1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 45995 In the Matter of: JANE and JOHN DOE II, Children Under Eighteen (18) Years of Age.

-------------------------------------------------------- JOHN and JANE DOE I,

Petitioners

- Re spondents,

v.
JANE DOE (2018

- 20),
Respondent

- Appellant. ) ) ) ) ) ) ) ) ) ) ) Pocatello, September 2018 Term

Opinion Filed: December 21, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Roger B. Harris, Magistrate Judge.
Judgment terminating parental rights, affirmed.
Twin Falls County Public Defenders Office, Twin Falls, for appellant. Laura Z. O’Connell argued.
Roy Nielson Barini

- Garcia & Platts, Twin Falls, for respondents. Eric B. Nielson argued.

______________________________
BURDICK, Chief Justice

. Jane Doe (“Mother”) appeals the Twin Falls County magistrate court’s termination of her parental rights to her minor children, Jane Doe II (“T.T.”) a nd John Doe II (“D.T.”). On February 7, 2017, John and Jane Doe I 1 (“Guardians ”) filed a petition to terminate Mother’s parental rights
to T.T. and D.T. that was amended on May 17, 2017. After holding a one

- day trial
, the magistrate court (“trial court”) o rdered written cl osing arguments by both parties. Afterwards,
the termination petition was granted. 2 T he trial court found: (1) Mother had neglect ed her children; (2) Mother had abandon ed her children; and (3) termination of Mother’s parental rights

1 John and Jane Doe I are currently the children’s primary caregivers

. When this opinion refers to “Guardian” as a singular noun, it refers to Jane Doe I. When it refers to t he plural, “Guardians ,” it refers to both John and Jane Doe I. 2 The judgment also terminated any putative father’s parental rights to the children, but that termination is not challenged on appeal.2 was in the best interest of the children

. Because each of these findings was supported by clear
and convincing evidence, the trial court granted Guardians’ request for termination. The trial

court entered a final judgment to that effect on May 11, 2018. Mother t imely appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND Mother voluntarily plac ed T.T. and D.T. under Guardian ’ s care in December 2015. This voluntary placement was instigated by Mother’s desire to avoid removal of the children by the Idaho Department of Health an d Welfare (“the Department”) which would have resulted in their placement in foster care. At the time of their placement, both T.T. and D.T. were less than two years of age (17 and 2 months old, respectively). At the time of this appeal
, both children ha ve remained in Gu ardians ’ exclusive care for over two

- and

- a

- half years.
T.T

. is the elder of the two children. When Mother first became pregnant with T.T., she initially told ev eryone at her workplace that she had cancer instead of explaining t hat she was , in fact, pregnant. Prior to T.T.’s birth, Mother asked one of her coworkers whether she might want to adopt T.T., who Mother claimed was her sister’s child. Once T.T. was born , Mother would frequently leave T.T. in the care of others

— sometimes for weeks at a time

— and these caretakers would often purchase formula, food, diapers, clothing
, and other item s for the child

. These
caretakers would also arrange and pay for babysitting when they couldn’ t watch T.T. instead of Mother arranging for T.T.’s care. When Mother would deliver T.T. to others for supervision
, T.T. would be hungry, fussy, and dirty to the point of matted hair and a diaper rash so severe that the child would be bleeding and have to be bathed immediately and ointment applied to the diaper rash

. Mother appeared to show no tenderness toward the child and was usually taking T.T. from person to person so as to n ot have to care for the child herself

. D.T. is the younger of the two children. D.T.’s short life thus far has been marked by significan t medical issues. D.T. was only in Mother’s care for a period of less than two months which spanned the time from his birth until placement with Guardians. I n that short time
, D .T. had already experienced a trip to the emergency room for breathing difficul ties. D.T.’s visit to the emergency room occurred the night before he wa s placed in Guardians ’ custody. By the time D.T. was born, Mother no longer worked , had changed housing several times, and had settled in a house with other residents

. Mother’s practic e of continuing to ask
other s to watch the children continued at the house. W hen no such arrangement could be secured, Mother would often leave the children alone and unattended while she watched3 television upstairs or went outside to smoke cigarettes

. It was around this time that Guardians began to care fo r T.T. and D.T. , including caring for the children upward s of five days a week. Eventually, Mother’s pattern of inattention to her children became a cause for concern for the residents of the house, and t his concern prompted a call to the Department.
While t here is some conflicting testimony as to what happened the morning t he Department became involved, what is clear is that D.T. was left unattended in a bassinet for
several hours while Mother went to wo rk. Mother left D.T. to attend work but contends that she expected a babysitter to arrive shortly after her departure. In any event, a resident of the house
awoke to find D.T. alone (T.T. was staying with Mother’s parent at the time) and unattended in a
ba ssinet. After discovering the newborn with no supervision , the resident , knowing that Guardian typically cared for the children during the week, contacted Guardian for advice. Guardian had , in fact, previously informed Mother that she would not be able to watch the children that morning. Eventually, t he resident decided to contact the police, prompting Guardian to depart for the
house and, after the police officer arrived, Guardian requested that the children be placed in her custody instead of placing them in foster care. The police officer contacted Mother, causing Mother to come to the scene where she eventually agreed to the children’s placement with
Guardians for the immediate future

. Thereafter, Mother w as given the option of placing the
children eithe r with Guardians or in foster care. Mother selected Guardians and a formal guardianship was put into place. Once the guardianship was established , Guardians realized that T.T. exhibited a number of alarming behaviors. It became clear that T.T. had serious issues with hoarding food and self

stimulation. Guardian found T.T. to be hungry

— eating to the point of pain . In addition, Guardian
noticed that T.T. would frequently masturbate , going so far as insert ing foreign objects into her vagina to the point of in jury

. These sexualized behaviors were especially alarming given that at the time the guardianship was established, T.T. was only a year and a half old. Given these

concerns , Guardians sought the help of a licensed social worker for counseling for T.T.
The counselor observed that T.T. would masturbate daily, hoard food, and would never stop eating if food were available

— to the point where T.T. would rummage through garbage cans looking for food. T.T.’s counselor opined that the child’s issue with food is th e result of periods of s tarvation during her very early childhood. T he counselor testified that T.T.’s sexual
behaviors likely stem from being sexually a bused as an infant. T he social wo rker testified that4 girls of T.T.’s age do not usually recognize their genitals as sexual organs unless someone shows them how to masturbate, they are sexually abused, or they see some one else masturbating.
D.T. was less than two months old when he was entrusted into the care of G uardians. Guardians immediately took the new born to see the family doctor given D.T.’s perceptible difficulty breathing and keeping food down

. D.T. has several conditions that have required medical intervention including problems with reflux that causes difficult ies with his larynx and
trachea. He h as issues keeping food down which necessitates placement of a feeding tube. Most recently, D.T. has developed seizures. These issues have required surgeries on both his stomach and the top part of his throat

. As described by his doctor, D.T. is a sort of “ moving target” given that his symptoms and conditions don’t fit into well

- defined syndromes or illnesses making his future medical needs unpredictable. D.T. currently receives nourishment from a feeding tube

at tached to a small backpack that he must consta ntly wear

. Guardians have taken D.T. to all of his medical appointments , including those that are a considerable distance away from home, and paid for the portions of D.T.’s medical expenses not covered by insurance

. During the time her children were unde r the Guardians ’ care, Mother lived a nomadic lifestyle and used methamphetamine. For significant periods of time , Mother was homeless

. While Mother has on occasion attempted to re ach out to T.T. and D.T. during their time under
Guardians ’ care , Mother has never attempted to reunite with her children. Mother moved ba ck in
with her own mother. Since then she has enjoyed some semblance of stability in her life and secured employment

. Despite this stability, Mother is still not requesting to reunite with or re gain custody of her children. She wishes the guardianship to continue regardless of the disposition of
this case

. Guardians have been the exclusive caretaker s of T.T. and D.T

. Guardian s have been present at every surgery, medical appointment , and counseli ng session while taking an active role in learning how to care for T.T. and D.T. and handle their physical and behavioral challenges

. T he children have bonded with Guardians over the course of the guardianship

. The
children consider themselves part of Guar dians’ family . Despite their hardships and obstacles,
D.T. and T.T. have progressed and are thriving in Guardians’ home

. Even though D.T.’s medical
issues are some of the most demanding his physician ha s ever seen, his physician is impressed by
Guardians ’ ability to provide care for the infant. Likewise, T.T. has progressed in the counseling secured by Guardians. The children have had limited contact with Mother since the guardianship5 began, but at least one visit from Mother cause d T

. T

. to regress in much of her progress

. The
child suffered from uncontrollable bowel movement s for several weeks after the visit

. T.T.’s counselor opined that this regression was likely a negative emotional reaction to seeing her
Mother. On February 7, 2017, a little over a yea r after the guardianship was established,
Guardians filed a petition to terminate Mother’s parental rights to T.T. and D.T. as well as an amended petition on May 17, 2017. Subsequent to filing their petition for termination of parental rights and adoption, Guardians were the subject a n Investigative Report and a Pre

- Adoption
Home S tudy R eport by the Department

. Both inquiries resulted in the conclusion and
recommendation that the children remain with Guardians

. After holding a one

- day trial and the
submissi on of written closing arguments by both parties, the trial court granted Guardians’ petitio n on the basis that Mother neglect ed and abandoned the children and that termination was
in the children’s best interest s

. The trial court entered a judgment to that effect on May 11, 2018. Mother timely appeals.
II. ISSUES ON APPEAL
1. Whether the re is substantial, competent evidence to support the trial court’s determination that : a) Mother abandoned T.T. and D.T.; b) Mother neglected T.T. and D.T.; and c) terminating Mother’s p arental rights was in th e best interest s of T

. T

. and D

. T

. 2. Whether Guardians are entitled to attorney’s fees.
III. STANDARD OF REVIEW
Pursuant to Idaho Code section 16

- 2005(1), “a court may terminate parental rights if it finds that doing so is in the best in terest of the child and that at least one of five grounds for
termination is satisfied.” In re Doe (2014

- 23) , 157 Idaho 920, 923, 342 P.3d 632, 635 (2015). The enumerated grounds for terminating a parent

- child relationship “must be proved by clear and

conv incing evidence.” In re Doe (2013

- 15) , 156 Idaho 103, 105

– 06, 320 P.3d 1262, 1264

– 65 (2014); I.C. § 16

- 2009. As generally understood, the clear and convincing evidentiary standard is met when there is “evidence indicating that the thing to be proved is hig hly probable or reasonably certain.” Doe Children
, 163 Idaho 536, 538 , 415 P.3d 945, 947 (2018) ( quoting Idaho Dep’t of Health and Welfare v. Doe (2015

- 01) , 158 Idaho 764, 767, 351 P.3d 1222, 1225 (2015)).6 On appeal, “the appellate court does not reweigh the evidence to determine if it was clear and convincing.” In re Doe (2014

- 09) , 157 Idaho 14, 18, 333 P.3d 125, 129 (2014) (quoting Dep’t of Health and Welfare v. Doe , 149 Idaho 207, 210, 233 P.3d 138, 141 (2010)). Where the
trial court has explicitly note d that it applied the clear and convincing standard, the appellate
court “will not disturb the [trial] court’s decision to terminate parental rights if there is substantial, competent evidence in the record to support the decision.” Doe I v

. Doe II , 150 Id aho
4 6, 49, 244 P.3d 190, 193 (2010)

. Substantial, competent evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id

. (quoting State v. Doe , 143 Idaho 343, 346, 144 P.3d 597, 600 (2006))

. In our r eview of the factual findings, “this Court will indulge all reasonable inferences in

suppor t of the trial court’s judgment . . . . ” In re Doe (2013

- 15) , 156 Idaho at 106, 320 P.3d at 1265 (quoting In the Matter of Aragon , 120 Idaho 606, 608, 818 P.2d 310, 312 (1991)). This
Court considers that the finder of fact has the opportunity to observe witnesses’ demeanor, to assess their credibility, to detect prejudice or motive and to judge the character of the parties. In parental

- termination cases, this is imm ensely important. A cold record of the trial does not tell the whole story. An independent review by our court could not take into account the trial court’s superior view of the entire situati on. Id.
IV. ANALYSIS
A. Mother has (1) waived the issues of neglect a nd abandonment on appeal for failure to support them with argument and (2) the trial court’s determination that termination was in the children’s best interest s is supported by substantial, competent evidence. Termination of the parent

- child relationship requires the satisfaction of a two

- part finding: (1) at least one of t he five bases for termination needs to be met, and (2) termination
must be in the best interest of the child

. 1. Bases for Termination under Idaho Code section 16

- 2005(1)(b) On appeal, Mot her does not make specific arguments as to how or why the trial court erred in its determination that Mother neglected and abandoned her children

. Instead, Mother merely recites these issues in her statement of the issues on appeal while t he bulk of her br ief
deals only with the best

- interest s

- of

- the

- child prong of the termination statute. As a result, without argument or citation to advance the issues, she has waived these issue s

. Bach v. Bagley
, 148 Idaho 784, 797, 229 P.3d 1146, 1159 (2010) (“Regardless of whether an issue is ex plicitly7 set forth in the party’ s brief as one of the issues on appeal, if the issue is only mentioned in passing and not supported by any cogent argument or authority, it cannot be considered by this Court.”).
2. Best Interest s of the Child ren E ven if one of the statutory bases for parental

- rights termination is found, termination is only proper if it is also in the best interests of the child. I.C. § 16

- 2005(1). The best interests

an alysis is an expansive analysis with “no set list o f factors a court must consider . . . . ” In re Doe (2015

– 03) , 159 Idaho 192, 198, 358 P.3d 77, 83 (2015). Nonetheless, this Court has
articulated numerous factors that a trial court ma y consider, including a “parent’ s history with substance abuse, whethe r the parent has provid ed financial support, the child’ s relationship with those currently caring for him or her and whether the child has impro ved under that care, the
child’ s need for stabilit y and certainty, and the parent’ s incarceration.” Id

. Other fa ctors include the parent’ s ability to change his or her conduct to assume parental responsibilities, whether there is a good relationship between the child and parent, whether the child h as improved while in the parent’s care, whether the child’ s need s are being met, and the parent’ s ability to p rovide stability and certainty. Idaho Dep’ t of Health & Welfare v. Doe I (2017

- 21) , 163 Idaho 83, 89 , 408 P.3d 81, 87 (2017).
The trial court found that “[c]onsidering all of the various factors involved, and weig hing the children’s current needs against the hope that [Mother] will ever be able to put herself in a position to safely reunite with the children, this court concludes that achieving some permanency
for the children now is in their best interests at this point.” This finding is supported by substantial, competent evidence in the record. On appeal, Mother argues that termination is not in the best interest s of T.T. and D.T.
because “ [ Guardians ] have failed to show that there would be any harm to the childr en if the termination of parental rights petition was denied.” In support of this argument, Mother relies on In re Doe (2014

– 09 ) where this Court acknowledged that “the lack of any evidence showi ng that termination of a parent’ s parental rights is necessar y to prevent harm to the children is a factor that the trial court can consider,” in upho ld ing a trial court’s finding that termination of a biological father’s rights was not in the best interest s of the child as supported by substantial competent evidenc e. 157 Idaho 14, 17, 333 P.3d 125 , 128 (2014). While this is a valid observation, this Court never i ntimated that this factor i s a determining factor. Id. To the contrary , this Court has addressed Mother’s exact argument and held this factor “is only one8 f

actor in a wide

- ranging analysis and not an overriding concern or emphasized principle.” Doe v.
Doe (2016

–

45) , 162 Idaho 194, 198, 395 P.3d 814, 818 (2017)

. Whether harm to the child will
result from a termination of parental rights is simply an area of in quiry that the tr i a l court may
assess in its broad discretion to determine whether termination is in the best interest s of the child. Mother also argues that she has “corrected the problems that led to her agreeing to the original guardianship case.” Moth er supports this argument by pointing out she has successfully completed probation, has a full

- time job, and her employer has a no

- drug policy. While the parent’ s ability to change his or her conduct to assume parental responsibilities is a factor the
tria l court may consider, it is only one of many that goes into the best

- interests analysis. This Court has held on prior occasions that the lower court did not err by finding that a parent’s recent improvement is outweighed by the other factors of the best in terest s analysis. See
, e.g. , Idaho Dep’ t of Health & Welfare v. Doe (2011

- 18) , 152 Idaho 644, 650, 273 P.3d 685, 691 (2012) (finding no error when the trial court “weighed the totality of the evidence and concluded that ‘quite frankly it is too little, too late.’”); Idaho Dep’ t of Health & Welfare v. Doe (2016

- 32) , 161 Idaho 754, 761, 390 P.3d 1281, 1288 (2017) (find ing “no error in the magistrate’s conclusion
that Mother’ s recent and modest improvements were insufficient to overcome her histo ry of
demonstr ated unfitness.”) Ultimately, t he focus of the best interest s analysis rests with the best interest of the child, not the parent. Mother was employed when she left D.T. unattended at the house . Mother was intermittently employed during the period of time she failed to physically car e for T.T. during
the child’s early life. Furthermore, this argument is unavailing because Mother’s progress did not go unnoticed by the trial court. Rather, the trial court noted her p rogress, but expressly found: Allowing [Mo ther] additional time to try and put herself in the position to get the children back, hoping she might be successful, all the while knowing that she intends to leave the children with [Guardians], leads this court two [ sic ] the conclusion that allowing he r additional time would be detrimental to the children’s mental and physical well

- being and would not allow them to achieve permanency. Lastly, Mother urges this Court to adopt the Washington Supreme Court’s holding in In re Welfare of A.B. , where that cou rt held “that a parent has a constitutional due process right not to have his or her relationship with a natural child terminated in the absence of a trial court finding of fact that he or she is currently unfit to parent the child.” 232 P.3d 1104, 1110 (2 010),
as amended (Sept. 16, 2010). This argument is unpersuasive

. First, the decision of a sister state9 is not binding on this Court. State v. Elison , 135 Idaho 546, 549, 21 P.3d 483, 486 (2001). Second, the requirement that the Washington Supreme Court imposes stems from its statutory sche me and the subsequent case law interpreting it. See Krause v. Catholic Cmty. Servs., 737 P.2d 280, 284 (1987). Succinctly put: The Washington parental rights termination statutes require clear, cogent and convincing evi dence of not only a prior determination that the parent has fallen below minimal standards, RCW 13.34.180(1), but of the fact that parental deficiencies still exist which are not likely to be remedied so that the child can be returned to the parent in the near future , RCW 13.34.180(5) Id. A requirement of current unfitness is not required under Idaho law. See I.C. § 16

- 2005. Furthermore, this Court has previously upheld termination of parental rights as being in the child’s best interest despite recent l ifestyle improvements on the part of the parent. See Idaho Dep’ t of Health & Welfare v. Doe (2011

- 18) , 152 Idaho at 650 , 273 P.3d at 691 (finding sufficient evidence to support trial court ’s termination order where the trial court found parents improvement s were “too little, too late.”) ; Doe (2016

- 32) , 161 Idaho at 761, 390 P.3d at 1288 (“We find no error in the [ trial court’s ] conclusion that Mother’ s recent and modest improvements were insufficient to overcome her history of demonstrated unfitness.”).
T h e trial court’s finding that termination of Mother’s parental rights is in D.T. and T.T.’s
best interests is supported by substantial, competent evidence

. Mother has a history of substance
abuse before, during , and after her time caring for the children

. M other has provided little to no financial support for the child ren while they were in her care and only minimal support while t he
children were under Guardian s ’ care

. Both children have thrived under Guardians’ care. Both
children are treated as members of the family by Guardians and Guardians’ other children

. Guardians sought termination in part to have both D.T. and T.T. placed on their family’s health
insurance. Both the Pre

- Adoption Home Study and Investigative Report completed by the Department regardi ng the children’s placement with Guardians recommended that the children stay with Guardians

. The trial court agreed with each report’s finding that delaying termination
would not be in the children’s best interest s because the children deserve the permane ncy required to grow and develop. T.T. exhibited extremely alarming behaviors for a child her age when she came into
Guardians’ care . Such behavioral issues appear to result from considerable and consistent neglect
while in Mother’s care. T.T. needs stabi lity and certainty in order to progress and develop as a10 child. Guardians offer that stability and consistency. Upon taking physical custody of T.T., Guardians immediately secured counseling for T.T. and have made considerable efforts to
address her issues . When T.T. was reunited with Mother, even though it was only a brief meeting , the stress of the interaction was enough for T.T. to regress in her progress and suffer physical symptoms of anxiety. Based on these facts, there is substantial, competent evide nce to support the trial court’s determination that termination of Mother’s parental rights is in T.T.’s
best interest. D.T. has spent almost his entire young life with Guardians. That life has been marked by taxing and recurring medical affliction s and tr eatment. Given the timeframe of D.T.’s time with Guardians, they are the only parent figures D.T. has ever really known. Guardian s have
stewarded D.T.’s tumultuous journey through his illness es and remained an ev er

- present source of care and attention for the child . Given Mother’s history of caring for T.T., it is difficult to envision Mother providing the adequate care and attention required by D.T.’s special needs. Based on these facts, there is substantial, competent evidence to support the trial court’s determination that termination of Mother’s parental rights is in D.T.’s best interest. Therefore, the trial court’s finding that termination of Mother’s parental rights is in the
best interest s of the children is supported by substantial, competent evid ence. Accordingly, we
affirm the trial court’s termination of Mother’s parental rights to T.T. and D.T.
B. Guardians’ request for attorney’s f ees is denied because of the seriousness of the liberty interest at stake and the conflicting evidence in the record. Guardians raise the issue of attorney’s fees in their reply brief. Guardians argue that they are entitled to attorney’s fee under section 12

- 121 of the Idaho Code because “[Mother’s] appeal has been brought frivolously, unre asonably and without foundati on ” and Mother “simply request[s] the appellate court to second guess the determination of the trial court.” An award of attorney fees on a ppeal is proper under I.C. § 12

- 121 only if this Court is left with the abiding belief that the appeal “was brought, pursued or defended frivolously, unreasonably or without foundation.” I.C. § 12

- 121. “Generally, when an appeal simply disputes
the trial court’ s factual findings, which are supported by substantial although conflicting evidence, the appeal is considered frivolous and an award of attorney fees is proper under I.C. §
12

– 121.” Doe v. Roe , 133 Idaho 805, 810, 992 P.2d 1205, 1210 (1999) (citing Zanotti v. Cook
, 129 Idaho 151, 155, 922 P.2d 1077, 1081 (Ct. App. 1996) )

. That said, this Court has held that11 “consi dering the seriousness of the liberty interest affected in parental termination cases,” an appeal in such cases “to reexamine conflicting evidence is not frivolous.” Id. Because of the fundamental right implicated by the termination of parental rights and the conflicting testimony in this case, we de ny Guardian s ’ request for atto rney’s fees under Idaho
Code section 12

- 121.
V. CONCLUSION
The termination of Mothe r’s parental rights is affirmed and Guardian s ’ request for attorney’s fees is deni ed. Costs on appeal are awarded to Guardians. Justices HORTON, BRODY, BEVAN and STEGNER, CONCUR.