               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41842

IN THE MATTER OF THE                              )
TERMINATION OF THE PARENTAL                       )
RIGHTS OF JOHN (2014-07) DOE.                     )
IDAHO DEPARTMENT OF HEALTH &                      )     2014 Unpublished Opinion No. 511
WELFARE,                                          )
                                                  )     Filed: May 19, 2014
       Petitioner-Respondent,                     )
                                                  )     Stephen W. Kenyon, Clerk
v.                                                )
                                                  )     THIS IS AN UNPUBLISHED
JOHN (2014-07) DOE,                               )     OPINION AND SHALL NOT
                                                  )     BE CITED AS AUTHORITY
       Respondent-Appellant.                      )
                                                  )

       Appeal from the Magistrate Division of the District Court of the Fourth Judicial
       District, State of Idaho, Ada County. Hon. Carolyn M. Minder, Magistrate.

       Decree terminating parental rights, affirmed.

       Randall S. Barnum, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Marcy J. Spilker, Deputy Attorney
       General, Lewiston, for respondent.
                  ________________________________________________
MELANSON, Judge
       John Doe appeals from the magistrate’s decree terminating his parental rights to his two
children. For the reasons set forth below, we affirm.
                                                I.
                                  PROCEDURAL HISTORY
       In June 2012, the Idaho Department of Health and Welfare filed a petition for hearing
under the Child Protective Act (CPA). The petition identified two children, ages one and three,
that the Department removed from their mother’s care (Jane Doe) after law enforcement found
the children to be in imminent danger. The petition requested that the children be placed in the
Department’s custody due to neglect by John and Jane. Both parents waived their right to a
shelter care hearing. The magistrate entered an order of temporary custody as to the parents,



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placing both children in the Department’s custody. John and Jane signed stipulations vesting
custody of the children in the Department. The magistrate entered findings of fact, conclusions
of law, and an order of legal custody as to the children. The magistrate also approved a case plan
for each parent.
       After the children had been in the Department’s custody for twelve months, the
magistrate conducted a permanency hearing to review the plan for permanent placement of the
children. At the hearing, the magistrate granted a three-month extension of foster care with the
primary goal of returning the children home with Jane.
       In October 2013, the Department filed a petition for termination alleging John and Jane
neglected the children. Each parent responded to the petition. The magistrate held a trial on the
termination petition over the course of two days. John and Jane appeared at trial, each with their
respective attorneys. After trial, the magistrate entered a memorandum decision and order
terminating the parental rights of both John and Jane. The magistrate concluded each had
neglected the children and that it was in the children’s best interest to terminate the parent-child
relationship. John appeals.
                                                II.
                                  FACTUAL BACKGROUND
       In June 2012, officers responded to Jane’s home regarding a call from family members.
The call indicated family members discovered the children unsupervised and naked. One child
had feces on her and the other child had a bruise on her forehead and scratches on her leg.
Officers discovered Jane intoxicated, passed out, and incapable of caring for the children.
Officers also observed food items strewn about the kitchen and living room area. It appeared
that the children attempted to feed themselves and spilled the food in the process. Officers also
discovered children’s clothing with fecal matter inside and fecal matter inside a bathtub.
Officers arrested Jane for injury to a child, at which time Jane became combative and hostile
toward officers. 1 During this time, John was incarcerated on convictions for domestic violence
in the presence of children and violation of a no-contact order. However, John was released
from jail twenty-one days after the children were taken into custody.



1
       Jane had a history of alcohol abuse that continued throughout the CPA case and
termination proceedings.

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          Following his release from jail, John began visitation with the children. John also began
attending parenting courses in accordance with his case plan. John appeared to be making
progress but, in February 2013, John was arrested for driving under the influence (DUI). In
March 2013, he absconded from probation and ceased contact with the children, the Department,
and his probation officer. In September 2013, John turned himself in to authorities. The district
court revoked John’s probation and sentenced John to 650 days in jail.
          At the time of trial, the children were three and five years of age and had been in the
Department’s custody for eighteen months.          The magistrate heard testimony from twelve
witnesses over the course of two days. Numerous exhibits were admitted into evidence. The
magistrate found by clear and convincing evidence that John had neglected the children.
Specifically, the magistrate found John was unable to discharge his responsibility to and for the
children and, as a result of such inability, the children lacked the parental care necessary for their
health, safety, and well-being. The magistrate also found John neglected the children by failing
to comply with the magistrate’s orders or the case plan and determined it was in the best interest
of the children to terminate John’s parental rights.
                                                 III.
                                    STANDARD OF REVIEW
          A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d
341, 343 (2002). 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 terminating the parent-child relationship. State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a
parent-child relationship be proved by clear and convincing evidence.               Id.   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 v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009;
In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d
at 652.


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          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 v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009).          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. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required. Doe v.
Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally
understood to be evidence indicating that the thing to be proved is highly probable or reasonably
certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s
decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d
at 600.
          Idaho Code Section 16-2005 permits a party 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 that 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.
                                                IV.
                                            ANALYSIS
A.        Reasonable Efforts to Reunite Children
          John argues the magistrate erred in concluding the Department made reasonable efforts to
reunite the children with him. John bases this argument on U.S. Public Law 96-272, which
provides in part, “in each case, reasonable efforts will be made (A) prior to the placement of a
child in foster care, to prevent or eliminate the need for removal of the child from his home, and
(B) to make it possible for the child to return to his home.” Idaho’s Child Protective Act has a
similar requirement that, absent aggravating circumstances, when a child is removed from the
home, the petition shall state that reasonable efforts were made to prevent the removal of the


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child from his or her home and the case plan must provide reasonable efforts to reunify the
family.
          Assuming that failing to make reasonable efforts to eliminate the need for removal of the
children in a child protection case provides a viable defense in a termination case, John has failed
to demonstrate the magistrate erred.       The gravamen of John’s claim of error is that the
Department “treated the fate of the children’s relationship with [John] as wholly contingent on
the outcome of any determination as to [Jane’s] fitness.” However, John’s argument fails to take
into account his own actions. John failed to provide evidence of stable housing, failed to provide
evidence of income, and was incarcerated for a substantial portion of time during the
proceedings.     Additionally, the Department attempted to take steps toward reestablishing a
meaningful relationship between John and the children. The Department facilitated visitation,
parenting classes, and video conferences with John. However, as soon as John began making
progress on his case plan, he absconded from probation and ceased all communication with his
children and the Department. Thus, the district court did not err in finding the Department made
reasonable efforts to eliminate the need for the removal of the children.
B.        Neglect
          John argues the magistrate erred in concluding the Department proved the existence of
neglect by clear and convincing evidence. Specifically, John asserts the magistrate failed to
consider the efforts John made to continue his parental relationship with his children.
          Idaho Code Section 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 Department 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.          Here, the magistrate found neglect under
I.C. § 16-1602(26)(b) and I.C. §§ 2002(3)(b)(i) and (ii). Each will be addressed in turn.
          1.     Inability to discharge parental responsibilities
          Idaho Code Section 16-1602(26)(b) provides that “neglected” means a child, “[w]hose
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.” The magistrate found that John was unable to discharge his parental


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responsibilities and to provide proper parental care for his children. There is substantial and
competent evidence to support this finding.
       John has an extensive criminal history that includes crimes of violence. John’s record
reveals three domestic assault convictions, two battery convictions, four DUI convictions, three
disturbing the peace convictions, a disorderly conduct conviction, and a burglary conviction.
Many of these crimes resulted in incarceration. John also violated probation on numerous
occasions.    The magistrate found that John’s criminal record demonstrated a pattern of
criminality which would continue indefinitely and made him unfit to parent. This finding is
supported by substantial evidence in the record.
       Furthermore, John has never provided a stable home. As previously noted, John has been
incarcerated for much of the children’s lives. In 2011, John committed domestic battery on Jane
in the children’s presence. As a result, John was convicted, went to jail, and a no-contact order
was put into place protecting Jane. John violated this order on numerous occasions. John was
incarcerated at the time the children were declared in imminent danger in 2012.
       Twenty-one days after the children’s removal, John was released from jail. During the
following eight months, John worked his case plan and appeared to be making progress. John
completed parenting classes and visited with his children. The magistrate expressly considered
these factors. However, despite this progress, John absconded from probation and left the state
in March 2013. He did not provide notice to the Department or his probation officer. 2 John
ceased communication with his children and quit working his case plan. At this time, John had
completed only twenty-five out of fifty-two sessions for domestic violence treatment. As a result
of this conduct, a probation violation was filed. John did not return to Idaho until September
2013, when he turned himself in. His probation was revoked and the district court imposed a
sentence of 650 days in jail. At the time of the termination trial in December 2013, John was
still incarcerated. In addition, John also had an outstanding warrant for his arrest on a DUI
charge and his probation officer had recently filed another report of probation violation.
       In short, John’s criminal activity and incarceration have resulted in very limited contact
with his children and the inability of John to provide the care necessary for their health, safety, or



2
        At this time, John was on probation for domestic violence in the presence of children,
violation of a no-contact order, and DUI.

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well-being. John is solely responsible for these circumstances. Thus, the magistrate’s finding of
neglect under I.C. § 16-1602(26)(b) is supported by substantial and competent evidence.
        2.       Failure to comply with the case plan
        Neglect may also occur where:
                The parent(s) has failed to comply with the court’s orders or the case plan
        in a child protective act case and:
                (i)      The department has had temporary or legal custody of the child for
        fifteen (15) of the most recent twenty-two (22) months; and
                (ii)     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.

I.C. § 16-2002(3)(b). It is undisputed that the Department had custody of the children for
eighteen months at the time of trial. Thus, the sole issue is whether John failed to comply with
the case plan.
        In addressing this issue, the magistrate recognized John completed the parenting
education course and began to cooperate with the parenting coach when John visited with the
children. However, the magistrate then articulated John’s shortcomings:
        He did not maintain a stable home long enough to have in-home service put in
        place. He provided no proof of income or employment throughout the time after
        he was released from jail in October 2012 until the present. He never had housing
        of his own. [John] had no stability in his day-to-day living; he never followed
        through with the recommendations of a mental health assessment, and he was not
        an active participant in his children’s lives, nor did he provide for their daily
        needs.

Based on these factors, the magistrate concluded John failed to comply with the case plan.
        The approved case plan enumerated several tasks that John needed to complete before he
could be reunited with the children. The goal of the plan was to enable John to provide a safe,
stable, nurturing, and healthy environment for the children. One of the required tasks was that
John obtain stable housing, free of health and safety hazards. John not only failed to establish
stable housing, but spent a substantial portion of time incarcerated during this period and was
still incarcerated at the time of trial.
        The case plan also required John to obtain a legitimate source of income to meet his
needs and the needs of his children and to provide the Department with proof of such income.




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While John claimed to be self-employed, John failed to provide the Department with verification
of employment or any income. Thus, John failed to comply with this aspect of the case plan.
       Further, the case plan required John to become an active participant in his children’s lives
by meeting their physical, developmental, mental health, and educational needs. While John
made progress from June 2012 to March 2013, he absconded from probation, left the state, and
ceased all communication with his children.         Following his return, John was once again
incarcerated. John failed to become an active participant in his children’s lives and failed to
meet any of their basic needs.
       Even where a parent makes some progress on a case plan, termination is proper where the
parent fails to meet the primary requirements of the plan. Idaho Dep’t of Health & Welfare v.
Doe, 151 Idaho 498, 502, 260 P.3d 1169, 1173 (2011). Here, John failed to meet the primary
requirements of the case plan--obtaining stable housing, employment, and establishing a
relationship with his children.   Thus, the magistrate’s finding of neglect under I.C. § 16-
2002(3)(b) was supported by substantial and competent evidence.
C.     Best Interest of the Children
       John contends the magistrate erred in concluding termination was in the best interest of
the children. Specifically, John contends the magistrate did not properly consider the impact that
the termination would have on the children. The Department responds that substantial and
competent evidence supports the magistrate’s finding.
       Once a statutory ground for termination has been established, the trial court must next
determine whether it is in the best interest of the child to terminate the parent-child
relationship. In re Aragon, 120 Idaho 606, 611, 818 P.2d 310, 315 (1991). Expert testimony is
not required to establish that termination would be in the child’s best interest. Doe v. Roe, 133
Idaho 805, 809, 992 P.2d 1205, 1209 (1999). When determining whether termination is in the
child’s best interest, the trial court may consider the stability and permanency of the home, the
unemployment of the parent, the financial contribution of the parent to the child’s care after the
child is placed in protective custody, the improvement of the child while in foster care, the
parent’s efforts to improve his or her situation, and the parent’s continuing problems with the
law. In re Doe, 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014); see Doe, 133 Idaho at 809-10,
992 P.2d at 1209-10; Doe v. State, Dep’t of Health & Welfare, 122 Idaho 644, 648, 837 P.2d
319, 323 (Ct. App. 1992). A finding that it is in the best interest of the child to terminate


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parental rights must still be made upon objective grounds, supported by substantial and
competent evidence. Doe, 152 Idaho at 957, 277 P.3d at 404.
       For the reasons previously articulated above, termination was in the best interest of the
children. During the course of proceedings, John not only failed to improve his situation, but
continued to engage in conduct deleterious to ever establishing a relationship with his children.
During the time the children were in the Department’s custody, John only paid child support for
two months. His lack of stable housing, lack of income, absence from the children’s lives and
continued criminality, all demonstrate termination was in the best interest of the children. Thus,
the magistrate did not err.
                                                V.
                                        CONCLUSION
       There is substantial and competent evidence to support the magistrate’s finding of neglect
under I.C. § 16-1602(26)(b) and I.C. §§ 2002(3)(b)(i) and (ii) and that termination was in the
best interest of the children. Accordingly, the magistrate’s decree terminating John’s parental
rights to his two children is affirmed. No costs or attorney fees are awarded on appeal.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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