John Doe & Jane Doe (2017-19) v. John Doe I & Jane Doe I ( 2017 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 45180
In the Matter of: JANE DOE II, )
A Child Under Eighteen (18) Years of Age.
)
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)
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JOHN DOE I and JANE DOE I,
)
) Boise, October 2017 Term
Petitioners-Respondents, )
) 2017 Opinion No. 124
)
v. ) Filed: December 8, 2017
)
) Karel A. Lehrman, Clerk
JOHN DOE and JANE DOE (2017-19), )
)
)
Respondents-Appellants. )
_______________________________________ )
Appeal from the Magistrate Court of the Third Judicial District of the State of
Idaho, Canyon County. Hon. A. Lynne Krogh, Magistrate Judge.
The magistrate court’s final judgment is affirmed.
Krista L. Howard, Interim Chief Public Defender, Caldwell, for appellants.
Danielle C. Scarlett, Nampa, for respondents.
_____________________
SUBMITTED ON THE BRIEFS
JONES, Justice.
I. NATURE OF THE CASE
In an expedited appeal out of Canyon County, Jane Doe and John Doe (2017-19)
(“Mother,” “Father,” and collectively, “Parents”) appeal a magistrate court’s Final Judgment
terminating their parental rights to Jane Doe II (“Child”). Jane Doe I and John Doe I
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(“Grandmother,” “Grandfather,” and collectively, “Grandparents”) initiated the underlying
action by filing a Petition for Termination of Parental Rights and a Petition for Adoption. The
magistrate court issued a Final Judgment terminating Parents’ parental rights after concluding
that Parents had abandoned Child and that the termination of Parents’ parental rights was in
Child’s best interest. On appeal, Parents challenge the magistrate court’s conclusion that Child
was abandoned and that termination of parental rights was in Child’s best interest.
II. FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in October 2006 and have six children together ranging
in age from three to thirteen (“Children,” and when not including Child, “Siblings”). Child was
born in 2006 and is the second oldest of the Children.
Before the guardianship of Child became an issue, Grandparents and Parents were on
good terms. Parents had financial difficulties, but Grandparents were their safety net. Parents and
Children lived with Grandparents off and on from about the time Child was one year old. At
times, Mother and Children would live with Grandparents without Father because Father was
incarcerated.
During the 2012–2013 school year, Child lived with Parents and attended first grade, but
she did not do well in school. Father testified that Child’s poor performance was likely due to her
being easily distracted and having to live in the very tight quarters of a 32-foot motor home.
Grandparents testified that Child performed poorly because she missed many school days due to
the instability of Parents’ home life. Grandparents offered, and Parents agreed, to allow Child to
live with Grandparents and repeat the first grade at a different school. Child began living with
Grandparents on July 4, 2013. Between July 2013 and August 2014, Child lived with
Grandparents during weekdays and with Parents during weekends.
On August 8, 2014, Child was staying with Parents for the weekend, but called
Grandmother and asked to be picked up. Grandmother testified that, during bath time that
evening, she observed that Child had fingerprint-like marks on her bottom and red marks on her
face. Child explained that Father had hit her so hard that she thought her head “was going to pop
off.” Grandmother testified that they did not call the police at that time because they believed
that the matter could be resolved within the family.
Days later, Father called the Sheriff’s office because Grandparents had not returned
Child. Father did not press kidnapping or custodial interference charges because he believed that
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Child would be returned to Parents within a few days. However, instead of returning Child to
Parents, Grandmother applied for a domestic violence protection order on behalf of Child against
Father. Around October 6, 2014, the protection order was granted. The protection order
prohibited Father from contacting Child for one year.
Grandparents filed for guardianship of Child on August 19, 2014. On March 3, 2015, an
order was issued appointing Grandparents as temporary guardians of Child. Days after the entry
of the temporary guardianship order, Grandmother contacted an agency that provided supervised
and monitored parent/child visitations to arrange supervised visits between Child and Siblings.
Eight visits occurred between April 2015 and July 2015, which were documented by an
agency employee (“Supervisor”). It had been eight months since Child had seen Siblings.
Supervisor’s summary report of the eight visits concluded with the following notes. The visits
were very difficult because Parents and Grandparents did not work well together. Grandparents
terminated the visits after the eighth visit. Supervisor attempted to negotiate a better schedule for
future visits, but Grandparents said that they would work with a different agency. Supervisor
called Mother to inform her that Grandparents refused to continue visits with the agency. Mother
wept and begged Supervisor to continue to arrange visits with Grandparents. Supervisor tried
several times to work with Grandparents, but they refused all visitation requests.
Parents’ attempts to contact Child have been unsuccessful. As of May 26, 2017 (when the
magistrate court issued its Findings of Fact, Conclusions of Law, and Order), there had been no
contact between Child and Parents or Siblings since July 2015. Parents have not provided
support for Child during Grandparents’ guardianship. Father testified that despite earning
between $1,200 and $1,600 per month, they did not support Child financially in any way.
Specifically, Father testified as follows:
Q: So after October 2015 [the expiration of the protection order], what did you do
to financially support [Child]?
A: There wasn’t anything that I did.
Q: Hmm?
A: I didn’t do anything.
Q: You didn’t do anything to financially –
A: No, I did not.
Q: – support her?
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A: No.
Q: You were working; weren’t you?
A: I was.
Q: And bringing in a minimum of six – well, [you] at least made between 12 and
$1600 a month?
A: Correct.
Q: And you never offered up anything?
A: I have not - - I have not had any contact with [Grandparents] since this whole
proceeding[] took effect last year. Or excuse me, in 2014.
Q: Okay. Have you sent [Child] letters?
A: No.
Q: Have you personally tried to call [Child]?
A: No, I have not.
Grandparents testified that, after the supervised visitations terminated, they sent several
letters to Mother offering visits for Siblings and Child, but the letters were returned as
undeliverable. Specifically, on September 1, 2015, Grandparents sent a letter to Parents’ RV park
address, by certified mail, in which they proposed a visit between Child and Siblings. The letter
was returned as undeliverable. Parents had lived at the RV park address for three years prior, but
moved in August 2015 into a rented house shared with another couple (“Mr. Housemate,” “Mrs.
Housemate,” and, collectively, “Housemates”), who had two children. It is unclear from the
record whether Parents informed Grandparents of their new address, but Grandparents’ verified
petition listed the RV park address as Parents’ last known address.
On October 18, 2016, Grandparents filed a Petition for Termination of Parental Rights
and a Petition for Adoption. On April 13, 2017, a guardian ad litem was appointed. On April 28,
2017, the guardian ad litem filed a report, wherein she concluded that: (1) Parents failed to
maintain a normal parent-child relationship with Child, without just cause, for the six months
leading up to the petition to terminate; and (2) if Parents’ parental rights were terminated,
Grandparents would be excellent candidates to adopt Child. However, the guardian ad litem’s
conclusion was not without reservation: She expressed concern over whether Mother’s failure to
maintain a normal parent-child relationship was without just cause. Specifically, the guardian ad
litem was concerned by Mother’s claim that she had attempted to call Grandparents to arrange
visits with Child, but gave up because she never received a return call. The guardian ad litem
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reasoned that if Mother’s attempts to contact Child by calling Grandparents were corroborated
by phone records, it would be cause for concern because Grandparents had denied knowledge of
said calls. Further, if Mother’s attempts were corroborated, “conceivably, [Mother] could make
the argument that [Grandparents] unreasonably interfered in her efforts to have a normal parent
child relationship with [Child].”
On May 1 and 3, 2017, the magistrate court held a termination hearing. There was
considerable testimony regarding Mother’s attempts to contact Grandparents by phone. As
previously mentioned, Mother told the guardian ad litem that she attempted to call Grandparents
and that she had phone records to prove it. Grandparents sought the phone records through
formal discovery, but Parents did not respond. Parents produced the phone records after
Grandparents filed a motion to compel. Testimony explaining the phone records indicated that
Mother called Grandparents a total of ten times between December 2015 and August 2016: seven
times on December 23 and 24, 2015; once on January 20, 2016; once on February 28, 2016; and
once on August 17, 2016. Mother testified that she had left a message each time, but never
received a return call. Parents testified that all of the phone calls were made with Housemates’
phones. They used Housemates’ phones instead of Father’s phone because Grandparents were
familiar with the number and more likely to answer a call from Housemates’ phone number than
Father’s phone number. Mother testified that she sent numerous text messages to Grandparents,
but never received a reply. There were no records of the text messages. Grandfather testified that
neither he, nor Grandmother received phone calls or messages from Parents. However,
Grandfather explained that they do not pick up calls from numbers that they do not recognize,
and they delete voicemails from numbers that they do not recognize without listening to them.
He testified that he has met Mrs. Housemate once, but did not know her phone number.
On May 26, 2017, the magistrate court issued a Findings of Fact, Conclusions of Law,
and Order. After an exhaustive review of the facts, the magistrate court concluded that Parents
had abandoned Child by failing to reasonably support Child and by failing to maintain regular
personal contact for a period in excess of one year. Regarding Parents’ failure to provide support
for Child for almost three years, the magistrate court held that Parents’ limited financial means
did not change the fact that they were responsible for Child’s support. Further, the magistrate
court found that Parents had the means to support Siblings and to allow Father to maintain a
relationship with one of his children from a different relationship who lived in California, which
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involved regular road trips and stays in a motel; therefore, “presumably [Parents] had the
resources to provide something for [Child].” The magistrate court summed up its holding, stating
“The fact of the matter is, [Parents] did not even try. The bottom line is that [Parents] knew that
[Grandparents] were and would continue to provide for [Child’s] needs, and therefore chose to
leave it to [Grandparents] to do so.”
Regarding its holding that Parents willfully failed to maintain regular personal contact
with Child for more than one year, the magistrate court concluded that Father was primarily
responsible for his lack of contact with Child for more than two years and that it was not
Grandparents’ doing, as Father asserted. Addressing Parents’ attempts to contact Grandparents or
Child by phone, the magistrate court noted that there were credibility issues with the testimony
of Parents and Grandfather, but ultimately concluded that “[a] handful of attempted phone calls
over a period of almost two years is not the maintenance of a normal parental relationship, or
even a significant effort toward maintaining a normal parental relationship.”
Lastly, the magistrate court concluded that the termination of Parents’ parental rights was
in Child’s best interest because: (1) Grandparents had been the sole providers for Child for
almost three years; (2) Grandparents have provided the parental relationship and financial
support necessary for Child’s well-being; (3) Child looks to Grandparents for her sense of safety
and security; (4) Child came to Grandparents bruised, frightened, and educationally delayed and
now is academically current and has the feeling of safety and stability; and (5) Grandparents
have demonstrated that they can be counted on by Child, and Parents have consistently
demonstrated that they cannot be counted on by Child.
A procedural issue arose with regard to the magistrate court’s Final Judgment. On June
22, 2017, the magistrate court issued a Judgment and Decree Terminating the Parental Rights of
the Natural Parents. On June 27, 2017, Parents filed a Notice of Appeal. On June 29, 2017, this
Court issued an Order Conditionally Dismissing Appeal after finding that the June 22, 2017
Judgment and Decree Terminating the Parental Rights of the Natural Parents was not
accompanied by a Rule 54(b) certificate. On July 10, 2017, the magistrate court issued Final
Judgment Re: Termination of Parent/Child Relationship. On July 11, 2017, Parents filed an
Amended Notice of Appeal, and on July 13, 2017, this Court issued an Order to Withdraw
Conditional Dismissal and Reinstate Appeal.
III. ISSUES ON APPEAL
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1. Did the magistrate court err when it concluded that Parents abandoned Child pursuant to
Idaho Code section 16-2005?
2. Did the magistrate court err when it concluded that termination of Parents’ parental rights
was in Child’s best interest?
3. Are Grandparents entitled to attorney fees on appeal?
IV. STANDARD OF REVIEW
[T]ermination of parental rights is reviewed as follows:
Grounds for termination of parental rights must be shown by clear and
convincing evidence because each parent has a fundamental liberty
interest in maintaining a relationship with his or her child. Clear and
convincing evidence is generally understood to be evidence indicating
that the thing to be proved is highly probable or reasonably certain. On
appeal, this Court will not disturb the magistrate court’s decision to
terminate parental rights if there is substantial, competent evidence in the
record to support the decision. Substantial, competent evidence is such
evidence as a reasonable mind might accept as adequate to support a
conclusion. This Court is required to conduct an independent review of
the magistrate court record, but must draw all reasonable inferences in
favor of the magistrate court’s judgment because the magistrate court has
the opportunity to observe witnesses’ demeanor, to assess their
credibility, to detect prejudice or motive[,] and to judge the character of
the parties.
Idaho Dep’t of Health and Welfare v. Doe (2016-11), 160 Idaho 824, 831, 379 P.3d 1094, 1101
(2016) (quoting Idaho Dep’t of Health and Welfare v. Doe (2015-01), 158 Idaho 764, 767, 351
P.3d 1222, 1225 (2015)).
V. ANALYSIS
A. The magistrate court did not err when it concluded that Parents abandoned Child
pursuant to Idaho Code section 16-2005 because substantial, competent evidence
supports the conclusion.
Parents argue that the magistrate court erred when it concluded that Child was
abandoned. Specifically, Parents challenge two of the magistrate court’s holdings: (1) Parents
failed to contact Child without just cause; and (2) Parents failed to provide financial support for
Child. First, Parents argue that the magistrate court erred in finding that they had failed to contact
Child without just cause because the findings of fact show that Mother was attempting to contact
Child as recently as August 2016. Second, Parents argue that the magistrate court erred when it
found that they had failed to provide financial support for Child. Parents contend that the
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magistrate court erred because it did not consider that they were of limited financial means and
had significant financial responsibility for Siblings.
According to Idaho Code section 16-2005, a court may terminate a parent-child
relationship if it finds “that termination of parental rights is in the best interests of the child and
that one (1) or more of the following conditions exist: (a) The parent has abandoned the child.”
I.C. § 16-2005(1)(a).
“Abandoned” 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 without just cause for a
period of one (1) year shall constitute prima facie evidence of abandonment under
this section; provided however, where termination is sought by a grandparent
seeking to adopt the child, the willful failure of the parent to maintain a normal
parental relationship as provided herein without just cause for six (6) months shall
constitute prima facie evidence of abandonment.
I.C. § 16-2002(5).
Whether a parent maintains a normal parental relationship depends on the facts
and circumstances of each case. Doe [I v. Doe II], 150 Idaho [46], 50, 244 P.3d
[190], 194 [(2010)]. In making this determination a court should consider
evidence of the logistical and financial difficulties associated with maintaining the
parental relationship. Id. . . . Evidence of a hostile relationship between parents
may also be evidence of just cause and may mitigate against a parent’s failure to
take advantage of all possible avenues of reconnection. Id.
In re Doe (2013-30), 156 Idaho 532, 537, 328 P.3d 512, 517 (2014).
The key issue regarding willfulness is whether the parent is capable of
maintaining a normal relationship with the child. Doe I v. Doe II [(2009-02)], 148
Idaho 713, 716, 228 P.3d 980, 983 (2010) (“For one to willfully fail to do
something, he or she must have the ability to do it.”). For example, in Doe v. Doe
I [(2009-12)], “there was nothing that prevented [the parent] from making some
attempt to develop a parent-child relationship” with his daughter, but he
nonetheless made “no meaningful effort” to do so. 149 Idaho 392, 397, 234 P.3d
716, 721 (2010).
In re Doe (2013-14), 155 Idaho 505, 508, 314 P.3d 187, 190 (2013).
In Doe I v. Doe II (2016-23), a mother allowed her two children to live with their
grandparents. 161 Idaho 532, 534, 387 P.3d 785, 787 (2016). For unknown reasons, the Idaho
Department of Health and Welfare took the children from the mother and placed them with their
grandparents, who were later awarded guardianship. Id. The grandparents filed a petition to
terminate the mother’s parental rights. Id. The magistrate court noted that, although the mother
was a good playmate to the children, she failed to provide financial support to the children, help
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the grandparents cover the cost of keeping the children, or cover expenses of any kind. Id. The
magistrate court also noted that the mother made approximately five phone calls and five visits
to the children over a seven month period. Id. Ultimately, the magistrate court terminated the
mother’s parental rights as to her two children after finding that the mother had abandoned the
children by: (1) failing to provide reasonable support without just cause; and (2) failing to
maintain personal contact. Id. at 536, 387 P.3d at 789.
This Court affirmed the magistrate court’s termination of the mother’s parental rights
after finding that clear and convincing evidence established that the mother had abandoned the
children by failing to provide reasonable support without just cause. Id. In so holding, this Court
highlighted the fact that the mother had “some financial resources,” yet did not support the
children in any way, but for buying them “some toys, [and] little stuff.” Id. This Court reasoned
that the magistrate court’s alternate basis for finding abandonment, i.e., the mother’s lack of
personal contact with the children, did not need to be addressed because the finding of lack of
reasonable support, by itself, established abandonment. Id.
Substantial and competent evidence supports the magistrate court’s termination of
Parents’ parental rights. The magistrate court authored a thorough Findings of Fact, Conclusions
of Law, and Order, wherein it acknowledged that Parents’ parental rights may only be terminated
if clear and convincing evidence supported the decision. Then, the magistrate court reviewed
numerous instances of Parents’ willful abandonment and found that termination was in the best
interest of Child.
This Court is not persuaded by Parents’ argument that the magistrate court erred by
concluding that they failed to provide financial support to Child. In In re Doe (2013-14), this
Court provided that “[t]he key issue regarding willfulness is whether the parent is capable of
maintaining a normal relationship with the child.” 155 Idaho 505, 508, 314 P.3d 187, 190 (2013).
Further, in Doe I v. Doe II (2016-23), this Court affirmed the termination of parental rights based
on the fact that the mother had “some financial resources,” yet did not support the children in any
way. 161 Idaho at 536, 387 P.3d at 789. Here, the magistrate court acknowledged that Parents
were of limited financial means, but noted that Parents “presumably . . . had the resources to
provide something for [Child]” because they had the resources to support Siblings and to allow
Father to maintain a relationship with his daughter in California, which included regular road
trips and stays in motels. Further, the magistrate court noted that Father earned between $1,200
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and $1,600 per month and was underemployed by choice. The magistrate court found that,
despite presumably having the resources to support Child, Parents “failed to provide any support
of any kind for [Child] . . . [for] a period in excess of two years.” Accordingly, the magistrate
court’s finding of abandonment based on failure to provide reasonable support without just cause
is supported by substantial, competent evidence.
As noted by this Court in Doe I v. Doe II (2016-23), a finding that a parent has failed to
provide reasonable support without just cause, by itself, establishes abandonment. 161 Idaho at
536, 387 P.3d at 789. Therefore, this Court need not address the magistrate court’s alternate basis
for finding abandonment, i.e., that Parents failed to contact Child without just cause.
B. The magistrate court did not err when it concluded that termination of Parents’
parental rights was in the best interest of Child because substantial, competent
evidence supports the conclusion.
Parents argue that the evidence does not support a conclusion that termination was in the
best interest of Child. Parents claim that the magistrate court’s focus on Child’s educational
delay was error because: (1) Child had only attended first grade before living with Grandparents;
and (2) Parents provided an environment that fostered educational growth as demonstrated by
Siblings’ success at school. Further, Parents dispute the magistrate court’s finding that Child
came to Grandparents frightened and in need of safety and security due to Parents’ use of
corporal punishment. In support of their position, Parents note that: (1) they have not committed
any crimes or been incarcerated during this case; (2) charges have not been filed for child abuse;
and (3) Siblings were found to be safe after the Idaho Department of Health and Welfare was
called by Grandmother.
“Once a statutory ground for termination has been established, the trial
court must next determine whether it is in the best interests of the child to
terminate the parent-child relationship. When considering the best interests of the
child, a trial court may consider numerous factors.” In re Doe (2015–03), 159
Idaho 192, 198, 358 P.3d 77, 83 (2015) (quoting In re Doe (2014–15), 157 Idaho
765, 772, 339 P.3d 1169, 1176 (2014)); I.C. § 16–2005(1).
Idaho Dep’t of Health and Welfare v. Doe (2016-11), 160 Idaho 824, 833, 379 P.3d 1094, 1103
(2016).
There is not an exhaustive list of factors that a court must consider when analyzing
whether termination of parental rights is in the best interest of a child. However, this Court has
previously considered: the financial contribution of the parents to the child’s care after the child
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is removed from their care; the child’s improvement after being removed from the parents’ care;
and testimony from social workers and guardians ad litem. Idaho Dep’t of Health and Welfare v.
Doe (2016-11), 160 Idaho 824, 834, 379 P.3d 1094, 1104 (2016); In re Doe (2014–15), 157
Idaho 765, 772, 339 P.3d 1169, 1176 (2014).
Substantial, competent evidence supports the magistrate court’s conclusion that
termination of Parents’ parental rights was in the best interest of Child. Every factor listed above
supports the magistrate court’s conclusion. First, as discussed above, Parents have failed to
financially support Child. Second, there is considerable testimony regarding Child’s physical,
emotional, and academic improvement since being removed from Parents’ care. For example,
Child’s counselor testified that Child “came in with a lot of fear, anxiety, repeated nightmares . .
. . She was afraid of all men in general.” However, since being removed from Parents’ care,
Child has made “[a] lot of progress. . . . She went from not being able to sleep alone to being
able to sleep in her room. Her nightmares decreased significantly . . . . She became much more
comfortable with different relationships with other people . . . . Her fear of men, you know,
subsided. . . . she started excelling in school . . . .” Third, the guardian ad litem recommended
termination of Parental rights. The guardian ad litem also testified that Child “very much wants
to be with [Grandparents]. And when I asked . . . why an adoption, in her mind . . . it’s the only
way that her ten-year-old-brain can put to rest the idea that at some point in time she’s going to
be removed from [Grandparents] and sent back to live with [Parents] in what she perceives to be
an unsafe environment.” In sum, substantial, competent evidence supports the magistrate court’s
conclusion that termination of Parents’ parental rights is in Child’s best interest.
C. Grandparents are not entitled to attorney fees on appeal.
Parents do not request attorney fees on appeal. Grandparents’ request for attorney fees on
appeal is merely mentioned in passing and is not supported with cogent argument; therefore, this
Court will not consider the issue. Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152
(2010) (citing Inama v. Boise Cnty. Bd. of Comm’rs, 138 Idaho 324, 330, 63 P.3d 450, 456
(2003)) (“Regardless of whether an issue is explicitly 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.”).
VI. CONCLUSION
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This Court affirms the magistrate court’s Final Judgment terminating Parents’ parental
rights. Costs on appeal are awarded to Grandparents. Attorney fees on appeal are not awarded to
either party.
Chief Justice BURDICK, Justices HORTON, BRODY and BEVAN, CONCUR.
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