               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45811

In the Interest of: JOHN DOE II, A Child        )
Under Eighteen (18) Years of Age.               )
JANE DOE and JOHN DOE I,                        )
                                                )    Filed: June 21, 2018
       Petitioners-Respondents,                 )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
JOHN DOE (2018-12),                             )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Respondent-Appellant.                    )
                                                )

       Appeal from the Magistrate Division of the District Court of the Third Judicial
       District, State of Idaho, Canyon County. Hon. Courtnie R. Tucker, Magistrate.

       Judgment terminating parental rights, vacated and case remanded.

       Aaron J. Bazzoli, Canyon County Public Defender; Scott J. Davis, Deputy Public
       Defender, Caldwell, for appellant.

       Wendy M. Powell, Meridian, for respondents.
                ________________________________________________

GUTIERREZ, Judge
       John Doe challenges the magistrate’s termination of his parental rights. Doe argues that
he was denied due process because he was not notified of the hearings and trial regarding the
termination of his parental rights. Doe also argues he was denied due process because he was
appointed an attorney, and his attorney was omitted from all notices of hearing on the petition to
terminate his parental rights.    For the reasons provided below, we vacate the judgment
terminating John’s parental rights and remand the case.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Jane and John have one child together. On August 25, 2017, Jane and the child’s
stepfather filed a petition to terminate John’s parental rights. The petition was personally served


                                                1
on John in a public place. On September 28, 2017, John filed and served a response, which
included a Nampa address for notice of further proceedings. John then filed a motion for
appointment of counsel, which was granted. 1 The order contained notice of a hearing set for
December 6, 2017. The order appointing counsel appears to be a form which the deputy clerk
filled in. It is unclear from the record whether the order appointing counsel was served on John,
his counsel, or Jane. 2
        Notice of the December 6 hearing was also issued by the court two weeks after the
scheduled December 6, 2017, hearing. The notice indicates that it was sent to Jane’s counsel and
to a Caldwell address instead of the Nampa address contained in John’s response. There is no
indication that notice was sent to John’s appointed counsel.
        Another notice was issued by the court on January 4, 2018, for a hearing set for
February 2, 2018. The notice again was addressed to the Caldwell address, not the Nampa
address provided by John in his response. Additionally, there is no indication that the notice was
sent to John’s appointed counsel. Neither John nor his counsel appeared at the February 2, 2018,
hearing. At the February hearing, the magistrate indicated it would issue notice for the trial date
for the termination of parental rights on March 2, 2018. The record does not contain any notice
of the March trial date. Neither John nor his counsel appeared at the trial hearing, at which
John’s parental rights were terminated. The magistrate issued a judgment terminating parental
rights. The judgment was sent solely to John at the Caldwell address, not the Nampa address he
provided on his response. John timely appeals.
                                                 II.
                                  STANDARD OF REVIEW
        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

1
        The record does not contain John’s motion for appointment of counsel.
2
        The order states
        I HEREBY CERTIFY that on this 3 day of October, 2017, I caused to be
        forwarded a true and correct copy of the foregoing order to the following persons:
               Public Defender
               Prosecuting Attorney
               Conflict Attorney
                                                 2
Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the
Termination of Parent and Child Relationship Act is the philosophy that, wherever possible,
family life should be strengthened and preserved. Idaho Code § 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).
       Idaho Code Section 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 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. Doe, 144 Idaho at 842, 172 P.3d at
1117. Due process requires that the grounds for terminating a parent-child relationship be
proved by clear and convincing evidence. Doe, 143 Idaho at 386, 146 P.3d at 652. Additionally,
due process requires that a parent receive notice reasonably calculated under all the
circumstances, to apprise interested parties of the continued pendency of proceedings affecting
their interest in custody of their children, and afford them an opportunity to present their
objections. Idaho Dep’t of Health & Welfare v. Doe, ___ Idaho ___, ___, ___ P.3d ___, ___
(Jul. 22, 2016); Herrera v. Estay, 146 Idaho 674, 781, 201 P.3d 647, 654 (2009).
                                                III.
                                           ANALYSIS
       John argues his procedural due process rights were violated because the magistrate did
not provide adequate notice to apprise him of the hearings and trial prior to terminating his
parental rights. John argues this shortcoming deprived him of an opportunity to be heard. 3 Jane




3
         As a preliminary matter, we must note that John does not challenge service of process,
but solely raises the issue of whether he was provided adequate notice of the proceedings relating
to the termination of his parental rights.


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argues she provided notice to John’s current address. 4 Jane also argues she was unaware of
John’s appointment of counsel. 5
       Idaho Rule of Civil Procedure 5(b)(1) requires that for any written notice to a party that is
represented by an attorney, service is to be made on the attorney unless the court orders service
on the party. Idaho Code § 16-2007 requires that service be made on all parents in termination
proceedings. Therefore, read together, procedural due process for termination of parental rights
cases requires notice to both the attorney of record, if one so exists, and the party. Based on the
record, the only address provided for John was the Nampa address on his responsive pleading. 6
No notices were sent to this address. Further, John was appointed counsel, yet no notices were
sent to counsel. The record does not contain any information regarding the Caldwell address
where the notices were actually sent. The only address contained in the record bearing a
connection to John is the Nampa address contained in the responsive pleading submitted by
John. That address is not the same address which court and counsel sent notices to. Based solely
on the record provided, it appears notice was inadequate. Here, notices were solely sent to John,
at an address that was different than the address provided by John in his responsive pleading.
However, the issue of whether John was provided adequate notice to comply with constitutional
due process strictures was not raised below.        Moreover, the magistrate did not have the
opportunity to address the arguments presented before us, nor did the magistrate address the
issue of notice below.
       In all actions tried before a court without a jury, the trial court is required to make
specific findings of fact and conclusions of law which support its decision. I.R.C.P. 52. The
purpose of I.R.C.P. 52 is to provide the appellate court with a clear understanding of the trial


4
        Jane argues that she sent notice to the address provided by John in the investigation
report. The record does not contain the investigation report; therefore this statement cannot be
checked for accuracy.
5
       Jane asserts in her briefs that Odyssey went live shortly after counsel was appointed, and
counsel failed to indicate via Odyssey that he was attorney of record. Therefore, she was
unaware John was represented. Nothing in the record supports this assertion. Jane also argues,
though in her “Background” section, that any mistake in not notifying John’s counsel of the
hearings was “negated by the fact that John was provided with ample notice.”
6
       Jane presents information that is not supported by the record and references documents
not contained in the record.
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court’s decision so that it may determine whether the trial court applied the proper law in
reaching its ultimate decision. The Highlands, Inc. v. Hosac, 130 Idaho 67, 70, 936 P.2d 1309,
1312 (1997). Therefore, the court, when sitting as the trier of fact, is charged with the duty of
preparing findings of fact in support of its decision, and absence of findings may be disregarded
by the appellate court only where the record is clear and yields an obvious answer to the relevant
question. Trautman v. Hill, 116 Idaho 337, 338, 775 P.2d 651, 652 (Ct. App. 1989). The
magistrate did not make a factual finding regarding whether John received adequate notice. 7
Thus, the record lacks a clear and obvious answer as to whether the Caldwell address to which
the notices were sent by the court and Jane’s counsel were adequate to notify John of the
hearings and trial. Additionally, the record is not clear or obvious regarding the failures of court
and counsel to provide John’s counsel with notice of the hearings and trial. Therefore, since the
record on appeal does not establish adequate notice and because the magistrate must make that
determination, we vacate the judgment and remand this matter to the magistrate.
                                                IV.
                                         CONCLUSION
       The record on appeal lacks factual findings or rulings for this Court to determine whether
proper notice was provided. Therefore, we cannot make a determination regarding whether the
constitutional mandates of procedural due process were met in this situation. Accordingly, the
judgment of the magistrate is vacated and this case is remanded to the magistrate for proceedings
consistent with this opinion.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




7
      In the magistrate’s findings of fact, it solely found service of process was adequate. It did
not mention notice of subsequent hearings and termination proceedings.
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