               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37770

IN THE MATTER OF THE                             )
TERMINATION OF THE PARENTAL                      )
RIGHTS OF JANE DOE.                              )
IDAHO DEPARTMENT OF HEALTH &                     )      2010 Unpublished Opinion No. 655
WELFARE,                                         )
                                                 )      Filed: October 5, 2010
       Plaintiff-Respondent,                     )
                                                 )      Stephen W. Kenyon, Clerk
v.                                               )
                                                 )      THIS IS AN UNPUBLISHED
JANE DOE,                                        )      OPINION AND SHALL NOT
                                                 )      BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the Magistrate Division of the District Court of the First Judicial
       District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge;
       Hon. Barry E. Watson, Magistrate.

       Order of the district court affirming magistrate’s order terminating parental rights,
       affirmed.

       John M. Adams, Kootenai County Public Defender; Sarah L. Sears, Deputy
       Public Defender, Coeur d’Alene, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Denise L. Rosen, Deputy Attorney
       General, Coeur d’Alene, for respondent.
       ________________________________________________

GUTIERREZ, Judge
       Jane Doe (Doe) appeals from the district court’s order affirming the magistrate’s order
terminating Doe’s parental rights to her son, T.H., due to neglect.          Doe argues that the
magistrate’s decision was not supported by substantial and competent evidence. For the reasons
set forth below, we affirm.
                                                I.
                                        BACKGROUND
       On March 28, 2007, as a result of T.H.’s teacher discovering bruising on him, a child
protection petition was filed alleging abuse and an unstable home environment. Jurisdiction

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under the Child Protective Act was subsequently found under those bases. A case plan was
prepared for T.H.’s mother and father who were not residing with each other. Thereafter, T.H.’s
father voluntarily terminated his parental rights. A petition to terminate the parental rights of
Doe was filed by the Department of Health and Welfare (the Department) on June 19, 2008. In
the petition, the Department alleged that Doe had neglected T.H. by failing to comply with the
applicable case plan and because reunification with T.H. had not occurred within the statutory
time period. The Department also alleged that termination was in the best interests of T.H.
       A trial on the termination of Doe’s parental rights was held and lasted several days.
During the trial, Doe attempted to call T.H. as a witness in the case, but the magistrate found that
T.H. was in a fragile state and that even if T.H. were to testify, he would not put much weight on
the testimony. On May 28, 2009, the magistrate rendered a decision finding that T.H. had been
neglected by Doe because Doe was not in compliance with the case plan, and reunification with
T.H. had not occurred within the statutory time period.              The magistrate also found that
termination was in the best interests of T.H. Doe appealed to the district court raising two issues:
(1) the trial court erred by not allowing T.H. to testify during the trial; and (2) the trial court
erred in finding sufficient evidence to terminate her parental rights. After an oral argument was
held, the district court affirmed the magistrate’s order terminating Doe’s parental rights. Doe
appeals.
                                                 II.
                                   STANDARD OF REVIEW
       On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d
758, 760 (2008). We examine the magistrate record to determine whether there is substantial
and competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. Id. If those findings are so supported and the
conclusions follow therefrom and if the district court affirmed the magistrate’s decision, we
affirm the district court’s decision as a matter of procedure. Id.
       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 345-46, 144 P.3d

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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, 245-46, 220 P.3d 1062, 1064-65 (2009). We conduct an independent review of the record
that was before the magistrate. Doe, 143 Idaho at 346, 144 P.3d at 600.
                                                III.
                                            ANALYSIS
A.     Testimony of T.H.
       Doe asserts that the magistrate abused its discretion by not allowing T.H. to testify during
the trial because his testimony would have been extremely probative with regard to whether
visits with Doe were uncomfortable and did not go well, whether he missed Doe or had a strong
bond with her, and whether interactions with Doe were forced or unnatural. Doe also asserts that
accommodations were suggested in order to minimize any emotional or psychological impact
testifying would have had on T.H. In support of her argument, Doe relies on State ex rel.
Juvenile Dep’t of Tillamook County v. Beasley, 840 P.2d 78 (Or. 1992). Doe argues that the
factors in Beasley must be applied before the trial court may refuse to allow a child to testify:
       [W]hether (1) the probative value of the child’s testimony is (2) substantially
       outweighed by the risk of severe emotional or psychological harm to the child
       from testifying. In making the determination regarding the risk of severe
       emotional or psychological harm to the child, the trial court should consider such
       factors as: (1) the probability of severe emotional or psychological injury to the
       child as a result of testifying; (2) the degree of anticipated injury; (3) the expected
       duration of injury; and (4) whether the expected psychological injury is
       substantially greater than the reaction of an average child who testifies.
Id. at 84. However, in Idaho, it is a matter of discretion whether to allow a child to testify in
both divorce and termination of parental rights cases, or to permit cross-examination by a
parent’s counsel. State ex rel. Child v. Clouse, 93 Idaho 893, 899, 477 P.2d 834, 840 (1970).
       In essence, the magistrate here applied the standard in Beasley. The magistrate weighed
arguments from both sides as to whether T.H. should or should not testify and determined that
because of T.H.’s fragile state and the possibility that he would not offer any helpful testimony,
it would not allow T.H. to testify at the termination hearing. Therefore, we conclude that the
magistrate did not abuse its discretion.
B.     Termination of Parental Rights
       A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). See also Quilloin v. Walcott,
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434 U.S. 246, 255 (1978). This interest is protected by the Fourteenth Amendment to the United
States Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). “Implicit in
[the Termination of Parent and Child Relationship Act] is the philosophy that wherever possible
family life should be strengthened and preserved . . . .” I.C. § 16-2001(2). Therefore, the
requisites of due process must be met when the Department intervenes to terminate the parent-
child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process
requires that the Department prove grounds for terminating a parent-child relationship by clear
and convincing evidence. Id. Idaho Code § 16-2005 permits the Department to petition the
court for termination of the parent-child relationship when it is in the child’s best interest and any
one of the following five factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a
biological relationship between the child and a presumptive parent; (d) the parent is unable to
discharge parental responsibilities for a prolonged period which will be injurious to the health,
morals, or well-being of the child; or (e) the parent is incarcerated and will remain incarcerated
for a substantial period of time. Each statutory ground is an independent basis for termination.
Doe, 144 Idaho at 842, 172 P.3d at 1117.
       In this case, the magistrate concluded, among other things, that Doe had neglected T.H.
for failing to comply with the case plan and because reunification between T.H. and Doe had not
occurred within the time standards set forth in I.C. § 16-1629(9). Idaho Code Section 16-
2002(3)(b) defines “neglect” as any conduct included in I.C. § 16-1602(25), as well situations
where the “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).” The time standard established by I.C. § 16-
1629(9) is defined as when “a child is 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.”
       1.      Neglect
       Doe asserts that the trial court erred in finding she neglected T.H. under I.C. § 16-
2002(3)(b). As noted, I.C. § 16-2002(3)(b) provides that neglect is established if the parent fails
to comply with the case plan and reunification of the child with the parent does not occur within
the time limit set by I.C. § 16-1629(9). On appeal, Doe argues that the magistrate erred in
finding that there was clear and convincing evidence that she had not complied with the case

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plan. Doe further argues that the magistrate erred in finding that the Department undertook
reasonable efforts to try to reunite T.H. with Doe, but that those efforts had not “borne fruit.”
       Doe asserts that there is ample evidence that she complied with the case plan and made
changes in order to be reunited with T.H. Specifically, she argues that she maintained stable and
appropriate housing for her children, she supplied the Department with certification that she had
been attending parenting classes, she sought continuous care from a PSR (Psychosocial
Rehabilitation) worker and counselor, and she cooperated with the Department to ensure her
home was fit for T.H.’s return. However, the record indicates that there is substantial and
competent evidence to support the magistrate’s decision that Doe was not in compliance with the
case plan.
       For instance, Doe’s case plan provided that she would supply a safe, stable, and secure
living environment for T.H. Specifically, it stated that background checks on any potential
roommate were required before they could live with Doe. However, there was testimony that
Doe moved in with her fiancé and failed to provide a background check in order for the
Department to assess risk. The case plan also provided that Doe would attend parenting classes
and demonstrate her understanding of these classes by implementing the skills in interactions
with T.H. State witnesses testified that although Doe supplied the Department with certification
that she had been attending parenting classes, Doe was not able to demonstrate that she
understood the skills and how to apply them. Through observation it was apparent that Doe did
not understand the issues related to T.H.’s needs or that he requires extra services and hands-on
treatment. State witnesses also testified that Doe did not participate in staffings or services for
T.H. Furthermore, the case plan provided that Doe would cooperate with visitations arranged by
the Department and if she was unable to attend a scheduled visit, she was to call the Department
in advance. The testimony of state witnesses relayed that Doe was cooperative early on and
attended visits with T.H., but that she eventually became hostile toward the Department and
became uncooperative. At that point, supervised visits between T.H. and Doe generally did not
go well; Doe did not want to meet with Department employees, and she became hard to work
with because she would get very agitated.             Additionally, after visitation with T.H. was
terminated, Doe never took any initiative to figure out why. The evidence in the record supports
the magistrate’s decision that Doe was not in compliance with the case plan.



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     Doe also asserts that the magistrate erred in finding that the Department undertook
reasonable efforts to try to reunite Doe with T.H., but that those efforts had not “borne fruit.”
Doe argues that she made an effort to try to reunite with T.H. because she made changes to her
home in order to comply with the Department’s instructions, participated in programs required
by the Department, complied with all requests to supply forms and release information, received
counseling and PSR services, completed numerous parenting classes, and complied significantly
with the Department’s case plan. However, the record shows that there was substantial and
competent evidence that the Department made reasonable efforts to reunify Doe with T.H., but to
no avail. The Department encouraged supervised visits between Doe and T.H. Department
employees tried to meet with Doe after visits between Doe and T.H. stopped. However, attempts
to contact her were often unsuccessful. In September 2008, the Department tried to contact Doe
by phone to set up a meeting, but Doe was agitated and said the office was too far, and the
Department never heard back from Doe. In October 2008, a letter was sent to Doe, but there was
no response. Likewise, in November 2008, another letter was sent to Doe asking her to call and
set up a meeting, but again there was no response. In addition, the Department offered gas
vouchers for Doe to get to the Department office, but she never followed up on the offer. The
record indicates that the Department made reasonable efforts for reunification. However, Doe
failed to take advantage of any of the opportunities that the Department provided.
     The magistrate’s decision that T.H. was neglected as defined by I.C. § 16-2002(3)(b)
because Doe failed to comply with the case plan and because reunification had not occurred
between Doe and T.H. is supported by substantial and competent evidence.
       2.      Best interest of the child
       Doe asserts that the magistrate erred in concluding that termination was in the best
interests of T.H. “When a judge finds a statutory ground, such as neglect, he or she must then
decide if termination of parental rights is in the best interests of the children.” Doe v. Dep’t of
Health & Welfare, 141 Idaho 511, 516, 112 P.3d 799, 804 (2005). “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, 245-46, 220 P.3d 1062, 1064-65
(2009) (internal quotations omitted).
       Based on the totality of the evidence presented at the trial, we conclude that there was
substantial and competent evidence to support the magistrate’s decision that termination was

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proper. The state’s evidence in this case was presented by the testimony of numerous witnesses,
including case workers, a foster parent, the PSR worker, a counselor, the CASA (Court
Appointed Special Advocate) worker, and the child’s therapist, at a four-day trial.             The
witnesses’ testimony indicated that visits between Doe and T.H. generally were uncomfortable
and did not go well or progress over time. In fact, after visits between Doe and T.H. were
suspended, T.H.’s behavior improved immensely. The state’s witnesses opined that it did not
appear that T.H. had formed a strong bond with Doe. Doe’s mental assessment shows that she
has a very low level of functioning, and that she has bipolar and borderline personality disorders.
After considering all of this evidence, the magistrate correctly determined that termination was
proper due to neglect, and because it would be injurious to T.H. to return him to Doe.
Substantial and competent evidence supports the magistrate’s conclusion that termination of
Doe’s parental rights was in the best interests of T.H.
                                                IV.
                                          CONCLUSION
       The magistrate did not abuse its discretion in not allowing T.H. to testify during the trial.
Additionally, there is substantial and competent evidence to support the magistrate’s conclusion
that Doe neglected T.H. for failure to comply with her case plan and because reunification did
not occur within the statutory period. Moreover, there is substantial and competent evidence to
support the magistrate’s conclusion that termination was in the best interests of T.H.
Accordingly, the district court’s order affirming the magistrate’s order terminating Doe’s
parental rights as to T.H. is affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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