1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43896

In the Matter of: JANE DOE and JOHN 

DOE, Children Under the Age of Eighteen 

Years.

)

)

)

)

IDAHO DEPARTMENT OF HEALTH 

AND WELFARE,

Petitioner-Respondent,

v.

JANE DOE 1 (2016-4),

Respondent-Appellant,

and

BILL LYNN/CASA,

Guardian Ad Litem-Respondent,

and

SHOSHONE-BANNOCK TRIBES,

Intervenors.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

2016 Unpublished Opinion No. 528

Filed: May 10, 2016

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the Magistrate Division of the District Court of the Sixth Judicial 

District, State of Idaho, Bannock County. Hon. Bryan K. Murray, Magistrate. 

Judgment terminating parental rights, affirmed.

John C. Souza, Pocatello, for respondent-appellant. 

Hon. Lawrence G. Wasden, Attorney General; Justin R. Seamons, Deputy 

Attorney General, Pocatello, for petitioner-respondent. 
2

Moffatt, Thomas, Barrett, Rock & Field, Chtd., David P. Gardner, Pocatello, for 

guardian ad litem-respondent.

________________________________________________

MELANSON, Chief Judge 

Jane Doe appeals from the magistrate’s judgment terminating her parental rights. For the 

reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Doe had two children--a five-year-old daughter and a one-month-old son. Doe and her 

children lived with Doe’s boyfriend, who was not the father of either child. Daughter was 

visiting Doe’s friend’s house when she made allegations that she had been sexually abused by 

Doe’s boyfriend. The friend discussed the allegation with Doe, who became upset and refused to 

believe the daughter was telling the truth. Doe’s boyfriend arrived at the friend’s residence. He 

yelled at the daughter and poked her genitals, stating, “Did I touch you here? Did I touch you 

here? You’re a liar!” The friend informed the state of the incident after Doe, her boyfriend, and 

the children left the friend’s house. The Department of Health and Welfare conducted an

assessment regarding the alleged sexual abuse. At the time of the assessment, Doe refused to 

leave her residence with the children or have her boyfriend leave the residence. At a forensic 

interview, the daughter changed her story and alleged that it was another child who touched her 

genitals. However, at an adjudicatory hearing, the boyfriend admitted to touching the daughter

in the genital area over her clothes, as described above. The magistrate found that a battery had 

occurred based upon the boyfriend’s admission and placed the children in the legal custody of 

the Department. 

The Department, Doe, and Doe’s boyfriend attempted to develop a case plan to reunite 

with the children, but could not agree upon the terms of the plan. Accordingly, the magistrate 

created a plan for Doe to reunite with her children. Because Doe’s boyfriend was not the father 

of either child, the magistrate held that it did not have jurisdiction to order Doe’s boyfriend to 

participate in the case plan. Thus, the case plan only pertained to Doe’s conduct. Among other 

requirements, the case plan required Doe to participate in visitation; receive permission before 

moving; notify the magistrate of her current address and telephone number; maintain a drug-free, 
3

crime-free, safe, and stable home; be responsible for the conduct within the home; and obtain 

prior approval for any adult living in the home. Doe’s boyfriend had a long criminal history, 

both as a juvenile and adult, including domestic violence and injury to a child, which had been

reduced from rape.1 Based upon the boyfriend’s history and daughter’s allegation, the case plan 

required that Doe:

[o]btain prior approval from the Department for any adult, other than a parent, 

living in the home. It must be demonstrated through counseling, treatment and 

verification, to the satisfaction of the Department of Health and Welfare, that [the 

boyfriend] is of no risk to the children before [Doe] will allow any contact of any 

kind between the children and [the boyfriend]. 

While the child protection case was pending, Doe and her boyfriend married. Doe did not 

complete the case plan and the Department sought termination of Doe’s parental rights. The 

magistrate held a termination hearing and found that termination of Doe’s rights was warranted 

because Doe neglected the children and termination was in the children’s best interest. 

Accordingly, the magistrate entered judgment terminating Doe’s parental rights. Doe appeals.

II.

STANDARD OF REVIEW

A parent has a fundamental liberty interest in maintaining a relationship with his or her 

child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 

341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States

Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the 

Termination of Parent and Child Relationship Act is the philosophy that, wherever possible,

family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of 

due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 

383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a 

parent-child relationship be proved by clear and convincing evidence. Id. Because a 

fundamental liberty interest is at stake, the United States Supreme Court has determined that a 

court may terminate a parent-child relationship only if that decision is supported by clear and 

 

1

The boyfriend’s injury to a child conviction stemmed from a sexual relationship he had 

with Doe. At the time of that incident Doe was sixteen years old and the boyfriend was 

twenty-four years old. 
4

convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009; 

In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d 

at 652. 

On appeal from a decision terminating parental rights, this Court examines whether the 

decision is supported by substantial and competent evidence, which means such evidence as a 

reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,

245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable 

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

be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test 

requires a greater quantum of evidence in cases where the trial court’s finding must be supported 

by clear and convincing evidence than in cases where a mere preponderance is required. Doe v. 

Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally 

understood to be evidence indicating that the thing to be proved is highly probable or reasonably 

certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s 

decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d 

at 600.

Idaho Code Section 16-2005 permits a party to petition the court for termination of the 

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 that 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 

1117.

III.

ANALYSIS

From Doe’s appellate brief, it is not entirely clear in what manner she alleges the 

magistrate erred in terminating her parental rights. Doe lists a number of references to the 

record, which she claims dispute some of the magistrate’s findings of fact and conclusions of 
5

law. Accordingly, we interpret Doe’s allegation to be that the magistrate erred in terminating her 

parental rights because its decision was not supported by substantial and competent evidence. 

A. Neglect

Doe appears to contend that the magistrate’s finding that she neglected her children was 

not supported by substantial and competent evidence. Idaho Code Section 16-2002(3) defines 

“neglected” as any conduct included in I.C. § 16-1602(28), as well as situations where the parent 

has failed to comply with the court’s orders or the case plan in a child protection case and the 

Department 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. 

Section 16-1602(28)(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 of his or her parents, 

guardian, or other custodian or their neglect or refusal to provide them.

The magistrate found, beyond a reasonable doubt:

a. [Doe] has failed to provide proper parental care and control, 

subsistence, medical and care necessary for their well-being. She not only 

neglects the children but refused to protect them from people who would harm 

them. [Doe] has neglected her children by seeing relationships with unstable and 

dangerous men, one of whom physically harmed her and her child and yet she 

chose to marry him instead of seeking the return of her children. 

b. [Doe] has failed to comply with a child protection case plan. She 

has continued making choices that makes it dangerous for her children to return to 

her home. 

c. The neglect [Doe] has demonstrated with her children has been an 

on-going issue before the child protection case came into existence. 

The issue here is whether there was substantial and competent evidence that Doe 

neglected her children. In caring for his or her child, a parent has a duty to protect the child from 

others who might harm the child. See State v. Peters, 116 Idaho 851, 855-56, 780 P.2d 602, 

605-606 (Ct. App. 1989). The record contains evidence that Doe failed to provide the children 

with proper parental care and control necessary for their well-being by failing to investigate her 

daughter’s allegation of sexual abuse and by failing to protect the daughter from further abuse by 

the boyfriend. Even after the boyfriend admitted he committed a battery on the daughter, Doe 
6

failed to admit her boyfriend’s conduct was improper and continued to defend him rather than 

protect the daughter from further abuse. 

The record also contains evidence that Doe failed to comply with the terms of the case 

plan. Doe regularly attended her scheduled visits with the children for several months. 

However, Doe moved to Oregon and discontinued her scheduled visits. Not only did Doe violate 

the terms of her plan by discontinuing her scheduled visits, Doe’s move to Oregon, without 

seeking permission and without providing an address and phone number, violated the terms of 

her case plan. In addition, Doe admitted to testing positive for two drugs--Ritalin and 

THC--while the child protection case was pending. Doe’s use of drugs violated the term of the 

case plan that required Doe to keep a safe, drug-free home. Most importantly, Doe did not 

comply with the term of her case plan that required her to obtain prior approval for any adult 

living in the home. Based upon the boyfriend’s criminal history and admitted battery, the case 

plan required Doe to prove that any adult, including her boyfriend, living in the home would not 

be a threat to the children. Doe did not prove to the Department, through counseling, treatment 

and verification, that her boyfriend would not continue to be a threat to the children. Rather, Doe 

married her boyfriend and repeatedly defended him, claiming that her five-year-old daughter’s 

allegations of sexual abuse were lies. Because Doe failed to provide proper care of her children 

and failed to comply with the terms of the case plan, the magistrate did not err in finding that 

Doe neglected her children. 

B. Best Interests of the Children

Doe appears to contend that the magistrate’s finding that termination of her rights was in 

the best interest of the children was not supported by substantial and competent evidence. The 

magistrate found, beyond a reasonable doubt:

It is in the best interest of both children to have the rights of their parents 

terminated. The testimony, child protection history and actions or lack of actions

of their parents support this order. The needs of the children physically, 

developmentally and emotionally, makes termination in their best interest. The 

bonding and stability the children have in their current placement [with foster 

parents] is key to their safety and well-being. No parent has provided that to the 

children nor have the parents demonstrated their ability to do so in the foreseeable 

future. 
7

There is evidence in the record from multiple witnesses, that it was in the best interest of 

the children for Doe’s rights to be terminated. Specifically, there was testimony that the 

daughter had poor school attendance, medical care needs, behavioral problems, and other 

concerns before the children were removed from Doe’s care and placed in foster care. There 

was further evidence that, in the time they were in foster care, the children’s various needs were 

met, the children were thriving, and the children had a stable life with the foster family. In 

addition to the children’s improvements, the magistrate found that Doe had a history of being in 

relationships that involved domestic violence and sexual abuse and that Doe’s boyfriend had a 

history of violence, including domestic violence. Also, the magistrate found that Doe had not 

created a stable home for the children, lived with many other adults, and had an ongoing

substance abuse problem. Accordingly, there is substantial and competent evidence in the record 

to support the magistrate’s finding that it was in the best interest of the children to terminate 

Doe’s parental rights.

IV.

CONCLUSION

Doe has not shown that the magistrate’s findings--that she neglected her children and that 

termination was in the best interest of the children--were not supported by substantial and 

competent evidence. Therefore, the magistrate’s order terminating Doe’s parental rights is 

affirmed. No costs or attorney fees awarded on appeal.

Judge GUTIERREZ and Judge GRATTON, CONCUR.