                    IN THE SUPREME COURT OF THE STATE OF IDAHO

                                               Docket No. 44268

In the Matter of the DOE CHILDREN,      )
Children Under the Age of Eighteen Years.
                                        )
--------------------------------------------------------
                                        )
                                                                  Boise, October 2016 Term
JOHN DOE I and JANE DOE I,              )
                                        )
                                                                  2016 Opinion No. 125
     Petitioners-Respondents,           )
v.                                      )
                                                                  Filed: November 3, 2016
                                        )
JANE DOE II (2016-23),                  )
                                                                  Stephen W. Kenyon, Clerk
                                        )
     Respondent-Appellant.              )
_______________________________________ )

         Appeal from the District Court of the Third Judicial District of the State of Idaho,
         Payette County. Hon. Brian D. Lee, Magistrate Judge.

         The order of the magistrate court is affirmed.

         Timothy Shane Darrington, Weiser, for appellants.

         Law Office of John Alegria, Boise, for respondent. John Alegria argued.

                                          _____________________

BURDICK, Justice
         Jane Doe (Mother) brings this expedited appeal from the Payette County Magistrate
Court, which terminated her parental rights to her two children, M.S. and I.P. On appeal, Mother
contends the magistrate erred by concluding she (1) abandoned M.S. and I.P. by failing to
maintain a normal parental relationship, and (2) neglected M.S. and I.P. by failing to provide
proper parental care. We affirm.


                       I. FACTUAL AND PROCEDURAL BACKGROUND
         This case concerns Mother’s parental rights to her two children, M.S. and I.P. Jane Doe I
and John Doe I (Respondents) are the paternal great-grandparents of M.S. and I.P. Respondents
started caring for M.S. and I.P. in late 2010. At that time, Respondents witnessed Mother unable

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to hold steady employment and a permanent residence, which forced Mother to “leav[e] [M.S.
and I.P.] with people all the time.” Additionally, Father (Respondents’ grandson) had recently
moved out-of-state and largely severed contact with M.S. and I.P. Respondents became
concerned about the well-being of M.S and I.P. Consequently, Respondents began hosting M.S.
and I.P at their home, offered to let Mother move in with them, and regularly gave Mother
money to buy groceries.
        For reasons unclear, the Idaho Department of Health and Welfare (IDHW) took M.S. and
I.P. from Mother in January 2011 and placed M.S. and I.P. with Respondents, who live in
Payette. Respondents were awarded guardianship in April 2011 and have since cared fulltime for
M.S. and I.P. Mother was awarded supervised visitation in 2012, but after missing approximately
14 visits, Mother’s supervised visitation rights were terminated in 2014. Respondents observed
the visits Mother did attend and concluded Mother “is a good playmate, but as far as taking care
of their needs, their wants, she just don’t [sic] seem to have the capacity to do so.”
        Since Respondents were awarded guardianship in April 2011, Mother has been minimally
involved with parenting M.S. and I.P. Specifically, Mother has failed to (1) provide financial
support to M.S. and I.P.; (2) help Respondents “cover the cost of keeping [M.S. and I.P.]”; and
(3) “[c]over expenses of any kind.” Mother’s passive role is partly explained by the fact that,
from April 2015 to October 2015, she served time in jail for aggravated assault. But even since
her release from jail in October 2015, Mother has had only minimal contact with M.S. and I.P.
From October 2015 to April 2016, Mother made approximately five phone calls and five visits to
M.S. and I.P. Apparently, Mother has no driving privileges and is thus limited in her ability to
travel from the Boise/Nampa1 area to visit M.S. and I.P. in Payette.
        In November 2014, Respondents filed a petition to terminate Mother’s parental rights to
M.S. and I.P and for adoption. Respondents amended the petition in January 2015, seeking to
also terminate Father’s parental rights. Father accepted service, but he never appeared. The
magistrate held a bench trial on the issue of terminating parental rights, leaving the adoption
issue for another day. Mother did not personally appear at trial, but appeared through counsel.2
At trial, Respondent Jane Doe I, the only witness, testified to the above facts. The magistrate

1
  Mother’s place of residence appears to alternate between Boise and Nampa.
2
  At the outset of trial, the magistrate noted as follows: “[T]he mother of the children, is not here today, has not
maintained communication with [her attorney]. She did make an answer in the case, but she’s not really participated
in the case since having done that, or at least for a long time.”
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concluded Mother and Father had both abandoned and neglected M.S. and I.P. The magistrate
further concluded terminating Mother’s and Father’s parental rights was in the best interests of
M.S. and I.P. Thereafter, the magistrate entered an order terminating Mother’s and Father’s
parental rights. Mother timely appeals.
                                           II. ISSUES ON APPEAL
1.       Does clear and convincing evidence establish abandonment?
2.       Does clear and convincing evidence establish neglect?
                                       III. STANDARD OF REVIEW
         Under “Idaho Code section 16-2005(1), a court may terminate parental rights if it finds
that doing so is in the best interests of the child and that at least one of five grounds for
termination is satisfied.” In re Doe (2014-23), 157 Idaho 920, 923, 342 P.3d 632, 635 (2015).
“The grounds for terminating a parent-child relationship must be proved by clear and convincing
evidence.” In re Doe (2013-15), 156 Idaho 103, 105–06, 320 P.3d 1262, 1264–65 (2014); see
also I.C. § 16-2009. “Clear and convincing evidence is evidence that indicates the thing to be
proved is highly probable or reasonably certain.” In re Doe (2014-17), 157 Idaho 694, 699, 339
P.3d 755, 760 (2014). “This Court must ‘conduct an independent review of the magistrate court
record, but must draw all reasonable inferences in favor of the magistrate court’s judgment, as
the magistrate court has the opportunity to observe witnesses’ demeanor, to assess their
credibility, to detect prejudice or motive and to judge the character of the parties.’ ” In re Doe
(2014-23), 157 Idaho at 923, 342 P.3d at 635 (quoting Doe v. Doe, 150 Idaho 46, 49, 244 P.3d
190, 193 (2010)).
                                                 IV. ANALYSIS
         Mother challenges the termination of her parental rights by contending clear and
convincing evidence establishes neither abandonment nor neglect.3


A.       Clear and convincing evidence establishes abandonment.
         Mother contends the magistrate erred by concluding she abandoned M.S. and I.P. Idaho
Code section 16-2002(5) provides as follows:


3
  We note that Idaho Code section 16-2005(1) requires analysis as to the best interests of the children before parental
rights may be terminated. However, because Mother makes no argument on appeal as to the magistrate’s analysis of
the best interests of M.S. and I.P., we do not address the best interests of M.S. and I.P.
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                 “Abandoned” means the parent has willfully failed to maintain a normal
         parental relationship including, but not limited to, reasonable support or regular
         personal contact. Failure of the parent to maintain this relationship without just
         cause for a period of one (1) year shall constitute prima facie evidence of
         abandonment under this section; provided however, where termination is sought
         by a grandparent seeking to adopt the child, the willful failure of the parent to
         maintain a normal parental relationship as provided herein without just cause for
         six (6) months shall constitute prima facie evidence of abandonment.4
Thus, abandonment may arise in the absence of “reasonable support or regular personal contact.”
I.C. § 16-2002(5). “The word ‘or’ is a disjunctive particle used to express an alternative. Thus,
the willful failure to maintain a normal parental relationship can be based upon either the failure
to pay reasonable support, or the failure to have regular personal contact, or some other failure.”
Doe I v. Doe II, 148 Idaho 713, 715, 228 P.3d 980, 982 (2010) (citation omitted). “There is no
universal standard for what constitutes a normal parental relationship, and whether such a
relationship exists depends on the facts and circumstances of each case.” Doe v. Doe, 150 Idaho
46, 50, 244 P.3d 190, 194 (2010).


         Here, the magistrate held that clear and convincing evidence established Mother
abandoned M.S. and I.P. by “failing to maintain a normal Parental Relationship with them.” The
magistrate specifically found that Mother failed to provide reasonable support and articulated the
following findings:
         The testimony is that [Mother] reports to being employed. The testimony also is
         that [Jane Doe I] is somewhat skeptical about whether [Mother] actually is
         employed in that period of time because at least on one occasion the claim of
         employment, there was some follow-up done that suggested that may not have
         ever existed.
                 So it’s difficult for this Court to say exactly what [Mother’s] financial
         resources are, but she self reports that she has something, she is employed and so
         would have some financial resources.


4
  Respondents cite the six-month provision in their brief, but they provide no authority that “grandparent” as used in
Idaho Code section 16-2002(5) includes “great-grandparent.” We do not address that issue because the magistrate’s
findings focus on Mother’s lack of personal contact and reasonable support during the preceding one-year period.
For instance, the magistrate noted that Mother “certainly failed to maintain a normal parental relationship, but more
generally, she’s failed to act as a parent, at least over the last year, and as I understand the testimony, for much,
much longer than that.” Similarly, the magistrate clarified that “[s]o [Mother] made five phone calls and maybe had
five visits or so. Is that a fair kind of estimation over the last year?” And, “[s]o over the last year, she may have had
10 contacts with the kids?” Accordingly, we do not address whether “grandparent” as used in Idaho Code section
16-2002(5) includes “great-grandparent” because the magistrate focused on Mother’s lack of personal contact and
reasonable support during the preceding one-year period.
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              The Court cannot determine the scope of that, but the testimony is that she
       provides no support.
              So even under the most modest of circumstances, even if her employment
       was sporadic and limited and very low paid, she would have some available to
       provide some support of some kind, and she’s failed to do that.
       Yet, even though the magistrate found that Mother was “employed and so would have
some financial resources,” testimony at trial showed as follows:
       THE COURT: Does she support the children financially? Does she provide
       resources --
       [Jane Doe I]: No.
       THE COURT: -- to help?
       [Jane Doe I]: No.
       THE COURT: Cover any expenses of any kind?
       [Jane Doe I]: Pardon?
       THE COURT: Does she provide resources to you or your husband to help --
       [Jane Doe I]: No.
       THE COURT: -- cover the cost of keeping the children?
       [Jane Doe I]: No.
In fact, Mother “never bought [M.S. and I.P.] anything except some toys, little stuff.”
       On appeal, Mother does not contend she provided reasonable support. Mother asserts
instead that the lack of reasonable support is supported by just cause because the evidence
showed only that “Mother may have been working at some time in the past,” but did not
conclusively establish she in fact was able to provide reasonable support. Granted, testimony at
trial showed Mother gave conflicting accounts as to her status of employment. However, one-
month before trial, Mother reported that she was employed at “D & A Glass.” Because that
testimony was not rebutted, we conclude the magistrate did not err by determining that Mother
had at least some financial ability to provide reasonable support, but failed to do so. See, e.g., In
re Doe (2014-22), 157 Idaho 955, 958, 342 P.3d 667, 670 (2015) (“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.” (citation omitted)).
       We affirm that clear and convincing evidence establishes Mother abandoned M.S. and
I.P. by failing to provide reasonable support without just cause. Although the magistrate further
held that Mother’s lack of personal contact also established abandonment, we do not address that
issue because the lack of reasonable support, by itself, establishes abandonment.



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B.     Clear and convincing evidence establishes neglect.
       Mother contends the magistrate erred by concluding she neglected M.S. and I.P. In
relevant part, Idaho Code section 16-1602(31) defines a “neglected” child as one:
       (a) Who is without proper parental care and control, or subsistence, medical or
       other care or control necessary for his well-being because of the conduct or
       omission of his parents, guardian or other custodian or their neglect or refusal to
       provide them; however, no child whose parent or guardian chooses for such child
       treatment by prayers through spiritual means alone in lieu of medical treatment
       shall be deemed for that reason alone to be neglected or lack parental care
       necessary for his health and well-being, but this subsection shall not prevent the
       court from acting pursuant to section 16-1627, Idaho Code[.]
       The magistrate concluded Mother neglected M.S. and I.P. by failing to provide
“meaningful support.” The magistrate specifically reasoned as follows:
               As to neglect, neglect is, the statute for describing neglect is out of the
       Child Protection Act at 16-1602(25), and it describes a child that was without the
       proper parental care and control or assistance, education, medical, control
       necessary for that child’s well-being.
               Well, the testimony is in this case that [Mother] is doing none of those
       things. She’s not providing any parental care of any kind relating to education,
       medications, subsistence, [M.S.’s and I.P.’s] well-being. So the testimony reflects
       an absolute neglect of [M.S. and I.P.], as well as an abandonment as to [Mother].
               This Court finds both of those things to be true by clear and convincing
       evidence.
       Mother’s argument as to neglect is rather conclusory. She contends “there was no
evidence of neglect on the part of Mother.” She then cites to In re Baby Doe, 130 Idaho 47, 53,
936 P.2d 690, 696 (Ct. App. 1997), where neglect was found when, during the first 4.5 months of
the child’s life: (1) the father and the child were homeless; (2) the father laced the child’s nursing
bottle with alcohol; (3) the father left the child for six days with a woman who the father had
never met; and (4) the child suffered a human bite and was described as “look[ing] unhealthy.”
Based on those facts, the court reasoned that “the father exhibited an inability to provide for the
child’s welfare by failing to maintain a stable lifestyle, with steady employment and a home.” Id.
at 54, 936 P.2d at 697. As such, the court found clear and convincing evidence of neglect. Id.
       We conclude the magistrate did not err by finding neglect. To be sure, Mother is correct
that some facts in this case are not as jarring as the facts in In re Baby Doe, where the child’s
nursing bottle was laced with alcohol and the child suffered a human bite. Even so, clear and
convincing evidence still establishes neglect because Mother failed to provide proper parental

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care. Similar to In re Baby Doe, Mother was homeless and had a difficult time keeping a job and
permanent residence. Since M.S. and I.P. have been in Respondents’ care, Mother has not (1)
provided any resources to help M.S. and I.P.; (2) covered expenses “of any kind”; and (3)
covered “the cost of keeping [M.S. and I.P.]” Thus, we affirm that clear and convincing evidence
establishes neglect because Mother has provided no parental care.
                                      V. CONCLUSION
       We affirm the termination of Mother’s parental rights because clear and convincing
evidence establishes both abandonment and neglect. Costs to Respondents.
       Chief Justice J. JONES and JUSTICES EISMANN, W. JONES and HORTON,
CONCUR.




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