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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 36983

IN THE INTEREST OF: JOHN DOE, A 

MINOR CHILD UNDER 18 YEARS OF 

AGE.

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IDAHO DEPARTMENT OF HEALTH & 

WELFARE,

 Petitioner-Respondent,

v.

JOHN DOE I,

 Respondent-Appellant

and

JANE DOE,

 Respondent.

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Boise, June 2010 Term

2010 Opinion No. 76

Filed: June 30, 2010

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada 

County. Hon. Cathleen MacGregor-Irby, Magistrate Judge.

Magistrate court decision terminating parental rights, affirmed.

Adam Carl Kimball, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.

__________________________________

SUBMITTED ON THE BRIEFS

BURDICK, Justice

John Doe I (hereinafter Doe) appeals from the magistrate court’s Memorandum Decision 

and Order terminating his parental rights to his child, D.C., entered September 21, 2009.1 We 

affirm. 

 

1

The parental rights of the child’s mother were also terminated at this time, but this appeal involves only the 

termination of Doe’s parental rights. 
2

I. FACTUAL AND PROCEDURAL BACKGROUND

D.C. was born in 1999. On April 4, 2000, a child protection referral was made in 

Moscow, Idaho, regarding the care of D.C. According to the reporting party, Doe and D.C.’s 

mother (Mother) had taken D.C. to a babysitter’s house and did not follow through with plans to 

pick up D.C., leaving the babysitter with no supplies, such as milk, with which to care for D.C. 

The report was coded as an information and referral only, and no further action was taken. 

On April 3, 2003, a child protection referral was made in St. Maries, Idaho, regarding 

health and safety concerns with the family’s residence. Concerns of controlled substance abuse 

by Doe were also reported. A social worker visited the home and observed that there was no 

running water and the sewer system was not functioning. 

On April 26, 2004, another child protection referral was made regarding the neglect of 

D.C. According to the referent, Doe and his girlfriend (S.R.) left D.C. and S.R.’s children with 

an aunt and uncle for several weeks and did not return to pick them up until forced to do so. The 

referent also noted substantial controlled substance abuse by Doe and S.R. Subsequent reports 

alleging child abuse and neglect were reported and attached to this initial presenting issue, 

including concerns about domestic violence by Doe against S.R., inappropriate physical 

discipline by Doe of S.R.’s children, and severe neglect of the children. These reports were also

coded as information and referral only. 

On March 22, 2007, D.C. was placed in foster care after Doe was arrested on a warrant 

for drug related charges. At that point in time, Mother had not had contact with D.C. for several 

years. The Department of Health and Welfare (Department) worked with Doe and assisted him 

with services to address drug and alcohol issues, parenting skills, anger management, 

employment, housing, and other identified needs. D.C. was reunited with Doe in October 2007. 

On November 10, 2007, a child protection referral was made in Boise, Idaho, indicating 

that Doe had a felony warrant out for his arrest and the reporting party was concerned about what 

Doe would do with D.C. should he be arrested. The referral was coded as an information and 

referral only. 

 On April 18, 2008, Doe was incarcerated for violation of a no-contact order issued 

between him and S.R. D.C. was declared in imminent danger at that time due to Doe’s 

incarceration. Before D.C. was returned to Doe, Doe was again arrested on May 3, 2008, in 

Cascade, Idaho, for driving under the influence, domestic violence, reckless driving, eluding law 
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enforcement, and fleeing the scene of an accident. In its Report of Investigation filed May 8, 

2008, the Department requested that the Department be granted legal custody of D.C., and 

recommended that the following case plan be completed by Doe: 

1. [Doe] will successfully complete the fifty-two weeks of domestic violence 

treatment through Tom Wilson Counseling, as ordered by his probation 

requirements.

2. [Doe] will participate in a mental health or psychological evaluation to 

determine any undiagnosed mental illness and determine the effect of any 

diagnosed mental health issues on his capacity to parent. All 

recommendations are to be followed and demonstrated.

3. [Doe] will participate in a substance abuse assessment/evaluation approved by 

the assigned Department social worker and will follow any and all 

recommendations, including random drug tests at the discretion of the 

assigned Department social worker. The drug tests will be free of alcohol, 

illegal substances, and controlled substances not prescribed by a licensed 

physician. Legal controlled substances will not exceed prescribed levels.

4. [Doe] will obtain/maintain a stable, safe and healthy home environment for 

himself and his child. [Doe] will keep the home free of any health and safety 

hazards. No other persons may reside in the home without the prior approval 

of the Department social worker. He will allow the assigned Department 

social worker and the Guardian Ad Litem to conduct random home visits.

5. [Doe] will obtain and maintain appropriate employment/income to provide for 

himself and his child. [Doe] will provide the assigned Department social 

worker with the necessary documentation to verify his income and legitimate 

employment.

6. [Doe] will address and resolve any pending legal issues, comply with the 

terms of his probation, and refrain from further illegal activity which may 

result in his arrest/incarceration.

On June 19, 2008, the magistrate court issued its Findings of Fact, Conclusions of Law 

and Order of Legal Custody and Order Approving Case Plan as to the Father, approving the case 

plan suggested by the Department on June 3, 2008. The steps outlined in the case plan were the 

same as the six recommendations made in the Report of Investigation. 

 On October 1, 2008, a Report to the Court for the Six Month Review Hearing was filed 

with the magistrate court. The Report stated that Doe did not have his own housing; D.C. was 

thriving in his current foster placement; Doe was in the process of completing his court ordered 

case plan but the social worker had not received a progress report from Tom Wilson Counseling; 

Doe had been spotted with S.R., but denied that it was her; Doe was participating in out-patient 
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treatment and cognitive self-change; and Doe had provided a few pay stubs but the finances 

shown in the paystubs did not provide sufficient financial means for Doe or D.C. 

The guardian ad litem also filed a report for the six-month review hearing. The guardian 

ad litem stated as to Doe: “[Doe] is working on his case plan. This guardian believes that [Doe] 

truly cares for his son and wants to be a parent to him. However, [Doe] has yet to demonstrate 

that he is able to maintain stability through employment and managing his mental health. [Doe] 

also has much further to go in his domestic violence treatment.” 

On January 15, 2009, the Department filed a Permanency Hearing Affidavit 

recommending that proceedings be initiated to name the child’s maternal grandparents as his 

guardians. That affidavit stated that on November 20, 2008, Doe’s hair follicle test was positive 

for methamphetamine. It also stated that Doe had not enrolled in the recommended treatment 

classes nor followed through with the recommendations made following his psychological 

evaluation on July 29, 2008, and that Doe was continuing to reside with S.R. The affidavit also 

stated the following:

While this worker knows and has observed [Doe]’s love for his son, there are 

significant concerns about his ability to provide a safe, stable, and structured 

home environment for [D.C.] that is free of controlled substances and domestic 

violence. As of November, 2008, [Doe] has tested positive for methamphetamine. 

On December 19, 2008, [Doe] reportedly contacted an individual in the 

community in an attempt to “score some sh--.” This individual provided this 

information to the Department, stating that [Doe] was “looking for 

methamphetamine” and “hung up the telephone when asked if he knew who he 

called.” [Doe] continues to support his relationship with [S.R.], whose children 

are also in foster care. It is this worker’s understanding that [S.R.] is not making 

substantial progress on her case plan. It is this worker’s observation that [Doe] 

repeatedly chooses his relationship with [S.R.], one with a history of significant 

domestic violence and controlled substance abuse, over his relationship with his 

son. . . . 

On February 26, 2009, the magistrate court issued its Order for Guardianship, finding that 

guardianship would be with the child’s maternal grandparents without a termination of the parent 

and child relationship. 

On May 4, 2009, the State filed a Motion to Amend the Permanency Plan, seeking to 

terminate Doe’s parental rights. The affidavit in support of the motion to amend the permanency 

plan stated that the request for placement with the child’s maternal grandparents through the 

Interstate Compact process had been denied. 
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On June 5, 2009, the State filed a Petition for Termination of Parent-Child Relationship. 

Count II stated that Doe “neglected the child by failing to comply with the Court’s orders in a 

child protective act case or the case plan, and reunification of the child with his parent has not 

occurred within fifteen (15) of the last twenty-two (22) months from the date the child entered 

shelter care.” Count III alleged:

The child is neglected as he is without proper parental care and control necessary 

for his well-being because of the conduct or omission of his parents, as follows: 

The father has failed to demonstrate consistency in housing, employment and/or 

abstinence from controlled substances which impairs his ability to provide proper 

parental care for his child.

On June 19, 2009, the court issued its Order Approving Termination and Adoption as the 

Permanent Plan. A hearing was held on July 16, 2009, where testimony was offered by: (1) the 

detective who declared D.C. to be in imminent danger in both March 2007 and April 2008; (2) 

the case manager from the Department; (3) a file clerk from the counseling center for drug and

alcohol addiction; (4) an associate judge with the Assiniboine and Sioux Tribes of Fort Peck;2

and (5) Doe. 

The detective testified that law enforcement responded to Doe’s home on April 18, 2008, 

because D.C.’s school had called in a welfare check as D.C. had not been at school. Officers 

entered the home because they observed a small child who appeared to be four or five years old 

looking out the window of the house and when no one answered the door the officers were 

concerned that the child had been left by herself. S.R. was inside the home and informed officers 

that D.C. had stayed home from school because he was sick, but D.C. told officers he was not 

sick and he appeared to be in good health. S.R. was unable to produce any paperwork giving her 

authority to care for D.C. and she was unable to contact Doe. The detective also testified that, 

based upon her training in law enforcement and drug issues, she felt S.R. was “under the 

influence of a substance, probably methamphetamine.” When officers informed S.R. that they 

were going to declare D.C. to be in imminent danger, S.R. bolted upstairs, where officers 

followed and found Doe hiding in a closet, in violation of the no-contact order with S.R. The 

detective also testified that the school had sent home “numerous information [sic] that [D.C.] 

needed eyeglasses” because he could not see, but Doe had not taken care of it. 

 

2 Mother is a tribal member and thus contact with the tribe was required under the Indian Child Welfare Act.
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The case manager testified that D.C. had been in foster care for fifteen consecutive 

months, and that Doe had “five or six” child protection referrals prior to D.C. coming into foster 

care in April 2008. The case manager went into detail on the case plan that Doe was given in 

2007, and stated that Doe had “sufficiently accomplished the tasks that he needed to to ensure 

that the reasons that [D.C.] entered care initially were taken care of” in October 2007. The case 

manager further stated that when D.C. was placed in foster care in April 2008, the only concerns 

regarding D.C.’s care involved him not attending school and Doe not following through with 

getting D.C. glasses. 

The case manager then testified regarding Doe’s compliance with the case plan that was 

filed on June 3, 2008. Regarding Doe maintaining a safe and stable home, the case manager 

identified six different residences that Doe resided at between April 2008, and the time of the 

hearing, and stated that this was a concern to the Department because “[i]f [D.C.] were living 

with [Doe] at that time, he would have been switching schools. He would have been switching 

friends. It’s not a stable environment for him. And he is very impressionable at his age and 

really needs a stable, firm foundation.” Doe also resided with unapproved individuals in several

of the residences. Doe was then incarcerated from mid-January 2009 until late January 2009 and 

then from mid-February 2009 up through the time of the hearing in July 2009. 

As to Doe’s employment, the case manager testified: 

It’s been sketchy, at best. He has reported employment, at times, but has never 

provided a pay stub. . . . [W]ithout employment, you’re not able to obtain 

housing. You’re not able to have food. Again, going back to the stability that 

needs to be provided to his son, you are not able to do that without having secure 

employment or finances of some sort.

In addition, Doe had been charged with four different misdemeanors, which concerned the case 

manager because Doe was “not able to be a stable and consistent parent for his son. He is 

continually in and out of jail with pending jury trials. He could go to prison. I don’t know what 

the outcome of those criminal charges will be. Subsequently, [D.C.] will have nowhere—

nowhere to go.” 

The case manager further testified that Doe did not provide her with proof of completion 

of the ordered fifty-two weeks of domestic violence treatment. Doe had not provided her with 

proof that he was meeting any of the recommendations relating to his mental health and 

substance abuse, including attending psychiatric treatment, complying with medication 

management, attending outpatient treatment, and participating in a cognitive self-change course. 
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Finally, the case manager stated that Doe’s compliance with random drug testing had “been hit 

and miss.” 

The case manager also spoke as to how well D.C. was doing in foster care and Doe’s 

interactions with D.C. D.C. was taking violin lessons, participating in the Boy Scouts, playing 

sports, and attending summer camp. While in foster care, he was doing well in school and had 

no behavioral problems. According to the case manager, Doe “engages with [D.C.] very well. 

He is very kind to his son the times that he is supervised. . . he truly does care for his son. He 

does have that connection there and really cares for him.” 

The filing clerk from the counseling center testified that Doe missed five scheduled 

classes between November 2008 and January 2009, attending only one treatment session. After 

five absences, a person is taken out of the program. 

Doe testified that he completed thirty hours of his domestic violence classes before 

becoming incarcerated. He also stated that he checked himself out of the counseling program 

and transferred his treatment to another program where he was going to be living. Around that 

time, however, he was arrested. He stated that all he could do while he was in prison from 

February 10, 2009, until June 28 or 29, 2009, in the Valley County jail was AA and church 

because there were no other programs. Doe further stated that although Ada County offers more 

programs, he has been unable to join them because of the high cost of the classes. 

The magistrate court admitted five exhibits during the hearing, including two “Road to 

Recovery Assessment Summary” documents prepared by a substance abuse liaison, a document 

detailing Doe’s criminal history in Ada County, a psychological evaluation of Doe, and a 

summary of Doe’s drug testing results from May 2007 through November 2008. 

On September 21, 2009, the magistrate court terminated Doe’s parental rights to D.C. 

based upon its findings that Doe neglected the child by failing to comply with the court’s orders 

in the case plan and reunify within fifteen of the last twenty-two months, and by failing to 

demonstrate consistency in housing, employment, and/or abstinence from controlled substances, 

impairing his ability to provide proper parental care for D.C. In addition, the court concluded 

that termination of parental rights would be in the best interest of the child. On October 5, 2009, 

the final decree was issued. Doe timely filed his Notice of Appeal. 
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II. ANALYSIS

“When the State intervenes to terminate the parent-child relationship, the requisites of 

due process must be met. This requirement necessitates the State prove the grounds for 

terminating a parent-child relationship by clear and convincing evidence.” In re Doe, 143 Idaho 

343, 345, 144 P.3d 597, 599 (2006) (internal citation omitted). “[W]here the trial court has 

explicitly determined the case by application of the clear and convincing evidentiary standard, 

this Court must determine if the decision was supported by substantial and competent evidence.” 

In re Doe, 146 Idaho 759, 761, 203 P.3d 689, 691 (2009). Substantial competent evidence is 

“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Folks v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997) (quoting 

Welch v. Cowles Publ’g Co., 127 Idaho 361, 365, 900 P.2d 1372, 1376 (1995)). 

A. There is substantial and competent evidence supporting the magistrate court’s 

determination that Doe neglected D.C. 

Idaho’s Termination of Parent and Child Relationship Act includes in its purpose: 

Implicit in this chapter is the philosophy that wherever possible family life should 

be strengthened and preserved and that the issue of severing the parent and child 

relationship is of such vital importance as to require a judicial determination in 

place of attempts at severance by contractual arrangements, express or implied, 

for the surrender and relinquishment of children.

I.C. § 16-2001(2). In that spirit, I.C. § 16-2005 permits the Department to petition the court for 

termination of the parent-child relationship when it is in the child’s best interest and one of the 

following factors exist: (a) abandonment, (b) neglect or abuse, (c) lack of a biological 

relationship between the child and a presumptive parent, (d) inability to discharge parental 

responsibilities, or (e) incarceration of parent for a substantial period of time during the child’s 

minority. The magistrate court here found that the Department proved the following grounds for 

termination of the parent-child relationship by clear and convincing evidence: (1) neglect as 

defined in I.C. § 16-2002(3)(a) and I.C. § 16-1602(25), and (2) neglect as defined in I.C. § 16-

2002(3)(b). 

Idaho Code § 16-2002(3)(a) provides that “neglected” means conduct as defined in I.C. § 

16-1602(25), which includes a child who:

[I]s without proper parental care and control, or subsistence, medical or other care 

or control necessary for his well-being because of the conduct or omission of his 

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

or. . . [w]hose parents, guardian or other custodian are unable to discharge their 
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responsibilities to and for the child and, as a result of such inability, the child 

lacks the parental care necessary for his health, safety or well-being. 

I.C. § 16-1602(25)(a)-(b). Idaho Code § 16-2002(3)(b) defines “neglected” as “[t]he parent has 

failed to comply with the court’s orders in a child protective act case or the case plan, and 

reunification of the child with his or her parent(s) has not occurred within the time standards set 

forth in section 16-1629(9), Idaho Code.” Idaho Code § 16-1629(9) states:

There shall be a rebuttable presumption that if a child is placed in the custody of 

the department and was also placed in out of the home care for a period not less 

than fifteen (15) out of the last twenty-two (22) months from the date the child 

entered shelter care, the department shall initiate a petition for termination of 

parental rights. This presumption may be rebutted by a finding of the court that 

the filing of a petition for termination of parental rights would not be in the best 

interests of the child or reasonable efforts have not been provided to reunite the 

child with his family, or the child is placed permanently with a relative.

This statute “merely creates a presumption in favor of the department initiating a termination 

petition when a child has been in the state’s custody and not in the parent’s care for fifteen out of 

twenty-two months. It does not create a presumption that it is in the best interests of the child to 

terminate parental rights.” State v. Doe, 144 Idaho 534, 536, 164 P.3d 814, 816 (2007). 

In the instant case, the State sought to terminate Doe’s parental rights on the basis of 

neglect. The magistrate court agreed with the State and held there was clear and convincing 

evidence that Doe neglected D.C. by failing to comply with the court’s orders in the case plan 

and reunify within fifteen of the last twenty-two months, and by failing to demonstrate 

consistency in housing, employment, and/or abstinence from controlled substances, impairing his 

ability to provide proper parental care for the child. We affirm. 

Over an eight-year span, Doe was the subject of six referrals to the Department regarding 

his care of D.C. and other children. Reports from 2003 and 2004 included concerns about Doe’s 

abuse of controlled substances as well as domestic violence. D.C. was first placed in foster care 

in March 2007, following Doe’s arrest on drug related charges. D.C. was reunited with Doe six 

months later, after the Department worked with Doe on services to address drug and alcohol 

issues, parenting skills, anger management, employment, and housing. D.C. was then placed in 

foster care on April 18, 2008, once again as a result of Doe’s incarceration. 

A case plan was approved by the court on June 19, 2008, requiring Doe to complete fiftytwo weeks of domestic violence treatment; participate in a mental health evaluation and follow 

any recommendations; participate in a substance abuse evaluation and follow any 
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recommendations, including random drug tests; obtain and maintain a stable, safe and healthy 

home environment for himself and D.C. in which no unauthorized persons resided; obtain and 

maintain appropriate employment/income to provide for himself and D.C.; and refrain from 

further illegal activity. 

At the hearing on July 16, 2009, the case manager testified that Doe had not provided her 

with proof of completion of the ordered fifty-two weeks of domestic violence treatment. Doe 

testified that he had completed thirty hours before he was incarcerated in January 2009. 

Regarding Doe’s participation in a mental health program, the case manager testified that Doe 

had failed to provide her with proof that he was meeting any of the recommendations relating to 

his mental health and substance abuse, including attending psychiatric treatment, complying with 

medication management, attending outpatient treatment, and participating in a cognitive selfchange course. Doe stated that he had checked himself out of the counseling program and 

transferred this treatment to another program, but that upon his incarceration he did not have 

access to the required programs. The case manager also testified that Doe’s compliance with 

random drug testing was “hit and miss,” and the Permanency Hearing Affidavit filed on January 

15, 2009, had stated that Doe’s November 20, 2008, hair follicle test was positive for 

methamphetamine. 

Testimony at the hearing also indicated that Doe was not maintaining a stable home 

environment. The case manager identified six residences that Doe had resided at between April 

2008, and the hearing, not including the jails at which he was incarcerated. Doe also did not 

provide the case manager with pay stubs that indicated he was maintaining employment and was 

able to provide for himself and D.C. Finally, Doe was arrested in January 2009, and at the time 

of the hearing in June, Doe was still incarcerated, with four misdemeanor counts pending. 

Based upon the testimony at trial and the reports issued by the Department, we find that 

the magistrate court based its determinations that Doe failed to comply with the court’s ordered 

case plan, and failed to demonstrate consistency in housing, employment, and abstinence from 

controlled substances upon substantial and competent evidence. 

B. There is substantial and competent evidence supporting the magistrate court’s 

determination that termination was in D.C.’s best interest.

“When a judge finds a statutory ground, such as neglect, he or she must then decide if 

termination of parental rights is in the best interests of the child[].” Doe v. Dept. of Health and 

Welfare, 141 Idaho 511, 516, 112 P.3d 799, 804 (2005). The magistrate court here found that it 
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was in the best interest of D.C. to have Doe’s parental rights terminated because Doe “cannot 

provide safety and stability to [D.C.].” We hold that there is substantial and competent evidence 

to support the court’s finding that termination is in the best interest of D.C. 

III. CONCLUSION

This Court affirms the magistrate court’s order terminating Doe’s parental rights to D.C. 

Costs to respondent.

Chief Justice EISMANN and Justices J. JONES, W. JONES, and HORTON, CONCUR.