 

### when they received 

### M.F., she was quiet and she had
some dental 

### problems. Since that time, the dental problems have beenfixed and the 

### child is now described as high 

### energy. M.F. has cousins and other relatives 

### inthe areawhere she 

### lives. She has bonded

### with her foster

### family and her foster parentswant to adopt 

### her. It is undisputed that 

### M.F. is 

### in a good and stable 

### home. The guardian ad 

### litem and the caseworker 

### testifiedthat 

### it would be 

### in M.F.'s best interest 

### to be adopted 

### by her current foster 

### parents. Both emphasized that M.F. needsstability and is 

### unlikely to receive 

### it from Father. Fathertestified that he hopes to be in a position to provide 

### full-time carefor 

### M.F. once he is released 

### from 

### prison. He has no specific plan how he

### will accomplish that goal once released. 

### His mother testified that he could 

### live 

### with her once he 

### is released and that he could 

### work at a dairy farm where her husband 

### works. The earliest he could be released is December 2Ol4 at

### that point 

### M.F.would be nearly four years 

### old. If termination wasdenied, 

### M.F.would be required to
move back 

### to Idaho where she

### would be introduced 

### to a new foster home, and a new parenting plan 

### would also be 

### required. Even given 

### this best-case scenario, the 

### courtfound

### it was 

### not in M.F.'s best 

### interest. The magistrate foundthat Father neglected 

### M.F. and that 

### it would be 

### in her best interest 

### to terminate Father's parental 

### rights. Accordingly, the court granted the 

### petition to terminate Father's parental 

### rights. Father 

### timely appeals.

## II. ANALYSIS In anaction 

### to terminate parental rights, due process requires 

### this Court 

### to determine

## if the magistrate's decision was supported 

### by substantial and competent 

### evidence. In re Doe, 143 Idaho 343, 

### 345,144P.3d 597,599 

### (2006). Substantial and competent evidence is such evidence

as a reasonable 

### mind might accept as adequate 

### to support a

### conclusion. Id. at 345-46,144 p.3d 

### at599-600.This Court

## will indulge 

### all reasonable inferences 

### in support 

### of the

### trial court's 

### judgment when 

### reviewing an order that parental rights be

### terminated. Doev. 

### Doe,14g Idaho 243, 246-47 ,220 P.3d 1062, 1064-65 

### (2009). we conduct an independent review 

### of the record that was before the magistrate. Doe, 143 Idaho at346, 144 P.3d at 600. 

### A parent has afundamental 

### liberty interest 

### in maintaining a relationship 

### with his 

### or her 

### child" Doev.State, 137 

### Idaho758,760,53p.3d341,343(2002);seealsoQuilloinv. Ilalcott, 434 U.S.

### 246,255 (1978). This interest is protected bythe Fourteenth Amendment tothe United states

### constitution. statev. Doe, 

### l44Idaho 839, 942, 172 p.3d I I 14,

## lllT (2007). .,lmplicit in [theTermination 

### of Parent and

### Child Relationship

### Act] is the philosophy that wherever possible 

### family 

### life should be strengthened and preserved



## . . . 

## ." I.c. g 16-2001(2). Therefore, the requisites 

### of due process must be metwhenthe Department intervenes 

### to terminate the parent

### child 

### relationship. state v. 

### Doe, 143 Idaho 

### 383, 386, 146 

### p.3d 649, 652

### (2006). Due process requires that the Department prove grounds 

### for terminating a parent-child relationship 

### by clear and 

### convincing 

### evidence.

## Id. ldaho 

### code 

### $ 16-2005 permits 

### the Department 

### to petition the court 

### for termination 

### ofthe parent-child relationship when 

### it is in the 

### child's best 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 prolonged period 

### which

### 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. Each statutory ground is an independent basis

### for termination. 

### Doe, 144 Idaho at 842, 172 P.3d at 1 1 17. 

### Idaho Code

## $ 16-2002(3) 

### defines 

### "neglect" as any conduct included 

## in I.C.

## $ 16- 1602(26), as

### well as situations where the parent has failed 

### to comply 

### with the court,s orders 

### or the case 

### plan 

### in a

### child Protective 

### Act caseand

### the Depa(ment has hadtemporary 

### or legal custody

### of the 

### child 

### for fifteen 

### of the most recent 

### twenty-two months and 

### reunification has notbeen accomplished 

### by the last day 

### of thefifteenth month 

### in which the 

### child has been 

### in the

temporary 

### or legal custody 

### of the Department. Secfion 

### l6-1602(26)(a) provides, 

### in pertinent 

### part,that 

### a child 

### is neglected 

### when the 

### child 

### iswithout proper parental care and 

### control, or subsistence, medical 

### or other care 

### or control necessary 

### for his or her 

### well-being because 

### of the conduct or omission

### ofhis or her parents, guardian, or other custodian ortheir neglect or refusal to providethem. Father does not challenge the magistrate's findings 

### of fact, but simply notesthat 

### M.F.'s placement 

### in foster care, 

### his addiction 

### to controlled 

### a substance, 

### and incarceration 

### are not 

### individually enough for termination of his parental 

### rights. He argues that he continues to address 

### his addiction problem through 

### AA, relapse prevention classes, andthe therapeutic commgnity 

### program. As to contacting the

### childwhile incarcerated, he analogizes his situationtothat 

### ofthe 

### fatherinDoev.state, 137 

### Idaho758,76l-62,53p.3d341,344-45(2002). Inthatcase,the Idaho Supreme Court vacated atermination orderwherethefather had been incarcerated since 

### the 

### child's 

### birth' had sent letters and 

### gifts 

### to the 

### child while incarcerated, 

### had expressed an interest 

### in maintaining a relationship 

### with the 

### child, and could have had an early release

### from prison butfailed the rider program hewas

### on. The

### court reversed the magistrate, reasoning:

There is an issue, however, 

### ofwhat actions Doe could have taken, once 

### in prison,

### to maintain contact 

### with his

## child. Doe sent 

### his child eifts and made 

### efforts

## to contact 

### thechild through 

### the Departrnent 

### andthrorigh 

### the child's maternal grandmother, but he was unsuccessful. 

### one must askwhat more could Doe have

### done? The Department's argument is that he could have completed the 

### "rider" program successfully 

### and gotten 

### out

### of prison 

## early. The magistrate accepted 

### this as evidence

### of abandonment.That 

### is not thetype 

### of subitantial competent evidence 

### that supports 

### afinding 

### by clear and 

### convincing standard 

### of abandonment. The Departnent trivializes Doe's efforts 

### to have 

### a relationship 

### with his

## son. Reality must 

### play 

### a part

### at

### two 

### levels: 

# l) Doe was severelv 

### restricted 

## in what he could

## do. within that context 

### he 

### tried

### to establish a 

### relationship. 2) The Department 

### did 

### little or nothing to assist 

### in that 

### effort. The Department focused onthe best interest 

### of the

### child-laudable 

### in the abstract but without regardfor the parental rights possessed by Doe. 

### Doe, 137 Idaho 

### at 761-62, 53 P.3d 

### at 344-45. Father argues he has done everything under the circumstances to maintain contact 

### with the 

### child while incarcerated. He has made callsto 

### M.F., has sent birthday and Christmas gifts, 

### written cards and at least one letter, and recorded and sent 

### a story 

### to 

## M.F. However, as both the Department andthe appointed guardian ad 

### litem note, before Father was incarcerated 

### he exposed 

### M.F.

### to methamphetamine, 

### failedto complete therequired parental 

### plan, and became incarcerated 

### for his conduct 

### during the 

### proceedings. The

Idaho Supreme Court made this same distinction in a later case:

On appeal, Doe also argues this case is controlled 

### by our decision 

### in Doe v.

### state, 137 Idaho 758, 53 P.3d 341 (2002), 

### inwhich this 

### court reversedthe

### trial court's decision toterminate the parental rights of an imprisoned 

### father. 

### unlike in Doe, there 

### is suffrcient evidence here

### of thisfather's neglect 

### of Jane

### priorto the 

### time hewas imprisoned, sothat

### it is not necessary 

### to evaluate 

### his conduct

### while imprisoned. 

### InreDoe,143 Idaho

### 343,348,t44 P.3d 597,602 

### (2006). Additionally, once incarcerated Father continued

### to be uncooperative 

### in pursuing 

### his parenting

### plan. He refused

### to sign a release to 

### allow the Department

### to review his progress 

### while 

### in prison and hewas discharged 

### from the therapeutic community program

### for noncompliance and nonparticipation 

### inthe 

### program. There is substantial and competent evidenceto support the court's frndings that Father neglected M.F. There is also substantial and competent evidence 

### to support the magistrate's

### finding that 

### it is 

### in the best interest 

### of M.F. to terminate Father's parental 

### rights. Though Father testified to plans that he may be able

### to obtain releaseand may be able

### to

### find employment, Father also showed

### a continued 

### pattem

### of failing 

### to cooperate 

### with the Department 

### in reunification and 

### failure 

### to meaningfully comply 

### with his parental

### plan. Father belatedly made some 

### minimal 

### effort 

### to establish 

### a relationship

### with M.F., but the magistrate balanced

### this against 

### M.F.'s stability in her current home 

### in

### califomia. M.F. has been 

### in foster care since 2011, and placed 

## witl her cunent foster parents since 

### 2012. She has flourished while intheir care, andthey intend 

### to adopt 

### M.F. 

## if Father's parental rights are 

### terminated. The caseworker and guardian ad 

### litem both testified that 

## it is 

### in M.F.'s best interest

### to have permanent placement and

### to terminate Father's parental 

### rights. There 

### is substantial and competent evidence that terminating Father's parental rights is in the best interest of M.F. 

## III. CONCLUSION The magistrate's determination is supported by clear and convincing evidence that Father neglected 

### M.F., altd 

### that

## it is 

### in the 

### child's best interest

### to terminate Father's parental rights. Therefore, the orderterminating Father's parental rights is affirmed. Chief Judge GUTIERREZ and Judge 

### LANSING 

### CONCUR