                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 41681

IN THE MATTER OF THE                               )
TERMINATION OF PARENTAL RIGHTS                     )
OF JOHN DOE (2013-30) AND IN THE                   )   Boise, April 2014 Term
MATTER OF THE ADOPTION OF JOHN                     )
DOE I.                                             )   2014 Opinion No. 62
_____________________________________              )
JOHN DOE, (2013-30)                                )   Filed: June 24, 2014
                                                   )
     Petitioner-Appellant,                         )   Stephen W. Kenyon, Clerk
                                                   )
v.                                                 )
                                                   )
JOHN DOE II,                                       )
                                                   )
   Respondent.
_____________________________________

       Appeal from the magistrate court of the Third Judicial District of the State of
       Idaho, Canyon County. Hon. Gary D. DeMeyer, Magistrate Judge.

       The judgment of the magistrate court is vacated and the case is remanded for
       action consistent with the Opinion.

       Nicholson, Migliuri Rodriguez, PLLC, Twin Falls, attorneys for appellant.
       Lisa B. Rodriguez argued.

       Stoppello Law, PLLC, Boise, attorney for respondent. Matthew F. Stoppello
       argued.
                           ______________________________

W. JONES, Justice
                                    I. NATURE OF THE CASE
       This is an expedited appeal by John Doe (“Father”) from an order terminating Father’s
parental rights over his minor child (“Child”) and granting Child’s stepfather’s (John Doe II)
(“Stepfather”) Petition to Adopt Child. The magistrate court found that Father had abandoned
Child and failed to maintain regular contact with and support the minor child without just cause.
Father stopped having contact with Child in April 2007, after Mother changed her contact
information. In 2012, Father brought a motion to modify child custody. In response, Mother and
her new husband, Stepfather, sought termination of the Father’s parental rights, and Stepfather
filed a petition for adoption of the minor child. The magistrate court terminated Father’s parental
rights and granted Stepfather’s petition. Father appeals.
                         II. FACTUAL AND PROCEDURAL BACKGROUND
       Mother and Father were married on June 23, 2001. Mother became pregnant with Child
in the fall of 2005. In January 2006, Father filed for divorce in Twin Falls on the basis of
irreconcilable differences. Mother and Father were both represented by counsel and reached a
settlement agreement. That settlement provided that Mother would be awarded sole legal and
physical custody of the unborn child, that Father would consent to termination of his parental
rights, and that Father would not be obligated to pay child support. Mother also received
substantial equity in a house that Father owned. Father signed the settlement agreement, but he
changed his mind and never signed the consent to termination. Mother and Father did not
continue to live together after the divorce. But while Mother was pregnant with Child, she
informed Father of her doctor visits and Father attended some of the appointments. Child was
born in April of 2006. Mother called Father to the hospital on the day that Child was born, and
Father went to the hospital.
       Following the birth of Child, Mother stayed with her parents in Caldwell for a few weeks.
During this time, Father traveled to visit Mother and Child. In June of 2005, Mother and Father
reconciled their relationship. Mother, Father, and Child began living together in Father’s house
in Filer, where Father worked and co-owned a local bakery. During this time, Mother was
working at Premier Insurance in Twin Falls, and Father’s mother was watching Child during the
day. One day, Mother came home and found Father’s sister watching Child instead of Father’s
mother. Mother was upset, and following this event, Father had a falling out with his parents,
with whom he ran the bakery. After this incident, Father quit his work at the bakery to act as a
stay-at-home dad for Child.
       In late 2006, it was the intention of both Father and Mother to relocate to Boise. Father
placed his house in Filer for sale in late 2006. Mother interviewed for a job in Boise at the end of
January 2007, and moved to Boise shortly thereafter. Mother moved in with her sister in Nampa.
After Mother moved to Nampa, she recalls conversations regarding Father moving to Boise.
During this time, Father was frequently texting Mother about Child. Father would also travel to
Nampa on weekends to see Child. Mother also thinks she might have traveled to Filer to see
Father during this time as well.



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       On or near April 7, 2007, Mother hosted a birthday party for Child at her parents’ home
in Nampa. Father attended the birthday party and stayed for several hours. Everything went well
at the party. This was the last time that Father had contact with Child. For a short time after the
party, Father continued to text Mother and stayed in touch with her regarding Child. Towards the
end of April 2007, Mother met Stepfather and began spending time with him. Right around this
same time, Mother claims that she asked Father to sign the consent to terminate parental rights,
which Father refused to do. Father asserts that Mother said that he would never see Child again.
       Sometime around May 2007, Mother moved from her sister’s house in Nampa and
changed her telephone number. Mother did not provide her new telephone number to Father.
Mother did not provide Father with her new address. Mother introduced Stepfather to Child
sometime in the summer of 2007. Father mailed presents to Mother’s parents intended for Child
for Christmas 2007, Child’s birthday in 2008, and Christmas 2008. Mother did not give any of
these presents to Child and had the packages returned to sender. In March 2008, Mother
switched jobs and began working at Premier Insurance in Boise. Mother did not provide her new
place of employment to Father. Mother moved in with Stepfather in 2008, and married him on
June 5, 2010.
       Stepfather and Mother have a child together, and Stepfather has been acting as a
fatherlike figure for Child. Child does not know who Father is, but Child does know in a very
basic sense that Stepfather is not his biological father. Father was not providing financial support
to Child.
       In late 2011, Father received information regarding Mother’s employment in Boise at
Premier Insurance. Father brought a motion to modify the child custody order in the divorce
action in order to have visitation with Child in 2012. On June 7, 2012, in response to Father’s
motion to modify, Mother and Stepfather filed a petition for adoption and termination of Father’s
parental rights. Stepfather filed a motion for summary judgment, which was denied on December
13, 2013. The Twin Falls County modification case has been stayed pending a decision in the
Canyon County termination case. The magistrate court ordered a Health and Welfare evaluation
by Delaynia Winchester. The magistrate court entered its Findings of Fact and Conclusions of
Law in this matter on November 19, 2013, terminating Father’s parental rights and granting
Stepfather’s petition to adopt Child. An order terminating parental rights was filed on December




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2, 2013. An order for adoption was filed on December 2, 2013. Father filed a Notice of Appeal
on December 16, 2013. A final judgment was entered on December 19, 2013.
                                      III. ISSUE ON APPEAL
       Whether the magistrate court erred when it terminated Father’s parental rights and
granted Stepfather’s petition for adoption.
                                   IV. STANDARD OF REVIEW
       Each parent has a fundamental liberty interest in maintaining a relationship with his or
her child. Troxel v. Granville, 530 U.S. 57, 55 (2000); Doe v. Doe, 150 Idaho 46, 49, 244 P.3d
190, 193 (2010). Therefore, grounds for termination must be shown by clear and convincing
evidence. Doe, 150 Idaho at 49, 244 P.3d at 193. Clear and convincing evidence is evidence that
indicates 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). On appeal this Court conducts an
independent review of the magistrate court record. Doe, 150 Idaho at 49, 244 P.3d at 193. This
Court will not disturb the magistrate court’s findings of fact if supported with substantial,
competent evidence. Id.
                                              V. ANALYSIS
       The magistrate court found that Father abandoned Child pursuant to I.C. § 16-2005(a).
The magistrate court found that Father abandoned his child because he failed to provide
reasonable support to Child and failed to maintain regular personal contact. The magistrate court
noted that Father did not hire a private investigator to locate Mother. The magistrate court did
not discuss Mother’s change of her contact information nor Mother’s return of gifts intended for
Child. The magistrate court also found that “[Mother] did nothing to secret herself or [Child]
from [Father].” The magistrate court granted Stepfather’s adoption petition, but it did not discuss
that matter other than to say that Delaynia Winchester recommended termination of parental
rights and adoption. Finally, the magistrate court failed to make any findings regarding the best
interests of Child.
       Father argues that the magistrate court erred when it terminated his parental rights to
Child. Father argues that the magistrate court’s finding of abandonment is erroneous because it
failed to consider Father’s willfulness and whether his contact with Child was without just cause.
Father argues that his lack of contact with Child was not willful but was caused by Mother’s
failing to provide Father with information and intentionally concealing Child from Father.



                                                  4
Finally, Father argues the magistrate court erred when it granted Stepfather’s petition for
adoption because Mother testified that she believed it was in Child’s best interest to know his
biological father at some point.
       Mother argues that the magistrate court did not err when it found that Father willfully
abandoned Child because the testimony indicates that Father “simply chose not to maintain or
even attempt to maintain a relationship with the Child.” Mother argues that Father’s failure to
stay in contact with Child was not supported by just cause because she did not receive any
financial support from Father other than the lump sum payout during the divorce, which Mother
contends she had no way of knowing she was expected to use for Child. Mother also argues that
Father’s evidence of steps he took to stay in touch with Child was not substantial evidence
because the magistrate court found it unpersuasive. Finally, Mother argues the petition for
adoption was properly granted because Stepfather acts as a father figure to Child and after a
home study, Delaynia Winchester recommended adoption.
       Idaho Code § 16-2005 provides for the termination of parental rights. Parental rights may
be terminated on the basis of abandonment: “(1) 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 one (1) or more of the following conditions exist: (a) The parent has abandoned
the child.” I.C. § 16-2005(1)(a) (emphasis added). Idaho Code § 16-2002(5) defines
“abandoned” as follows:
       “Abandoned” 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 without just cause for a
       period of one (1) year shall constitute prima facie evidence of abandonment under
       this section . . . .
When proving abandonment, this Court requires a burden shifting analysis be employed:
               The petitioner holds and retains the burden of persuasion to show that
       abandonment has occurred. This includes a showing that the defendant parent is
       without just cause for not maintaining a normal relationship with the child. [Doe I
       v. Doe, 138 Idaho 893, 903–04, 71 P.3d 1040, 1050–51 (2003)]. If the petitioning
       party makes the prima facie case, then the defendant parent holds the burden of
       production to present evidence of just cause. Id. If the trier of fact finds that there
       are no valid defenses or “just causes,” then the petitioning party has met the
       burden of persuasion. Id.
In re Adoption of Doe, 143 Idaho at 192, 141 P.3d at 1061.
       1.      The magistrate court made no findings regarding the best interests of Child.


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       The magistrate court did not make any findings of fact that termination of Father’s rights
to Child were in the best interests of Child. The Idaho Code expressly requires a magistrate court
to take this step before it takes the drastic step of terminating a parent’s constitutionally protected
interests in maintaining a relationship with his or her child. Doe v. Doe, 150 Idaho 46, 49, 244
P.3d 190, 193 (2010). Here, not only did the magistrate fail to make these findings, but Mother
actually testified that she believes it is in Child’s best interests to eventually know Father.
       2.      The magistrate court’s findings regarding abandonment are not supported by
               substantial and competent evidence.
       We vacate the magistrate court’s termination of Father’s parental rights because the
magistrate court’s finding of abandonment—on which its order hinges—is not supported by
substantial and competent evidence. Whether a parent maintains a normal parental relationship
depends on the facts and circumstances of each case. Doe, 150 Idaho at 50, 244 P.3d at 194. In
making this determination a court should consider evidence of the logistical and financial
difficulties associated with maintaining the parental relationship. Id. Additionally, the failure of a
parent to send cards or communicate with a child via telephone is not dispositive of a parent’s
failure to communicate where the age of a child lessens the meaningfulness of that form of
communication. Id. Evidence of a hostile relationship between parents may also be evidence of
just cause and may mitigate against a parent’s failure to take advantage of all possible avenues of
reconnection. Id.
       In In re Adoption of Doe, 143 Idaho at 192, 141 P.3d at 1061, this Court held that where a
fundamental liberty interest is a stake, the court cannot ignore relevant evidence. This Court held
that the magistrate court erred when it found abandonment even though the father offered
evidence of his financial difficulties and injuries that made traveling between Phoenix—where
mother moved with the child—and Lewiston difficult. Id. This Court further found evidence of
just cause where the mother thwarted father’s attempt to visit the child. Id.
       The magistrate court’s finding that Father abandoned Child is not supported by
substantial, competent evidence. It is undisputed that Father has not had contact with Child for
over one year. Thus, Mother has established a prima facie case of abandonment. The burden of
production was on Father to demonstrate just cause. The record uncontrovertibly establishes that
Father’s failure to maintain contact with Mother was supported by just cause. The magistrate
court failed to address significant evidence in the record demonstrating Mother’s concealment
and hostility towards Father, which on the facts of this case establishes just cause.


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          First, the magistrate court found that Father willfully abandoned his child because Father
“made no effort” to contact Mother. This finding is not supported by substantial, competent
evidence. Father offered evidence that he tried to call and text Mother, but Mother having
changed her number did not receive those messages. Additionally, Father continued to send
Christmas and birthday gifts to Child in the only way he knew how—through Child’s
grandparents. Yet Mother returned these gifts to Father. Mother relies on the fact that the gifts
did not include any notes. This Court has clearly held that notes do not demonstrate a failure to
maintain a parental relationship when the child is very young. In re Doe (2011-23), 153 Idaho
258, 264, 281 P.3d 95, 101 (2012). In this case, Child was very young and would not be able to
read whatever notes Father could have sent; however, Child could have played with and
appreciated the gifts sent by Father in a way that Child, in his young age, could not appreciate a
note
          Second, the magistrate court found that Father abandoned his child because he “did not
hire a private investigator to locate [Mother].” This Court has issued numerous decisions that a
court must consider the logistical and financial difficulties associated with maintaining a
relationship. Here, Mother testified that both she and Father intended to move to Boise. Mother
testified that she knew Father was trying to sell his house in Filer so he could relocate to Boise.
Mother also testified that she knew that Father quit his job at the bakery because of a fight that
Mother had with Father’s mother over Father’s sister. As a result Father quit his job so he could
watch Child. This Court will not condition a parent’s constitutionally protected rights to maintain
a relationship with his or her child on whether that parent hired a private investigator where the
need for a private investigator arose from the conduct of the person seeking termination of those
rights.
          Third, the magistrate court found that Father “elected not to” contact Mother’s family
members. Father sent gifts to Mother’s family in hopes they would be given to Child. Mother
and her family refused to give the gifts to Child and returned them to Father. Father also testified
that Mother’s parents did not like him. This evidence is supported by the disregard Mother’s
parents showed to his relationship with Child when they never gave to Child the gifts intended
for Child. Mother also testified that she did not have a good relationship with Father’s parents
because of the divorce. Mother thus concedes that the parties’ divorce interfered with their
relationship with their parents. Mother, though not admitting that her parents disliked Father,



                                                  7
acknowledged that her parents were unhappy with the circumstances between Mother and
Father.
          Fourth, the magistrate court found that Father made no efforts to inquire into Mother’s
location from her friends. Jenifer Fiscus, a friend and colleague of Mother, testified that Father
did approach her in October of 2007. Ms. Fiscus testified that she was aggressive towards Father
and admitted that she did not want to provide any information to Father. This Court has never
held that a parent must exhaust all possible connections before failure to maintain a parental
relationship is supported by just cause. To the contrary, this Court has found just cause where a
party fails to pursue certain connections because the parent believes such pursuit might not be in
the best interests of the child. In re Adoption of Doe, 143 Idaho 188, 192, 141 P.3d 1057, 1061
(2006). Here, Father believed Mother’s parents did not like him and were not happy with him.
Father’s interactions with Mother’s friends were that of hostility. It is certainly reasonable for
Father to believe that aggressively harassing Mother’s family and friends would not be in Child’s
best interests.
          Fifth, the magistrate court found that “[Mother] did nothing to secret herself or [Child]
from [Father].” This finding is not supported by the record. Mother testified that after Child’s
birthday in April 2007, she met Petitioner and asked Father to consent to termination of his
parental rights. This is at least partially consistent with the testimony of Father and his new wife
that Mother said Father would never see Child again. Then Mother admitted that she changed her
telephone number. That number was the primary manner in which Father communicated with
Mother about Child. Mother admitted she consciously did not give Father the number because
she did not think it was required of her. She admitted that she relocated and consciously chose
not to give Father her new address because she did not think it was required. It is certainly true
that the separation agreement did not require Mother to provide Father with her contact
information; however, where Mother subsequently seeks to terminate Father’s parental rights this
excuse lacks merit. Mother assigns fault to Father for not contacting her through her employer,
but Mother changed jobs shortly after secreting herself from Father and did not give Father her
new employment information. Mother returned Father’s gifts for Child. Mother demonstrated a
conscious choice to remove Father from her and Child’s life. After successfully concealing
Child, she seeks to terminate Father’s parental rights.




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       Sixth, the magistrate court found that Father “simply did nothing after April 2007 to
maintain a parent child relationship with [Child].” The record is uncontroverted that after Child’s
birthday party, Father continued to text Mother about Child until Mother changed her phone
number. Father continued to send Christmas and birthday gifts to Child, which Mother never
delivered. Next, Mother’s testimony recognized that Father was unemployed at the time and
trying to sell his house to relocate to Boise. Father did not live near Mother, her believed
employer, or her family. Father had to travel to Boise. Father testified that he searched the
internet and social media about Mother’s location, spoke with a former roommate of Mother’s in
Filer, and spoke with former coworkers of Mother. Father testified that he only discovered
Mother’s whereabouts after he accidentally ran into an old acquaintance—whose name Father
could not remember—who worked at Premier Insurance in Twin Falls. Father and the
acquaintance discussed Mother. The acquaintance informed Father that Mother was hired in the
Boise office of Premier Insurance, which Father then used to track down Mother. The mere fact
that Father eventually discovered information about Mother and then proceeded to modify the
custody order demonstrates that Father was in fact active after April of 2007 to locate Mother
and Child.
       The magistrate court relied on the fact that Father did not contribute any financial support
to Child after Mother and Child moved to Boise. Yet, the Twin Falls divorce order provided that
Father had no child support obligations because Mother had sole custody. Father also produced
evidence that Mother received significant equity in a house that was his separate property as
consideration for this order. The magistrate court did not consider or even address this argument.
The magistrate’s court’s finding that Father did not provide Mother any financial support for
Child is weakened by the fact that Mother admittedly changed her contact information and place
of residence. Additionally, Father provided financially for the Child before Mother moved to
Nampa in late January 2007, and Mother admits that she and Father were discussing his moving
to Boise after his house sold in Filer.
       Though the record of Mother and Father’s divorce in Twin Falls County is not part of the
record before this Court, Father contends their divorce agreement contemplated that Mother
would use equity in Father’s separate property to support Child and relieve him of obligations to
pay child support. The validity of such an agreement may be questionable, but the parties do not
dispute that Mother never sought child support from Father and Father did not believe he owed



                                                9
child support because of the divorce agreement. While Father’s belief that he was under no
obligation to pay child support might well be erroneous, it demonstrates that Father’s failure to
pay child support was not willful. Father’s interactions with Child up until Mother’s
disappearance demonstrate a pattern of him supporting Child financially.
       We hold that the magistrate court abused its discretion when it found that Father
abandoned Child. Termination of Father’s parental rights is not supported by substantial and
competent evidence. Based on the facts of this case, termination of Father’s parental rights is
premature. The record demonstrates that Mother secreted herself and Child from Father. The
record demonstrates that Father was active in Child’s life up until Mother asked Father to
terminate his rights and then changed her number, job, and place of residence. Termination is a
drastic and final remedy. Now that Father knows of Child’s location, if Father fails to support
Child and exercise his parental duties Mother and Stepfather can seek to terminate Father’s
parental rights. However, given the circumstances of this case, at the present time termination is
premature.
                                        VI. CONCLUSION
       The magistrate court’s judgment terminating Father’s parental rights is vacated. The case
is remanded for proceedings consistent with this Opinion. Neither party requested attorney fees
on appeal. Costs on appeal are awarded to Father.
       Chief Justice BURDICK, and Justices EISMANN, J. JONES and HORTON CONCUR.




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