              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 42260

IN THE MATTER OF THE                            )
TERMINATION OF THE PARENTAL                     )
RIGHTS OF JANE DOE (2014-16)                    )
IDAHO DEPARTMENT OF HEALTH &                    )    2014 Unpublished Opinion No. 792
WELFARE,                                        )
                                                )    Filed: October 30, 2014
      Petitioner-Respondent,                    )
                                                )    Stephen W. Kenyon, Clerk
and                                             )
                                                )    THIS IS AN UNPUBLISHED
GUARDIAN AD LITEM,                              )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
      Respondent on Appeal,                     )
                                                )
v.                                              )
                                                )
JANE DOE (2014-16),                             )
                                                )
      Respondent-Appellant.                     )
                                                )

      Appeal from the Magistrate Division of the District Court of the Fifth Judicial
      District, State of Idaho, Twin Falls County. Hon. Roger B. Harris, Magistrate.

      Order terminating parental rights, affirmed.

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

      Jamie LaMure, Twin Falls, for guardian ad litem.

      Hon. Lawrence G. Wasden, Attorney General; James T. Baird, Deputy Attorney
      General, Twin Falls, for respondent.
                ________________________________________________
GRATTON, Judge
      Jane Doe (Mother) appeals from the magistrate’s order terminating her parental rights.
We affirm.




                                               1
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The Idaho Department of Health & Welfare (the Department) filed a petition seeking to
terminate the parental rights of Mother and the biological father of Z.C., a female child born in
March 2010. The father consented to his parental rights being terminated. Mother contested the
termination. At the time of trial, Mother had four children: Z.C., age four; B.C., age two and a
half; J.C., age one and a half; and L.C., four months. Upon hearing testimony from a number of
witnesses, the magistrate made the following findings in its memorandum decision. In 2010, the
Oregon Department of Health and Welfare removed Z.C. from Mother’s care based on her
alleged neglect of the child, as well as failure to provide a safe and stable home environment.
Oregon established a case plan, which included visitation with the child. Mother quit exercising
her visitation rights with Z.C. in 2012. Mother was unemployed and homeless much of the time
she lived in Oregon. Between 2010 and 2013, Mother continued to associate with violent men,
having two more children (B.C. and J.C.) before moving to Idaho. From this, the Oregon
Department of Health and Welfare discontinued reunification efforts with Mother and placed
Z.C. with her biological father who was living in Idaho.
       Z.C. lived with her father from July 2012 to January 2013. Z.C. was removed from her
father’s care because he physically abused her. Mother did not attend the initial shelter care
hearing, but did attend the adjudicatory hearing in March 2013. Due to the Department’s
concerns relating to Mother’s use of controlled substances, the Department conducted a welfare
check at the motel where Mother was staying with her boyfriend, B.C., and J.C. Paraphernalia
was found at the motel, and the police then met Mother at the courthouse. Mother consented to a
search of her van and belongings, which resulted in drug paraphernalia and methamphetamine
residue being discovered. Mother was arrested and charged with possession of paraphernalia and
methamphetamine. She pled guilty and was placed on felony probation. B.C. and J.C. were
removed from Mother’s care and returned to Oregon.
       Based upon Mother’s failure to complete the terms of her Oregon case plans, failing to
continue visitation with Z.C. in 2012, and her recent use of a controlled substance and arrest, the
court found aggravated circumstances. This relieved the Department from having to prepare a
case plan. Before the termination hearing, Mother gave birth to a fourth child, L.C., who
currently lives with Mother in Jerome.


                                                2
       The magistrate also recounted the following testimony given at the March 2014
termination hearing in the memorandum decision. A speech therapist testified she started seeing
Z.C. in February 2013, due to the child’s difficulty communicating with others despite being
over three years old. Over a one-year period, Z.C. experienced remarkable improvement, going
from significantly delayed to almost communicating at her age level. The speech therapist
surmised that the speech delays were caused by a lack of stimulation, and that the child’s
improvements were attributed to the hard work and dedication of the child and the foster parents.
Mother did not participate in the therapy sessions over the year of treatment. Finally, the
therapist noted that Z.C. would need another year or two of therapy sessions.
       A medical health clinician, who was also Mother’s adoptive mother, confirmed that
Mother lost custody of her children in Oregon and that Z.C. was in foster care for approximately
twenty months before being placed with the biological father.          She testified that she was
disappointed that Mother had not taken the necessary steps to get her children out of foster care
on a permanent basis, and expressed concern over Mother’s drug problem and continued
association with abusive men. She testified that she provided Mother with financial and other
assistance to help Mother make ends meet, and that Mother had not shown an ability to be self-
reliant, needing to rely on government welfare. On the other hand, Mother’s adoptive mother
also testified that Mother was doing better than she had done in the past. She explained Mother
had shown recent improvement likely coming from AA meetings, having a good support group,
obtaining employment, and staying away from certain males. She also testified she was very
impressed with Mother’s care and parenting of Mother’s fourth child.            Though she hoped
Mother’s recent progress and sobriety would continue, she stated honestly that Mother’s history
did not show much stability.
       A Twin Falls police officer testified regarding the arrest for possession of a controlled
substance.   The officer testified upon discovering paraphernalia in the motel room where
Mother’s children were present, the boyfriend admitted to smoking marijuana with Mother in the
room. Upon contacting Mother at the courthouse and obtaining consent to search, the officer
found a pipe with methamphetamine residue. Mother admitted to using controlled substances.
One of Mother’s two children, staying with her at the motel room, tested positive for exposure to
methamphetamine. The children were removed from her care and returned to Oregon; they
continued to remain in foster care at the time of the termination hearing.


                                                 3
        Mother’s probation officer testified that Mother had been compliant with the general
provisions of her probation; however, Mother had not completed any of the special provisions of
probation by the time of the hearing. The special provisions not completed include community
service, obtaining a GED, and getting into drug treatment. Mother had not provided any proof
that she had started community service or had begun pursuing a GED. Mother had also only
recently enrolled in drug treatment as of January 2014. The magistrate noted concern that
Mother had waited so long to begin treatment, given that her unstable lifestyle and losing
custody of Z.C. was likely due to drug abuse. The probation officer noted that Mother continued
to struggle with maintaining a clean home, describing one visit where Mother’s apartment was so
dirty that she would have called health and welfare if a child had been present at the time of the
visit. She described the home as extremely cluttered and unsanitary. Finally, the probation
officer recounted a domestic dispute occurrence between Mother and her then boyfriend, who is
also the father of Mother’s fourth child. From the probation officer’s testimony, the magistrate,
though crediting Mother’s recent progress, found that Mother continues to struggle with the same
or similar issues that led to Z.C. being removed from Mother’s care in Oregon.
       A social worker, employed by the Department, testified that Z.C. was removed from the
biological father’s care due to spanking that left bruising. Placement with Mother was not an
option because she had an open child protection case in Oregon. The social worker expressed
concern that Mother had been living with the boyfriend she had been told to stay away from.
       The foster parent (Foster Mom), who began caring for Z.C. in January 2013, testified that
when Z.C. came into her care, the child did not have the ability to communicate very well--only
knowing ten to twelve words--and Z.C.’s teeth were in a condition that required dental repair.
Z.C. acted out, exhibiting violent behavior when dealing with others. Foster Mom helped get
Z.C.’s teeth fixed, began potty training the child, and dedicated a substantial time to help Z.C.
effectively communicate with others. Foster Mom took Z.C. to speech therapy for over a year,
with dramatic improvement.      Foster Mom expressed concern that Mother missed half the
scheduled visits with Z.C. during the year before the termination hearing, and that Mother had
failed to contact the child by telephone.     Foster Mom acknowledged that Z.C. recognized
Mother, but she did not perceive a mother-daughter bond between them. Z.C. had not asked
about Mother, and when a visit with Mother was missed, Z.C. did not become upset or act out.
Foster Mom facilitated contact between Z.C. and her sisters in Oregon through telephone calls.


                                                4
During the time Z.C. had been with Foster Mom, Z.C. had positive changes in speech, language,
and social skills. Instead of hitting, biting, and fighting, the child now is social, smiles, and is a
happy little girl. Foster Mom indicated she has bonded with Z.C. and is willing to adopt the
child if the court terminates Mother’s parental rights. The magistrate found Foster Mom honest
and that she gave straightforward testimony, but the magistrate acknowledged that Foster Mom
might be a bit biased given her bond with Z.C. and her desire to adopt the child.
          A caseworker, employed by the Oregon Department of Health and Welfare, testified that
Z.C.’s child protection case in Oregon began in 2010 because of Mother’s unstable living
environment, her failure to protect the child from potentially dangerous men, and unclean living
conditions. A case plan was established, that included visitation with Z.C., for Mother to gain
effective living skills, parenting skills, and stable housing. The caseworker indicated that Mother
failed to complete the case plan and eventually quit exercising her visitation with Z.C. This led
to placement of Z.C. with her biological father.
          A client services technician, employed by the Department, testified she transported
Mother to scheduled visitations with Z.C. She testified that Mother missed twelve out of the
twenty-seven scheduled visits during 2013 and 2014. Some of the visits were missed due to
illness, while others were missed because Mother was attending other appointments such as
counseling or drug treatment. The client services technician described Mother’s engagement
with Z.C. as appropriate and attentive to the child’s needs. She also indicated that Z.C. enjoyed
playing with L.C., and thought that Z.C. recognized Mother as her mom.
          The guardian ad litem testified that she was concerned Z.C. had spent a majority of her
life in foster care, or away from Mother. She acknowledged that Mother had always been
cooperative, but that Mother had not demonstrated the willingness to gain the necessary life
skills.   The guardian ad litem testified she was disappointed that Mother made such little
progress since the petition to terminate was filed. She testified that despite the recent steps taken
by Mother to improve her situation, it was in Z.C.’s best interest to terminate Mother’s parental
rights.
          Another social worker, employed by the Department, testified he was assigned to Z.C.’s
child protection case. He explained that no case plan was developed due to the court finding
aggravated circumstances after Mother’s arrest. Despite this, the social worker gave Mother a
number of tasks to accomplish to try and gain the skills needed to care for Z.C.                  He


                                                   5
acknowledged that Mother had maintained housing since July 2013, had obtained part-time
employment, and recently began drug treatment. The social worker also thought Mother was
trying hard, but noted she still had not fully completed any tasks. The social worker gave his
opinion that it was in the best interest of Z.C. to terminate Mother’s parental rights. He based
this on Mother’s history in the case, her minimal progress during the year since termination was
sought, and from Z.C. being in foster care for the majority of her life. He believed Z.C.’s need
for stability and history of the case outweighed Mother’s desire for more time to show she can
maintain stability in her life.
        Mother’s biological sister testified that she lived with Mother and L.C. in a two-bedroom
apartment in Jerome. Though she was living with Mother, she did not have a grasp of what
Mother did on a weekly or daily basis. Mother’s sister testified that she knew Mother had a few
part-time jobs, and thought she made enough to pay the bills. She acknowledged that they
received government assistance and support from family and friends. She admitted that their
home and her room were sometimes messy, but blamed the condition on her not owning a
dresser for her clothes. She testified that she was supporting Mother in her drug recovery and
attended AA meetings with Mother. She thought Mother is a good parent for her children.
        Mother’s biological aunt testified that Mother had a history of moving around, using
drugs, associating with violent men, and being unstable. She claims that Mother experienced a
change after Mother’s fourth child was born. She thought that Mother was trying to change her
ways so that she can provide a more stable life for herself and her children, and attributed the
change in attitude to Mother’s current sobriety. The aunt also described Mother’s fourth child as
having the inability to digest protein properly. She believed that Mother was doing well to
address the infant’s special needs.
        Finally, Mother testified that Z.C. was taken from her care when Z.C. was approximately
eight months old, and that the child had not lived with her since 2010. Mother did not deny that
she failed to reunite with Z.C. or that the child was placed with the biological father in 2012
when she failed to reunite with the child. Mother explained that her second child was taken
immediately after her birth because she allowed the child’s father to be present during delivery
despite knowing he had a history with child protective services.           She admitted trying
methamphetamine a few months after that child’s birth. She did not identify when she started
using other controlled substances, but admitted that she continued using methamphetamine up


                                                6
until March 2013. As of July 2013, Mother has been working part-time at minimum wage jobs.
She received government assistance for food and healthcare. The father of her fourth child had
also supported her financially, despite no formal child support order, and purchased a van for
her. He agreed to pay over $2,000 for the past due rent on Mother’s apartment, intending to pay
with his income tax refund. Mother confirmed she started her drug treatment in January 2013,
but she held off getting her assessment and attending an actual treatment program until she
completed other tasks, found employment, and gave birth to her fourth child. Mother testified
that her fourth child convinced her she needed to be a better parent. She acknowledged when
Z.C. was taken that she was combative and blind to her issues, but since her most recent child
was born she recognized she needs to change.
       Mother also testified that she thought her visits with Z.C. went well, and that her fourth
child and Z.C. share a close bond and connection. Mother expressed concern that it would be
detrimental to both Z.C. and L.C. if they were separated. The magistrate indicated that Mother
did not really describe any bond between herself and the child. Mother also explained the
missed visits with Z.C. were due to her being on bed rest during pregnancy, and the
Department’s reluctance to transport her during what was a high-risk pregnancy.          Mother
testified that living drug-free has helped her be a better mom, and guaranteed success if she is
given additional time to try and reunite with Z.C. She testified she has a support system
including her aunt, adoptive mother, her sister, her probation officer, and her AA family. Mother
admitted she had drug and paraphernalia in her possession when she was arrested, that she made
bad choices in having certain men in her life, and that her kids were with her when she was using
illegal drugs. She acknowledged she had yet to obtain a mental health assessment, indicating
that she “spaced it.” Mother acknowledged that she was $2,000 behind in rent, but noted the
agreement with the landlord wherein L.C.’s father would make it up.
       The magistrate characterized most of Mother’s testimony as focusing on how much time
and effort she had spent on learning to parent L.C., and not nearly as much on what she had done
to help be a parent for Z.C. The magistrate noted that Z.C. had spent a majority of her life in
foster care, and that during this time Mother had not put forth the effort needed to address her
issues and reunite with the child. The magistrate found that Mother had the ability to do so, but
apparently chose not to. The magistrate also found that without the support of L.C.’s father and




                                               7
others, Mother would not be able to make ends meet, and that she would continue to associate
with L.C.’s father, even when told she is not to do so.
       After receiving evidence and hearing from the witnesses, the magistrate terminated
Mother’s parental rights over Z.C. Based on his consent, the magistrate also terminated the
father’s parental rights. Mother 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, 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
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, 246-47, 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. Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002); see also Quilloin v. Walcott,
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




                                                   8
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.
       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 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. Section 16-1602(26)(a) provides, in pertinent
part, that a child is neglected when the child is without proper parental care and control, or
subsistence, medical or other care or control necessary for his or her well-being because of the
conduct or omission of his or her parents, guardian, or other custodian or their neglect or refusal
to provide them.
       Mother argues the magistrate could not rely on incarceration in finding neglect because
she was on probation and continues to do well on probation. However, the magistrate did not
rely on Mother’s probationary status, let alone incarceration, in determining neglect. She also
argues that her drug problem, in and of itself, is not a reason to terminate parental rights.
Though the magistrate relied on her history of addiction, the magistrate credited Mother for
recently attempting rehabilitation but concluded, based on all the information available, that
Mother had neglected Z.C. and her drug use was a factor. The magistrate did not base the
finding of neglect solely on Mother’s drug addiction.
       Mother also argues that she cannot be blamed for the harm caused to Z.C. by her father
because she attempted to keep her from being placed with him. Though she is correct that she
cannot be faulted for father’s conduct in caring for Z.C., the magistrate properly relied on her
failure to comply with her Oregon case, for abandoning her visitation rights with Z.C. in Oregon,
and continuing prohibited relationships during the Oregon proceedings. Further, the magistrate
specifically noted that when Z.C. was removed and placed into the Department’s care in Idaho,
Z.C. was not under the care of Mother. It is plain that the magistrate did not rely on any
mistreatment by father in determining that Mother neglected Z.C.
       Mother next contends that she possessed stable housing. The testimony revealed that
Mother was living in an apartment with her biological sister at the time of the hearing. She had
been living there for roughly seven months. The magistrate found that Mother was unable to


                                                9
provide a clean and safe living environment. The magistrate noted that an unclean and unsafe
house was one of the reasons Z.C. was removed in Oregon, and that the housing conditions had
not changed since then.       The magistrate found that the motel Mother stayed in, where
paraphernalia was found, was not a safe environment for children. Despite this, Mother brought
two of her children into that environment, where she admitted smoking marijuana in the room.
The magistrate acknowledged that Mother had found the apartment to share with her sister, but
concluded this was not a stable housing situation. Mother was $2,000 behind in rent, and
dependent on the father of her fourth child to pay the rent with his income tax refund. This
reliance, and help from others, led the magistrate to find that Mother’s housing situation
remained unstable. The magistrate also noted that the condition of the apartment was described
as filthy and cluttered, and so unsanitary that the probation officer testified she would have called
the Department if a child had been present at the time of her visit. There is substantial evidence
to support the magistrate’s finding that Mother was unable to provide suitable housing.
       Beyond that which Mother challenges on appeal, the magistrate also supported the
finding of neglect based on Mother’s failure to complete any programs for her current felony
probation, and the failure to complete the case plan in Oregon. Though Mother made recent
strides in completing some programming, the magistrate found the lack of completion of any
courses in the one-year period since Z.C.’s removal unjustifiable. Mother also did not take
advantage of numerous opportunities to visit with Z.C.; the magistrate found that Mother missed
twelve of the scheduled visitations. The magistrate acknowledged that some of the absences
were justified, based on Mother being on bed rest during her fourth pregnancy, but the magistrate
concluded that since the Oregon case plan, Mother had limited contact with Z.C though she had
the opportunity to do so.
       The magistrate also considered Mother’s financial instability since Z.C. was removed
from her care in Oregon. The magistrate credited Mother for her recent part-time employment,
but also noted that she continues to rely on the financial assistance of others. The father of her
fourth child is helping with rent and helped purchase a van for her. Weighed against the
instability of the previous years to support herself, the magistrate found that Mother continued to
be financially unstable.




                                                 10
       Based upon the foregoing, the magistrate found that Mother had neglected Z.C. Upon
reviewing the record, we hold that there is substantial and competent evidence to support the
magistrate’s finding of clear and convincing evidence of neglect.
       Further, though Mother does not challenge the finding on appeal, we also uphold the
magistrate’s finding that it is in the best interest of Z.C. to terminate Mother’s parental rights.
The magistrate relied on the opinions of the social worker, the guardian ad litem, and other care
providers in determining that it was in the child’s best interest to terminate the parental rights.
The professionals acknowledged the gains Mother had made the months immediately before the
termination hearing, but concluded that based on the child being in foster care for a majority of
her life, Mother’s inability to support herself, and Z.C.’s need for stability, that termination was
in Z.C.’s best interest. The magistrate agreed with their assessment. The magistrate found that
Mother’s history of moving, her past unemployment, unsanitary living conditions, and her drug
use without seeking treatment showed that Mother lacked stability in her life, and would struggle
to maintain what little stability she had gained. The magistrate also reasoned that Mother
continually disregarded the physical, emotional, and educational needs of Z.C., placing her own
needs before the child’s. There is substantial and competent evidence to support the magistrate’s
finding that it was in Z.C.’s best interest to terminate Mother’s parental rights.
                                                 III.
                                          CONCLUSION
       The magistrate’s finding of clear and convincing evidence that Mother neglected Z.C.,
and that it was in the child’s best interest to terminate Mother’s parental rights, is supported by
substantial and competent evidence. Therefore, the order terminating Mother’s parental rights is
affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




                                                 11
