               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41416

IN THE MATTER OF THE                             )
TERMINATION OF THE PARENTAL                      )
RIGHTS OF JANE (2013-24) DOE.                    )
JOHN DOE and JANE DOE,                           )    2014 Unpublished Opinion No. 310
                                                 )
       Petitioners-Respondents,                  )    Filed: January 7, 2014
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
JANE (2013-24) DOE,                              )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
       Respondent-Appellant.                     )    BE CITED AS AUTHORITY
                                                 )

       Appeal from the Magistrate Division of the District Court of the Fifth Judicial
       District, State of Idaho, Cassia County. Hon. Mick Hodges, Magistrate.

       Order terminating parental rights, affirmed.

       Timothy J. Schneider, Mini-Cassia Public Defender; Jacob D. Twiggs, Deputy
       Public Defender, Burley, for appellant.

       Alfred E. Barrus, Burley, for respondents.
                  ________________________________________________
GRATTON, Judge
       Jane Doe (Mother) appeals from the magistrate’s order terminating her parental rights.
We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       John Doe and Jane Doe (Adoptive Father and Adoptive Mother, or Parents) filed a
petition for termination and for adoption. Adoptive Father is the child’s paternal grandfather,
who is married to Adoptive Mother. The birth father’s rights were terminated when he failed to
appear at the scheduled termination hearing. Mother was appointed counsel and contested the
termination. The termination hearing was held in August 2013. Evidence at the hearing showed
Parents began providing weekend care for the child in 2004. During that time, the child showed
signs of neglect while in Mother’s custody. Parents began providing daily care in 2005 and were


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appointed guardians of the child in 2006, having provided the child’s primary care since he was
approximately two years old. Mother had no contact with the child for over five years and
provided no support. Mother claimed she lost Parents’ phone number and attempted to contact
the child by making one call a year to Parents’ work number. Mother was not prevented from
contacting the child in any way.
       The court granted the petition to terminate Mother’s parental rights. The court found
Mother abandoned and neglected the child and that termination was in the best interest of the
child. Mother timely appeals.
                                                II.
                                           ANALYSIS
       Grounds for termination of parental rights must be shown by clear and convincing
evidence because each parent has a fundamental liberty interest in maintaining a relationship
with his or her child. Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re Aragon, 120 Idaho
606, 608-09, 818 P.2d 310, 312-13 (1991).            “Clear and convincing evidence is generally
understood to be ‘[e]vidence indicating that the thing to be proved is highly probable or
reasonably certain.’” In re Adoption of Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006)
(quoting BLACK’S LAW DICTIONARY 577 (7th ed. 1999)). On appeal, this Court will not disturb
the magistrate court’s decision to terminate parental rights if there is substantial, competent
evidence in the record to support the decision. State v. Doe, 143 Idaho 343, 345, 144 P.3d 597,
599 (2006). “Substantial, competent evidence is ‘such evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. at 345-46, 144 P.3d at 599-600 (quoting Folks
v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997)). This Court is
required to 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.” Aragon, 120 Idaho at 608, 818 P.2d at 312.
       In this case, the magistrate court terminated Mother’s parental rights on the grounds of
abandonment and neglect and on a finding it was in the best interest of the child to terminate
those rights. Statutory grounds for termination of parental rights under Idaho Code § 16-2005
include: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between the
child and a presumptive parent; (d) inability to discharge parental responsibilities for a prolonged


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period, which will be injurious to the health, morals, or well-being of the child; or
(e) incarceration for a substantial period of time during the child’s minority. I.C. § 16-2005.
Upon finding a statutory ground for termination, the court must also find that it is in the best
interest of the child to terminate the parent-child relationship. I.C. § 16-2005(1). Both findings
must be established by clear and convincing evidence.
       Pursuant to I.C. § 16-2002(5), abandonment occurs when “the parent has willfully failed
to maintain a normal parental relationship including, but not limited to, reasonable support or
regular personal contact.” The word “or” is a disjunctive particle used to express an alternative,
and 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).
       When a parent fails to maintain a normal parental relationship without just cause for a
period of one year or six months in the case where a grandparent seeks to the adopt the child,
prima facie evidence of abandonment exists. I.C. § 16-2002(5). 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). The petitioner bears the burden of persuasion to demonstrate that the defendant
lacks a normal parental relationship with the child and that there is no just cause for the failure to
maintain such a relationship. Id. If the petitioner is able to meet this burden, the defendant then
has the burden of production to present evidence of just cause. Id. If the magistrate finds that
just cause has not been established, the petitioning party has met its burden of persuasion. Id.
       Here, the court found that Mother had no contact with child for over five years. Parents
obtained guardianship in 2006 and were the primary caregivers of the child since the child was
two years old. Mother claims she tried to maintain a parental relationship by calling once a year
to Parents’ business phone number. Mother’s only other attempt at contact was through the
child’s paternal grandmother. When the grandmother told her it was not a good idea, Mother did
not pursue further communication other than her annual phone call. Mother also did not provide
any support or send any birthday cards or gifts at any time. There is no just cause excusing
Mother’s failure to maintain a normal parental relationship or provide any kind of support for the
child. The magistrate’s finding, based upon a clear and convincing evidence standard, that




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Mother abandoned her child is amply supported by substantial and competent evidence in the
record.
          Idaho Code § 16-2002(3) defines “neglect” as any conduct included in I.C. § 16-
1602(26). Section 16-1602(26)(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.
          Adoptive Mother testified that during the period that the child was under Mother’s care,
he would return from visits with Mother soaking wet and have extensive diaper rash. Testimony
also revealed Mother was unable to provide milk for the child and instead gave the child water,
gave the child soda in the child’s bottle, and gave the child’s formula to her cats instead of the
child. The house that Mother provided was not regularly cleaned and had cat feces and urine all
over. When Parents became guardians, the child was afraid of the bathtub, was afraid to have
diaper changes, and was very delayed in speech development. The magistrate’s finding that
Mother neglected child is also supported by substantial and competent evidence in the record.
          Finally, Mother argues that it was not in the child’s best interest to terminate Mother’s
parental rights. The court found that Parents provide a loving home for the child and that they
were the only parents the child has known. The child overcame any developmental problems
that existed when Parents became guardians, is now active in sports and maintains above-average
school grades. Mother failed to maintain a parental relationship with the child for over five
years, made no reasonable attempt to contact the child, provided no support for the child, and
otherwise neglected the child. At the hearing, Mother could only offer that it was in the best
interest of the child to be in her custody so that the child was not raised with money and he
would be sent to a smaller school. There exists substantial and competent evidence to support
the magistrate’s finding that it was in the child’s best interest to terminate Mother’s parental
rights. Therefore, we hold that the court did not err in terminating Mother’s parental rights.
          On appeal, Parents request attorney fees arguing the appeal was made frivolously,
unreasonably, and without foundation.        An award of attorney fees may be granted to the
prevailing party pursuant to I.C. § 12-121 and Idaho Appellate Rule 41. Excel Leasing Co. v.
Christensen, 115 Idaho 708, 712, 769 P.2d 585, 589 (Ct. App. 1989).             Such an award is
appropriate when the court is left with the abiding belief that the appeal has been brought or


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defended frivolously, unreasonably, or without foundation. Id. However, attorney fees will not
be awarded where the losing party brought the appeal in good faith and where a genuine issue of
law was presented. Minich v. Gem State Developers, Inc., 99 Idaho 911, 918, 591 P.2d 1078,
1085 (1979).
       In discussing Mother’s demeanor at the hearing and projecting the wishes of the child in
the termination, the court stated the following:
               For the record, I will note the whole time [Adoptive Mother] testified you
       were very demonstrative, shaking your head. You glared at her with such
       palatable hate that I’ve not seen before, and I don’t understand. I don’t
       understand why that happened.
               This woman -- you bore the child. This woman raised him. And if it’s
       jealousy, if it’s vindictiveness, I don’t know why we’re here today. I didn’t hear
       any defense to this action for termination or this action for abandonment.
               Every possible excuse I heard rang absolutely hollow.
               ....
               I can’t imagine how possibly that child would want to leave a loving
       healthful, healthy relationship that he enjoys and move in with a person that he
       doesn’t even know for the reason that the other person wants to make him live a
       life of poverty. That, we can’t be here in good faith. That can’t be a good faith
       argument. That has to be something else other than good faith, like bad faith.
               You’re here to punish these people or to hurt them or to waste their time
       or make them incur attorney fees. I don’t know why we’re here. I want my kid
       because it’s his best interest to live in poverty is not a good faith argument.

Parents were awarded attorney fees and costs below. Mother argues it was not frivolous to fight
for the right to her child and that she raised several arguments on appeal. However, this Court is
left with the abiding belief that Mother’s appeal against Parents was brought frivolously,
unreasonably, and without legal or factual foundation; therefore, attorney fees are awarded to
Parents.
                                                   III.
                                         CONCLUSION
       The magistrate’s determination is supported by clear and convincing evidence that
Mother abandoned and neglected the child, and that it was in the child’s best interest to terminate
Mother’s parental rights. Therefore, the order terminating Mother’s parental rights is affirmed.
Costs and attorney fees to Parents.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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