               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 40598

IN THE MATTER OF THE               )
TERMINATION OF THE PARENTAL        )
RIGHTS OF JOHN (2012-16) DOE       )
IDAHO DEPARTMENT OF HEALTH AND )                       2013 Unpublished Opinion No. 496
WELFARE,                           )
                                   )                   Filed: May 16, 2013
     Petitioner-Respondent,        )
                                   )                   Stephen W. Kenyon, Clerk
and                                )
                                   )                   THIS IS AN UNPUBLISHED
GWEN DENTON,                       )                   OPINION AND SHALL NOT
                                   )                   BE CITED AS AUTHORITY
     Guardian Ad Litem-Respondent, )
                                   )
v.                                 )
                                   )
JOHN (2012-16) DOE,                )
                                   )
     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.

       Alan E. Trimming, Ada County Public Defender; Adam C. Kimball, Deputy
       Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mary Jo Beig, Deputy Attorney
       General, Boise, for respondent.

       Pickens Law, P.A., Boise, for Guardian Ad Litem did not participate on appeal.
                 ________________________________________________
LANSING, Judge
       John Doe (Father) appeals from the magistrate’s decree terminating his parental rights to
his child, arguing the magistrate erred by finding neglect and finding that termination was in the
best interests of the child. We affirm.



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                                                  I.
                                   FACTS AND PROCEDURE
       On June 13, 2011, Father and his then seven-year-old son were residing in a homeless
shelter in Boise when Father was caught “huffing” from an aerosol can. Father was arrested for
intoxication by inhalation of a toxic substance, in violation of a Boise City ordinance. 1 Son was
declared in imminent danger and was taken into protective custody. 2 On June 15, 2011, the
Idaho Department of Health and Welfare (Department) filed a Child Protective Act (CPA) case
alleging that Father’s arrest and incarceration, Father’s abuse of illegal substances and
prescription drugs, and Father’s unaddressed mental health problems left him unable to discharge
his responsibilities to provide parental care and control of his child.
       Father waived his right to a shelter care hearing, and an order of temporary legal custody
as to the Father was entered on June 28, 2011. On July 8, 2011, Father stipulated that Son came
within the jurisdiction of the CPA but did not stipulate to legal custody vesting with the
Department. On July 22, 2011, a case plan pertaining to Father was filed. The case plan
assigned tasks to Father to address his homelessness; safety concerns for Son arising from
homelessness; Father’s lack of income; Son’s mental health problems; Son’s medical,
developmental, and educational needs; and Father’s untreated mental health problems and
substance abuse.    On August 10, 2011, the magistrate entered orders approving the case plan
and assigning legal custody of Son to the Department. Son was placed in foster care.
       The magistrate held review hearings in September and December 2011. At the latter
hearing, the Department and Son’s guardian ad litem filed reports presenting a non-positive
picture of Father’s willingness to address the concerns identified in the case plan. In June 2012,
a permanency review hearing was held. Submitted reports outlined Father’s continuing inability
and unwillingness to comply with the case plan.            Nonetheless, the magistrate agreed to
accommodate the Department’s request to allow Father additional time to comply with the case
plan. The magistrate entered an order for a short extension of foster care with a permanency plan
to reunify Father and Son.



1
       Father later pleaded guilty.
2
       The child’s birth mother is deceased.


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        In late August 2012, another review hearing was held. Because Father’s inability and
unwillingness to comply with the case plan persisted, the magistrate granted the Department’s
request to amend the permanency plan and set a hearing for September 12, 2012. At that
hearing, the Department requested authorization to amend the permanency goal to termination of
Father’s parental rights and adoption, and further requested that the magistrate allow the
Department to cease reasonable efforts to reunify Father and Son. The magistrate granted the
requests and entered orders in accord. On October 11, 2012, the Department filed a petition for
termination of parent-child relationship, alleging that Father had neglected Son and that
termination was in the best interests of the child. Another review hearing was held on November
17, 2012. 3
        At a termination hearing in December 2012, documentary evidence was admitted and
Son’s foster father, a Department social worker supervisor, Son’s guardian ad litem, Father’s
pain management physician, Father, and Father’s former roommate testified concerning Father’s
alleged neglect and the best interests of the child. Thereafter, the magistrate entered a decree
terminating Father’s parental rights. Father timely appeals and asserts the magistrate court erred
in its findings that he neglected Son and that the best interests of the child warrant termination of
Father’s parental rights.
                                                 II.
                                   STANDARD OF REVIEW
       The United States Supreme Court has held that a parent’s interest in maintaining a
relationship with his or her child is a fundamental liberty interest protected by the Fourteenth
Amendment to the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982);
Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978), and the CPA directs that “the state of Idaho
shall, to the fullest extent possible, seek to preserve, protect, enhance and reunite the family
relationship.”   Idaho Code § 16-1601.        Likewise, the Termination of Parent and Child
Relationship Act states, “Implicit in this chapter is the philosophy that wherever possible family
life should be strengthened and preserved . . . .” I.C. § 16-2001(2).
       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



3
        Father failed to appear.

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supported by “clear and convincing evidence.” Santosky, 455 U.S. at 769. See also I.C. § 16-
2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). 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, 220 P.3d 1062, 1064 (2009). The appellate court will indulge
all reasonable inferences in support of the trial court’s judgment when reviewing an order
terminating parental rights. Id. at 245-46, 220 P.3d at 1064-65. The Idaho Supreme Court has
also stated, however, 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 Adoption of Doe, 143
Idaho 188, 191, 141 P.3d 1057, 1060 (2006).              Further, the trial court’s decision must be
supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600. In our
review of the record, this Court will not set aside a magistrate’s findings of fact unless they are
clearly erroneous. Idaho Rule of Civil Procedure 52(a); Doe I v. Doe, 138 Idaho 893, 906, 71
P.3d 1040, 1053 (2003).       Giving due regard to the trial judge’s opportunity to assess the
credibility of the witnesses, we will liberally construe the trial court’s finding of fact in favor of
the judgment entered. Id. Even if a finding of fact is in error, this Court should disregard such
error unless it affects the substantial rights of the parties. I.R.C.P. 61.
                                                  III.
                                             ANALYSIS
A.      The Magistrate’s Findings of Neglect Are Supported by Substantial and Competent
        Evidence
        The magistrate’s decision in this case was based upon Idaho Code § 16-2005(1)(b),
which provides that a parent-child relationship may be terminated when it is in the child’s best
interests and the parent has abused or neglected the child. As alleged in the petition in this case,
a “neglected” child is defined in I.C. § 16-1602(25)(a) and (b) as a child:
                (a) Who is without proper parental care and control, or subsistence,
        medical or other care or control necessary for his well-being because of the
        conduct or omission of his parents, guardian or other custodian or their neglect or
        refusal to provide them . . . or

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                  (b) Whose 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 . . . .

          A parent’s performance under a case plan is relevant to a finding of neglect under Idaho
Code § 16-1602(25)(a) and (b). In re Doe 2009-19, 150 Idaho 201, 205, 245 P.3d 953, 957
(2010).      Additionally, the magistrate may consider both past and current conduct when
determining whether grounds exist for terminating a person’s parental rights. State v. Doe, 144
Idaho 839, 843, 172 P.3d 1114, 1118 (2007); In re Doe, 152 Idaho 953, 959, 277 P.3d 400, 406
(Ct. App. 2012).
          This case began due to Father’s untreated mental health problems, substance abuse, and
inability to provide care and safety for his child. The magistrate found that from the initiation of
the case in early June of 2011 until trial in early December of 2012, the issues which brought the
child into care continued unabated, and that Father not only had failed to comply with case plan
tasks which would have addressed each of these concerns but also was in denial regarding the
existence of the problems themselves. Father first contends that the magistrate’s findings of
neglect are not supported by substantial and competent evidence.
          Early in the case Father participated in a substance abuse evaluation and a mental health
evaluation, reports of which were admitted into evidence at trial. These reports, coupled with
trial testimony, showed that for the first seven years of Son’s life Father, Son’s mother, and Son
resided in New Mexico. Son’s mother, who did not reside with Father, had sole custody of Son
and was his caregiver. Father took custody of Son in March 2010 upon Son’s mother’s death. In
the evaluations, Father revealed that while in New Mexico he had a long history of abuse of
illegal drugs including cocaine, methamphetamine, and marijuana, but Father contended that he
had quit using these illegal drugs in November of 2010 when he and Son moved to Idaho so that
Father could marry an Idaho woman with whom he had had a brief prior relationship. Father
further said that the only time he had “huffed” inhalants was the day he was arrested in June of
2011. The magistrate found these assertions by Father that he had substantially stopped drug
abuse, along with many other of his assertions, were untrue.
          Trial evidence showed that Father and the woman married in December 2010 and
divorced in May 2011. During this time Father was being prescribed opioids for pain caused by
a lower back injury. Sometime in the spring of 2011, Father’s pain management physician



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discharged him from treatment because Father was abusing his prescribed medication. In April
of 2011, Father was hospitalized for abuse of substances and mental health concerns. Father’s
ex-wife provided information to the evaluators that differed factually from Father’s
representations concerning his drug use during their marriage. From her representations, and
because Father’s numerous instances of lack of veracity on a variety of subjects, the magistrate
found that Father had no credibility and further found that Father and Father’s ex-wife abused
illegal drugs and “huffed” together throughout their brief marriage, and that this illegal conduct
had a deleterious effect on Son.
        The case plan required Father to comply with recommendations of his mental health
evaluator. In the mental health evaluation, Father revealed to the psychologist a long history of
mental health problems and provided a list of prescribed psychotropic drugs he was purportedly
taking. In the substance abuse evaluation, however, Father gave a different list of psychotropic
drugs he was purportedly taking. The psychologist diagnosed Father as suffering from a number
of afflictions, including depression, bipolar disorder, social phobia, and psychotic tendencies,
and the psychologist recommended psychiatric counseling and medication. At trial, a social
worker testified that Father had never provided any proof that he had sought or participated in
mental health counseling. Father, in opposition, testified that he had, but he could not recall the
doctor’s name, and further testified to a new list of psychotropic drugs he was purportedly
taking. Based upon the social worker’s testimony and the lack of any documentary proof
supporting Father’s claims, the magistrate found that Father was lying and that he “never
followed through with any of [the evaluating psychologist’s] extensive recommendations to
address his chronic mental illness. There is no evidence [Father] is taking any psychotropic
medications. [Father] has not been and is not in treatment of any kind.” The magistrate further
concluded that Father “chooses to ignore his mental health needs” and that “there is absolutely
no evidence of the veracity of [Father’s] statements” that he ever took medications for his mental
afflictions.
         Father’s substance abuse evaluation recommended substance abuse treatment, and the
case plan required Father to comply with this recommendation. Based upon the testimony of a
Department social worker, the magistrate found that Father started a substance abuse treatment
program but did not complete it. Instead, the witness testified and the magistrate found, not only




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was Father discharged from the program, but he also lied to the Department, contending that he
had completed the program.
       The case plan further required Father to submit to random urinalysis testing through a
substance abuse treatment provider. The magistrate’s finding that Father “did not participate in
urinalysis testing” through a provider was supported by the testimony of the social worker.
       The case plan further required Father to be free of illegal and non-prescribed legal
substances and to not exceed prescribed levels of legal substances. At the time of his arrest,
Father was seeing a new pain management physician, who testified at the trial. The magistrate
found that Father had failed to disclose to his new physician that his previous pain management
physician had terminated him from treatment because of prescription abuse. Based upon the new
doctor’s testimony and case records of Father’s treatment admitted into evidence at trial, the
magistrate found that during the case plan period the physician prescribed to Father the drug
Oxycodone for pain and encouraged physical therapy. Father willingly took the medication but
declined to participate in physical therapy. The physician testified that he prescribed the drug in
amounts designed to last one week in order to discourage overuse. The physician’s case records
show, however, that Father consistently overused and ran out of the drug and on a regular basis
called the office seeking additional amounts of the opioid before a new prescription was due.
The magistrate found that the doctor ultimately discharged Father from treatment in June of
2012, due to Father’s abuse of prescription drugs and “illicit drugs,” as revealed by urinalysis
tests by the physician that were positive for amphetamine, cocaine, and marijuana.              The
magistrate further found that Father then unsuccessfully attempted to revoke his consent for
release of this information to the Department and that Father further lied to the Department when
he denied having failed a drug test. These findings are supported by the physician’s testimony,
office notes, and reports.
       The magistrate found that from March of 2010, when Father took custody of Son, until
June of 2011, when Son was taken from Father’s custody, Son and Father resided in “at least
seven different places,” the last of which was a homeless shelter. The magistrate found that from
the initiation of the case to the end, Son attended weekly therapy sessions with a counselor to
treat Son’s adjustment disorder and anxiety depression caused by stress stemming from lack of
stability in his living situation. This finding is supported by the social worker’s, the guardian ad
litem’s, and Son’s counselor’s trial testimony.      The case plan required Father to actively


                                                 7
participate in addressing Son’s needs, including participation in Son’s counseling appointments
as directed by the Department. The magistrate found that Son’s counselor, the Department social
worker, and the guardian ad litem regularly encouraged Father to attend these sessions, but in the
seventeen months of weekly counseling, Father attended only two sessions. These findings draw
support from the testimony of those witnesses. The foster father testified, and the magistrate
found, that Father only occasionally asked about Son’s mental health issues. The magistrate
further found that Father’s trial testimony that he only attended two sessions because he was
never asked or encouraged by anyone to attend these sessions was not true.
       The case plan required Father to actively participate in addressing Son’s medical needs.
Son’s foster father and the Department social worker testified, and the magistrate found, that Son
suffers from Duane Syndrome, a genetic disorder that threatens the vision in his left eye and
requires consistent treatment and monitoring.       The foster father’s testimony supports the
magistrate’s finding that the foster father took Son to regular appointments with an optometrist
and an ophthalmologist. Son also suffered from branchio-oto-renal syndrome, a genetic disorder
that causes problems with Son’s ears and kidneys. Son’s foster father took Son to medical
appointments with an ear, nose, and throat doctor; a nephrologist; and a geneticist.          The
magistrate found that Son’s counselor, the Department social worker, and the guardian ad litem
regularly encouraged Father to attend these sessions.        Father did not attend any of the
appointments. The magistrate found that “while [Father] was able to identify [Son’s] medical
conditions and diagnoses, [Father] reported that [Son] was not receiving care or monitoring for
these conditions before [Son] came into foster care.” The magistrate further found that during
the case plan “as to Son’s ongoing medical issues, [Father] never once inquired about this subject
matter or asked for additional education or information concerning the conditions.” These
findings draw support from the testimony of the foster father, Son’s counselor, and the guardian
ad litem.
       The case plan also required Father to secure income to care for Son. There was no
evidence that, over the course of the case plan, Father ever sought or held a job. Although Father
said that he had disability income because of his mental condition, the magistrate found that
Father failed to prove that he had any such income. The magistrate did note that Father testified
that if he had access to Son’s survivor benefits resulting from the death of Son’s mother, he




                                                8
could adequately provide income for the child. The magistrate did not find this testimony
persuasive.
       The magistrate found that Father “had fairly regular unsupervised and then supervised
visits with [Son] during the course of the case plan and that, according to the testimony of the
Department social worker, the supervised visits went “remarkably well.” Even then, however,
the magistrate found that Father “has been inconsistent in attending visits with [Son]” and that
“when [Father] does not attend scheduled visits, [Son] is sad and cries.” The magistrate found
that on one occasion Father’s behavior was clearly inappropriate in that Father told Son that
Son’s counselor was lying to Son and should not be believed. This upset Son and Father’s
inappropriate attempt to influence the child had to be corrected by the visitation supervisor.
Testimony of the foster father, guardian ad litem, and social worker provide support for these
findings.
       On appeal, except for asserting that he received mental health treatment, an assertion that
ignores the magistrate’s findings and that misrepresents the record, 4 Father does not challenge
any of the magistrate’s foregoing factual findings in support of his contention that the
magistrate’s ultimate finding of neglect is not supported by substantial and competent evidence.
He contends instead that because he submitted to a substance abuse evaluation and left substance
abuse treatment on “good terms” with the provider, because it was not shown that he overused
prescribed medication or illegally huffed inhalants “throughout the entire case,” because he
obtained housing that would be adequate for the child if they were reunited, because he attended
(but did not complete) anger management and domestic/family violence programs, because he
received some “love and logic” training, and because he completed a parenting class, the
magistrate’s finding of neglect should not be sustained. Father’s stated challenges and minimal
efforts toward case plan compliance do not override his substantial noncompliance with the tasks
assigned to him case plan, all of which were designed to address the issues that brought Son into
care. The magistrate’s finding of neglect is affirmed.


4
       Father asserts that because the substance abuse evaluation referred him to a specific
provider for both substance abuse and mental health treatment, and because he went to that
provider for a period of time, this establishes that he “engaged” in mental health treatment. The
magistrate specifically and repeatedly found that while Father engaged in some substance abuse
treatment at this facility, he did not engage in mental health treatment at this facility or any other.
These findings are supported by testimony of the social worker.

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B.       The Magistrate Did Not Err in Determining Termination of Father’s Parental
         Rights Was in the Best Interests of the Child
         Father next contends that the magistrate erred in finding that it was in the best interests of
the child to terminate Father’s parental rights. He does not, however, contend that any of the
multitude of more specific factual findings which led to that ultimate finding are unsupported by
evidence.
         These unchallenged factual findings include a finding that Father and Son had no
established parent-child bond, but instead Son viewed Father as more of a playmate. The
magistrate also found that Son has medical conditions that require consistent monitoring and
treatment, and yet Father showed no familiarity with those conditions, no interest in learning
more about them, and, although Father knew of Son’s conditions when he took custody, Father
failed to obtain any medical treatment for the child. The magistrate further found that Son
suffered from adjustment disorder and anxiety depression caused by stress stemming from his
mother’s death and lack of stability in his living situation since coming into Father’s care (at
least seven moves in eighteen months) and that Son’s conditions were chronic, requiring future
counseling and treatment. The magistrate found that Son “has been subjected to so many life
stressors his entire life that he has been required to constantly re-adjust just to survive,” but
Father was uninterested in even familiarizing himself with Son’s mental health issues.
         The magistrate found that Son did well in foster care. With new providers and freed from
his self-imposed role as caregiver to Father, he did well in school and his social skills improved.
The magistrate found that Son needed a safe home with certainty and where he can feel safe; a
parent who he can trust and who can answer questions; and a caregiver that can meet his
medical, physical, emotional and developmental needs. The magistrate found that Father’s
untreated mental health and substance abuse issues rendered him unable to provide proper
parental care and control of the child, or to meet Son’s subsistence, medical, and emotional
needs.
         The magistrate found that when given the opportunity to redeem himself during the case
plan period, Father exerted no effort to change and blamed others for his troubles, that Father
was passive with regard to his development as a parent, and that he refused to accept personal
responsibility for his lack of parenting skills. Father, wrongly, believed that it was the role of the
Department and others involved in the case to help him parent his own son. Further, the
magistrate found, Father was in denial and delusional regarding his life with Son, describing his

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time with Son as a “Leave It to Beaver” type of life, which the magistrate found to be a “fantasy
world.” In essence, the magistrate found a wide gap between what Father believed to be true and
the real state of things.
        The guardian and the Department’s social workers all opined that termination of Father’s
parental rights was in the child’s best interests, concluding that Father was unable or unwilling to
take the steps necessary to properly care for Son and to provide for his needs. The magistrate
agreed, concluding:
                Based on [Father’s] failure to address any of the issues which brought
        [Son] into care, and, based on [Father’s] dishonesty and willingness to hide his
        substance abuse to protect himself, this Court concludes it is in [Son’s] best
        interest to have [Father’s] parent[al] rights terminated.
                [Father] has shown no interest or motivation in actually changing long-
        standing behavior or emotional patterns and [Father] has chosen to continue to
        abuse substances. It is not in [Son’s] best interest to preserve the dysfunctional,
        dangerous, and unhealthy relationship between [Father] and [Son].

        As noted above, Father does not challenge any of the magistrate’s foregoing factual
findings. Instead, Father asserts that because the Department social worker testified that Father’s
supervised visits with Son went “remarkably well overall,” because Son’s counselor testified that
it was her opinion that Son should have “some kind of contact” with Father in the future and that
perhaps there may have been other options than termination, the magistrate’s finding that
termination was in the child’s best interests should not be sustained. Father’s stated challenges
do not demonstrate that the court’s finding was not supported by other substantial and competent
evidence in the record. The magistrate’s determination that termination of the Father’s parental
rights was in the best interests of the child is affirmed.
                                                  IV.
                                           CONCLUSION
        Accordingly, the magistrate court’s decree terminating the parental rights of Father is
affirmed.
        Judge GRATTON and Judge MELANSON CONCUR.




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