DHW v. Jane Doe ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47729
In the Matter of John Doe I, A Child )
Under Eighteen (18) Years of Age. )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE ) Filed: May 20, 2020
)
Plaintiff-Respondent, ) Karel A. Lehrman, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
JANE DOE (2020-02), ) BE CITED AS AUTHORITY
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho,
Elmore County. Hon. Theodore Fleming, Magistrate Judge.
Judgment terminating parental rights, affirmed.
Hall, Friedly, and Ward; Brian Peterson, Mountain Home, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John R. Shackelford, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Jane Doe appeals from the magistrate court’s judgment terminating her parental rights.
Doe asserts the magistrate court erred when it found she neglected her child and it is in the best
interests of the child to terminate Doe’s parental rights. The magistrate court’s judgment
terminating Doe’s parental rights is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Doe is the non-biological mother of R.H.-C. On May 3, 2018, following a traffic stop,
Doe was arrested on charges of possession of methamphetamine and burglary. At the time of her
arrest, Doe’s wife (R.H.-C.’s biological mother), R.H.-C., and Doe’s wife’s eight-month-old
half-brother were in the car. The car was so messy and dirty that Doe’s wife’s half-brother was
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initially unnoticed. The smell in the car of garbage and rotting food was overwhelming and
likely caused by the piles of garbage and rotting food in the car and the trunk. Doe’s wife’s half-
brother is not involved in this appeal. R.H.-C. was dirty, did not appear to have been bathed in
several days, and had a chemical burn on his left thigh potentially caused by sitting for a
prolonged period in a urine-soaked diaper. He had finger marks on his left arm as if he had been
grabbed by an adult. His clothing was dirty and urine-stained. His car seat was soaked with
urine and covered in feces and rotting food. R.H.-C. was small for his age and exhibited delays
in growth, weight, and language. Because Doe and her wife were arrested, R.H.-C. was declared
in imminent danger. 1 Doe stipulated to R.H.-C. remaining in the custody of the Department of
Health and Welfare (Department) at the shelter care hearing. Although Doe bonded out of jail
on May 8, 2018, she did not appear at the adjudicatory hearing and stipulated to giving the
Department custody because of her unstable living situation. At the adjudicatory hearing, a
default was entered against Doe.
Doe did not attend the case plan hearing set for June 20, 2018, but her attorney
subsequently reviewed the case plan requirements and Doe understood the requirements. The
magistrate court accepted the case plan and ordered a review hearing set for September 19, 2018.
The case plan’s goal was reunification. The case plan required Doe to: (1) demonstrate age
appropriate parenting skills and meet the basic needs of R.H.-C. including his financial, medical,
dental, and developmental needs; participate in parental coaching; actively participate in
R.H.-C.’s medical, dental, and developmental appointments and demonstrate her ability to
follow recommendations made by R.H.-C.’s providers; and provide safe and appropriate
housing; (2) remain substance free, complete a substance abuse class, and complete random drug
tests; and (3) complete a mental health evaluation and comply with all recommendations.
On September 13, 2018, a case plan status update was filed. Doe was aware of the
requirements of the case plan, but she was back in custody on additional criminal charges. In
terms of visitation, between May 3 and September 19, six visits had occurred between R.H.-C.
and one or both of his parents, and eleven visits had been missed or cancelled. As a result of the
May 3 arrest, Doe was ultimately convicted of felony possession of a controlled substance,
burglary, and misdemeanor child endangerment. The district court retained jurisdiction, and
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Doe’s wife’s parental rights were also terminated. Her appeal is pending in Supreme
Court Docket No. 47330.
2
Doe remained in custody from approximately August 2018 until April 8, 2019. While on
the rider, Doe successfully completed a substance abuse treatment class and the Thinking
for a Change class. In addition to those charges, Doe had charges of felony possession of a
controlled substance and driving under the influence pending in Ada County.
A six-month review hearing was scheduled for October 31, 2018. Doe had not had any
visitation with R.H.-C. since her return to custody in August. Although Doe had made some
progress on her case plan, her progress was the result of classes she had taken while in custody,
and the Department did not find the progress satisfactory. While she was in custody, Doe began
weekly video visitation with R.H.-C. After successfully completing the rider, Doe was released
on probation.
Upon her release, Doe initially complied with some aspects of her case plan. For
example, Doe visited with R.H.-C., began setting up mental health services and outpatient
substance abuse treatment, and was attempting to acquire employment and establish housing.
However, Doe’s efforts were quickly derailed. Approximately three weeks after her release on
probation, Doe admitted that she began using methamphetamine. When she began using, Doe
testified she did not consistently visit R.H.-C. because she did not want to be around R.H.-C.
while under the influence of controlled substances. Additionally, Doe did not follow through on
the initial steps she had taken to comply with her case plan. Her initial visits with R.H.-C. were
sporadic, and the Department noticed that Doe was not providing appropriate direction to
R.H.-C. during the visits, likely because she did not understand his developmental needs and had
been out of his life for almost a year. Although earlier she began to set up mental health services
and substance abuse treatment, she did not establish or attended any mental health or substance
abuse treatment. Further, she was living either in a homeless shelter or with her mother, who
also used methamphetamine. Doe agreed that the residence was not a safe place for R.H.-C. and
was not conducive to Doe maintaining her sobriety. Also, Doe could not financially support
herself or R.H.-C. Moreover, Doe was again arrested for misdemeanor possession of drug
paraphernalia and was back in custody by June 2019. In August 2019, Doe also accrued
additional misdemeanor charges of possession of a controlled substance and paraphernalia.
On July 5, 2019, the Department filed a petition to terminate Doe’s parental rights,
alleging three counts of neglect pursuant to Idaho Code § 16-2002(3)(a). The petition alleged
Doe failed to demonstrate appropriate parenting by failing to meet R.H.-C.’s basic needs (Count
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V); had substance abuse and criminal thinking that impaired her ability to provide proper
parental care and control of the child (Count VII); and failed to complete the court-ordered case
plan with the child in the custody of the Department for the last fifteen months (Count VIII). 2
Because of the lack of communication, a summons for the termination hearing was served on
Doe by publication. The Department alleged that Doe had not addressed her life circumstances
that resulted in R.H.-C. being taken into custody in May of 2018, including her continued use of
controlled substances. As a result, the Department requested to change the permanency goal
from reunification to termination of parental rights and adoption. The magistrate court granted
the motion and set the termination hearing for November 2019.
During the termination hearing, Doe testified that she had not been able to meet any of
R.H.-C.’s needs for the last eighteen months, but prior to R.H.-C. being taken into custody she
had been meeting his needs “for the most part.” She also admitted she had not consistently
engaged in visits with R.H.-C., had not scheduled or attended any medical or dental
appointments, lived in a home with a methamphetamine addict, and the home was not a safe or
stable place for R.H.-C. Doe specifically acknowledged it would not be in R.H.-C.’s best
interests to reside in that particular home, but she had no other residence established.
Following the termination hearing, the magistrate court made numerous factual findings.
The magistrate court found that Doe had significant substance abuse issues and began using
controlled substances just a few weeks after her release from the rider. The magistrate court also
found that the concerns which initially brought R.H.-C. into custody had not been sufficiently
alleviated and that Doe had not provided any financial support for R.H.-C., demonstrated
protective parenting abilities, provided a safe and stable home environment, or demonstrated the
ability to meet all of the child’s needs. Despite Doe’s love for her child, the magistrate court
concluded Doe’s visitation consisted of no visits in August 2019, one visit in September 2019,
and one visit in October 2019. The magistrate court also found Doe had been unable to put
R.H.-C.’s needs above her own substance abuse and criminal behavior, demonstrating a lack of
insight into her parenting capability and her inability to provide for R.H.-C.’s health, safety, and
well-being. The magistrate court also found that Doe had not complied with the case plan and
that R.H.-C. has improved significantly while in foster care and he is thriving.
2
The petition to terminate parental rights was amended to correct the numbering of the
allegations.
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As a result, the magistrate court found there was clear and convincing evidence that Doe
had neglected R.H.-C. as alleged in the petition and that reunification had not occurred in the
fifteen months R.H.-C. was in the custody of the Department. The magistrate court then found
that terminating Doe’s parental rights was in the best interests of R.H.-C. so that he could have a
parent who could provide him with not only love, but support, stability, and a drug-free and
criminal-free environment in which to grow up. The magistrate court concluded that R.H.-C.
was well cared for and had bonded with his foster parent and that termination of Doe’s parental
rights would provide R.H.-C. with the continued permanency, routine, and regularity with a
stable parental figure that he had enjoyed and bonded with since coming into custody of the
Department. According to the magistrate court, the uncontroverted testimony established that
terminating Doe’s parental rights would allow R.H.-C. “to have the real opportunity to continue
to grow and develop in a safe, stable home, free of criminality and drug use.” The magistrate
court entered a judgment terminating Doe’s parental rights and Doe appealed.
II.
STANDARD OF REVIEW
On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required. Doe v.
Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally
understood to be evidence indicating that the thing to be proved is highly probable or reasonably
certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate
court’s decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346,
144 P.3d at 600.
Idaho Code § 16-2005 permits a party to petition the court for termination of the parent-
child relationship when it is in the child’s best interests and any one of the following five factors
exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between the
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child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities for
a prolonged period that will be injurious to the health, morals, or well-being of the child; or
(e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each
statutory ground is an independent basis for termination. State v. Doe, 144 Idaho 839, 842, 172
P.3d 1114, 1117 (2007).
III.
ANALYSIS
Doe challenges the magistrate court’s finding that Doe neglected R.H.-C. and that
terminating her parental rights is in the best interest of R.H.C. This Court affirms the magistrate
court’s findings that Doe neglected R.H.-C. and that terminating Doe’s parental rights is in the
best interests of R.H.-C.
A. The Magistrate Court Did Not Err When It Found Doe Neglected R.H.-C.
A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d
341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States
Constitution. Doe, 144 Idaho at 842, 172 P.3d at 1117. Implicit in the Termination of Parent
and Child Relationship Act is the philosophy that, wherever possible, family life should be
strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due process must be
met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d
649, 652 (2006). Due process requires that the grounds for terminating a parent-child
relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty
interest is at stake, the United States Supreme Court has determined that a court may terminate a
parent-child relationship only if that decision is supported by clear and convincing evidence.
Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In re Doe, 146 Idaho
759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652.
The magistrate court terminated Doe’s parental rights on the ground of neglect. Idaho
Code § 16-2002(3)(a) defines “neglect” as any conduct included in I.C. § 16-1602(31). Section
16-1602(31)(a) provides, in pertinent part, that a child is neglected when the child is without
proper parental care and control, or subsistence, medical or other care or control necessary for
his or her well-being because of the conduct or omission of his or her parents, guardian, or other
custodian or their neglect or refusal to provide them. Neglect also exists where the parent has
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failed to comply with the court’s orders or the case plan in a Child Protective Act case and the
Department has had temporary or legal custody of the child for fifteen of the most recent twenty-
two months and reunification has not been accomplished by the last day of the fifteenth month in
which the child has been in the temporary or legal custody of the Department. I.C. § 16-
2002(3)(b).
The Department filed a petition to terminate Doe’s parental rights alleging three counts of
neglect for: failing to demonstrate appropriate parenting (Count V); her inability to provide
proper parental care and control because of her substance abuse and criminal thinking (Count
VI); and her failure to complete the court-ordered case plan with the child in the custody of the
Department for the last fifteen months (Count VII). The magistrate court found Doe neglected
her child under all three counts. Doe challenges the findings of neglect under Counts VI and
VII. Doe failed to challenge the finding of neglect under Count V. Thus, “this Court need not
reach [Doe’s] argument because, even if she is correct, the magistrate court’s order contains
additional, unchallenged findings of neglect that must be affirmed.” Matter of Doe, 165 Idaho
46, 51, 437 P.3d 922, 927 (2019).
The magistrate court’s finding that Doe neglected R.H.-C. as alleged in Count V by
failing to demonstrate appropriate parenting is affirmed. However, even if this Court were to
consider Doe’s other arguments, the finding of neglect would still be affirmed.
Doe argues the magistrate court erred in finding she neglected R.H.-C. as demonstrated
by her inability to provide proper parental care and control because of her substance abuse and
criminal thinking. Doe argues that she put R.H.-C.’s needs ahead of her own by leaving him in
the custody of the Department while she was in custody and after her release. We disagree. To
the extent Doe is arguing she did not neglect R.H.-C. because he was in foster care, a parent
is not relieved of her parental responsibilities because the care necessary for the child’s
well-being is provided by someone else. Doe v. Doe I, 162 Idaho 653, 659, 402 P.3d 1106,
1112 (2017).
Doe also appears to argue for the first time on appeal that she is “essentially temporarily
disabled” and simply needed more time to reunify with R.H.-C. We disagree. Doe fails to point
to anything in the record or by way of authority that would indicate her on-going drug use is the
same as a disability as defined in the Child Protective Act (CPA). Failure to provide authority
results in the issue being waived. Idaho Dep’t of Health & Welfare v. Doe, 151 Idaho 498, 503
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n.1, 260 P.3d 1169, 1174 n.1 (2011). Even after Doe completed substance abuse treatment, she
continued to use controlled substances with sufficient frequency that it affected her ability to
visit R.H.-C. and resulted in additional criminal charges. To the extent Doe is arguing that the
Department should have provided additional resources to attempt reunification, it is well-settled
that the Department’s efforts at reunification are not relevant to the magistrate court’s
termination decision under Idaho Code § 16-2005. See In re Doe, 164 Idaho 883, 889, 436 P.3d
1232, 1238 (2019).
Based on the evidence in this case, there was clear and convincing evidence to support
the magistrate court’s findings that Doe neglected R.H.-C. as alleged in the petition. At the time
R.H.-C. was taken into custody, he was dirty, had rashes from lack of hygiene, and had physical
and behavioral developmental delays. Despite this, Doe testified the child’s needs were “mostly
met,” even though she admitted to using methamphetamine with her wife while they were the
primary caregivers of R.H.-C. Doe failed to comply with the case plan because of her on-going
drug use, she failed to consistently engage in visitation, and failed to meet the basic needs of
R.H.-C. Thus, the magistrate court’s finding of neglect is affirmed.
While Doe concedes she did not complete her case plan and R.H.-C. was in custody for
fifteen of the most recent twenty-two months, she argues the magistrate court erred in finding
neglect on this ground because the magistrate court did not articulate its decision was
discretionary. Doe also argues the magistrate court’s finding that she did not complete her case
plan is undermined by the fact that she was making good progress on her case plan. That
argument is belied by the record. While Doe had obtained full-time employment approximately
one month before the termination hearing, she had also accrued additional criminal charges,
continued to use controlled substances, had sporadic visits with R.H.-C., provided no financial
support of any kind, and did not follow through with mental health or substance abuse treatment.
Although she had successfully completed substance abuse treatment while in custody, she
relapsed within weeks of being released. She had no stable residence and agreed that it would
not be in R.H.-C.’s best interests to stay with her where she was residing. By the time of the
termination trial, R.H.-C. had remained in the Department’s care for half of his life. Doe did not
complete her case plan when she was out of custody. Consequently, the magistrate court’s
holding that Doe neglected her minor child is supported by substantial and competent evidence.
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B. The Magistrate Court Did Not Err When It Found Termination Was in the Best
Interests of R.H.-C.
Doe argues the magistrate court’s decision to terminate her parental rights should be
reversed because the court erred when it found that it was in R.H.-C.’s best interests to terminate
Doe’s parental rights. Doe does not challenge any of the magistrate court’s factual findings, only
whether those findings rise to the level of clear and convincing evidence. Once a statutory
ground for termination has been established, the trial court must next determine whether it is in
the best interests of the children to terminate the parent-child relationship. In re Aragon, 120
Idaho 606, 611, 818 P.2d 310, 315 (1991). When determining whether termination is in the
children’s best interests, the trial court may consider the parent’s history with substance abuse,
the stability and permanency of the home, the unemployment of the parent, the financial
contribution of the parent to the children’s care after the children are placed in protective
custody, the improvement of the children while in foster care, the parent’s efforts to improve his
or her situation, and the parent’s continuing problems with the law. In re Doe, 159 Idaho 192,
198, 358 P.3d 77, 83 (2015); In re Doe, 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014). A
finding that it is in the best interests of the children to terminate parental rights must still be made
upon objective grounds. In re Doe, 152 Idaho 953, 956-57, 277 P.3d 400, 403-04 (Ct. App.
2012).
Doe argues the magistrate court’s finding that termination was in the best interests of
R.H.-C. was not supported by clear and convincing evidence because Doe loved and was bonded
with R.H.-C. Love does not always translate into the ability to discharge parental
responsibilities. Idaho Dep’t of Health & Welfare v. Doe, 149 Idaho 165, 171, 233 P.3d 96, 102
(2010). Doe’s love for R.H.-C. does not override the court’s finding that terminating her
parental rights was in R.H.-C.’s best interests. See In re Doe, 157 Idaho 694, 703, 339 P.3d 755,
764 (2014).
Doe also argues that had she been given more time to complete the case plan and had the
Department done more to help her reunify with R.H.-C., termination would not have been
necessary. As noted above, the efforts of the Department are not relevant during a termination
proceeding. See In re Doe, 164 Idaho at 889, 436 P.3d at 1238. Additionally, nothing in the
record indicates that additional time would have allowed Doe to successfully reunify with
R.H.-C.
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The magistrate court considered all the evidence and found that termination of Doe’s
parental rights is in the best interests of R.H.-C. Doe’s substance abuse and criminal thinking
were so pervasive that R.H.-C. was found dirty, had a chemical burn on his thigh, had finger
marks on his arm, was sitting in a car seat soaked with urine and coated with feces and rotting
food in a car filled with garbage and rotting food. The magistrate court found that even after
successfully completing substance abuse treatment while on a rider, Doe relapsed within weeks
and had no realistic plan for sobriety upon her release, for housing, or for providing a safe and
stable residence for R.H.-C. As evidenced by the physical status of R.H.-C.--his delayed
development for growth, weight, and language--Doe did not understand how to care for the
child, nor had she demonstrated any insight into the child’s needs throughout the pendency of the
case.
The magistrate court found that the safety concerns that brought the child into care had
not been sufficiently alleviated and Doe’s case plan had not been completed. Doe had not
provided any significant financial support for the child, demonstrated protective parenting
abilities, provided a safe and stable home environment free of substance abuse and criminality,
or exhibited the ability to meet all of R.H.-C.’s basic needs. Additionally, although Doe loves
R.H.-C., she was unable to put his needs above her own criminality and significant drug use,
which demonstrated a lack of insight into her parenting capability and her current (and
prior) inability to meet the child’s basic health, safety, and well-being needs.
The magistrate court also found that since R.H.-C. has been in foster care, he has bonded
with his foster parent and thrived in her care. For example, when R.H.-C. entered foster care, he
was apprehensive and had difficult behavioral issues. By the time of the termination hearing, he
had become confident; he felt safe; and his demeanor had improved tremendously. Additionally,
R.H.-C. has overcome all his developmental delays and there are no longer any health or
developmental concerns. The magistrate court found the minor child has made great progress
and is happy, loved, and thriving.
The magistrate court found that based on the length of time R.H.-C. has been in the
custody of the Department, the significant progress he has made, his young age, and the
importance of a permanent placement, it is in R.H.-C.’s best interests to terminate Doe’s parental
rights. The magistrate court also found that termination of Doe’s parental rights would provide
the minor child with the permanency, routine, and regularity with a stable parental figure that he
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has enjoyed and bonded with since coming into the custody of the Department and that
termination is appropriate so that R.H.-C. can continue to live and thrive with a sense of security,
predictability, love, and attachment.
Here, the magistrate court considered Doe’s testimony that she loves her child and had
visitation with the child while in custody. In this case, Doe’s love for her child and the fact that
she had visitation with the child does not override the court’s finding that terminating Doe’s
parental rights is in R.H.-C.’s best interests. As such, the magistrate court’s determination that
terminating Doe’s parental rights is in the best interests of R.H.-C. is affirmed.
IV.
CONCLUSION
The magistrate court’s judgment terminating Doe’s parental rights is affirmed.
Judge GRATTON and Judge BRAILSFORD CONCUR.
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