1 I N THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45020

In the Matter of: JANE DOE and JOHN DOE (2017

- 16), Children Under Eighteen (18) Years of Age.

-------------------------------------------------------- IDAHO DEPARTMENT OF HEALTH AND WELFARE, GUARDIAN AD LITEM, IDAHO COUNTY PROSECUTING ATTORNEY and JOHN DOE,

Petitioners

- Appellants,

v. JOHN DOE I and JANE DOE I, husband and wife,
Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise , September 2017 Term

2018 Opinion No. 39

Filed: April 24, 2018

Karel A. Lehrman , Clerk

Appeal from the District Court of the Second Judicial District of the State of Idaho, Idaho County, Hon. Jeff P. Payne, Magistrate Judge.
The orders of the magistrate court are vacated and remanded

. Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant Idaho Department of Health and Welfare. Marcy J. Spilk er argued.
Idaho County Prosecuting Attorney, Grangeville, for appellant Idaho County Prosecuting Attorney. Kirk A. MacGregor argued.
Law Office of Summer A. Emmert, P.C., Cottonwood, for appellant John Doe. Summer A. Emmert argued.
Jessup Law, PLLC, Grangeville , for appellant Guardian Ad Litem. Matthew L. Jessup argued.
Jones, Brower & Callery, PLLC, Lewiston, for respondent s. Kar i n R. Seubert argued.

HORTON, Justice.2 The Idaho Department of Health and Welfare (the Department)
, the g uardian a d l item , a minor child ( L.P. ), and the Idaho County prosecuting attorney appeal several orders entered by the magistrate court in a post

- termination Child Protecti on Act (CPA) case. Following termination of the parents’ rights to L.P. and his younger half

- sister
, E.P , t he court appointed the Department as the children’s guardian . The Department placed the children with Jane Doe , E.P. ’ s paternal grandmother
, and her husband. After the latest permanency hearing, the magistrate court refused to allow the Department to modify the permanency plan for E.P.
, revoked the Department ’ s guardianship for E.P, and gave direction regarding contact and
visitation for E.P . Th is appeal challenges these orders

. I. FACTUAL AND PROCEDURAL BACKGROUND
L.P. and E.P. are half

- siblings who l ived with their maternal grandmother until her
sudden death on March 31, 2014. T he Department filed a petition for custody of the children
under the CPA and placed both children in the home of the Does
, E.P. ’ s paternal grandmother and step

- gra ndfather . The Department submitted a permanency plan identifying the goal of termination of parental r ights and adoption by relative. Early in 2015, the magistrate court approved the permanency plan . After several months of tension between the Does and L.P., the Depart ment acceded to the Does ’ request that L.P. be removed from their home. The Department did not inform the magistrate court of the change in circumstances for several months. Following

a trial on issues of neglect, abandonment, and consent
, the magistrate e ntered an order terminating the parental rights to both children. O n September 4, 2015 , the Department was designated as guardian of both children

. In November of 2015, the Does m oved t o intervene in the CPA case . The magistrate judge denied the motion . T he court then entered an order prohibit ing the Department from removing E.P. from the Does ’ home without court approval. On January 8, 2016, the Department filed a report and an expert ’s sibling assessment that concluded the children should be placed toget her because of the strong attachment between them. In September 2016, the Department filed a post

- termination permanency plan that requested a change in the permanency goal from adoption by relative to adoption by non

- relative. Due to factual deficiencies, the magistrate judge rejected that amended permanency plan. In January 2017, the Department filed a second amended permanency plan that sought to move forward with adoption of both children by L.P. ’ s

non

- relative foster parents. After a comprehensive revi ew of the case, the magistrate court3 rejected the amended permanency plan with regard to E.P. but approved it with regard to L.P.
, removed the Department as guardian of E.P.
, and appointed Jane Doe as E.P.’s guardian. T his Court granted the appellant s ’ motion for permissive appeal.
II . STANDARD OF REVIEW
This Court exercises free review over questions of law and matters of statutory interpretation. Guzman v. Piercy , 155 Idaho 928, 934 , 318 P.3d 918, 92 4 (2014)

. W e review the discretionary decisions of a trial court for abuse of discretion. Sun Valley Shopping Ctr., Inc. v.
Idaho Power Co. , 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). Under this standard: [T]his Court asks first whether the magistrate court correctly perceived the . . . issue as one of discretion; then whether the magistrate court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to the court; and finally, whether the magistrate court reached its de cision by an exercise of reason.
Peterson v. Peterson , 153 Idaho 318, 320, 281 P.3d 1096, 1098 (2012) (citing Schultz v. Schultz
, 145 Idaho 859, 861

– 62, 187 P.3d 1234, 1236

– 37 (2008)).
III

. ANALYSIS
A. Th is is a valid permissive appeal

. As a preliminary matter, the Does argue that this appeal is invalid because it does not comply with the final judgment requirement of Idaho Appellate Rule 12.1. The Does are incorrect because the orders on appeal were entered after a final judgment terminating parental rig hts. Idaho Appellate Rule 12.1(a)(2) specifically provides for permissive appeal to this Court from “a final judgment or an order entered after final judgment in a Child Protective Act proceeding.” A judgment is considered final when it complies with the r equirements found in Idaho Rule of Civil Procedure 54(a)(1). The Does argue that the judgment terminating parental rights to E.P. and L.P. is not final because the CPA case continues without permanency for the
children. This argument is based upon the requ irement that a judgment must resolve “all claims for relief, except costs and fees, asserted by or against all parties in the action.” I.R.C.P. 54(a)(1). This argument is without merit. On August 28, 2015, the magistrate court entered a judgment terminati ng parental rights for both children and naming the Department as guardian and custodian of the children. Our previous decisions clearly hold that a judgment terminating parental rights is considered a final judgment. See In re Termination of Parental Righ ts of Doe (2013

- 17) , 155 Idaho 896, 900, 318 P.3d 886, 890 (2014); see also Doe (2013

- 23) v. Doe, 1554 Idaho 660, 663, 315 P.3d 848, 851 (2013) (wherein termination order on appeal was not a final judgment only because it did not comply with requirements of Rule 54(a)(1)). This judgment meets the requirements of Rule 54(a)(1) because the Department received the relief regarding the children that it requested. Therefore, this appeal is valid under Idaho Appellate Rule 12.1(a)(2) because the orders on appeal w ere entered after a final judgment.
B. The magistrate court abused its discretion by disregarding the sibling placement priority and the Department’s primary role when considering the permanency plans. At the outset, we wish to acknowledge the magistrate jud ge’s understandable frustration with the Department’s conduct in this case. As the court explained at one hearing: I feel, looking back at this as the Court, we have the Court system. We have the child protection system. We have the whole system, review hearings, progress report, permanency plans, and none o f it functioned in this case. I’ m sitting here running the show . I look back going, this case didn ’ t function because progress reports were not accurate. Review hearings, stuff wasn’ t bein g provided. P ermanency plan isn’ t being followed, and that’ s where I say

— and whether it is or not, I don’t know. And I’ ve been sitting here looking at this going, the whole system

— this whole case didn ’ t function and how as a judge can I fulfill my role in this case whe n I cannot at this point have any real degree of confidence in what I am reading, what I am being provided? That ’ s what leads me right now going, what do I believe, what do I do? I have to sign off on something and I ’ m searching for some way to have some c onfidence in

— have things match up. That ’ s what I ’ m searching

— And like the selection committee, the outcome, as I read the outcome for placement selections, it looks like it was based on entirely different information than I have been given . It does not ma tch with what I have been given in this case, and that ’ s why I was asking about, is there a record of what happened there, what occurred, that I could listen to that, review that, see what really, in fact, happened, because I ’ m having to put this stuff tog ether myself and decide what I believe from the person that tells me, not what somebody

— it ’ s hearsay. And any hearsay now has become, I want to hear from the person themselves that have something to say, not somebody else representing what somebody else sa ys or thinks, but what, in fact, each person thinks or believes and then I can make my own judgment. Try to weave it all together because it doesn ’ t match up. (emphasis added). Later, the magistrate judge devoted over 100 pages detailing the discrepancies in these reports
and the manner in which the Department had failed to comply with both internal and statutory requirements. Although we hold that the magistrate court erred, its decisions represent an understandable response to the failures of the Departme nt.5 After a court has acquired jurisdiction over a child under the CPA, the court must conduct a permanency hearing within twelve months of acquiring jurisdiction and annually thereafter
until the court ’ s jurisdiction under the CPA ends. I.C. § 16

- 1622(2) (b). Before each permanency hearing, the Department is required to file a permanency plan and its recommendations for the
child under its guardianship. I.C. § 16

- 1629(9). In this permanency plan, the Department must provide a variety of information includi ng a primary permanency goal . The permanency plan may include a concurrent permanency goal. I.C. § 16

- 1622(2)(a). At each permanency hearing, the court is given authority to “ approve, reject or modify the permanency plan of the [D]epartment and review pro gress in accomplishing the permanency goal. ” I.C. § 16

- 1622(2)(b). The court is also required to “ make written case

- specific findings whether the [D]epartment made reasonable efforts to finalize the primary permanency goal in
effect for the child. ” I.C. § 16

- 1622(2)(c).
This Court has not previously defined the applicable standard for review of a magistrate
court’ s decision to accept, modify, or reject the Department ’ s proposed permanency plan. S ister states that have considered this question have reviewed non

- termination permanency plan
decisions for abuse of discretion. See In re Ashley S. , 66 A.3d 1022, 103 7 (Md. 2013); In re Yve
S. , 819 A.2d 1030, 1049 (Md. 2003); In re Care and Protection of Lloyd , No. 01

- P

- 900, 2002 WL 21725, at *1 (Mass. App. Ct. 2002). 1 We agree with t hese states that the abuse of discretion
standard should govern review of a magistrate court’ s decision to accept or reject the Department ’ s proposed permanency plan. The abuse of discretion standard presents a multi

- layered inquiry. First, as described above, this Court determines whether the trial court recognized the issue as one of discretion.
Peterson , 153 Idaho at 320, 281 P.3d at 1098. Here, the magistrate court accepted the modification to the permanency plan with regard to L. P. but rejected the modi fication with regard to E.P. This partial acceptance and partial rejection reflects the trial court’s recognition of
i t s discretion. However, the court must have also “ acted within the outer boundaries of its
discretion and consiste ntly with the legal standards applicable to the specific choices available to
the court . . . . ” Id

.

1 This unpublished opinion cited a Massachusetts statute which expressly defined the appellate standard of review. Mass. Gen. Laws ch. 119, § 29B (1999).6 Idaho Code section 16

- 1622(2)(b) provides the court with authority to approve, reject, or modify permanency plans without reference to specific guidelines . Despite this, the applicable legal standards are clear . Under federal law, there is a clear preference to place siblings together whenever possible. See 42 U.S.C.A. § 671. This preference is also reflected in Idaho law. The CPA requires the court to dete rmine whether “ siblings were placed together ” at each permanency hearing by evaluating: the efforts made to place siblings together, the reasons why siblings were not placed together or why a joint placement would be contrary to the safety or well

being of one (1) or more of the siblings, and a plan for ensuring frequent visitation or ongoing interaction among siblings, unless visitation or ongoing interaction would be contrary to the safety or well

- being of one (1) or more of the siblings. I.C. § 16

- 1622(2 )(h)(ii). This statute evidences a clear legislative preference for keeping siblings together whenever possible.
I n Idaho Dep ’ t of Health & Welfare v. Hays , 137 Idaho 233, 236, 46 P.3d 529, 532 (2002), this Court made clear that in adoption proceedings “ t he Department has the sole authority to select who should adopt the children. ” See also Doe v. Idaho Dep ’ t of Health & Welfare , 150 Idaho 491, 495, 248 P.3d 742, 746 (2011) ; I.C. § 56

- 203(8) . There is nothing in the adoption statute that gives the magistra te judge authority to select adoptive parents. Hays , 137 Idaho at 237, 46 P.3d at 533; I.C. § 16

- 1504. Both Hays and Idaho Code section 16

- 1629(8) make clear that the Department

— not the court

— has the primary responsibility for children in the Department’s custody. Thus, the magistrate court’ s discretion over permanency plans must be exercised in a fashion that recognizes the preference for sibling placement and the Department ’ s primary responsibility for children in its care

. Based upon the ex pert report and other evidence, the Department concluded, consistent with the statutory preference for sibling placement, that the best interest of the children is to
remain together. Although the Department originally considered the Does as a placement for the
childr en, this ceased to be an option when the Does had L.P. removed from their home in 2015

. After L.P.’s removal f rom the Does’ home , the Department has made it clear to the court that it would not consent to an adoption of either child by the Does. The magist rate court’ s refusal to allow the Department to modify the permanency plan for E.P. frustrated both the preference for sibling placement and the Department’s primary responsibility for the children

. Because the magistrate’s order is inconsistent with these principles, we hold that the magistrate court abused its discretion by rejecting the proposed amended permanency plan for E.P.7 C. The magistrate court abused its discretion by preventing the Department from removing E.P. from the Does ’ home. O n December 17, 2015 , the magistrate court entered an order that E.P. could not be
removed from the Does ’ home without prior court approval

. The magistrate judge explained that separating E.P. from the Does would not be in her best interest. We review this order for an
ab use of discretion.
T he magistrate court was required to exercise its discretion “ consistently with the legal standards applicable to the specific choices available to ” the court. Peterson , 153 Idaho at 320,
281 P.3d at 1098. As we explained in In re Doe , 1 34 Idaho 760, 767, 9 P.3d 1226, 1233 (2000):

“ the CPA provides the court only limited authority to review the Department ’ s placement
decisions. ” “ Once the Department has legal custody of a child under the CPA, the Department
and not the court has the autho rity to determine where the child should live. ” Id . While it is true that the Department ’ s placement decisions are subject to approval by the court when contested by a party, these decisions are only reviewed by the court for the limited purposes outlined in the

statute. Id .; I.C. § 16

- 1629(8) (providing right to review out of state placements and placements
in the home from which the child was removed). This is substantially more limited than the

court ’ s scope of review in custody cases where it does consider which “ arrangement will
advance the best interests of the child. ” Doe , 134 Idaho at 767, 9 P.3d at 1233. Accordingly, we hold that the magistrate court abused its discretion.
D. The magistrate court erred by terminating the Department ’ s guardianship over E.P.
At t he final permanency hearing , the trial court, acting sua sponte , revoked the Department ’ s guardian status and appointed Jane Doe as guardian for E.P. Idaho Code section
15

- 5

- 212A pr escribes t he procedure f or terminating a guardianship under the CPA. The first of these requirements is a motion. I.C. § 15

- 5

- 212A(5). Next, t he movant must show by clear and convincing evidence that (1) there has been a substantial and material change in circumstan ces since the appointment of the guardian and (2) termination of the guardianship would be in the
best interests of the minor. Id

. Final ly, the Department must be given notice and the right to appear and be heard on the issue. I.C. § 15

- 5

- 212A(2); I.C. § 1 5

- 5

- 212A(3). In this case, the record clearly shows that these procedures w ere not followed. Accordingly, we hold that the magistrate court erred in its sua sponte termination of the Department’s guardianship

. E. T he Appellants have not shown prejudice to a s ubstantial right on the issue of the Does ’ participation before the magistrate court

.8 Originally, the Does sought to intervene in the CPA proceeding for the children. The magistrate court denied this request, but allowed the Does, through counsel, to cross

- examine certain witnesses, attend proceedings, and receive reports related to the CPA proceeding. The appellants argue that allowing the Does to participate in this manner was improper. At any stage of a proceeding, Idaho courts are to “disregard all erro rs and defects that do not affect any party’s substantial rights.” I.R.C.P. 61. “Consequently, because an appellant can only prevail if the claimed error affected a substantial right, the appellant must present some argument that a substantial right was im plicated.” Hurtado v. Land O ’ Lakes, Inc. , 153 Idaho 13, 18, 278 P.3d 415, 420 (2012) Thus, in order to prevail on this issue, the Department must have argued before both the magistrate court and this Court that participation of the Does prejudiced the substantial right of any party.
We have car efully reviewed the appellants’ opening brief. The only arguments that might be deemed to relate to the prejudice to a substantial right are the bald assertion that the magistrate court’s decision resulted in delay which had “devastating effects on the chi ldren” and that it “turned the post permanency planning into an adversarial process.” Although we agree with appellants that the magistrate court erred by permitting non

- parties to participate in the proceedings, appellants have not demonstrated prejudice to a substantial right.
F. The magistrate court’s finding that the Department failed to take reasonable efforts to finalize a permanency plan has been rendered moot

. Th e Department also disputes the magistrate court’s finding that the Department failed to

ta ke reasonable efforts to finalize a permanency plan for the children. As explained above, the magistrate judge’s frustration with the Department was well

- documented and understandable. However, because we now hold that the magistrate court erred when it re fused to allow amendment to the permanency plan, the Department’s efforts towards accomplishing the original permanency plan has been rendered moot because any decision on this issue would not have a practical effect upon the outcome. See State v. Manzanar es , 152 Idaho 410, 419, 272 P.3d 382, 391 (2012).
IV

. CONCLUSION
We vacate the orders of the magistrate court refus ing to allow the Department to modify the permanency plan for E.P., revok ing the Department’s guardianship of E.P, and directin g the9 nature of contact and visitation for E.P . On remand, the case will be assigned to a new magistrate judge.
Chief Justice BURDICK, Justices JONES, BRODY, and Justice Pro Tem TROUT
CONCUR.