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) 2014 Unpublished Opinion No.692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) THIS IS AN UNPUBLISHED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 from the 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.

FACTUAL AIID 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 in the 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, but was 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 efforts to 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 failed to 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. Based on the evidence presented at the 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 drug treatment program. Father had been
approved 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 program and 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 been the 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

it to M.F. Father has had limited contact with M.F. since his incarceration in June 2012. Father

and M.F. have had telephone 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 him to

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 been fixed and the child is now

described as high energy. M.F. has cousins and other relatives in the area where she lives. She

has bonded with her foster family and her foster parents want to adopt her. It is undisputed that

M.F. is in a good and stable home. The guardian ad litem and the caseworker testified that it

would be in M.F.'s best interest to be adopted by her current foster parents. Both emphasized

that M.F. needs stability and is unlikely to receive it from Father.

Father testified that he hopes to be in a position to provide full-time care for 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 was denied, 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 court found it was not in

M.F.'s best interest. The magistrate found that 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 an action 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

at 599-600. This Court will indulge all reasonable inferences in support of the trial court's

judgment when reviewing an order that parental rights be terminated. Doe v. 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 at 346, 144 P.3d at 600.

A parent has a fundamental 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 by the Fourteenth Amendment to the United

states constitution. state v. Doe, l44Idaho 839, 942, 172 p.3d I I 14, lllT (2007). .,lmplicit in

[the Termination 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 met when the Department intervenes to terminate the parentchild 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 case and the Depa(ment has had temporary or legal

custody of the child for fifteen of the most recent twenty-two months and 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. Secfion l6-1602(26)(a) provides, in pertinent

part, that a child is neglected when the child is without 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 or their neglect or refusal

to provide them.

Father does not challenge the magistrate's findings of fact, but simply notes that 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, and the therapeutic commgnity

program. As to contacting the child while incarcerated, he analogizes his situation to that ofthe

fatherinDoev.state, 137 Idaho758,76l-62,53p.3d341,344-45(2002). Inthatcase,the

Idaho Supreme Court vacated a termination order where the father 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 but failed the rider program he was 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 the child through the Departrnent and throrigh the child's

maternal grandmother, but he was unsuccessful. one must ask what 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 the type of subitantial

competent evidence that supports a finding 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 on the best interest of the child-laudable in the abstract but

without regard for 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 calls to 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 and the appointed guardian ad litem note,

before Father was incarcerated he exposed M.F. to methamphetamine, failed to complete the
required 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), in which this court reversed the trial

court's decision to terminate the parental rights of an imprisoned father. unlike in

Doe, there is suffrcient evidence here of this father's neglect of Jane prior to the

time he was imprisoned, so that 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 he was discharged from the

therapeutic community program for noncompliance and nonparticipation in the program. There

is substantial and competent evidence to 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 release and 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 in their care, and they 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 order terminating Father's parental rights is affirmed.

Chief Judge GUTIERREZ and Judge LANSING CONCUR