IDHW v. John Doe ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49659
In the Interest of: )
Jane Doe I and Jane Doe II, Children )
Under Eighteen (18) Years of Age. )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, ) Filed: November 16, 2022
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
JOHN DOE (2022-13), ) BE CITED AS AUTHORITY
)
Respondent-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Theodore
Fleming, Magistrate.
Judgment of the district court, on intermediate appeal from the magistrate court,
affirming finding of aggravated circumstances, affirmed.
Davis & Walker; Layne Davis, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Peter A. Mommer, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
John Doe (Doe) appeals from a decision of the district court, on intermediate appeal from
the magistrate court, affirming the magistrate court’s finding of aggravated circumstances. Doe
argues that the district court erred by affirming the magistrate court when the magistrate court:
(1) improperly considered its witness credibility determination in Doe’s criminal preliminary
hearing for purposes of the aggravated circumstances hearing; (2) denied Doe his right to an
impartial adjudicator by considering its prior witness credibility determination in the aggravated
circumstances hearing; and (3) applied the incorrect standard to the aggravated circumstances
determination by applying the preponderance of the evidence standard rather than the clear and
convincing evidence standard. For the reasons set forth below, we affirm.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
Doe is the natural father of Jane Doe I and Jane Doe II, the children who are the subjects
of this Idaho Protective Act (CPA) proceeding. The petition under the CPA included affidavits
alleging that Doe violated Idaho Code § 18-1506 by virtue of various sexual acts involving his
daughter and that he suffered from substance abuse while the children were in his care. The
children were declared in imminent danger and placed into the custody of the Idaho Department
of Health and Welfare (Department).
Doe was subsequently charged in a related criminal matter with one count of sexual abuse
of a child under the age of sixteen years, I.C. § 18-1506. At the preliminary hearing, Jane Doe I
testified under oath and was subject to cross-examination. During her testimony, which was found
to be credible, Jane Doe I recounted specific instances of sexual conduct that she was forced to
perform for Doe. Based upon the preliminary hearing, Doe was bound over to the district court.
An adjudicatory hearing was held in the CPA case. Doe stipulated to an unstable home
environment and agreed it was in the best interests of the children for them to remain in the legal
custody of the Department. Prior to the adjudicatory hearing, the Department filed a motion for a
finding of aggravated circumstances based upon Doe’s conduct violating I.C. § 18-1506. A finding
of aggravated circumstances relieves the State of its burden of establishing that it employed
reasonable efforts to reunify the family. I.C. § 16-1619(6)(d). Aggravated circumstances
“includes, but is not limited to: [s]exual abuse against a child of the parent. Sexual abuse . . .
includes any conduct described in section 18-1506 . . . .” I.C. § 16-1602(6)(a)(ii).
The preliminary hearing in the criminal case and the aggravated circumstances hearing in
this child protection case were conducted by the same magistrate court. At the aggravated
circumstances hearing, the only evidence presented was a transcript of Jane Doe I’s testimony
during the preliminary hearing. The magistrate court determined that aggravated circumstances
existed based on the facts established at the preliminary hearing and its determination that Jane
Doe I was credible. Doe timely appealed to the district court, which affirmed the magistrate court.
Doe timely appeals.
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II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.2d
214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal
will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s
findings and conclusions, whether the district court affirmed or reversed the magistrate court and
the basis therefore, and either affirm or reverse the district court.
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
Over questions of law, we exercise free review. State v. O’Neill, 118 Idaho 244, 245, 796
P.2d 121, 122 (1990). Constitutional questions are reviewed de novo. State v. Smalley, 164 Idaho
780, 783, 435 P.3d 1100, 1103 (2019).
III.
ANALYSIS
Doe argues that the district court erred by affirming the magistrate court’s decision which:
(1) improperly considered its witness credibility determination in Doe’s criminal preliminary
hearing for purposes of the aggravated circumstances hearing in this case; (2) denied Doe his right
to an impartial adjudicator by considering its prior witness credibility determination in the
aggravated circumstances hearing; and (3) applied the incorrect standard to the aggravated
circumstances determination by applying the preponderance of the evidence standard rather than
the clear and convincing evidence standard. The Department argues that the magistrate court
correctly relied on the properly admitted transcript from the preliminary hearing in the separate
criminal proceeding and that the magistrate court correctly determined aggravated circumstances
existed under a preponderance of the evidence standard.
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A. Reliance on the Preliminary Hearing Testimony and Credibility Determination
Doe argues that the district court erred by affirming the magistrate court’s aggravated
circumstances decision. Doe expressly acknowledges that he is not arguing that the certified
preliminary hearing transcript was inadmissible or that the Confrontation Clause was violated.
Further, Doe acknowledges that the substance of the preliminary hearing testimony may have been
enough to establish aggravated circumstances, if true. Rather, Doe argues that the truth of the
preliminary hearing testimony is dependent upon the credibility of Jane Doe I. Doe asserts that
the magistrate court could not properly rely on its credibility finding in the preliminary hearing
decision in its determination of aggravating circumstances.
As noted, Doe does not argue that the magistrate court erred in admitting the transcript for
consideration in the aggravated circumstances hearing. Doe does not challenge any of the facts
from the transcript. Doe argues the “the evidence at the aggravated circumstances hearing--a ‘cold
transcript’--was not ‘the same’ as the live testimony presented at the preliminary hearing.” Doe
asserts the district court erred in finding that the magistrate court had the same testimony to
consider because the reasoning relies on a false equivalence between the transcript presented at
the hearing and the live testimony presented previously. According to Doe, the cold transcript was
not the same as the live testimony presented at the preliminary hearing because a judge in a position
to see and hear the witness speak is in a better position to judge their credibility than a judge only
having before it a cold transcript. Doe argues that Idaho courts have rejected the notion that
credibility determinations be may made equally well from a transcript as compared to live
testimony. See, e.g., Wolf v. Kaufman Broad Home Systems, 106 Idaho 838, 683 P.2d 874 (1984).
In addition, Doe argues that the “live” testimony at the preliminary hearing is “extrajudicial” to
the record in this case and the “live” testimony could not and was not admitted in this case. In
essence, Doe contends that the facts established in the preliminary hearing are dependent upon the
credibility determination made there and that the credibility determination could not be properly
relied on in the aggravated circumstances proceeding. Doe concludes that “It is simply unknown
whether the magistrate would have reached the same credibility determination from a cold
transcript as he did when presiding over the preliminary hearing.”
Doe’s arguments are unpersuasive. The district court reviewed the magistrate court’s
decision and determined that the fact that the magistrate court weighed the same testimony and
found the child credible does not establish that it considered facts not in evidence. The district
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court found that the magistrate court did not err in the aggravated circumstances determination
because this case was based on substantial, competent evidence; the child testified at the
preliminary hearing; she was cross-examined; the testimony was the only evidence presented; and
the magistrate court found the child’s testimony credible. Like the other factual findings from the
preliminary hearing, the credibility finding is supported by substantial evidence in the record. In
fact, Doe has not attempted to argue that the credibility finding is not supported by the record in
the preliminary hearing proceeding. Moreover, distinct from the case cited by Doe, this is not a
situation where a judge is asked to make a credibility determination--in the first instance--from a
cold record. Here, the determination was made by the magistrate court upon hearing and seeing
the witness testify. That unchallenged factual determination was then properly relied upon by the
same magistrate court in the subsequent proceeding.
As a corollary, Doe argues that he was denied his right to an impartial adjudicator because
the same magistrate court conducted the preliminary hearing and the aggravated circumstances
hearing and, in so doing, considered the “live” testimony from outside the record and from its own
personal experience. Doe contends that this establishes actual bias. The district court, citing State
v. Jones, 146 Idaho 297, 300, 203 P.3d 1203, 1206 (Ct. App. 2008), held that bias or prejudice is
not automatically established by virtue of the fact that a judge had previously dealt with an issue.
Doe acknowledges that the magistrate court was not automatically biased because it previously
presided over a separate case with overlapping facts, but contends the magistrate court exhibited
actual bias by explicitly acknowledging that it had prejudged the case and was unconstitutionally
biased because the determination was based on observations outside of the record. As noted above,
the magistrate court did not base its determination on observations outside of the record, but relied
on an unchallenged finding regarding credibility and a determination that the facts from the
properly admitted transcript demonstrated aggravated circumstances. There is no evidence that
the magistrate court prejudged the aggravated circumstances finding.
B. Standard of Proof
Doe argues that a clear and convincing evidence standard should be applied to an
aggravated circumstances determination. In cases in which a child is in the legal custody of the
Department, the Department generally is required to set forth its reasonable efforts to reunify the
child or children with the parent. I.C. § 16-1621(3). As noted, a finding of aggravated
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circumstances relieves the State of its burden of establishing that it employed reasonable efforts to
reunify the family. I.C. § 16-1619(6)(d).
Due process requires that the grounds for terminating a parent-child relationship be proved by
clear and convincing evidence. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). The
magistrate court found that an aggravated circumstances hearing in a child protection action case
is not a termination proceeding and requires only proof by a preponderance of the evidence. The
magistrate court explained that the difference is an aggravated circumstances finding only results
in not requiring reasonable efforts to reunify the parent and child. Standards are specifically set
forth by the legislature for the adjudicatory hearing and the termination of parental rights hearing,
but the legislature does not provide a standard for finding aggravated circumstances. The
magistrate court found the standard of proof is a preponderance of the evidence because the
aggravated circumstances hearing is typically in conjunction with the adjudicatory hearing, where
that is the applicable standard. The magistrate court found it reasonable that the legislature did not
intend to specifically require an evidentiary standard greater than a preponderance of the evidence.
The court was not provided with authority to the contrary or that a parent’s due process rights are
violated by the Department ceasing to use reasonable efforts to reunify.
Doe argues that the magistrate court erred in applying a preponderance of the evidence
standard because, like a finding of grounds for termination, a finding of aggravated circumstances
should require clear and convincing evidence. 1 Doe’s argument relies on Nebraska case law which
states “that dispensing with reasonable efforts at reunification frequently amounts to a substantial
step toward termination of parental rights. It follows that the requisite standard of proof for such
determination should be at the level required for a termination of parental rights.” In re Interest
of Jac’quez N, 266 Neb. 782, 789, 669 N.W.2d 429, 435 (Neb. 2003). The Nebraska court
determined that clear and convincing evidence is the required standard of proof for a finding of
fact that excuses the requirement of reasonable efforts at reunification. Id. Doe acknowledges
that Idaho has not directly addressed the burden of proof, but argues that the appropriate standard
is clear and convincing evidence given a parent’s fundamental right to parent and the adverse effect
a finding of aggravated circumstances has on a parent’s ability to utilize the Department’s services
1
Doe does not argue that aggravated circumstances were not shown and found under the
preponderance of the evidence standard.
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to conform behavior and change circumstances such as to achieve reunification and avoid
termination.
The district court found that the magistrate court did not err. The district court
acknowledged the Washington Court of Appeals’ determination in In re Dependency of J.W., 90
Wash.App. 417, 426, 953 P.2d 104, 109 (Wash. Ct. App. 1998) that although a proceeding for
termination of parental rights requires clear and convincing evidence, this standard does not apply
to dependency proceedings. Additionally, a finding of aggravated circumstances does not compel
termination but triggers a more stringent standard of proof to the key determinations made by the
court. In re Dependency of C.B., 79 Wash.App. 686, 690, 904 P.2d 1171, 1174 (Wash. Ct. App.
1995). The district court found this reasoning to be persuasive and that the burden of proof for
aggravated circumstances in a Child Protective Act proceeding is a preponderance of the evidence.
The district court further stated that although a permanency plan may lead to termination of
parental rights, it does not change the burden of proof. As a result, the district court found the
magistrate court properly determined the burden of proof is a preponderance of the evidence.
Aggravated circumstances are determined in conjunction with the adjudicatory hearing and
an aggravated circumstances hearing does not occur unless the child is found to come under the
jurisdiction of the court, which finding is based on a preponderance of the evidence. I.C. § 16-
1619(4). Numerous findings and orders are made during the course of a CPA proceeding in
conjunction with adjudicatory hearings. See I.C. § 16-1619. These orders are made in the best
interests of the child. While, in the normal course, the Department has the obligation to use
reasonable efforts toward reunification of the parent and child, the magistrate court has control and
authority to enter orders requiring and/or prohibiting conduct of the parent as well as the
Department. As a part of the CPA proceeding, the magistrate court may conduct a hearing and
determine whether aggravated circumstances exist, relieving the Department of its responsibility
to make efforts toward reunification. Certainly, the existence of such aggravated circumstances
dictates that usual reunification efforts may be detrimental to the child and thus, the legislature has
recognized that the Department should be relieved of its reunification obligations. This and other
findings and decisions in the CPA proceeding are not akin to termination of the parent/child
relationship. They are designed to ensure the best interests of the child during the time the child
is under the jurisdiction of the magistrate court and the Department. While proceedings in the
CPA action may have an effect on an eventual termination proceeding, the decisions in the CPA
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adjudicatory hearing context are made by a preponderance of the evidence. At the termination
stage, the clear and convincing standard is appropriate given the fundamental rights at stake. But
in the interim stage, before any such termination proceeding, the magistrate court is authorized to
make best interests decisions and orders therefore, which require a preponderance of the evidence
for their support. No binding case law or statute requires that a clear and convincing standard be
applied in adjudicatory hearings in the CPA case. The district court and the magistrate court
correctly held that a preponderance of the evidence standard applies to the aggravated
circumstances determination.
IV.
CONCLUSION
Accordingly, the judgment of the district court, on intermediate appeal from the magistrate
court, affirming the finding of aggravated circumstances, is affirmed.
Judge HUSKEY and Judge BRAILSFORD CONCUR.
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