                    IN THE SUPREME COURT OF THE STATE OF IDAHO

                                               Docket No. 45419

In the Matter of: JANE DOE II,                                 )
A Child Under Eighteen (18) Years of Age.                      )
--------------------------------------------------------       )
JANE DOE I,                                                    )   Boise, February 2018 Term
                                                               )
        Petitioner-Respondent,                                 )   2018 Opinion No. 23
                                                               )
v.                                                             )   Filed: March 8, 2018
                                                               )
JOHN DOE (2017-31),                                            )   Karel A. Lehrman, Clerk
                                                               )
        Respondent-Appellant.                                  )

         Appeal from the District Court of the Seventh Judicial District of the State of
         Idaho, Bonneville County, Hon. Stephen James Clark, Magistrate Judge.

         The judgment of the magistrate court is affirmed.

         Wixom Law Offices, Idaho Falls, for Appellant.

         Murray, Ziel & Johnston, PLLC, Idaho Falls, for Respondent.



TROUT, Justice Pro Tem.
         John Doe (Father) appeals a decision of the magistrate court in Bonneville County to
terminate Father’s parental rights to his minor child Jane Doe II (Child). The magistrate court
terminated Father’s parental rights on a petition from Child’s Stepfather and Mother, Jane Doe I
(Mother), after finding that Father had abandoned Child and termination was in Child’s best
interest. On appeal, Father argues that the magistrate court’s findings are not supported by
substantial and competent evidence. Mother responds that the magistrate court’s findings are
supported by substantial and competent evidence and requests attorney fees on appeal. We affirm
the decision of the magistrate court.

                       I.       FACTUAL AND PROCEDURAL BACKGROUND

         The following facts were found by the magistrate judge and are supported by evidence in
the record. Father and Mother were married on June 20, 2012, and Child was born to Father and

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Mother on August 9, 2012. Based on Father being charged with domestic battery against
Mother, a No Contact Order was entered by the magistrate court on January 30, 2013, which
provided that Father was to have no contact with mother or her immediate family (except as to
children who are subject to a separate custody/visitation order) and that Order was extended until
February 6, 2015. Father and Mother subsequently divorced on January 23, 2014, and a decree
of divorce was entered incorporating a parenting plan and property settlement agreement
between the parties. In the parenting plan, Father was provided eight hours of supervised
visitation each month on the weekends, together with holidays and other specified times. In
addition, Father was entitled to telephone or Skype with the child once per week and send letters.
After entry of the divorce decree, the record reflects that Father would visit with Child
approximately twice each month but these visits decreased in regularity until Father was
incarcerated in May 2015.
       As a part of the parenting plan, Father was obligated to pay child support of $125 per
month beginning January 2014. The only recorded payments occurred over a three-month period
ending in July 2014, and were as a result of garnished wages. Father asserted there were some
additional cash payments of unknown amounts with money gained from illegal drug activities.
       Father is currently in prison, serving a sentence of three years determinate followed by
twelve years indeterminate, for two counts of rape based upon sexual relations with underage
females. Since Father has been incarcerated, Father has had no contact with Child and has not
sent or had delivered any letters to Child. The magistrate court recognized that, given Child’s
age, it was understandable Father did not send letters, as she could not read them. There were
also no packages or presents sent to Child, although again, the magistrate court recognized that
Father’s prison sentence would have made attempts to do so impractical.            However, the
magistrate court also found that Father was aware his sister had ongoing contact with Mother and
was willing to deliver letters and packages to Child if asked. While Mother had declined collect
calls from Father, Mother did answer the only pre-paid call made by Father. During this brief
call, Child was not a topic of conversation. Mother married Stepfather on May 4, 2016.
Stepfather has stepped into the role of Child’s father since Mother and Stepfather’s marriage.
       Mother and Stepfather petitioned the magistrate court to terminate Father’s parental
rights on November 23, 2016. While Father initially indicated he would consent to termination



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and adoption by Stepfather, Father filed an answer contesting the termination of his rights to
Child.
         A court trial was held on August 31, 2017, to determine whether grounds for termination
existed under Idaho Code section 16-2005. The magistrate judge made findings of fact and
conclusions of law terminating Father’s parental rights based upon a determination that Father
had abandoned Child and termination was in Child’s best interest. Father timely appealed.

                                 II. STANDARD OF REVIEW

         When reviewing a termination decision, this Court reviews the trial court record to
determine whether substantial and competent evidence supports the magistrate court’s findings
of fact and whether the conclusions of law follow from those findings. Doe v. Doe, 148 Idaho
243, 245, 220 P.3d 1062, 1064 (2009). “Substantial and competent evidence is such evidence as
a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting In re Doe, 146
Idaho 759, 761, 203 P.3d 689, 691 (2009)). “This Court will indulge all reasonable inferences in
support of the trial court’s judgment when reviewing an order that parental rights be terminated.”
Id. at 245–46, 220 P.3d at 1064–65 (quoting Matter of Aragon, 120 Idaho 606, 608, 818 P.2d
310, 312 (1991)).

                                         III. ANALYSIS

   A. The magistrate court’s findings of fact are supported by substantial and competent
      evidence.
         The magistrate court terminated Father’s parental rights after finding that Father had
abandoned Child and termination was in Child’s best interest. Father argues on appeal that
substantial and competent evidence does not support the magistrate court’s findings of
abandonment and that termination is not in Child’s best interest.
         Idaho Code section 16-2005 governs the various conditions under which parental rights
may be terminated. The magistrate court granted the petition under the abandonment grounds
present in this provision: “The court may grant an order terminating the relationship where it
finds that termination of parental rights is in the best interests of the child and that . . . [t]he
parent has abandoned the child.” I.C. § 16-2005(1)(a). Abandonment, in this sense, “means the
parent has willfully failed to maintain a normal parental relationship including, but not limited to,
reasonable support or regular personal contact. Failure of the parent to maintain this relationship


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without just cause for a period of one (1) year shall constitute prima facie evidence of
abandonment . . . .” I.C. § 16-2002(5). After finding that a child has been abandoned, termination
must also be in the child’s best interest:
       When determining whether termination is in the child’s best interests the trial
       court may consider the stability and permanency of the home, unemployment of
       the parent, the financial contribution of the parent to the child’s 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). These two requirements will be
discussed in detail individually.
               1. Abandonment
       In Doe v. State, 137 Idaho 758, 53 P.3d 341 (2002), this Court considered how these
statutory sections apply to incarcerated parents. In that case, the father of the child had been
incarcerated since the child’s birth and he had never actually seen the child. Id. at 761, 53 P.3d at
344. This Court vacated the termination decision because the father “desired to maintain his
parental rights and tried to maintain contact as best he could while he was in prison.” Id. The
Court specifically pointed to several things the father had done to maintain the parental
relationship while incarcerated:
       He provided Christmas gifts to the child through a church fellowship and/or
       through Angel Tree for three Christmases. Doe wrote letters to the child’s
       maternal grandmother expressing interest in the child, but the grandmother did not
       respond to him. At least two of Doe’s aunts contacted the case worker for the
       Department, expressing interest in the child. Doe testified that he sent a picture
       “of Mickey Mouse or something for the child” and a letter to the child for the
       child’s birthday and sent a gift of a handkerchief drawing to the child. Doe called
       the caseworker a number of times regarding the child and signed documents
       authorizing medical services.
Id. The Court focused on these factors as a realization that “Doe was severely restricted in what
he could do. Within that context he tried to establish a relationship.” Id. at 762, 53 P.3d at 345
(emphasis added). Because of these efforts the father made to establish a relationship, the Court
vacated the termination and remanded the case for further proceedings.
       In Doe, the Court recognized the difficulty of maintaining a relationship because of the
restricted nature of contact when a parent is incarcerated. However, the Court overturned
termination in Doe because the father was clearly doing whatever he could—despite the



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limitations—to build a relationship with his child. As the Court asked: “what more could [father]
have done?” Id. at 761, 53 P.3d at 344.
       In the instant case, the magistrate court found the following facts—based on the trial
testimony—that demonstrate Father willfully failed to maintain his parental relationship: (1)
inconsistent contact prior to incarceration when he had the opportunity; (2) minimal payment of
child support; and (3) lack of efforts to have some form of contact whether by mail, telephone,
third party, or gifts after he was imprisoned. As indicated in the factual background above,
Father had opportunities to maintain some contact with Child while incarcerated, and simply
failed to do so. While Father points to the calls that he placed to Mother from prison, these calls
were collect and placed the financial burden on Mother. Additionally, while Father was unable to
have contact with Child from prison, he could have asked his family to communicate messages
or deliver small gifts to Child.
       Also different from the situation in Doe, is the fact that Father was able to have contact
with Child for several years before he was incarcerated. The magistrate court described Father’s
pre-incarceration conduct in this way: “While struggling with addiction, there was no reason he
could not have sent cards or presents to the child or made some token efforts to pay child support
until forced to do so.” Before incarceration he would have contact with Child approximately
twice each month that decreased in regularity. “The lack of effort to contact the child when he
knew at least where [Mother] worked was not justified. These were his choices. These choices
resulted in a failure to provide regular personal contact.”
       The magistrate court noted that at the time of the hearing, Father has been completely
absent from Child’s life for approximately one-half of her life. Father would remain incarcerated
at least until May, 2018, and potentially up to nine years thereafter. This potential of future
incarceration was significant to the court in analyzing Father’s abilities to parent. All of these
findings of the magistrate court follow directly from the trial testimony; thus, the magistrate
court’s finding of abandonment is supported by substantial and competent evidence.
               2. Best Interests
       Father argues that termination is not in the best interests of Child because of their
relationship before his incarceration. Mother argues that Father’s continued unpredictability in
Child’s life, Father’s absence from Child’s life since incarceration, and Child’s bond with
Stepfather make termination in Child’s best interests.

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               When determining whether termination is in the child’s best interests the
       trial court may consider the stability and permanency of the home, unemployment
       of the parent, the financial contribution of the parent to the child’s 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 at 111, 320 P.3d at 1270. The magistrate court explicitly considered the
“stability and certainty for the child. Having [Father] available at some unknown time does not
create that stability and certainty.” The magistrate court concluded, based upon clear and
convincing evidence, that Mother had met her burden to show that termination was in Child’s
best interests, specifically: Father is incarcerated for multiple charges of a sexual nature; Father
has a continued lack of financial stability; Father’s history of poor choices including the use of
controlled substances both in and out of prison; any bond which existed between Child and
Father has attenuated, if not been extinguished; lack of certainty when Father may be available to
serve as parent; and Child has stability and certainty under the care of Mother and Stepfather.
       These findings follow from Father’s own trial testimony. Father testified that he was
incarcerated for having sex with three girls that were underage. Father also testified that he may
not be released from prison for an additional thirteen years. Father testified that Child may not
even remember or recognize him. Father further testified about the satisfactory nature of Child’s
care with Mother. With this evidence in the record, the magistrate court’s finding that
termination is in the best interest of Child is supported by substantial and competent evidence of
Father’s conduct, both before and after incarceration. Further, the magistrate’s legal conclusion
to terminate Father’s parental rights follows from its factual findings. As such, we must affirm
the magistrate court’s decision to terminate Father’s parental rights.
   B. Mother is not entitled to attorney fees on appeal.
       Mother argues that “Father has failed to show that the Magistrate Court decision was not
supported by substantial and competent evidence, and therefore, Mother is entitled to attorneys
[sic] fees on appeal.” She cites to Idaho Code section 12-121 as the basis for her argument.
       Mother cites to Ernst v. Hemenway & Moser Co., Inc., 126 Idaho 980, 895 P.2d 581 (Ct.
App. 1995). While that is not a decision of this Court, Ernst correctly applies the consistent
standard that this Court has enunciated for an award of attorney fees under Idaho Code section
12-121. As the Court of Appeals stated:
       H & M has failed on appeal to present any significant issue regarding a question
       of law. H & M has not shown that the findings of fact made by the district court

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       were arguably unsupported by substantial evidence. H & M has not advanced any
       new legal standards or sought modification of existing ones.
Id. at 988, 895 P.2d at 589. As the trial court noted:

       These cases are among the most difficult for the Court to decide. Both counsel
       effectively presented the respective position of the parties. There were factors
       which tugged both ways and, as in many of these cases, the decision is never
       clear cut, but rather the case turns on the Court sifting through the various factors
       to come to a decision.
Father made a good faith argument that the termination decision was not supported by the
evidence. As such, we cannot say that this appeal was pursued frivolously or unreasonably.
Mother is not entitled to an award of attorney fees.

                                       IV. CONCLUSION
       We affirm the decision of the magistrate court to terminate Father’s rights to Child
because this decision follows the magistrate court’s findings of abandonment and the best
interests of Child that are supported by substantial and competent evidence. On appeal, Mother is
not entitled to an award of attorney fees.

       Chief Justice BURDICK, Justices BRODY, and BEVAN CONCUR.




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