                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 44376-2016

IN THE MATTER OF THE                                 )
TERMINATION OF THE PARENTAL                          )       Boise, December 2016 Term
RIGHTS OF:                                           )
                                                     )       2016 Opinion No. 155
                                                     )
JANE DOE (2016-31),                                  )       Filed: December 22, 2016
                                                     )
    Respondent-Appellant.                            )       Stephen W. Kenyon, Clerk
                                                     )

       Appeal from the Magistrate Court of the Fifth Judicial District of the State of
       Idaho, in and for Lincoln County. Hon. Jennifer L.K. Haemmerle, Magistrate
       Judge.

       The judgment of the magistrate court is affirmed.

       Jeremy Pittard, Lincoln County Public Defender, Burley, argued for appellant.

       James T. Baird, Deputy Attorney General, Twin Falls, argued for respondent
       Idaho Department of Health and Welfare.

       John B. Lothspeich; Williams, Meservy & Lothspeich, LLP; Jerome, argued for
       the Guardian Ad Litem.



EISMANN, Justice.
       This is an appeal out of Lincoln County from a judgment of the magistrate court
terminating a mother’s parental rights in her three children. The only issue on appeal is the
district court’s denial of the appointment of a guardian ad litem for the mother. We affirm the
judgment of the magistrate court.
                                                I.
                                     Factual Background.
       The Lincoln County Sheriff took three children into shelter care on July 10, 2013,
pursuant to Idaho Code section 16-1608(1) on the ground that the children were endangered in
their surroundings and that prompt removal was necessary to prevent serious physical or mental
injury to the children. On the same day, the prosecuting attorney filed a petition under the Child
Protective Act (“CPA”) and the magistrate court appointed a public defender to represent the
children’s mother (“Mother”) and another public defender to represent the children’s father
(“Father”). On the following day, the parties stipulated that the children had an unstable home
environment and a lack of education, and on July 24, 2013, the court entered an order placing the
children in the custody of the Idaho Department of Health and Welfare (“Department”) pending
the adjudicatory hearing. The adjudicatory hearing was held on August 21, 2013. Mother did
not appear, but her counsel was present as was the children’s father and his counsel. Based upon
the stipulation to certain evidence by the parties present and the court taking judicial notice of
two reports, the court found that the children were within the purview of the CPA. It ordered
that legal custody of each of the children was vested in the Department until each child’s
eighteenth birthday.
       On May 29, 2015, the Department filed a petition to terminate the parental rights of
Mother and Father. The evidentiary hearing on that petition was held on March 29 and 30, 2016.
On the morning of the first day of the hearing, Mother’s counsel, Mr. Pittard, stated that Mother
requested a continuance because she did not feel she had had enough time to speak with him. He
also stated that he would like the magistrate court to determine whether a guardian ad litem
should be appointed for Mother pursuant to Idaho Code section 16-2007(5). The magistrate
court denied the requested continuance and the appointment of a guardian ad litem. Based upon
the evidence presented during the hearing, the court found that the parental rights of Mother and
of Father should be terminated on the ground that they each had neglected the children and that
termination of their parental rights was in the best interests of the children. The court entered its
judgment on June 21, 2016, and an amended judgment on July 21, 2016.                 Mother timely
appealed, but Father did not appeal. The factual basis for the court’s findings need not be
addressed because Mother has not challenged the court’s findings of fact and conclusions of law
on appeal.


                                                 II.
  Did the Magistrate Court Err in Failing to Appoint a Guardian Ad Litem for Mother?
       On the morning of the evidentiary hearing on the petition to terminate Mother’s parental
rights, her counsel, Mr. Pittard, requested that the magistrate court determine whether Mother
was incompetent so that a guardian ad litem would need to be appointed for her. The request for


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appointment of a guardian ad litem for Mother was based upon Idaho Code section 16-2007(5)
which states:
               When the termination of the parent and child relationship is sought and the
       parent is determined to be incompetent to participate in the proceeding, the court
       shall appoint a guardian ad litem for the alleged incompetent parent. The court
       may in any other case appoint a guardian ad litem, as may be deemed necessary or
       desirable, for any party.

       On May 29, 2013, Mother had been involuntarily committed to the custody of the Idaho
Department of Health and Welfare based upon a court finding that she was suffering from a
mental illness, was likely to injure herself or others, and lacked the capacity to make informed
decisions about her treatment. On July 7, 2013, that commitment was terminated because the
conditions justifying the commitment were found to no longer exist. The petition to terminate
Mother’s parental rights was filed on May 29, 2015, almost two years after Mother’s
commitment was terminated. Thus, at the time this proceeding was commenced, Mother was not
determined to be incompetent.
       Mother contends on appeal that once a petition is filed to terminate a parent’s parental
rights, the trial court is required to make a competency determination. That is not what the
statute provides. It simply provides that when such a determination is made, the court is required
to appoint a guardian ad litem. No determination was requested in this case until the morning of
the evidentiary hearing. In addition, incompetency in a termination proceeding does not have the
same consequences as incompetency in a criminal proceeding. In a criminal case, a defendant
determined to be incompetent cannot “be tried, convicted, sentenced or punished for the
commission of an offense so long as such incapacity endures.” I.C. § 18-210. In a termination
case, a guardian ad litem must be appointed for the parent but the proceedings can proceed.
       Mother was represented by counsel throughout the CPA proceedings. In fact, Mr. Pittard
had been appointed to represent her on May 15, 2015, near the end of the CPA proceedings.
Court minutes for a hearing on July 1, 2015, show that Mr. Pittard was also representing Mother
in a misdemeanor criminal proceeding in Jerome County.
       The petition to terminate Mother’s parental rights was filed in the same case that had
begun as a CPA proceeding, and the petition to terminate Mother’s parental rights was served
upon Mr. Pittard. He withdrew as her counsel on July 6, 2015, and another attorney was
appointed to represent her in the termination proceedings.      Mr. Pittard was reappointed to


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represent her on October 19, 2015, after the other attorney and mother failed to appear on the
first scheduled termination hearing and it was determined that he was no longer practicing law.
       After Mr. Pittard asked the magistrate court to determine whether Mother was competent
to proceed and, if not, to appoint a guardian ad litem for her, Mother was called as a witness and
examined by Mr. Pittard and counsel for the other parties. Idaho Code section 16-2007(5) does
not define the word “incompetent.”       In context, it is incompetence “to participate in the
proceeding.” Therefore, we interpret it to have the same meaning as in a criminal case: the
parent’s lack of capacity to understand the proceedings against him or her or to assist in his or
her own defense. Ridgley v. State, 148 Idaho 671, 677, 227 P.3d 925, 931 (2010). There is a
difference between lack of capacity to understand the proceedings and to assist counsel and the
unwillingness to participate in the proceedings or to assist counsel. From the magistrate court’s
comments, it is apparent that it used this same standard in evaluating whether Mother was
incompetent.
       The court stated that Mother “obviously has an understanding of the court proceedings,
has had access to counsel, [and] by her own admissions is understanding of the nature of the
court action.” In subsequent written findings, the court wrote Mother “was able to identify the
nature of the proceedings as a termination hearing to terminate her parental rights,” that she
“knew Mr. Pittard was her attorney,” and that she “did not want him to represent her, but no
other attorney had appeared.” The court found that Mother’s “participation at numerous court
hearings, starting with her own instigation of allegations against [Father] in protection order
proceedings on July 10, 2013 which precipitated the instant action” showed that Mother “clearly
knew how to access the court system and did so then without assistance of counsel.” The court
noted that Mother “has been diagnosed with schizophrenic disorder, but it could not find “that a
diagnosis of a mental illness immediately and irrevocably qualifies a person as incompetent.”
The court concluded:
              [Mother] participated in this action; had counsel appointed throughout to
       represent her interests; had the services of her physician; had the services of the
       Department available to her; and was observed throughout the proceedings by
       both court and counsel. At no time was [Mother] determined to be incapable of
       understanding and/or participating in the proceedings.




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Indeed, the record shows that on July 1, 2015, Mr. Pittard was representing Mother in a criminal
case in Jerome County, and there is no indication that he raised the issue of her competence in
that proceeding.
       The magistrate court observed Mother in court and heard her testify. There was no other
testimony offered with respect to Mother’s competence, including no expert testimony. “It is the
province of the trial court to determine the credibility of witnesses, the weight to be given their
testimony, and the inferences to be drawn from the evidence.” KMST, LLC v. Cnty. of Ada, 138
Idaho 577, 581, 67 P.3d 56, 60 (2003). “A trial court’s findings of fact will not be set aside on
appeal unless they are clearly erroneous.” Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850,
856, 55 P.3d 304, 310 (2002). “It is the responsibility of the trial court to judge the credibility of
witnesses and weigh conflicting evidence.” Greenfield v. Wurmlinger, 158 Idaho 591, 598, 349
P.3d 1182, 1189 (2015). Mother has not shown that the magistrate court’s findings regarding
Mother’s competence are clearly erroneous. “[A] defendant parent may have a mental illness or
deficiency and still be competent for purposes of the proceeding such that a guardian ad litem is
not necessary.” Doe I v. Doe, 138 Idaho 893, 905, 71 P.3d 1040, 1052 (2003).
       Idaho Code section 16-2007(5) also provides that “[t]he court may in any other case
appoint a guardian ad litem, as may be deemed necessary or desirable, for any party.” Whether
to appoint a guardian ad litem under that provision is within the discretion of the court. Doe v.
Doe, 149 Idaho 392, 398–99, 234 P.3d 716, 722–23 (2010). “To determine whether a trial court
has abused its discretion, this Court considers whether it correctly perceived the issue as
discretionary, whether it acted within the boundaries of its discretion and consistently with
applicable legal standards, and whether it reached its decision by an exercise of reason.” Reed v.
Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002). There has been no showing that the court
abused its discretion in failing to appoint a guardian ad litem under this provision.


                                                 III.
 Did the Magistrate Court Abuse Its Discretion in Denying the Motion for a Continuance?
       On the morning of the evidentiary hearing, Mr. Pittard stated that Mother has asked me to
ask the Court for a continuance in the matter “based on the fact that she does not feel like she’s
had enough time to speak with me and to prepare for this at all.” He then recounted difficulties
he had had in contacting her. He learned of a court date she had in Jerome in December, and met


                                                  5
her there. She said she would contact him in December, but failed to do so. As the evidentiary
hearing drew near, he made attempts to contact her, but she did not respond until a couple days
before the hearing.
       “The decision whether to grant a motion to continue trial is within a trial court’s sound
discretion.” Everhart v. Washington Cnty. Rd. & Bridge Dep’t, 130 Idaho 273, 275, 939 P.2d
849, 851 (1997). In denying Mother’s motion for a continuance, the magistrate court stated
               Mr. Pittard, the court finds has been diligent in his representation and his
       efforts to find [Mother] because it appears that she has, to some extent, avoided
       contact with her own counsel. . . . .
               And so at this point in time, given the fact that this matter is, in fact,
       already a continuance from the earlier trial date of October 13th of 2015, that it
       was a 5-month continuance, that Mr. Pittard has been active in this case for 5
       months, I do not find that there’s been any lack of diligence on his part, but I do
       find to the extent that [Mother] has failed to avail herself of counsel that that is
       exclusively her choice and her responsibility, and that will not be seen by the
       Court for basis of a continuance.

After the magistrate court denied the motion for a continuance, the first witness was called to
testify. During that witness’s testimony, Mother voluntarily left the courtroom and did not
return. Under the circumstances in this case, there is no showing that the court abused its
discretion in denying the motion for a continuance.


                                               III.
                                          Conclusion.
       We affirm the judgment of the magistrate court.


       Chief Justice J. JONES and Justices BURDICK, W. JONES and HORTON CONCUR.




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