                   IN 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         )                        Boise, September 2017 Term
WELFARE, GUARDIAN AD LITEM,            )
IDAHO COUNTY PROSECUTING               )                        2018 Opinion No. 39
ATTORNEY and JOHN DOE,                 )
                                       )                        Filed: April 24, 2018
      Petitioners-Appellants,          )
                                       )                        Karel A. Lehrman, Clerk
v.                                     )
                                       )
JOHN DOE I and JANE DOE I, husband and )
wife,                                  )
                                       )
      Respondents.                     )

        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. Spilker 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 respondents. Karin R. Seubert
        argued.


HORTON, Justice.




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       The Idaho Department of Health and Welfare (the Department), the guardian ad litem, a
minor child (L.P.), and the Idaho County prosecuting attorney appeal several orders entered by
the magistrate court in a post-termination Child Protection Act (CPA) case. Following
termination of the parents’ rights to L.P. and his younger half-sister, E.P, the 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. This appeal challenges these orders.
                 I.      FACTUAL AND PROCEDURAL BACKGROUND
       L.P. and E.P. are half-siblings who lived with their maternal grandmother until her
sudden death on March 31, 2014. The 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-grandfather. The Department submitted a permanency plan identifying the goal of
termination of parental rights 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
Department 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 entered an order
terminating the parental rights to both children. On September 4, 2015, the Department was
designated as guardian of both children.
       In November of 2015, the Does moved to intervene in the CPA case. The magistrate
judge denied the motion. The court then entered an order prohibiting 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
together 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 review of the case, the magistrate court

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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. This
Court granted the appellants’ 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, 924 (2014). We 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 decision 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. This 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
rights.
          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 requirements 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 requirement 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 terminating 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 Rights of Doe
(2013-17), 155 Idaho 896, 900, 318 P.3d 886, 890 (2014); see also Doe (2013-23) v. Doe, 155
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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 were 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 judge’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 of 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 being
       provided. Permanency 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 when 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 confidence 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 match 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 together 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 says 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 Department.


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         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 including 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 progress 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. Sister
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, 1037 (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 these 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 modification with
regard to E.P. This partial acceptance and partial rejection reflects the trial court’s recognition of
its discretion. However, the court must have also “acted within the outer boundaries of its
discretion and consistently 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).

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       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 determine 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.
       In 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 “the 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 magistrate 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 expert 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
children, this ceased to be an option when the Does had L.P. removed from their home in 2015.
After L.P.’s removal from 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 magistrate 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.
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   C. The magistrate court abused its discretion by preventing the Department from
      removing E.P. from the Does’ home.
       On 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
abuse of discretion.
       The 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, 134 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 authority 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 the 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 prescribes the procedure for terminating a guardianship under the CPA. The first of
these requirements is a motion. I.C. § 15-5-212A(5). Next, the movant must show by clear and
convincing evidence that (1) there has been a substantial and material change in circumstances
since the appointment of the guardian and (2) termination of the guardianship would be in the
best interests of the minor. Id. Finally, 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. § 15-5-212A(3). In this case, the
record clearly shows that these procedures were not followed. Accordingly, we hold that the
magistrate court erred in its sua sponte termination of the Department’s guardianship.
   E. The Appellants have not shown prejudice to a substantial right on the issue of the
      Does’ participation before the magistrate court.

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       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 errors 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 implicated.” 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 carefully 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 children” 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.
       The Department also disputes the magistrate court’s finding that the Department failed to
take 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 refused 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. Manzanares, 152 Idaho 410, 419, 272 P.3d 382,
391 (2012).
                                      IV. CONCLUSION

       We vacate the orders of the magistrate court refusing to allow the Department to modify
the permanency plan for E.P., revoking the Department’s guardianship of E.P, and directing the



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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.




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