               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37246

IN THE MATTTER OF JANE DOE, JOHN                 )
DOE, JOHN DOE I, JOHN DOE II,                    )
CHILDREN UNDER EIGHTEEN YEARS                    )
OF AGE.                                          )
IDAHO DEPARTMENT OF HEALTH &                     )
WELFARE,                                         )      2011 Opinion No. 9
                                                 )
       Petitioner-Respondent,                    )      Filed: March 3, 2011
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
JOHN DOE III,                                    )
                                                 )
       Appellant-Respondent.                     )
                                                 )

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

       Decree terminating parental rights, reversed, and case remanded.

       Robinson Anthon & Tribe, Rupert, Michael P. Tribe for appellant.

       Hon. Lawrence G. Wasden, Attorney General; James T. Baird, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LANSING, Judge
       Appellant John Doe III appeals to this Court from the magistrate’s order terminating his
parental rights to his four children. We reverse and remand.
                                                I.
                          FACTS AND PROCEDURAL HISTORY
       Appellant John Doe (“Father”) and his former wife (“Mother”) are parents to four
children, a girl and three boys. At the time of the hearing on the petition to terminate Father’s
parental rights, the girl, who suffered from spina bifida, was fifteen years of age, the twin boys
were eleven years old, and the youngest boy was nine.




                                                1
       On September 27, 2008, Father, while under the influence of alcohol, struck one of the
twin boys leaving a red mark on the boy’s face. Father was arrested and charged with injury to a
child. Upon observing that the family residence was filthy and unsanitary, the officers notified
the Idaho Department of Health and Welfare (the Department), and a social worker was sent to
the scene. The children told the social worker that their father was an alcoholic whose condition
was so severe that he kept a bucket next to his recliner to throw up in, and that Father sometimes
hit them when he was drunk.        The family was also facing eviction from their home for
nonpayment of rent.
       The children were deemed to be in imminent danger and were taken into the temporary
custody of the Department. Father and Mother, who were then contemplating divorce, stipulated
that the children had been subject to abuse and neglect, and should remain in shelter care
pending an adjudicatory hearing. On further stipulation, the magistrate court ordered that the
children remain in the Department’s custody for an indefinite period. The order also directed
that a case plan be prepared with the primary goal of reunification of the family.
       On November 10, 2008, the Department filed a case plan, later approved by the court,
with the stated goal of reunifying the family. The case plan recognized Father’s abuse of alcohol
and assigned to him tasks focused on his achieving and maintaining sobriety. It required that he
be evaluated for substance abuse and “follow all recommendations for treatment,” attend two
Alcoholics Anonymous (AA) meetings per week, and provide documentation of alcohol
treatment and AA attendance to the Department twice per month. The plan also focused on
rebuilding the parents’ relationship with their children and improving their parenting abilities.
To this end, the case plan called for the parents to attend parenting training and to provide a
certificate of completion to the Department, attend weekly supervised visits with the children and
demonstrate appropriate parenting skills during the visits, and determine whether they qualified
for certain psychological and skill-building services. In addition, the case plan addressed the
need for financial stability, requiring the parents to work full-time and prepare and submit bi-
weekly budgets to the Department. The parents further agreed to provide adequate housing with
sufficient bedrooms for the children “if and when the children are returned.”
       By the time the case plan was adopted, Father had bonded out of jail following his arrest
on the charge of injury to children. Soon thereafter, he completed a substance abuse evaluation
and was diagnosed as alcohol dependant. The evaluation recommended intensive outpatient


                                                 2
treatment services.      Father immediately began alcohol treatment and AA, providing
documentation of attendance to the Department. He also attended three weekly visits with his
children.   However, in early December, Father began drinking alcohol again and, shortly
thereafter, ceased contact with the Department. He was also fired from his job. Father surfaced
again when he was arrested for public intoxication on January 17, 2009. He ultimately pleaded
guilty to both the public intoxication charge and the injury to children charge. The same judge
presiding in this case imposed sixty days in jail for the public intoxication offense, followed by
probation. Father was released on probation on March 19, 2009, with sentencing on the injury to
children charge still pending. 1
       Two months later, on May 22, 2009, the Department filed a report stating that Father was
“working his program,” was in compliance with his probation terms, and had submitted to four
alcohol tests in the preceding two months, which disclosed no alcohol use. The Department also
reported that Father had been rehired by his former employer and was living at his place of
employment rent-free, had completed a mental health evaluation that found no mental illness,
had been attending his alcohol treatment sessions and completing his outside written
assignments, and was making progress through the various programs. However, the report also
said that Father had not complied with certain of his case plan provisions in that he had not yet
paid any child support and had not turned in a budget or any AA attendance slips.             The
Department also noted that Father “was not in a position to provide a safe and stable
environment for the children to reside.” The Department recommended that the children remain
in the Department’s custody and opined that because the children had been in shelter care since
September 27, 2008, “[p]ermanency needs to be decided now.”
       The children’s guardian ad litem also filed a report in May that detailed strides made by
Father in regaining employment and complying with alcohol treatment.               The guardian
commended Father’s parenting at his weekly visitations with his children during which he helped
with the children’s homework, engaged them in activities, and on their birthdays brought
birthday gifts and cake. The guardian concluded that Father:
       since being released from jail, has made every effort to work his case plan,
       maintain employment, and re-establish a loving bond with his children. It is


1
       For the injury to children charge, Father eventually was placed on probation and was in
compliance with probation at the time of the termination hearing.

                                                3
        evident that when he is not using alcohol, he is a vastly different person. He
        appears to be earnest and anxious to comply with all that is asked of him. He
        frequently expresses gratitude and a willingness to do whatever is in the best
        interest of his children. The fear that he would relapse is ever present as well as
        the uncertainty that he would be available to be a resource with the possibility of
        further incarceration.
        Based on the Department’s report and arguments at a May 27, 2009, hearing, the
magistrate court ordered that “the Department shall cease reunification efforts because of the
failure of the parents to comply with the case plan and the parents are not in a position to provide
a safe and stable environment for the children to reside.” The order also directed the Department
to file a petition to terminate the parents’ parental rights.
        The assigned social worker thereupon told Father that because reunification efforts had
ceased, Father was no longer required to comply with the case plan. However, the social worker
also said that Father could continue his efforts to complete the case plan and explain those efforts
at the anticipated parental termination hearing. About the same time, the Department garnished
Father’s wages for child support owed while the children were in foster care. Father sought, and
was granted, the Department’s permission to continue his weekly visits with his children.
        In compliance with the magistrate court’s order, the Department filed a petition to
terminate the parents’ parental rights on July 31, 2009. As against Father, the grounds for
termination were that he “did neglect the children” before they were taken into custody on
September 27, 2008, and that:
        the neglect has continued by his failure to perform [the] case plan. Specifically,
        he has continued to participate in criminal activity and has been in and out of jail.
        He has not completed drug and alcohol treatment. He has failed to provide
        financial support for the children and has failed to establish adequate housing or
        financial security.
The termination hearing was scheduled for November 19, 2009. In August 2009, the parents
divorced.
        In September 2009, the Department and the guardian filed case review reports. The
Department said that Father was still employed but had not yet obtained housing for the children,
that he visited his children and had been appropriate with them, and that the issue to be
determined at the pending termination hearing was whether “parental rights are terminated or
parents are given more time to complete a case plan.” The guardian’s report again commended
Father for his case plan progress since the last report in May, stating:


                                                   4
       Doe continues employment. . . . His employer also allows him to live at their
       office to help him become financially stable. . . . [Father] is participating in
       substance abuse treatment, attends several AA meetings weekly and participates
       in visits with his children. He has maintained employment and in fact, his
       employer provides him boarding in their office and has been very supportive of
       him. His healthy countenance and participation in the activities listed above, all
       suggest [Father] is remaining sober. During the visits, he is appropriate and
       loving with the children. He has spoken openly with them about his need for
       alcohol treatment and speaks positively of the children’s foster parents. He has
       not been able to find suitable housing but has made efforts, asking the GAL to
       visit a prospective home to determine its suitability. He intends to contest the
       termination of his parental rights and still hopes desperately to be re-unified with
       his children. Notably, [Father] has always remained in contact and spoken
       willingly and graciously with the GAL.
Following receipt of these reports, on September 29, 2009, the court held a twelve-month
permanency hearing.      At the hearing, Father provided an overview of his efforts toward
reunification and case plan progress in the four-month period following the last court hearing.
The court nevertheless ordered that the termination hearing would go forward as scheduled.
       Thereafter, Father filed a motion to disqualify the magistrate judge for cause, contending
that the judge’s comments made at the September 29 hearing showed that he had prejudged the
case and was biased against Father. The judge denied the motion.
       At the termination hearing, Mother consented to termination of her parental rights as to
all four of the children, and the hearing proceeded as to Father. After the presentation of
evidence, Father requested more time within which to finish his alcohol treatment, become more
financially stable, and complete other portions of his suspended case plan. The court denied his
request and orally announced that it was terminating Father’s parental rights. Thereafter, the
court issued a decree in which it determined that Father had abused and neglected the children
and that termination of his parental rights was in the best interests of Father and the children.
                                                 II.
                                            ANALYSIS
A.     Standards of Review
       The United States Supreme Court has held that a parent’s interest in maintaining a
relationship with his or her child is a fundamental liberty interest protected by the Fourteenth
Amendment of the United States Constitution. Quilloin v. Walcott, 434 U.S. 246, 255-56 (1978);
Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). See also In re Doe, 146 Idaho 759, 761, 203
P.3d 689, 691 (2009). Concordantly, the Idaho Legislature has, in the Child Protective Act,

                                                  5
directed “that the state of Idaho shall, to the fullest extent possible, seek to preserve, protect,
enhance and reunite the family relationship.” Idaho Code § 16-1601. Likewise, the Termination
of Parent and Child Relationship Act states, “Implicit in this chapter is the philosophy that
wherever possible family life should be strengthened and preserved . . . .” I.C. § 16-2001.
       Because a fundamental liberty interest is at stake, the United States Supreme Court has
determined that a court may terminate a parent-child relationship only if that decision is
supported by “clear and convincing evidence.” Santosky, 455 U.S. at 746; Doe v. Doe, 148
Idaho 243, 246, 220 P.3d 1062, 1065 (2009); Doe, 146 Idaho at 761, 203 P.3d at 691; State v.
Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). See also I.C. § 16-2009. The United States
Supreme Court noted three factors that called for employment of this elevated standard of proof:
the permanence and irrevocability of a termination of parental rights; the reality that “the State’s
ability to assemble its case almost inevitably dwarfs the parents’ ability to mount a defense”; 2
and the imprecision of the standards to be applied, such as “the best interest of the child,” which
“leave determinations unusually open to the subjective values of the judge.” 3 Santosky, 455 U.S.
at 759-63.



2
       The Court explained:
       No predetermined limits restrict the sums an agency may spend in prosecuting a
       given termination proceeding. The State’s attorney usually will be expert on the
       issues contested and the procedures employed at the factfinding hearing, and
       enjoys full access to all public records concerning the family. The State may call
       on experts in family relations, psychology, and medicine to bolster its case.
       Furthermore, the primary witnesses at the hearing will be the agency’s own
       professional caseworkers whom the State has empowered both to investigate the
       family situation and to testify against the parents. Indeed, because the child is
       already in agency custody, the State even has the power to shape the historical
       events that form the basis for termination.
Santosky, 455 U.S. at 763 (footnote omitted).
3
       According to the Court:
               [In a termination] proceeding, numerous factors combine to magnify the
       risk of erroneous factfinding. Permanent neglect proceedings employ imprecise
       substantive standards that leave determinations unusually open to the subjective
       values of the judge. See Smith v. Organization of Foster Families, [431 U.S. 816,
       835 n.36 (1977)] (Judges “may find it difficult, in utilizing vague standards like
       ‘the best interests of the child,’ to avoid decisions resting on subjective values.”).
       In appraising the nature and quality of a complex series of encounters among the

                                                 6
       On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means “such evidence as a
reasonable mind might accept as adequate to support a conclusion.” Doe, 148 Idaho at 245-46,
220 P.3d at 1064-65. The appellate court “will indulge all reasonable inferences in support of
the trial court’s judgment when reviewing an order that parental rights be terminated.” Id. See
also In re Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). The Idaho Supreme Court has
also said, however, that, “the substantial evidence test requires a greater quantum of evidence in
cases where the trial court finding must be supported by clear and convincing evidence, than in
cases where a mere preponderance is required.” Id. 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)). Further, “the magistrate’s decision
must be supported by ‘objectively supportable grounds.’” Doe, 143 Idaho at 346, 144 P.3d at
600.
B.     Grounds for Termination
       Idaho Code § 16-2005 authorizes termination of the parent/child relationship when it is in
the child’s best interest and any one of several factors exist, including neglect or abuse. Here,
the Department’s petition is based on allegations of neglect. A “neglected” child is defined in
I.C. § 16-1602(25)(a) and (b) 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 . . . or
               (b) Whose parents, guardian or other custodian are unable to discharge
       their responsibilities to and for the child and, as a result of such inability, the child
       lacks the parental care necessary for his health, safety or well-being . . . . 4




       agency, the parents, and the child, the court possesses unusual discretion to
       underweigh probative facts that might favor the parent.
Santosky, 455 U.S. at 762, 102 S.Ct. at 1399 (footnote omitted, parenthetical added).
4
        Idaho Code § 16-2002(3)(b) also defines “neglect” as occurring where “[t]he parent(s)
has failed to comply with the court’s orders in a child protective act case or the case plan, and
reunification of the child with his or her parent(s) has not occurred within the time standards set
forth in section 16-1629(9), Idaho Code.” This time standard is defined as when “a child is

                                                  7
C.     The Magistrate’s Decision to Terminate Father’s Parental Rights Was Erroneous
       The magistrate court held that Father had abused 5 and neglected his children and that
termination was in their best interests and the best interest of Father. On appeal, Father does not
challenge the finding that, prior to removal of the children from his home, they were neglected
and mistreated. At the termination hearing, Father described his past conduct as “despicable”
and said that he was “appalled at myself.” Father argues, however, that the magistrate erred in
finding that termination was in the best interests of himself and the children and was warranted
as of the date of the termination hearing because uncontroverted evidence showed that he had
made and was continuing to make substantial strides in treatment for his alcoholism, maintaining
sobriety, rebuilding a loving relationship with his children, and achieving financial stability that
would enable him to provide appropriate housing for his children. He contends that in light of
his progress that was demonstrated at the termination hearing, the magistrate erred in refusing to
allow Father additional time to continue that progress and prepare to resume custody of his
children. We agree.
       First, we note that the trial court’s decision faults Father for noncompletion of some case
plan tasks that were not actually part of his case plan. For example, the decree states that Father
“has not completed anger management counseling,” but anger management counseling was not
referenced in the case plan. Father nevertheless had recognized a need for such counseling and
had voluntarily enrolled in such a program about six weeks before the termination hearing. The
decree also faults Father for not having a driver’s license which, again, was not required by the




placed in the custody of the department and was also placed in out of the home care for a period
not less than fifteen (15) out of the last twenty-two (22) months from the date the child entered
shelter care.” I.C. § 16-1629(9). In this case, we evaluate the magistrate’s finding of neglect
based only on the definitions set forth in I.C. § 16-1602(25)(a) and (b), as the children were not
in the custody of the Department for the requisite time specified in I.C. § 16-1629(9) to fall
within the I.C. § 16-2002(3) definition of neglect.
5
       Although the Department’s petition alleged only neglect and not abuse as a ground for
termination, the magistrate based his decisions on findings of both neglect and abuse. Father
does not claim error in this regard on appeal, and we do not address it.


                                                 8
case plan.   Both Father and his employer testified, however, that he was taking all steps
necessary to reinstate his driver’s license.
       The substantive focus of the case plan called for Father to address three major
deficiencies before the children would be returned to him: he was required to overcome his
alcohol abuse, build a healthy relationship with his children and gain parenting skills, and
achieve financial stability so that he could provide a proper home. The magistrate’s findings
gave little or no acknowledgement to the strides that Father had made toward each of these
primary goals. We will examine the trial evidence and the magistrate’s corresponding findings
on each of these.
       To address Father’s alcohol abuse, the case plan called for him to cease alcohol use, be
tested for alcohol periodically, attend AA meetings and alcohol treatment classes, and submit
documentary proof of compliance with these requirements to the Department. The evidence at
the termination hearing showed that shortly after the case plan was adopted in mid-November
2008, Father completed a substance abuse evaluation, began AA and alcohol treatment, and
provided documentation of his attendance to the Department. 6           Although he relapsed in
December and was arrested for public intoxication in January 2009, the evidence showed that
after his release from jail on March 19, 2009, he consistently passed all alcohol tests and
maintained sobriety through the date of the termination hearing.          Father testified without
contradiction that since his release from jail in March, he had been working more than full-time,
attending AA meetings one to three times per week, and attending prescribed alcohol treatment
classes Monday through Thursday for two to three hours per evening. In addition, he voluntarily
attended a support group for three to four hours each Friday night at a church. Father said that he
had learned that his first priority must be sobriety, and without that, addressing his children’s
needs was not possible. Father gave no excuses for his return to drinking in December 2008 or




6
        The trial court’s findings state that during this time Father “did not attempt to complete
the case plan, visit the children, or pay [child] support.” The first two statements are contrary to
the evidence, as the Department witnesses testified that Father had visited the children, had
completed a substance abuse evaluation, had begun treatment, and had submitted documentary
proof. He did fail to pay child support at this time, but he was indigent and had just been
released from jail.


                                                 9
his arrest for public intoxication in January 2009; rather, he expressed appreciation for the trial
court’s jailing him for two months to “dry out,” and said that this had brought him to his senses.
       Testimony of his treatment providers confirmed that Father had ceased alcohol use and
vigorously pursued treatment throughout the eight-month period after his March 19 release. One
provider described the intensive outpatient program as requiring class attendance four evenings
per week, approximately three hours per night, as well as completion of outside work. She gave
glowing assessments of Father’s participation, stating that he attended all classes, completed all
assignments, was frank regarding his struggles with alcohol, and had remained sober. A written
report from an alcohol treatment supervisor likewise said Father’s progress was excellent, and
that “[i]n my opinion and years of doing drug and alcohol counseling, [Father] is really truly and
honestly working his program. [Father] made mistakes in the past and is working hard towards
healing himself so that he can be an excellent father to his children whom he loves very much.”
Another letter from the treatment provider agency concluded:
       I know [Father] has a long history of alcoholic problems in the community. I
       know he has long rejected any type of help. I am here to share that he is and has
       been receptive to help for the past 9 months and is continuing to seek this support.
       I hope that my letter will find an opening to consider him having access and a
       chance to reunite with his children.
       After receipt of this very positive evidence about Father’s success and dedication to
maintaining his sobriety, the magistrate’s related findings were:
       When he got out of jail he did begin to work parts of the case plan. He began
       alcohol treatment and has apparently remained sober. His sobriety has been at the
       top of his priorities, but he has not been faithful at reporting his progress or his
       attendance at AA meetings to the Department; . . . by his admission, he had not
       completed alcohol treatment to the date of the hearing.
These findings give inadequate attention to the uncontroverted evidence that since March 2009,
Father had faithfully complied with the case plan requirements that he cease using alcohol,
obtain alcohol treatment, participate in AA, and obtain regular testing. The implication in the
magistrate’s decision that Father was not in compliance with the case plan because he had not
“completed alcohol treatment to the date of the hearing,” is incorrect because the case plan
contains no completion date for the alcohol treatment, and there was no evidence that Father was
failing to make timely and satisfactory progress through the treatment program. The findings
also focused on Father’s omission to submit written reports to the Department. This focus not
only elevates a minor reporting element of the case plan above its far more substantive and


                                                10
significant requirements of behavior change, but also fails to recognize that following the court’s
May 2009 order directing the Department to cease reunification efforts, the case plan was no
longer in effect, and Father therefore was no longer required to submit reports to the Department.
       With respect to the second principal goal of the case plan--that Father develop an
appropriate parental relationship with his children and acquire parenting skills--the
uncontroverted evidence again demonstrated great progress by Father. Numerous witnesses
testified that immediately after the children were removed from the family home, they feared
their father and dreaded visitation with him, but after March 2009, this had changed. The boys’
foster father testified that they initially “wanted nothing to do” with Father, but after interacting
with him during the post-March weekly visitations, the boys thought their father “near perfect”
and “couldn’t say anything wrong about their dad.”          He also testified the fifteen-year-old
daughter had a calendar on which she was marking the days to the termination hearing because
she expected to be reunited with her father that day.          A Department employee who had
supervised approximately thirty weekly visits said that, after initially being apprehensive, the
children warmed up to Father; and that Father had changed over time, had evidenced that he was
ashamed of his prior treatment of his children, had apologized to the children for hurting them,
and had cried in their presence. She said that Father was also physically improved in that he was
now “well kept.” She testified that she never observed any inappropriate behavior by Father
during the visits and never smelled alcohol on him or suspected that he had been drinking before
a visit. A treatment provider said that when she observed Father with the children, he was kind
and nurturing and that he desperately wished to be reunited with them. A Department social
worker said that since March 2009 he “appears to be sober and happy and clean and a hard
worker” and has a good relationship with his children. Father acknowledged that he had not yet
begun a parenting class required by his case plan because there had been no time in his schedule
for it in addition to his alcohol treatment, other classes and AA commitments, but that he was
scheduled to start the parenting class in about one week upon completion of one of his alcohol
treatment classes.    The children insisted on testifying at the termination hearing.          They
acknowledged that they were better cared for by their foster parents than they had been in the
family home when Father was drinking, but now that he was sober, they expressed excitement at
the prospect of being reunited with him.




                                                 11
       The magistrate’s findings make no mention of Father’s relationship with his children or
his behavior during weekly visitations. The only related finding is that “he has not completed
parenting training.” The finding includes no acknowledgement that schedule conflicts for some
of the classes and treatment requirements of the case plan precluded Father from participating in
all of them at the same time.
       The third and final primary factor that the case plan required Father to address was his
financial situation and ability to provide suitable housing for the children. On this issue, the
evidence again demonstrated that Father had made commendable progress.             That evidence
included the testimony of Father’s employer, the owner of a multi-site car wash business. He
said that Father had worked as manager of one of the car wash sites from 1997 to 1999, and that
in 2005 the employer contacted Father to convince him to return to the business, to which Father
agreed. Thereafter, Father’s alcohol abuse became evident, and when he failed to appear for
work in December 2008, the employer fired him. When Father was released from jail in March
2009, however, the employer rehired him, but started Father at a low level job. The employer
said that Father had worked his way back to the position of manager, with responsibility for
supervising, hiring, and firing other employees. The employer said that the business had been
operating at a loss when Father resumed management and that he quickly brought the business
back to profitability. According to the employer, Father was working six days per week at a
salary of $2,000 per month plus incentives and a percentage of the profit. He said that another
manager with the same salary plan at a smaller car wash facility owned by the employer had
earned $47,000 the prior year, and that the employer expected that Father could earn that much
or more in the upcoming year.       The employer testified that Father currently had limited
disposable income because his wages had been garnished by the Department for child support
and there were separate garnishments for Father’s and Mother’s medical and vehicle debts. The
employer said that he allowed Father to reside rent-free in the business’s office so that he could
save money to provide housing for his children if they were returned to his custody. The
employer confirmed that Father was attending treatment after work each night and was working
diligently to get his driver’s license reinstated. He said that once relicensed, Father would
receive the use of a company vehicle with a gas allowance.
       The employer also said that to aid Father in his efforts to regain custody, he had
contacted a realtor and found an appropriate four-bedroom house for sale or rent (the record is


                                               12
unclear) that would serve the needs of the children, and that the employer was willing and able to
immediately make a “down payment” to acquire the home for Father. The payment had not yet
been made because the employer first wanted to know if the magistrate was going to terminate
Father’s parental rights as the payment would be wasted if Father did not regain custody. Father
testified that in addition to garnishments for child support and past debts, he was paying fees for
his mandated drug tests and for probation supervision. Father acknowledged that at present, he
was not financially able to provide a proper home for his children, but believed that in three to
four months he could do so.
       In the face of this information about Father’s earning capacity and his prospect for
acquisition of appropriate housing, the magistrate’s only relevant findings were that Father was
“currently living in his employer’s car wash office and has no home for the children to return to”
and “has provided no budgeting information to the Department, and has, thus, not demonstrated
financial stability to raise his children.” Once again, instead of giving attention to Father’s
progress on substantive issues, the magistrate court focused on Father’s noncompliance with
reporting requirements that actually had not been applicable since May 2009 when the court
ordered cessation of reunification efforts and Father was informed that the case plan no longer
applied. The magistrate’s decision also did not take into account the effect on Father’s ability to
obtain appropriate housing caused by the Department’s choice to garnish his wages to pay for
child support at a rate of approximately $600 per month.
       A judicial evaluation of whether termination of parental rights is warranted must take into
account practicalities of a parent’s individual situation, as illustrated in Doe v. State, 137 Idaho
758, 53 P.3d 341 (2002), where the father was imprisoned and had never seen his two-year-old
son. His parental rights were terminated on findings that he had abandoned and neglected the
child. Our Supreme Court reversed, stating:
               There is an issue, however, of what actions Doe could have taken, once in
       prison, to maintain contact with his child. Doe sent his child gifts and made
       efforts to contact the child through the Department and through the child’s
       maternal grandmother, but he was unsuccessful. One must ask what more could
       Doe have done? The Department’s argument is that he could have completed the
       “rider” program successfully and gotten out of prison early. The magistrate
       accepted this as evidence of abandonment. That is not the type of substantial
       competent evidence that supports a finding by clear and convincing standard of
       abandonment. The Department trivializes Doe’s efforts to have a relationship
       with his son. Reality must play a part at two levels: 1) Doe was severely


                                                13
        restricted in what he could do. Within that context he tried to establish a
        relationship. 2) The Department did little or nothing to assist in that effort. The
        Department focused on the best interest of the child--laudable in the abstract but
        without regard for the parental rights possessed by Doe.
Id. at 761-762, 53 P.3d at 344-45.
        Likewise, the practical realities of Father’s financial situation must be considered. He
was indigent and being evicted from his home when he was initially arrested and his children
were removed. Father spent the next two months in jail before he was able to bond out. He
worked for about a month before he began drinking again and lost his job. From mid-March
2009, when he was released from jail, Father was continuously employed, working his way up to
the position of manager. He was working more than forty hours each week, but much of his
paycheck was consumed by garnishments, supervision fees and alcohol testing fees required as
terms of his probation. The Department did little or nothing to assist in Father’s efforts to
improve his financial capacity but, rather, diminished it by garnishing his wages. The evidence
indicated that Father had done all he reasonably could to improve his financial situation, that he
potentially could earn in excess of $45,000 per year, and that there was a reasonable prospect
that he soon would be able to provide a suitable home for his children. That he was not able to
do so immediately on the date of the termination hearing does not demonstrate that it was in the
best interests of the children to terminate his parental rights.
        The magistrate’s determination that termination was in the best interest of Father’s
children relied in part upon opinion testimony of the social worker and the guardian ad litem,
both of whom recommended termination. We conclude that the reliance on these opinions was
misplaced because the reasons given by these witnesses for their recommendations do not
withstand scrutiny. The guardian, after repeatedly filing reports lauding Father’s progress and
efforts to reunite with his children, recommended termination because “it’s too large of a gamble
to gamble on the father’s sobriety, that conditions in the home wouldn’t revert back to the
conditions they had before.” That is, because Father could not provide a guarantee that he would
never use alcohol again, the guardian was of the view that his parental rights should be
terminated. Were the guardian’s reasoning adopted, no parent with an addiction would ever be
able to regain custody of his or her child.        That is not the standard under Idaho law for
terminating a parent’s fundamental right to a relationship with his children. The social worker’s
reasons for recommending termination were similarly unconvincing. He said that because of


                                                  14
Father’s incarcerations, he had not been a resource for the children from the time the children
were taken into shelter care in late September 2008 until he was released from jail in mid-March
2009. This recommendation ignores all of Father’s progress and accomplishments from mid-
March forward and the evidence that he never missed a visitation opportunity when not
incarcerated and had exhibited appropriate and nurturing parenting behavior during visitations.
       It appears that the guardian, the social worker, and the court may have incorrectly viewed
the court’s only options at the termination hearing as either to terminate Father’s parental rights
on that day or return the children to Father on that day. That was not the choice, however. The
only issue presented was whether Father’s parental rights would be terminated at that time, not
whether he was able to resume custody immediately. If termination had been denied, the
children would have remained in foster care pending further proceedings. As Father urges on
appeal, the court could have allowed additional time for Father to demonstrate whether he would
be able to secure appropriate housing, improve his financial situation, and continue his
commitment to sobriety; and his efforts could have been aided by the Department resuming a
role of working to facilitate reunification.
       This case bears considerable resemblance to In re Doe, 142 Idaho 594, 130 P.3d 1132
(2006), where an infant was placed in foster care due to the mother’s (Roe’s) failure to provide
adequate care. After Roe’s completion of a case plan, the child was returned to her under
protective supervision, but six months later the child was removed again because Roe was
arrested for selling methamphetamine and using illegal drugs. Another reunification plan was
adopted during which Roe began to turn her life around. She married, submitted to drug testing
which she passed, and through supervised visitation developed an emotional bond with the child
and was learning appropriate parenting. The trial court terminated Roe’s parental rights, but the
Idaho Supreme Court held that the trial court erred by focusing on Roe’s criminal record and her
behavior two years earlier while disregarding her case plan progress and success in becoming a
better parent. The Court said that the testimony demonstrated that:
       . . . Roe created a stable life, made her children her priority, successfully complied
       with and went beyond the court orders and the reunification plan, attended
       counseling and Alcoholics Anonymous and Narcotics Anonymous meetings, and
       was not likely to relapse or become involved with criminal activity again.
       Further, contrary to the magistrate court’s findings, the evidence indicates that
       [her child] and the parental termination action were a motivating factor in Roe’s



                                                15
        decision to straighten out her life and for Roe’s successful compliance with the
        reunification plan and probation.
Id. at 598, 130 P.3d at 1136. Much the same comments could be said of Father in the present
case.
        The Roe Court also said:
                The magistrate division also erred by making what appears to be a
        subjective, rather than an objective decision. In family law cases, there is a
        “requirement of explicit findings [which] encourages a trial judge to rely upon
        objectively supportable grounds for his decision, and discourages subjective or
        attitude-influenced perceptions of the case. Without [an] objective basis, trial
        court fact-finding [becomes] . . . a soft spot in the administration of justice.”
        Donndelinger v. Donndelinger, 107 Idaho 431, 437, 690 P.2d 366, 372 (Ct. App.
        1984).
Id. at 599, 130 P.3d at 1137.
        Also instructive is the Idaho Supreme Court’s decision in Schultz v. Schultz, 145 Idaho
859, 187 P.3d 1234 (2008), where the Court discussed a trial court’s duties when considering the
best interests of a child in the context of a child custody dispute in a divorce action. The Court
criticized the magistrate for basing his best-interest-of-the-child decision on only one factor--the
distance between the father and child that was created by the mother’s move to Oregon. The
Court said that this over-emphasis on a single factor, and the failure to consider other relevant
factors in evaluating the best interests of the child, constituted an abuse of discretion. Id. at 865,
187 P.3d at 1240. The Court concluded, “The magistrate court should have examined all the
evidence to determine [the child’s] best interest and reached a supported, well reasoned
conclusion before entering its order. Since the Court failed in this duty, it abused its discretion.”
Id. at 866, 187 P.3d at 1241.
        We conclude that the magistrate court made much the same errors in this case as were
found to have occurred in Roe and Schultz. The court’s decision placed excessive emphasis upon
Father’s admittedly abhorrent behavior prior to the removal of the children from his home and
upon minor noncompliance with reporting requirements that had not been in effect for half a year
prior to the termination hearing, while disregarding or giving minimal attention to the compelling
evidence of Father’s success in overcoming alcoholism, complying with treatment requirements,
maintaining remunerative employment, and becoming a nurturing parent with whom the children
had developed a strong bond. The evidentiary record does not provide objectively supportable
grounds for the trial court’s decision that termination of Father’s parental rights was in the best


                                                 16
interests of the children and Father at the time of the termination hearing. Therefore, the
decision of the magistrate court must be reversed and the case remanded. 7
D.     Motion to Disqualify the Magistrate for Cause
       Because we have reversed the termination decision on the merits, it is unnecessary to
determine whether the magistrate judge erred in denying Father’s motion for disqualification at
the time the motion was made. However, because the child protective proceedings will continue
in the magistrate division hereafter, it is appropriate to examine Father’s claim of judicial bias as
it may affect future proceedings.
       Father’s motion to disqualify the judge was based on the judge’s comments at a
September 29, 2009, “permanency hearing.” After Father had provided an overview of his
efforts toward reunification and case plan progress in the four-month period following the last
court hearing, the magistrate responded:
               I appreciate that. I see nothing to change my mind. I can’t let these kids
       risk this again. You fall off the wagon, these kids go through this again. Your
       case is legendary, Mr. [Doe], in child protection circles.
               As badly tortured as these kids were, I have to tell you that, and I know
       you’re trying now, but I’m not willing to risk those kids going through this again.
       Your little girl with no diapers. 8 I lay awake at night thinking about this case, and
       I have not changed my mind. I will not change my mind at this point. We’ll go
       ahead with the [termination] hearing as planned.
Thereafter, Doe filed a motion to disqualify the magistrate for cause, contending that the
comments at the permanency hearing showed that the magistrate had prejudged the case and was
biased against Doe. At a hearing, the magistrate orally denied the motion, stating:
       As regard to my position on termination, I have not made up my mind, and that’s
       not what I was determining when I made those comments. What I was
       determining, as [the attorney for the guardian ad litem] appropriately pointed out,
       was whether the termination hearing should go ahead or not. That’s what I
       understood I was arguing about, not--I wasn’t arguing the question of termination.
               This is a first for me, so I did a little research, and one comment stood out
       particularly to me in that--from AMJUR, “A judge’s ordinary and natural reaction



7
       We note that, if in proceedings on remand it is determined that termination of Father’s
parental rights as to his daughter is necessary due to her personal and medical care needs, that
circumstance would not automatically justify also terminating his rights with respect to his sons.
8
       Because of her spina bifida, the daughter was incontinent.


                                                 17
       to the conduct of or evidence developed about a party in a case before him cannot
       create a disqualification for bias or prejudice.”
               I am repulsed by the reports I read, and I can’t get over that. I lay awake
       at night thinking about that, thinking about these little children. That’s very true.
       And I think that is an ordinary, natural reaction to anyone who heard the children
       were forced to drink vomit out of a bucket 9 when their father was so intoxicated
       he didn’t know what he was doing. How can anybody else in this room act
       without anything but revulsion? And I’ll take that one to the U.S. Supreme Court
       any day, [counsel].
               With that, sir, I am going to deny your motion. I am not biased. I
       understand this is a matter of discretion. As a matter of discretion I will deny the
       motion for the reasons I’ve stated.
       On appeal, the parties’ arguments focus not on whether the magistrate judge was biased,
but rather on whether that bias was impermissibly gained from an “extrajudicial source” in light
of the comment that Father’s reprehensible conduct was “legendary in child support circles.”
These arguments focusing on the source of the alleged bias are inapposite in view of current
Idaho law regarding motions for disqualification.
       Idaho Rule of Civil Procedure 40(d)(2)(A)(4) provides for disqualification for cause if the
presiding judge is “biased or prejudiced for or against any party or the case in the action.” In
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966), the United States Supreme Court held
that to be disqualifying, the alleged bias or prejudice “must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned from his
participation in the case.” For a number of years Idaho appellate courts followed the Grinnell
standard. Samuel v. Hepworth, Nungester & Lezamiz, Inc., 134 Idaho 84, 88, 996 P.2d 303, 307
(2000); State, Dep’t of Health & Welfare v. Doe, 133 Idaho 826, 829, 992 P.2d 1226, 1229 (Ct.
App. 1999); Hays v. Craven, 131 Idaho 761, 763, 963 P.2d 1198, 1200 (Ct. App. 1998); State v.
Elliott, 126 Idaho 323, 329, 882 P.2d 978, 984 (Ct. App. 1994); Liebelt v. Liebelt, 125 Idaho 302,
306, 870 P.2d 9, 13 (Ct. App. 1994); Desfosses v. Desfosses, 120 Idaho 27, 29, 813 P.2d 366,


9
        The record does not indicate that any child actually was forced to do this. At the
termination hearing, Father admitted that his alcoholism was so bad that he kept a bucket next to
his recliner to throw up in and that he made his children empty it. He also admitted that his
children told him that on one occasion when one of his children kicked the bucket over, he
threatened to make the child drink out of it as punishment, and although he did not remember
this he believed his children. The youngest boy told a social worker that his father ordered him
to drink from the bucket on one occasion as punishment, but the boy did not do so. The only
testimony that was adduced was that this threat was a single occurrence.


                                                18
368 (Ct. App. 1991). However, both the United States Supreme Court and the Idaho Supreme
Court have abandoned this approach. In Liteky v. United States, 510 U.S. 540 (1994), the Court
held that “[t]he fact that an opinion held by a judge derives from a source outside judicial
proceedings is not a necessary condition for ‘bias or prejudice’ recusal, since predispositions
developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient
condition for ‘bias or prejudice’ recusal, since some opinions acquired outside the context of
judicial proceedings (for example, the judge’s view of the law acquired in scholarly reading) will
not suffice.” Id. at 554 (emphasis in original). Recently, in Bach v. Bagley, 148 Idaho 784, 229
P.3d 1146 (2010), the Idaho Supreme Court, following the reasoning of Liteky, implicitly
overruled the prior Idaho cases. 10 Our Supreme Court held that whatever the source of the bias
or prejudice, it must be “so extreme as to display clear inability to render fair judgment,” that
“unless there is a demonstration of ‘pervasive bias’ derived either from an extrajudicial source or
facts and events occurring at trial, there is no basis for judicial recusal.” Id. at 791-92, 229 P.3d
at 1153-54 (emphasis added). The Court stated that “the standard for recusal of a judge, based
simply on information that he has learned in the course of judicial proceedings, is extremely
high.” Id. at 792, 229 P.3d at 1154. 11
       In ruling on Doe’s motion for disqualification, the trial judge applied the “extrajudicial
source” rule that has subsequently been overruled by the Idaho Supreme Court in Bach.




10
       The magistrate was without the benefit of the Bach decision at the time of his ruling.
11
        Factors unique to child protection proceedings elevate the risk of a court prejudging a
parental termination case. Parental termination hearings are likely to be preceded by extensive
shelter care and child protective proceedings in which the court plays an active role. With the
exception of evidentiary privileges, the Idaho Rules of Evidence are not applicable to most of
these preliminary proceedings. See I.R.E. 101(e)(6); Idaho Juvenile Rules 39(e); 41(c).
Consequently, various reports of investigators, police, case workers and guardians ad litem
containing multiple-level hearsay, innuendo, opinion, and conjecture, may be viewed by the
court. If a petition to terminate parental rights ensues, it is filed in the same case as the
proceeding under the Child Protective Act, I.J.R. 48(b), and the same judge ordinarily presides.
At a parental termination hearing, however, the Idaho Rules of Evidence do apply, and
components of the record in the prior Child Protective Act proceedings are not, ipso facto,
admitted or admissible at the termination hearing. I.J.R. 48(b). Thus, there is created a risk of
judicial prejudgment of the termination issue, or of an ultimate judgment that is based on
information that was never admitted into evidence at the termination hearing.

                                                 19
Therefore, on remand, the magistrate court should reconsider Father’s motion for disqualification
in light of the standards set forth in Bach.
                                                 III.
                                          CONCLUSION
       The magistrate court’s order terminating Father’s parental rights is reversed, and this case
is remanded for further proceedings consistent with this opinion. Costs to appellant.
       Judge GUTIERREZ CONCURS.
       Chief Judge GRATTON, DISSENTING
       As I believe that the majority has far exceeded our limited appellate role, I respectfully
dissent.
A.     Termination.
       In the section of the majority opinion entitled “Facts and Procedural History,” the
majority quotes from and relies heavily upon information not contained in the termination trial
record. None of the Department of Health and Welfare (Department) or guardian ad litem
reports referenced, and quoted at length by the majority, were admitted into evidence at the
termination trial. The magistrate only took judicial notice of the case plan and its orders. The
obvious point of the majority in utilizing this information is to bolster its overall assessment that
Doe (Father), in the months leading up to the termination hearing, was doing well and compliant
with requirements. With this backdrop from information outside the trial record, the majority
turns in the “Analysis” section, largely to the trial record, drawing therefrom testimony favorable
to Father’s contention that he was making progress. The majority does, however, dismiss certain
trial evidence as being inconsistent with the reports that were not placed in evidence.
Interestingly, after relying extensively on the case worker and guardian ad litem reports, the
majority, in discussing the disqualification issue, references these pre-termination reports as
“containing multiple-level hearsay, innuendo, opinion and conjecture.” I do not believe that the
use of this information outside the trial record is proper.
       In his appellate brief, Father points to certain evidence from the trial that supports his
contention that he was making progress and that the magistrate should have given him more




                                                  20
time. Except for three discrete instances, 1 he does not contend, argue or advance that the
magistrate’s findings of fact were erroneous. The majority takes it upon itself to attack the
magistrate’s findings of fact. In doing so, the majority sets up the findings of fact and attempts
to knock them down by pointing to conflicting evidence, minimizing or disregarding supporting
evidence and suggesting that certain behaviors were not required of Father. For instance, the
majority points to the magistrate’s findings that Father did not complete anger management
classes and did not have a driver’s license. The majority does not deny that these statements are
true, but dismisses them because they were not specific requirements of the case plan. The
magistrate’s determination of “neglect” is not being reviewed, as recognized by the majority,
based upon failure to follow the case plan as contemplated in Idaho Code § 16-2002(3)(b).
These things were basic to any evaluation of Father’s ability to provide “proper parental care”
and “discharge [parental] responsibilities.” See I.C. § 16-1602(25)(a) and (b).       As another
example, the majority points to a very brief period of time immediately after adoption of the case
plan in mid-November 2008, and suggests that Father was compliant with substance abuse,
alcohol treatment and documentation. Thereupon, the majority takes to task a finding by the
magistrate that Father did not complete the case plan, visit the children, or pay [child] support,
suggesting the first two findings are contrary to the evidence and excusing the payment of child
support because Father was indigent. However, the time period referenced in the finding is
clearly from the time of the adoption of the case plan to March 2009, when Father was released
from jail. As later acknowledged by the majority, Father relapsed shortly after execution of the
case plan, in December 2008, was arrested for public intoxication in January 2009 and jailed

1
        Father takes issue only with a finding of fact which states that the children were taken
into protective custody in Oregon, a finding of fact which states that his daughter needed care
twenty-four hours per day, and that Father admitted needing more time to be able to fully care
for his children. As to the protective custody in Oregon statement, it is an incidental detail
regarding admitted involvement of the family with Oregon officials. Regarding Father’s
daughter needing twenty-four hour per day care, her foster mother testified as such on numerous
occasions, although not thereby indicating that the daughter was bed-ridden, but indicating that
she has occasions of assistance need throughout the day, including while at school. Father’s real
point of argument in his brief is that he was aware of her needs. Lastly, regarding Father’s
admission that he needed more time to be able to fully care for his children, Father does not
contend he did not so state. In fact, his theme at trial and on appeal is that, with more time he
could care for the children. His argument in the brief is not with the finding, but that the
magistrate should have, indeed, granted him more time.


                                               21
until March 2009. The magistrate’s finding regarding compliance during that time period was
accurate.
       Surprisingly, the majority criticizes the findings of the magistrate most supportive of the
majority’s conclusion that, after being released from jail, Father was doing the best he could.
The magistrate found that:
               (f) When he got out of jail he did begin to work parts of the case plan. He
       began alcohol treatment and has apparently remained sober. His sobriety has
       been at the top of his priorities, but he has not been faithful at reporting his
       progress or his attendance at AA meetings to the Department;
               (g) By his admission, he had not completed alcohol treatment at the date
       of the hearing. . . .
The majority states that these findings give “inadequate attention” 2 to Father’s abstention from
alcohol and attendance at treatment and testing since March 2009. But, on the contrary, the
findings expressly recognize that, as his top priority, Father obtained treatment and remained
sober after being released from jail. The majority excuses his lack of reporting as merely a
“minor” element of the case plan. I strongly disagree that progress and attendance reporting by
anyone in Father’s situation to the Department is a minor or unimportant element of the case
plan. In addition, the majority states on several occasions that after the magistrate directed the
Department to cease reunification efforts in May 2009, the case plan no longer existed and that
the magistrate could not, therefore, fault Father for not completing plan elements. I do not
believe that the plan evaporated. Instead, as the social workers testified, the case plan remained
for Father to complete and “do everything to provide documentation and resources to the Court.”
The Department was relieved of its obligations, but not Father, if he wanted to demonstrate his
ability to parent his children. Finally, the majority states that the magistrate implied that Father
had not complied with the case plan because he had not completed alcohol treatment at the date
of the hearing, which implication is incorrect because the case plan did not have a time for
completion. The supposed implication aside, the statement made by the magistrate was true -- at
the time of the hearing, Father had not completed alcohol treatment. Whether he should have


2
        The majority states that the magistrate gave “inadequate attention” to certain evidence
regarding Father’s progress. What this seems to mean -- that the lower court gave inadequate
attention to certain evidence -- is that the appellate court is swayed by the evidence and the
magistrate should have been as well -- not that there is a lack of competent and substantial
evidence to support the magistrate’s determination. The magistrate considered the evidence of
Father’s progress.

                                                22
been granted more time to do so is the issue advanced by the majority, not the accuracy of the
finding by the magistrate.
       The magistrate found that Father had not completed parenting training. The majority
excuses this fact because of scheduling conflicts. The magistrate found that Father did not have
financial stability to raise the children.     As the majority notes, Father did have gainful
employment after being released from jail. The majority legitimizes his limited financial means
by reference to past debts, probation supervision and mandated drug testing costs.              More
noteworthy is the majority’s statement that “the Department did little or nothing to assist in
Father’s efforts to improve his financial capacity but, rather, diminished it by garnishing his
wages.”    Respectfully, the Department had no obligation to improve Father’s “financial
capacity,” and more importantly, garnishment of his wages was not some sort of punishment or
Department whim, but for support for his children which he was not paying voluntarily. In
regard to housing, the magistrate found that Father was “currently living in his employer’s car
wash office and has no home for the children to return to.” Once again, this statement was true.
The majority, however, chastises the magistrate for not commenting on the testimony that Father
was trying to save money to get a house and his employer was willing to front some money for a
house, but only if Father got his children back. In the end, the findings that, at the time of trial,
Father did not have financial stability or a home to raise his children are true and, as stated by the
majority: “Father acknowledged that at present, he was not financially able to provide a proper
home for his children, but believed that in three to four months he could do so.”
       In an action to terminate parental rights, due process requires this Court to determine if
the magistrate’s decision was supported by substantial and competent evidence. In re Doe, 143
Idaho 343, 345, 144 P.3d 597, 599 (2006). Substantial and competent evidence is such evidence
as a reasonable mind might accept as adequate to support a conclusion. Id. at 345-346, 144 P.3d
at 599-600. This Court will indulge all reasonable inferences in support of the trial court’s
judgment when reviewing an order that parental rights be terminated. Doe v. Doe, 148 Idaho
243, 246-247, 220 P.3d 1062, 1064-1065 (2009). Reasonable inferences are drawn in favor of
the magistrate court’s judgment because 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, ___ Idaho ____, 244 P.3d 180 (2010). We conduct an
independent review of the record that was before the magistrate. Doe, 143 Idaho at 346, 144


                                                 23
P.3d at 600. In an action to terminate parental rights, where a clear and convincing standard has
been noted explicitly and applied by the trial court, an appellate court will not disturb the trial
court’s findings unless they are not supported by substantial and competent evidence. Only
clearly erroneous findings are overturned, which means a reasonable person would not have
relied on them in concluding as the fact finder did. Doe v. Roe, 142 Idaho 202, 203, 127 P.3d
105, 106 (2005).
       Our limited role on appeal is to determine if substantial and competent evidence exists in
the record to support the magistrate’s findings.       We are not to re-weigh the evidence or
determine veracity. Yet, the majority notes that both the social worker and the guardian ad litem,
in their professional opinions, recommended termination and then states that the testimony does
not withstand scrutiny and is “unconvincing.” The guardian testified that termination would be
in the children’s best interest, stating that “I believe that it’s too large of a gamble to gamble on
the father’s sobriety that conditions in the home wouldn’t revert back to the conditions they had
before.” The majority states that were the reasoning of the guardian adopted, no parent with an
addiction could ever regain custody of their children. While I agree that every recovering addict
is one drink, pill, or injection, to reference but a few of the more recognized addictions, away
from return to destructive ways, and one cannot be disqualified from parenting solely on that
fact, the “gamble” referenced here was not solely lost sobriety. The “gamble” was this particular
individual’s loss of sobriety. He has a long and extensive alcohol history. When not sober, it is
not that he forgets to go to work or becomes depressed, no, this particular individual engages in
egregious conduct directly, physically, mentally and adversely affecting his children. In regard
to the testimony of the social worker, the majority relates only a small portion of the testimony
supporting his opinion that termination is in the children’s best interest, but his opinion was not
just based on the extended family history, but also, among other things, the fact that Father did
not have a home, the fact that Father did not pay child support until court ordered, the fact that
Father had not completed all the requirements of the Department and the court, the positive
changes in the children since being in foster care, and his opinion that, while recognizing Father
had done well since March 2009, he would need an extended period of time to be able to provide
a stable home situation for his children when the children need permanency now to mitigate
ongoing detrimental effect.      Again, our question is whether there exists substantial and




                                                 24
competent evidence supporting the magistrate’s findings, indulging all reasonable inferences in
favor of the magistrate’s findings, not whether evidence is or is not convincing to us.
       The majority minimizes virtually all evidence relating to the circumstances and conduct
prior to the date of the case plan, including their lasting effects.      In order to identify the
significance of those past circumstances and conduct, it is important to review what the
magistrate determined, what Father actually places at issue and what the majority purports to do.
The magistrate determined that the children were abused and neglected and that termination was
in their best interest. Regarding the finding of “abuse,” the majority notes that only neglect was
expressed as the ground stated in the petition for termination. However, as also noted, Father
does not contend on appeal that the determination of abuse was improper from a pleading
standpoint.   He also does not contest the finding in any way.             Thus, the magistrate’s
determination of abuse, under I.C. § 16-2005(1)(b), must be affirmed. Additionally, nowhere in
his brief to this Court does Father challenge the magistrate’s finding of neglect or contend that
there is not substantial and competent evidence in the record to support the finding.
Consequently, the magistrate’s determination of neglect, under I.C. § 16-2005(1)(b), must also
be affirmed. Father does not address, in any way, the fact that the petition alleged and the
magistrate found that termination would be in the best interest of the parents.           Thus, the
magistrate’s determination that termination would be in the best interest of Father, under I.C.
§ 16-2005(3), must be affirmed.
       The only finding of the magistrate challenged by Father is whether termination would be
in the best interest of the children, under I.C. § 16-2005(1)(b) and (3). The only evidence in the
record cited by Father is that which supports his contention that beginning in March or
April 2009, he “made drastic changes in his life.” Based upon that evidence he asserts that
termination was premature and not in the best interest of his children and that he should have
been allowed “additional time to work and complete his family case plan.”
       The only information or evidence referenced by the majority relating to facts or
circumstances prior to the children being taken into the custody of the Department is:
               On September 27, 2008, Father, while under the influence of alcohol,
       struck one of the twin boys leaving a red mark on the boy’s face. Father was
       arrested and charged with injury to a child. Upon observing that the family
       residence was filthy and unsanitary, the officers notified the Idaho Department of
       Health and Welfare (the Department), and a social worker was sent to the scene.
       The children told the social worker that their father was an alcoholic whose

                                                25
       condition was so severe that he kept a bucket next to his recliner to throw up in,
       and that Father sometimes hit them when he was drunk. The family was also
       facing eviction from their home for nonpayment of rent.
In addition, the majority notes only that “at the termination hearing, Father described his past
conduct as ‘despicable’ and said that he was ‘appalled at myself.’” In this fashion, the majority
is able to minimize the egregiousness of the family situation for years to focus exclusively on
Father’s progress in the few months leading up to the termination hearing.
       The testimony demonstrates that the children were subjected to a home which was
extremely dirty and unsanitary. The toilets were filthy with feces. Used adult diapers were
strewn about and trash and debris nearly obscured the carpet. A strong odor of urine pervaded.
The children’s clothes did not fit, they were significantly behind in school and anti-social. A
social worker testified that the children told her that Father was physically abusive with the
children on “multiple occasions,” and that Father would punch them “on a regular basis.” Father
had such an extensive history and depth of alcoholism that he kept a red bucket next to his
recliner to vomit into “20 or 25 times a day,” the horrible noise from which caused the children
to cover their ears. If the children were not totally silent while Father watched NASCAR, they
ate bread and water for the day. On one occasion a child kicked over the bucket and was ordered
to drink the vomit, but, fortunately, after putting the bucket to his mouth Father apparently
passed out and the child did not drink.
       With regard to the daughter, the foster mother testified extensively how the daughter’s
own physician did not know that she had a shunt for spina bifida, that there were notably no
records of care from the time she was two years old for any condition other than colds and the
like, although she was fifteen at the time of the termination trial. Father, however, believed that
she did receive treatment after the age of two in Portland, Oregon. She further testified that the
daughter’s kidneys have been damaged and her bladder misshapen for lack of bladder training,
which could have been less severe with proper care. She may lose a kidney and may need
bladder repair surgery. The foster mother had contact with the daughter when she was in the
sixth grade and she frequently ran out of diapers and the smell was a problem for her and others.
At the time of coming into care, the daughter had never been to a dentist and was in need of new
glasses. On an ongoing basis, she needs to see her physicians regularly, she has short-term
memory loss and forgets to take her medications and must be reminded to shower each day
because of smell. She needs to be catheterized five times per day and is still bowel training,


                                                26
having occasional bowel movements during school. The foster mother testified that, in this way,
the daughter needs attention “24/7” and someone to care for her and who will follow through
with all that needs to be done for her. Father testified that while he had not been privy to her
most recent care, he could take care of her, although he would not personally provide
catheterization and would need to secure someone else to help in that regard. He stated that he
believed that he could provide for her needs whenever necessary with time off of work and with
the assistance of a babysitter after school. While Father’s desire to care for his daughter appears
genuine, the magistrate’s finding that he did not have a “basic understanding of his daughter’s
medical needs” is supported by substantial and competent evidence in the record.
       The extensive neglectful and abusive family history presented no evidence of “proper
parental care” or ability to “discharge [parental] responsibilities.” See I.C. § 16-1602(25)(a), (b).
Father’s severe and long-term alcoholism resulted in physical and emotional violence to the
children. In regard to the daughter, Father demonstrated little understanding of, or concern for,
her significant needs prior to her entering foster care. The primary case worker testified that the
historical information was important to the family dynamics and demonstrated that Father had
not been a resource for his children. From this starting point, Father had a significant road to
traverse to demonstrate an ability to properly care for his children.
       The real issue in this case is not, as the majority has chosen, challenging the findings of
fact of the magistrate, all of which are supported by substantial and competent evidence in the
record. The real issue in this case is whether it was in the children’s best interest to give Father
more time to progress. At the time of trial in November, Father had made, beginning in
approximately April, a genuine and obviously heartfelt effort at sobriety for the first time in his
life. He attended classes and meetings. He testified that he knew that he had to become sober
before he could provide for his children. He had the support of his employer. He had much
better relationships with his children.    He loves and wants his children.        Yet, Father also
acknowledged that, at the time of trial, he did not have a stable financial situation or housing for
the children. He estimated needing three to four months to reach those goals. He testified that
he would have been farther along if he had taken the matter seriously before getting out of jail.
He had not completed parenting and anger management classes. He did not have a driver’s
license.   Importantly, the primary case worker testified that it “would be a long time” to
rehabilitate Father to where he could provide a home for the children. He further testified that


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because of Father’s extensive substance abuse, “the time table for his treatment would have to be
quite a while to show that he’s going to be able to maintain sobriety.” He stated that he did not
think that Father could provide the care his daughter needs and that she would need to have
personal care service. On the other hand, he testified that the children presently needed parents
who could provide stability. In addition, he testified that the children would experience a
detrimental effect without permanence soon.
       The magistrate was aware of all of the facts, including Father’s history, his progress, and
his sincere desire for his children. The magistrate did not give “inadequate attention” to any of
the facts. The magistrate was aware that Father was asking for more time in the ultimate best
interest of the children. The magistrate recognized that Father was making progress but was not
in a position to take the children back and chose permanence for the children. While the
magistrate could have granted more time, the magistrate’s findings and conclusions are
supported by substantial and competent evidence.
B.     Disqualification.
       I would affirm the magistrate’s denial of the motion to disqualify.                The majority
concludes that the magistrate, in ruling on the motion, applied the “extrajudicial source” rule,
without also applying the “pervasive bias arising from facts and events occurring at trial” rule
from Bach v. Bagley, 148 Idaho 784, 791-792, 229 P.3d 1146, 1153-1154 (2010). I would first
note that the magistrate did quote from a treatise which suggested that a judge’s reaction to facts
and evidence developed in a case cannot create disqualification for bias or prejudice. However,
that language is not very different from the language cited by Bach, at 791-792, 229 P.3d at
1153-1154, from Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L.Ed.2d 474 (1994):
                The judge who presides at a trial may, upon completion of the evidence, be
       exceedingly ill disposed towards the defendant, who has been shown to be a
       thoroughly reprehensible person. But the judge is not thereby recusable for his bias
       or prejudice, since his knowledge and the opinion it produced were properly and
       necessarily acquired in the course of the proceedings, and are indeed sometimes (as in
       a bench trial) necessary to the completion of the judge’s task. . . . “Impartiality is not
       gullibility. Disinterestedness does not mean child-like innocence. If the judge did
       not form judgments of the actors in those court-house dramas called trials, he could
       never render decisions.”
Id. at 550–551 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)).
       It is enough for present purposes to say the following: First, judicial rulings alone
       almost never constitute valid basis for a bias or partiality motion. . . . and can only in
       the rarest circumstances evidence the degree of favoritism or antagonism


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       required . . . . Almost invariably, they are proper grounds for appeal, not for recusal.
       Second, opinions formed by the judge on the basis of facts introduced or events
       occurring in the course of the current proceedings, or of prior proceedings, do not
       constitute a basis for a bias or partiality motion unless they display a deep seated
       favoritism or antagonism that would make fair judgment impossible. Thus, judicial
       remarks during the course of a trial that are critical or disapproving of, or even hostile
       to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
       challenge. . . . A judge’s ordinary efforts at courtroom administration—even a stern
       and short-tempered judge’s ordinary efforts at courtroom administration—remain
       immune.
Id. at 555–556.
       In ruling on the motion, the magistrate specifically recounted his revulsion to facts and
events which he had been made aware of in the proceedings, but stated that he was not biased
therefrom. Thus, the magistrate squarely addressed the question of bias arising from facts and
events from the proceedings themselves.
       In fact, Father claims, contrary to the majority finding, that it was the extrajudicial source
issue that the magistrate did not specifically comment on and, therefore, did not directly address.
Father had claimed that the magistrate’s prior comment that Doe’s case was “legendary” in
protective act circles and the magistrate’s participation in a prior criminal matter involving Doe
raised concerns regarding prejudice developed from sources outside the instant matter. Indeed,
the magistrate did not directly comment on the extrajudicial source issue, however, it was clearly
presented to the magistrate and, in my view, subsumed within the denial of the motion. The
asserted extrajudicial sources were wholly inadequate to demonstrate pervasive bias. 3




3
        I further disagree with the view of the majority expressed in the final footnote of the
majority opinion. The majority suggests that there is an inherent bias and risk of prejudgment in
parental termination cases when the judge deciding the termination case also presided in the
shelter care and child protective proceedings. I think quite the contrary. The judge who presided
in the shelter care and/or child protective proceedings is in the best position, due to familiarity
with past circumstances, to appreciate the strides, successes and improvements of the parents
over the course of the case plan, or the lack thereof. That judge, who may have observed the
parents at their worst, should be most able to recognize genuine progress. Moreover, in this case,
and I would venture most cases, the judge presiding over the termination proceeding was
presented with evidence of the situation, circumstances and conduct that led to the children being
placed in the custody of the Department. Thus, even without being privy to such information
from past proceedings, the judge deciding the termination case is made aware of those
circumstances. If those facts would repulse the judge in the shelter care or child protective
proceeding, they would repulse a different judge in the termination proceeding.

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