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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45419

In the Matter of: JANE DOE II,

A Child Under Eighteen (18) Years of Age.

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JANE DOE I,

 Petitioner-Respondent,

v.

JOHN DOE (2017-31),

 Respondent-Appellant.

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Boise, February 2018 Term

2018 Opinion No. 23

Filed: March 8, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of 

Idaho, Bonneville County, Hon. Stephen James Clark, Magistrate Judge. 

The judgment of the magistrate court is affirmed.

Wixom Law Offices, Idaho Falls, for Appellant. 

Murray, Ziel & Johnston, PLLC, Idaho Falls, for Respondent. 

TROUT, Justice Pro Tem.

John Doe (Father) appeals a decision of the magistrate court in Bonneville County to 

terminate Father’s parental rights to his minor child Jane Doe II (Child). The magistrate court 

terminated Father’s parental rights on a petition from Child’s Stepfather and Mother, Jane Doe I 

(Mother), after finding that Father had abandoned Child and termination was in Child’s best 

interest. On appeal, Father argues that the magistrate court’s findings are not supported by 

substantial and competent evidence. Mother responds that the magistrate court’s findings are 

supported by substantial and competent evidence and requests attorney fees on appeal. We affirm 

the decision of the magistrate court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts were found by the magistrate judge and are supported by evidence in 

the record. Father and Mother were married on June 20, 2012, and Child was born to Father and 
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Mother on August 9, 2012. Based on Father being charged with domestic battery against 

Mother, a No Contact Order was entered by the magistrate court on January 30, 2013, which 

provided that Father was to have no contact with mother or her immediate family (except as to 

children who are subject to a separate custody/visitation order) and that Order was extended until 

February 6, 2015. Father and Mother subsequently divorced on January 23, 2014, and a decree 

of divorce was entered incorporating a parenting plan and property settlement agreement 

between the parties. In the parenting plan, Father was provided eight hours of supervised 

visitation each month on the weekends, together with holidays and other specified times. In 

addition, Father was entitled to telephone or Skype with the child once per week and send letters. 

After entry of the divorce decree, the record reflects that Father would visit with Child 

approximately twice each month but these visits decreased in regularity until Father was 

incarcerated in May 2015.

As a part of the parenting plan, Father was obligated to pay child support of $125 per 

month beginning January 2014. The only recorded payments occurred over a three-month period 

ending in July 2014, and were as a result of garnished wages. Father asserted there were some 

additional cash payments of unknown amounts with money gained from illegal drug activities. 

Father is currently in prison, serving a sentence of three years determinate followed by 

twelve years indeterminate, for two counts of rape based upon sexual relations with underage 

females. Since Father has been incarcerated, Father has had no contact with Child and has not 

sent or had delivered any letters to Child. The magistrate court recognized that, given Child’s 

age, it was understandable Father did not send letters, as she could not read them. There were 

also no packages or presents sent to Child, although again, the magistrate court recognized that

Father’s prison sentence would have made attempts to do so impractical. However, the 

magistrate court also found that Father was aware his sister had ongoing contact with Mother and 

was willing to deliver letters and packages to Child if asked. While Mother had declined collect 

calls from Father, Mother did answer the only pre-paid call made by Father. During this brief 

call, Child was not a topic of conversation. Mother married Stepfather on May 4, 2016. 

Stepfather has stepped into the role of Child’s father since Mother and Stepfather’s marriage. 

Mother and Stepfather petitioned the magistrate court to terminate Father’s parental 

rights on November 23, 2016. While Father initially indicated he would consent to termination 
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and adoption by Stepfather, Father filed an answer contesting the termination of his rights to 

Child. 

A court trial was held on August 31, 2017, to determine whether grounds for termination 

existed under Idaho Code section 16-2005. The magistrate judge made findings of fact and 

conclusions of law terminating Father’s parental rights based upon a determination that Father 

had abandoned Child and termination was in Child’s best interest. Father timely appealed. 

II. STANDARD OF REVIEW

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. Doe v. Doe, 148 Idaho 

243, 245, 220 P.3d 1062, 1064 (2009). “Substantial and competent evidence is such evidence as 

a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting In re Doe, 146 

Idaho 759, 761, 203 P.3d 689, 691 (2009)). “This Court will indulge all reasonable inferences in 

support of the trial court’s judgment when reviewing an order that parental rights be terminated.” 

Id. at 245–46, 220 P.3d at 1064–65 (quoting Matter of Aragon, 120 Idaho 606, 608, 818 P.2d 

310, 312 (1991)). 

III. ANALYSIS

A. The magistrate court’s findings of fact are supported by substantial and competent 

evidence. 

The magistrate court terminated Father’s parental rights after finding that Father had 

abandoned Child and termination was in Child’s best interest. Father argues on appeal that 

substantial and competent evidence does not support the magistrate court’s findings of 

abandonment and that termination is not in Child’s best interest. 

Idaho Code section 16-2005 governs the various conditions under which parental rights 

may be terminated. The magistrate court granted the petition under the abandonment grounds 

present in this provision: “The court may grant an order terminating the relationship where it 

finds that termination of parental rights is in the best interests of the child and that . . . [t]he 

parent has abandoned the child.” I.C. § 16-2005(1)(a). Abandonment, in this sense, “means the 

parent has willfully failed to maintain a normal parental relationship including, but not limited to, 

reasonable support or regular personal contact. Failure of the parent to maintain this relationship 
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without just cause for a period of one (1) year shall constitute prima facie evidence of 

abandonment . . . .” I.C. § 16-2002(5). After finding that a child has been abandoned, termination 

must also be in the child’s best interest:

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 . . . , the 

parent’s efforts to improve his or her situation, and the parent’s continuing 

problems with the law. 

In re Doe, 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014). These two requirements will be 

discussed in detail individually.

1. Abandonment

In Doe v. State, 137 Idaho 758, 53 P.3d 341 (2002), this Court considered how these 

statutory sections apply to incarcerated parents. In that case, the father of the child had been 

incarcerated since the child’s birth and he had never actually seen the child. Id. at 761, 53 P.3d at 

344. This Court vacated the termination decision because the father “desired to maintain his 

parental rights and tried to maintain contact as best he could while he was in prison.” Id. The 

Court specifically pointed to several things the father had done to maintain the parental 

relationship while incarcerated: 

He provided Christmas gifts to the child through a church fellowship and/or 

through Angel Tree for three Christmases. Doe wrote letters to the child’s 

maternal grandmother expressing interest in the child, but the grandmother did not 

respond to him. At least two of Doe’s aunts contacted the case worker for the 

Department, expressing interest in the child. Doe testified that he sent a picture 

“of Mickey Mouse or something for the child” and a letter to the child for the 

child’s birthday and sent a gift of a handkerchief drawing to the child. Doe called 

the caseworker a number of times regarding the child and signed documents 

authorizing medical services.

Id. The Court focused on these factors as a realization that “Doe was severely restricted in what 

he could do. Within that context he tried to establish a relationship.” Id. at 762, 53 P.3d at 345 

(emphasis added). Because of these efforts the father made to establish a relationship, the Court 

vacated the termination and remanded the case for further proceedings.

In Doe, the Court recognized the difficulty of maintaining a relationship because of the 

restricted nature of contact when a parent is incarcerated. However, the Court overturned 

termination in Doe because the father was clearly doing whatever he could—despite the 
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limitations—to build a relationship with his child. As the Court asked: “what more could [father] 

have done?” Id. at 761, 53 P.3d at 344. 

In the instant case, the magistrate court found the following facts—based on the trial 

testimony—that demonstrate Father willfully failed to maintain his parental relationship: (1) 

inconsistent contact prior to incarceration when he had the opportunity; (2) minimal payment of 

child support; and (3) lack of efforts to have some form of contact whether by mail, telephone, 

third party, or gifts after he was imprisoned. As indicated in the factual background above, 

Father had opportunities to maintain some contact with Child while incarcerated, and simply 

failed to do so. While Father points to the calls that he placed to Mother from prison, these calls 

were collect and placed the financial burden on Mother. Additionally, while Father was unable to 

have contact with Child from prison, he could have asked his family to communicate messages 

or deliver small gifts to Child.

Also different from the situation in Doe, is the fact that Father was able to have contact 

with Child for several years before he was incarcerated. The magistrate court described Father’s 

pre-incarceration conduct in this way: “While struggling with addiction, there was no reason he 

could not have sent cards or presents to the child or made some token efforts to pay child support 

until forced to do so.” Before incarceration he would have contact with Child approximately 

twice each month that decreased in regularity. “The lack of effort to contact the child when he 

knew at least where [Mother] worked was not justified. These were his choices. These choices 

resulted in a failure to provide regular personal contact.” 

The magistrate court noted that at the time of the hearing, Father has been completely 

absent from Child’s life for approximately one-half of her life. Father would remain incarcerated 

at least until May, 2018, and potentially up to nine years thereafter. This potential of future 

incarceration was significant to the court in analyzing Father’s abilities to parent. All of these 

findings of the magistrate court follow directly from the trial testimony; thus, the magistrate 

court’s finding of abandonment is supported by substantial and competent evidence. 

2. Best Interests

Father argues that termination is not in the best interests of Child because of their 

relationship before his incarceration. Mother argues that Father’s continued unpredictability in 

Child’s life, Father’s absence from Child’s life since incarceration, and Child’s bond with 

Stepfather make termination in Child’s best interests. 
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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 . . . , the 

parent’s efforts to improve his or her situation, and the parent’s continuing 

problems with the law. 

In re Doe, 156 Idaho at 111, 320 P.3d at 1270. The magistrate court explicitly considered the 

“stability and certainty for the child. Having [Father] available at some unknown time does not 

create that stability and certainty.” The magistrate court concluded, based upon clear and 

convincing evidence, that Mother had met her burden to show that termination was in Child’s 

best interests, specifically: Father is incarcerated for multiple charges of a sexual nature; Father 

has a continued lack of financial stability; Father’s history of poor choices including the use of 

controlled substances both in and out of prison; any bond which existed between Child and 

Father has attenuated, if not been extinguished; lack of certainty when Father may be available to 

serve as parent; and Child has stability and certainty under the care of Mother and Stepfather. 

These findings follow from Father’s own trial testimony. Father testified that he was 

incarcerated for having sex with three girls that were underage. Father also testified that he may 

not be released from prison for an additional thirteen years. Father testified that Child may not 

even remember or recognize him. Father further testified about the satisfactory nature of Child’s 

care with Mother. With this evidence in the record, the magistrate court’s finding that

termination is in the best interest of Child is supported by substantial and competent evidence of 

Father’s conduct, both before and after incarceration. Further, the magistrate’s legal conclusion 

to terminate Father’s parental rights follows from its factual findings. As such, we must affirm 

the magistrate court’s decision to terminate Father’s parental rights.

B. Mother is not entitled to attorney fees on appeal. 

Mother argues that “Father has failed to show that the Magistrate Court decision was not 

supported by substantial and competent evidence, and therefore, Mother is entitled to attorneys 

[sic] fees on appeal.” She cites to Idaho Code section 12-121 as the basis for her argument.

Mother cites to Ernst v. Hemenway & Moser Co., Inc., 126 Idaho 980, 895 P.2d 581 (Ct. 

App. 1995). While that is not a decision of this Court, Ernst correctly applies the consistent 

standard that this Court has enunciated for an award of attorney fees under Idaho Code section 

12-121. As the Court of Appeals stated: 

H & M has failed on appeal to present any significant issue regarding a question 

of law. H & M has not shown that the findings of fact made by the district court 
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were arguably unsupported by substantial evidence. H & M has not advanced any 

new legal standards or sought modification of existing ones.

Id. at 988, 895 P.2d at 589. As the trial court noted: 

These cases are among the most difficult for the Court to decide. Both counsel 

effectively presented the respective position of the parties. There were factors 

which tugged both ways and, as in many of these cases, the decision is never 

clear cut, but rather the case turns on the Court sifting through the various factors 

to come to a decision.

Father made a good faith argument that the termination decision was not supported by the 

evidence. As such, we cannot say that this appeal was pursued frivolously or unreasonably. 

Mother is not entitled to an award of attorney fees.

IV. CONCLUSION

We affirm the decision of the magistrate court to terminate Father’s rights to Child 

because this decision follows the magistrate court’s findings of abandonment and the best 

interests of Child that are supported by substantial and competent evidence. On appeal, Mother is 

not entitled to an award of attorney fees.

Chief Justice BURDICK, Justices BRODY, and BEVAN CONCUR.