               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43895

In the Matter of: JANE DOE,                    )
A Child Under Eighteen Years of Age.           )
IDAHO DEPARTMENT OF HEALTH                     )   2016 Unpublished Opinion No. 499
AND WELFARE,                                   )
                                               )   Filed: April 27, 2016
       Petitioner-Respondent,                  )
                                               )   Stephen W. Kenyon, Clerk
v.                                             )
                                               )   THIS IS AN UNPUBLISHED
JANE DOE I (2016-3),                           )   OPINION AND SHALL NOT
                                               )   BE CITED AS AUTHORITY
      Respondent-Appellant                     )
and                                            )
                                               )
JOHN DOE,                                      )
                                               )
       Respondent,                             )
and                                            )
                                               )
JACK BONAWITZ / CASA,                          )
                                               )
       Guardian Ad Litem-Respondent.           )
                                               )

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

       Memorandum decision and order terminating parental rights and judgment,
       affirmed.

       Barnum Law, PLLC; Randall Barnum, Boise, for appellant. (Jane Doe)

       Hon. Lawrence G. Wasden, Attorney General; Mary Jo Beig, Deputy Attorney
       General, Boise, for respondent. (H&W)
                 ________________________________________________

HUSKEY, Judge
       Jane Doe appeals from the magistrate’s memorandum decision and order terminating her
parental rights.1 Jane Doe argues there is not substantial and competent evidence to support the

1
       John Doe has not appealed.
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magistrate’s finding that she neglected her child or that she was unable to discharge her parental
responsibilities and that such inability would continue for a prolonged period of time. Finally,
Doe argues the magistrate erred in concluding that terminating Doe’s parental rights was in the
best interest of the child. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
        Jane Doe is the mother of S.B., born August 9, 2014. At birth, S.B. was declared in
imminent danger because she tested positive for methamphetamines; she was placed in foster
care nine days later. Doe also tested positive for methamphetamine at the time of S.B.’s birth.
S.B. was given morphine to address her methamphetamine withdrawal and thereafter had to be
weaned off the morphine. S.B. had never been in Doe’s care throughout the entirety of S.B.’s
life.
        The State filed a child protection action alleging Doe neglected S.B. based on Doe’s
substance abuse addiction, rendering her unable to provide for the child, and based on Doe’s
periods of incarceration, rendering her unavailable to S.B.
        Doe stipulated to the Department of Health and Welfare’s jurisdiction at the adjudicatory
hearing; after the hearing, Doe was taken into custody on unrelated criminal charges.
Subsequently, a case plan was developed for Doe and she stipulated to granting the Department
legal custody of S.B. In the intervening time, Doe was released from custody and various status
conferences were scheduled. Doe failed to appear for at least one scheduled court hearing,
actively used methamphetamine when not in custody, and ultimately was again placed in custody
on unrelated criminal matters.
        Another status conference was scheduled for May 19, 2015, to discuss what progress Doe
had made on her case plan. Doe appeared but was not actively working her case plan despite
being released from custody on April 20, 2015. As a result, a permanency hearing was held.
Prior to the permanency hearing, Doe was again in custody on unrelated criminal matters and
was transported to the permanency hearing. At that hearing, the court ordered termination of
parental rights as the permanent plan.
        The State then filed a petition for termination of parent-child relationship. While some of
the counts applied to John Doe, S.B.’s father, Count III alleged that Jane Doe neglected S.B. by



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failing to comply with the case plan requirements. Count IV alleged Jane Doe neglected S.B.
based on her “prolonged and chronic incarceration status.”
        A trial was held and the parties stipulated that Doe had not completed the required tasks
of her case plan, with the exception of participating in a family group decision meeting,
attending one medical appointment, and attending some supervised visits with the child. The
parties also stipulated that Doe completed a CAPP program during a period of retained
jurisdiction in 2015 and received a Certificate of Completion for that program, Doe completed a
prior period of retained jurisdiction in 2003, Doe had outstanding felony and misdemeanor
charges at the time of the termination hearing, and none of Doe’s three children resided with her.
At the conclusion of the trial, the State moved to add an additional count to the petition, Count
V. Count V alleged Jane Doe neglected S.B. as defined by Idaho Code § 16-2002(3)(b)(i) and
(ii) in that Doe failed to comply with the court-ordered case plan and the Department had
custody of S.B. for fifteen of the most recent twenty-two months, and reunification had not been
accomplished by the last day of the fifteenth month.
        Based on the testimony elicited at trial, the magistrate concluded that Doe had a
substance abuse problem since she was fifteen years of age. Further, although Doe disavowed
any significant mental health issues, she had several mental health hospitalizations, had failed to
comply with her case plan relative to addressing her mental health issues, and had no plan for
addressing her mental health issues in the future. The magistrate also found Doe had never been
employed, had no reliable source of income, was dependent upon her mother for housing, could
not remember or articulate what she had learned in the “Infant Toddler Program,” and in sum,
had a “lack of insight into her significant issues which directly disqualify her from safely
parenting the child at issue . . . .”
        The magistrate also considered the testimony of the guardian ad litem, who testified Doe
was simply unprepared and unable to parent and had never established any ability to meet S.B.’s
needs. The social worker testified similarly to the guardian ad litem. Doe testified and disputed
the testimony of the guardian ad litem and the social worker. Based on the evidence presented
and considered, the magistrate concluded Doe had neglected S.B. on several different bases and
terminated Doe’s parental rights on the grounds that termination was in the best interest of the
child. Doe timely appealed.



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                                                 II.
                                    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.
          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. In re
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

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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.
                                                 III.
                                           ANALYSIS
        Doe argues there is not substantial and competent evidence to support the magistrate’s
determination that S.B. was neglected or that Doe was unable to discharge her parental
responsibilities. Doe finally argues the magistrate erred in terminating Doe’s parental rights in
the best interest of the child. The State disagrees, arguing the magistrate made no errors and
there is substantial and competent evidence to support the magistrate’s decision.
        Idaho Code Section 16-2002(3) defines “neglect” as any conduct included in
I.C. § 16‑1602(28), 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(28)(a)2 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.
        The magistrate terminated Doe’s parental rights on the ground of neglect by failing to
comply with the case plan, and also found she was unable to discharge parental responsibilities
and such inability would continue for a prolonged indeterminate period and would be injurious to
the health, morals, or well-being of the child. In this case, there was substantial and competent
evidence to support the magistrate’s decision.


2
        Idaho Code § 16-1602 was amended and renumbered in 2014. Such amendment changed
the numbering, but not the substance, of the subsections. Citation is to the 2014 amended statute
for ease of reference.
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          The parties stipulated that Doe had not completed the required tasks of her case plan with
the exception of participating in a family group decision meeting, attending one medical
appointment, and attending some supervised visits with the child. The parties also stipulated that
Doe had never provided any care for S.B. and that S.B. had been in the Department’s custody for
fifteen of the last twenty-two months from the date S.B. entered shelter care. As such, there was
sufficient and competent evidence that Doe had neglected S.B. by virtue of failing to comply
with the case plan and not having custody of S.B. for fifteen of the last twenty-two months.
          The court also considered the testimony of the guardian ad litem and the social worker
assigned to the case, both of whom provided ample testimony of Doe’s inability to safely parent
S.B., her inability and unwillingness to comply with the case plan recommendations, and Doe’s
magical thinking about her ability to successfully and safely parent S.B. Finally, the court
considered the testimony of Doe.
          Although Jane Doe disputed some of the evidence offered to show neglect and that
termination of maternal rights would not be in the best interest of the child, the magistrate was
the finder of fact and it was up to the magistrate court to resolve those disputes. The magistrate
court did so. There is substantial evidence, corroborated by the testimony of the guardian ad
litem, the social worker, and the medical reports, that despite Doe’s contentions to the contrary,
S.B. had been neglected by Doe. We conclude that substantial and competent evidence supports
the magistrate court’s finding of neglect. For the same reasons, the magistrate did not err in
concluding that Doe was unable to discharge parental responsibilities and such inability would
continue for a prolonged period of time, resulting in injury to the health, morals, and well-being
of S.B.
          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 the Matter of Aragon, 120 Idaho 606, 611, 818 P.2d 310, 315 (1991). When considering the
best interest of the child, a trial court may consider numerous factors including the improvement
of the child while in foster care. See Doe v. Idaho Dep’t of Health & Welfare, 122 Idaho 644,
648, 837 P.2d 319, 323 (Ct. App. 1992). 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, unemployment of the parent,

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financial contribution of the parent to the child’s care after the child is placed in protective
custody, improvement of child while in foster care, the parent’s efforts to improve his or her
situation, and the parent’s continuing problems with the law. Id.; Doe, 122 Idaho at 648, 837
P.2d at 323.
       The magistrate concluded S.B. had improved while in foster care and substantial and
competent evidence supports that finding. The magistrate found S.B. had been successfully
weaned from the methamphetamine and the morphine; she was placed in foster care upon her
release from the hospital; and she was happy and active, although was displaying some
developmental delays and medical issues which the foster parents were prepared to address. The
magistrate further concluded Doe failed to comply with the requirements of her case plan, had
been incarcerated for nearly S.B.’s entire life, had failed to establish a long-term stable home for
S.B., was unwilling and unprepared to address her mental health or anger management issues,
could not remain drug-free outside a custodial setting for any period of time, and could not
obtain employment to provide for the financial needs of S.B. As such, the magistrate did not err
in finding that terminating Doe’s parental rights was in the best interest of the child.
                                                      IV.
                                              CONCLUSION
       The magistrate’s finding of neglect is supported by substantial and competent evidence as
is the determination that termination of Jane Doe’s parental rights was in the best interest of the
child. We affirm the magistrate’s decision.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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