               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No.42140

IN THE MATTER OF THE                             )    2014 Unpublished Opinion No.692
TERMINATION OF THE PARENTAL                      )
RIGHTS OF JOHN (2014-TT) DOE                     )    X'iled: August 25,2014
                                                 )
IDAHO DEPARTMENT OF HEALTH                 & )        Stephen W. Kenyon, Clerk
WELFARE,                                     )
                                             )        THIS IS AN UNPUBLISHED
       Petitioner-Respondent,                )        OPINION AI\D SHALL NOT
                                             )        BECITEDASAUTHORITY
and

GUARDIAN AD LITEM,

       Respondent,


JOHN (2014-11) DOE,

       Respondent-Appellant.


       Appeal from the Magistrate Division of the District Court of the Fifth Judicial
       District, State of ldaho, Twin Falls County. Hon. Thomas Kershaw, Magistrate.

       Order terminating parental rights, affrrmed.

       Williams Law Office, Chtd., Timothy J. Williams, Twin Falls, for appellant.

       Jamie A. Lamure, Kimberly, for respondent guardian ad litem.

       Hon. Lawence G. Wasden, Attomey General; James T. Baird, Deputy Attomey
       General, Twin Falls, for respondent.


GRATTON, Judge
      John Doe (Father) appeals fiom the magishate's order terminating his parental rights.
We affirm.
                                                 I.
                      FACTUAL AIID PROCEDURAL BACKGROUND
       In 201l, the Idaho Department of Health & Welfare (the Department) filed a petition
alleging that Father and Jane Doe (Mother) exposed their eight-month-old child, M.F., to
methamphetamine. A lengthy child protection action followed. ln20l3, the termination hearing
was held in which the magistrate found that Father had neglected      M.F. The      magistrate found
that the parents had failed to complete the parenting plan. Father's plan included requirements to
obtain treatment for substance abuse, mental health treatment, and random drug testing. The
caseworkers had difliculty throughout the proceedings locating Father, and Father made little
effort to contact the caseworkers or the guardian ad litem. Once visitation was established,
Father attended six out    of   eighteen scheduled visits with M.F. and his visitation plan was
canceled due to lack    of participation. Father did not attempt to re-establish visitation.          The
magistrate specifically found that Father never meaningfrrlly participated in the case plan. The
magistrate also found that both parents exposed M.F. to methamphetamine. Before the hearing
to terminate Father's parental rights, Father was anested for aggravated assault for pointing a
gun at an individual. He was released on bond, but was again arrested for possession of
methamphetamine. That charge was dismissed in exchange for his guilty plea on the aggravated
assault charge, for which he continued to be incarcerated at the time of   trial. Despite   a   finding of
neglect, the court denied the petition to terminate Father and Mother's parental rights due to
Mother's efforts to rehabilitate.
       In May 2013, the Department filed another petition to terminate Mother and Father's
parental rights because Mother was believed to be drinking again, she was in violation of her
probation, and was "on the run." Mother failed to panicipate in the proceedings and her parental
rights were terminated by default in August 2013. Father objected to termination and a hearing
was held in February 2014. Based on the evidence presented at the first hearing, in addition to
the evidence presented at the February 2014 hearing, the court made the following findings.
over the course of the parental proceedings, Father was generally uncooperative with the
Department and never made significant progress on any case plan. once incarcerated, Father
refused to sign a release that would allow the Department to get information about his
performance in the prison system. He also refused to provide proof to the Department of the
courses he completed and he had not completed a drug treatment program. Father had been
approved for parole on the condition that he would complete the prison system's therapeutic
community program; however, he was discharged from the program roughly halfuay through.
He testified that he had again enrolled in the program and would be eligible for parole in
December 2014. Father admitted into evidence several certificates at the hearing showing he
completed classes in anger management, parenting, and on being a role model.
        Father has never been the primary caregiver of M.F., or supported her financially. His
child support arrearage is over $6,000. Father has sent birthday and christmas gifts to M.F.
while he has been incarcerated, wriften cards and at least one letter, and recorded a story and sent
it to M.F. Father has had limited contact with M.F. since his incarceration in June 2012. Father
and M.F. have had telephone calls, but M.F. does not enjoy the calls and prefers to do other
things. Father's failure to make more calls is likely due to his lack of funds requiring him to
make collect calls, which are refused.

        M.F. has been in foster care since September 2011. Her current foster parents are her
great rmcle and aunt, who live in califomia. They have had M.F. since september 2012. M.F.
refers to them as her mommy and daddy. when they received M.F., she was quiet and she had
some dental problems. Since that time, the dental problems have been fixed and the child is now

described as high energy. M.F. has cousins and other relatives in the area where she lives. She
has bonded  with her foster family and her foster parents want to adopt her. It is undisputed that
M.F. is in a good and stable home. The guardian ad litem and the caseworker testified that it
would be in M.F.'s best interest to be adopted by her current foster parents. Both emphasized
that M.F. needs stability and is unlikely to receive it from Father.
       Father testified that he hopes to be in a position to provide full-time care for M.F. once he
is released from prison. He has no specific plan how he will accomplish that goal once released.
His mother testified that he could live with her once he is released and that he could work at a
dairy farm where her husband works. The earliest he could be released is December 2Ol4 at that
point M.F. would be nearly four years old. If termination was denied, M.F. would be required to
move back to Idaho where she would be introduced to a new foster home, and a new parenting
plan would also be required. Even given this best-case scenario, the court found it was not in
M.F.'s best interest. The magistrate found that Father neglected M.F. and that it would be in her
best interest to terminate Father's parental rights. Accordingly, the court granted the petition to
terminate Father's parental rights. Father timely appeals.
                                                 II.
                                            ANALYSIS
        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, 345,144P.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
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,14g Idaho
243, 246-47 , 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.
       A parent   has a fundamental liberty interest in maintaining a relationship
                                                                    with his or her
child" Doev.State, 137 Idaho758,760,53p.3d341,343(2002);seealsoQuilloinv. Ilalcott,
434 U.S. 246,255 (1978). This interest is protected by the Fourteenth Amendment to the United
states constitution. state v. Doe, l44Idaho 839, 942, 172 p.3d I I 14,    lllT   (2007). .,lmplicit in
[the Termination of Parent and Child Relationship Act] is the philosophy that wherever possible
family life should be strengthened and preserved . . . ." I.c. g 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. ldaho code $ 16-2005 permits the Department to petition the
court for termination ofthe 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 1 1 17.
       Idaho Code     $   16-2002(3) defines "neglect" as any conduct included        in I.C. $    16-
1602(26), as well as situations where the parent has failed to comply with the court,s orders or
the case plan in a child Protective Act case and the Depa(ment has had temporary or legal
custody of the child for fifteen of the most recent twenty-two months and reunification has not
been accomplished by the last day of the fifteenth month      in which the child has been in the
temporary or legal custody of the Department. Secfion l6-1602(26)(a) provides, in pertinent
part, that a child is neglected when the child is without proper parental care and control, or
subsistence, medical or other care or control necessary   for his or her well-being because of the
conduct or omission ofhis or her parents, guardian, or other custodian or their neglect or refusal
to provide them.
        Father does not challenge the magistrate's findings of fact, but simply notes that M.F.'s
placement    in foster care, his addiction to controlled a   substance, and incarceration are not
individually enough for termination of his parental rights. He argues that he continues to address
his addiction problem through AA, relapse prevention classes, and the therapeutic commgnity
program. As to contacting the child while incarcerated, he analogizes his situation to that ofthe
fatherinDoev.state, 137 Idaho758,76l-62,53p.3d341,344-45(2002). Inthatcase,the
Idaho Supreme Court vacated a termination order where the father had been incarcerated since
the child's birth' had sent letters and gifts to the child while incarcerated, had expressed an
interest in maintaining a relationship with the child, and could have had an early release from
prison but failed the rider program he was on. The court reversed the magistrate, reasoning:

               There is an issue, however, ofwhat actions Doe could have taken, once in
       prison, to maintain contact with his child. Doe sent his child eifts and made
       efforts to contact the child through the Departrnent and throrigh 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 subitantial
       competent evidence that supports a finding by clear and convincing standard of
       abandonment. The Departnent trivializes Doe's efforts to have a relationship
       with his son. Reality must play a part at two levels: l) Doe was severelv
       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.

Doe, 137 Idaho at 761-62, 53 P.3d at 344-45. Father argues he has done everything under the
circumstances to maintain contact with the child while incarcerated. He has made calls to M.F.,
has sent birthday and Christmas gifts, written cards and at least one letter, and recorded and sent

a story to   M.F.   However, as both the Department and the appointed guardian ad litem note,
before Father was incarcerated he exposed M.F. to methamphetamine, failed to complete the
required parental plan, and became incarcerated for his conduct during the proceedings. The
Idaho Supreme Court made this same distinction in a later case:

                 On appeal, Doe also argues this case is controlled by our decision in Doe
         v. state, 137 Idaho 758, 53 P.3d 341 (2002), in which this court reversed the trial
         court's decision to terminate the parental rights of an imprisoned father. unlike in
         Doe, there is suffrcient evidence here of this father's neglect of Jane prior to the
         time he was imprisoned, so that it is not necessary to evaluate his conduct while
         imprisoned.

InreDoe,143 Idaho 343,348, t44 P.3d 597,602 (2006). Additionally,              once incarcerated Father
continued to be uncooperative in pursuing his parenting plan. He refused to sign a release to
allow the Department to review his progress while in prison and he was discharged from the
therapeutic community program for noncompliance and nonparticipation in the program. There
is substantial and competent evidence to support the court's frndings that Father neglected M.F.
         There is also substantial and competent evidence to support the magistrate's finding that
it is in the best interest of M.F. to terminate Father's parental rights. Though Father testified to
plans that he may be able to obtain release and may be able to find employment, Father also
showed a continued pattem     of failing to cooperate with the Department in reunification and
failure to meaningfully comply with his parental plan. Father belatedly made some minimal
effort to establish a relationship with M.F., but the magistrate balanced this against M.F.'s
stability in her current home in califomia. M.F. has been in foster care since 2011, and placed
witl   her cunent foster parents since 2012. She has flourished while in their care, and they intend
to adopt M.F.   if   Father's parental rights are terminated. The caseworker and guardian ad litem
both testified that    it is in M.F.'s   best interest to have permanent placement and to terminate
Father's parental rights. There is substantial and competent evidence that terminating Father's
parental rights is in the best interest of M.F.

                                                    III.
                                             CONCLUSION
         The magistrate's determination is supported by clear and convincing evidence that Father
neglected M.F., altd that    it is in the child's   best interest to terminate Father's parental rights.
Therefore, the order terminating Father's parental rights is affirmed.
         Chief Judge GUTIERREZ and Judge LANSING CONCUR
