                     IN THE SUPREME COURT OF THE STATE OF IDAHO
                                               Docket No. 36983
IN THE INTEREST OF: JOHN DOE, A )
MINOR CHILD UNDER 18 YEARS OF )
AGE.                                                     )
-------------------------------------------------------- )
IDAHO DEPARTMENT OF HEALTH & )
WELFARE,                                                 )
                                                         )
                                                                Boise, June 2010 Term
     Petitioner-Respondent,                              )
                                                         )
                                                                2010 Opinion No. 76
v.                                                       )
                                                         )
                                                                Filed: June 30, 2010
JOHN DOE I,                                              )
                                                         )
                                                                Stephen W. Kenyon, Clerk
     Respondent-Appellant                                )
                                                         )
and                                                      )
                                                         )
JANE DOE,                                                )
                                                         )
     Respondent.                                         )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Cathleen MacGregor-Irby, Magistrate Judge.

          Magistrate court decision terminating parental rights, affirmed.

          Adam Carl Kimball, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.
                               __________________________________
                                   SUBMITTED ON THE BRIEFS
BURDICK, Justice
          John Doe I (hereinafter Doe) appeals from the magistrate court’s Memorandum Decision
and Order terminating his parental rights to his child, D.C., entered September 21, 2009.1 We
affirm.




1
  The parental rights of the child’s mother were also terminated at this time, but this appeal involves only the
termination of Doe’s parental rights.

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                   I. FACTUAL AND PROCEDURAL BACKGROUND
        D.C. was born in 1999. On April 4, 2000, a child protection referral was made in
Moscow, Idaho, regarding the care of D.C. According to the reporting party, Doe and D.C.’s
mother (Mother) had taken D.C. to a babysitter’s house and did not follow through with plans to
pick up D.C., leaving the babysitter with no supplies, such as milk, with which to care for D.C.
The report was coded as an information and referral only, and no further action was taken.
        On April 3, 2003, a child protection referral was made in St. Maries, Idaho, regarding
health and safety concerns with the family’s residence. Concerns of controlled substance abuse
by Doe were also reported. A social worker visited the home and observed that there was no
running water and the sewer system was not functioning.
        On April 26, 2004, another child protection referral was made regarding the neglect of
D.C. According to the referent, Doe and his girlfriend (S.R.) left D.C. and S.R.’s children with
an aunt and uncle for several weeks and did not return to pick them up until forced to do so. The
referent also noted substantial controlled substance abuse by Doe and S.R. Subsequent reports
alleging child abuse and neglect were reported and attached to this initial presenting issue,
including concerns about domestic violence by Doe against S.R., inappropriate physical
discipline by Doe of S.R.’s children, and severe neglect of the children. These reports were also
coded as information and referral only.
        On March 22, 2007, D.C. was placed in foster care after Doe was arrested on a warrant
for drug related charges. At that point in time, Mother had not had contact with D.C. for several
years. The Department of Health and Welfare (Department) worked with Doe and assisted him
with services to address drug and alcohol issues, parenting skills, anger management,
employment, housing, and other identified needs. D.C. was reunited with Doe in October 2007.
        On November 10, 2007, a child protection referral was made in Boise, Idaho, indicating
that Doe had a felony warrant out for his arrest and the reporting party was concerned about what
Doe would do with D.C. should he be arrested. The referral was coded as an information and
referral only.
           On April 18, 2008, Doe was incarcerated for violation of a no-contact order issued
between him and S.R.      D.C. was declared in imminent danger at that time due to Doe’s
incarceration. Before D.C. was returned to Doe, Doe was again arrested on May 3, 2008, in
Cascade, Idaho, for driving under the influence, domestic violence, reckless driving, eluding law


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enforcement, and fleeing the scene of an accident. In its Report of Investigation filed May 8,
2008, the Department requested that the Department be granted legal custody of D.C., and
recommended that the following case plan be completed by Doe:
       1. [Doe] will successfully complete the fifty-two weeks of domestic violence
          treatment through Tom Wilson Counseling, as ordered by his probation
          requirements.
       2. [Doe] will participate in a mental health or psychological evaluation to
          determine any undiagnosed mental illness and determine the effect of any
          diagnosed mental health issues on his capacity to parent.            All
          recommendations are to be followed and demonstrated.
       3. [Doe] will participate in a substance abuse assessment/evaluation approved by
          the assigned Department social worker and will follow any and all
          recommendations, including random drug tests at the discretion of the
          assigned Department social worker. The drug tests will be free of alcohol,
          illegal substances, and controlled substances not prescribed by a licensed
          physician. Legal controlled substances will not exceed prescribed levels.
       4. [Doe] will obtain/maintain a stable, safe and healthy home environment for
          himself and his child. [Doe] will keep the home free of any health and safety
          hazards. No other persons may reside in the home without the prior approval
          of the Department social worker. He will allow the assigned Department
          social worker and the Guardian Ad Litem to conduct random home visits.
       5. [Doe] will obtain and maintain appropriate employment/income to provide for
          himself and his child. [Doe] will provide the assigned Department social
          worker with the necessary documentation to verify his income and legitimate
          employment.
       6. [Doe] will address and resolve any pending legal issues, comply with the
          terms of his probation, and refrain from further illegal activity which may
          result in his arrest/incarceration.
       On June 19, 2008, the magistrate court issued its Findings of Fact, Conclusions of Law
and Order of Legal Custody and Order Approving Case Plan as to the Father, approving the case
plan suggested by the Department on June 3, 2008. The steps outlined in the case plan were the
same as the six recommendations made in the Report of Investigation.
       On October 1, 2008, a Report to the Court for the Six Month Review Hearing was filed
with the magistrate court. The Report stated that Doe did not have his own housing; D.C. was
thriving in his current foster placement; Doe was in the process of completing his court ordered
case plan but the social worker had not received a progress report from Tom Wilson Counseling;
Doe had been spotted with S.R., but denied that it was her; Doe was participating in out-patient



                                               3
treatment and cognitive self-change; and Doe had provided a few pay stubs but the finances
shown in the paystubs did not provide sufficient financial means for Doe or D.C.
       The guardian ad litem also filed a report for the six-month review hearing. The guardian
ad litem stated as to Doe: “[Doe] is working on his case plan. This guardian believes that [Doe]
truly cares for his son and wants to be a parent to him. However, [Doe] has yet to demonstrate
that he is able to maintain stability through employment and managing his mental health. [Doe]
also has much further to go in his domestic violence treatment.”
       On January 15, 2009, the Department filed a Permanency Hearing Affidavit
recommending that proceedings be initiated to name the child’s maternal grandparents as his
guardians. That affidavit stated that on November 20, 2008, Doe’s hair follicle test was positive
for methamphetamine. It also stated that Doe had not enrolled in the recommended treatment
classes nor followed through with the recommendations made following his psychological
evaluation on July 29, 2008, and that Doe was continuing to reside with S.R. The affidavit also
stated the following:
       While this worker knows and has observed [Doe]’s love for his son, there are
       significant concerns about his ability to provide a safe, stable, and structured
       home environment for [D.C.] that is free of controlled substances and domestic
       violence. As of November, 2008, [Doe] has tested positive for methamphetamine.
       On December 19, 2008, [Doe] reportedly contacted an individual in the
       community in an attempt to “score some sh--.” This individual provided this
       information to the Department, stating that [Doe] was “looking for
       methamphetamine” and “hung up the telephone when asked if he knew who he
       called.” [Doe] continues to support his relationship with [S.R.], whose children
       are also in foster care. It is this worker’s understanding that [S.R.] is not making
       substantial progress on her case plan. It is this worker’s observation that [Doe]
       repeatedly chooses his relationship with [S.R.], one with a history of significant
       domestic violence and controlled substance abuse, over his relationship with his
       son. . . .
On February 26, 2009, the magistrate court issued its Order for Guardianship, finding that
guardianship would be with the child’s maternal grandparents without a termination of the parent
and child relationship.
       On May 4, 2009, the State filed a Motion to Amend the Permanency Plan, seeking to
terminate Doe’s parental rights. The affidavit in support of the motion to amend the permanency
plan stated that the request for placement with the child’s maternal grandparents through the
Interstate Compact process had been denied.



                                                4
           On June 5, 2009, the State filed a Petition for Termination of Parent-Child Relationship.
Count II stated that Doe “neglected the child by failing to comply with the Court’s orders in a
child protective act case or the case plan, and reunification of the child with his parent has not
occurred within fifteen (15) of the last twenty-two (22) months from the date the child entered
shelter care.” Count III alleged:
           The child is neglected as he is without proper parental care and control necessary
           for his well-being because of the conduct or omission of his parents, as follows:
           The father has failed to demonstrate consistency in housing, employment and/or
           abstinence from controlled substances which impairs his ability to provide proper
           parental care for his child.
           On June 19, 2009, the court issued its Order Approving Termination and Adoption as the
Permanent Plan. A hearing was held on July 16, 2009, where testimony was offered by: (1) the
detective who declared D.C. to be in imminent danger in both March 2007 and April 2008; (2)
the case manager from the Department; (3) a file clerk from the counseling center for drug and
alcohol addiction; (4) an associate judge with the Assiniboine and Sioux Tribes of Fort Peck; 2
and (5) Doe.
           The detective testified that law enforcement responded to Doe’s home on April 18, 2008,
because D.C.’s school had called in a welfare check as D.C. had not been at school. Officers
entered the home because they observed a small child who appeared to be four or five years old
looking out the window of the house and when no one answered the door the officers were
concerned that the child had been left by herself. S.R. was inside the home and informed officers
that D.C. had stayed home from school because he was sick, but D.C. told officers he was not
sick and he appeared to be in good health. S.R. was unable to produce any paperwork giving her
authority to care for D.C. and she was unable to contact Doe. The detective also testified that,
based upon her training in law enforcement and drug issues, she felt S.R. was “under the
influence of a substance, probably methamphetamine.” When officers informed S.R. that they
were going to declare D.C. to be in imminent danger, S.R. bolted upstairs, where officers
followed and found Doe hiding in a closet, in violation of the no-contact order with S.R. The
detective also testified that the school had sent home “numerous information [sic] that [D.C.]
needed eyeglasses” because he could not see, but Doe had not taken care of it.



2
    Mother is a tribal member and thus contact with the tribe was required under the Indian Child Welfare Act.

                                                           5
       The case manager testified that D.C. had been in foster care for fifteen consecutive
months, and that Doe had “five or six” child protection referrals prior to D.C. coming into foster
care in April 2008. The case manager went into detail on the case plan that Doe was given in
2007, and stated that Doe had “sufficiently accomplished the tasks that he needed to to ensure
that the reasons that [D.C.] entered care initially were taken care of” in October 2007. The case
manager further stated that when D.C. was placed in foster care in April 2008, the only concerns
regarding D.C.’s care involved him not attending school and Doe not following through with
getting D.C. glasses.
       The case manager then testified regarding Doe’s compliance with the case plan that was
filed on June 3, 2008. Regarding Doe maintaining a safe and stable home, the case manager
identified six different residences that Doe resided at between April 2008, and the time of the
hearing, and stated that this was a concern to the Department because “[i]f [D.C.] were living
with [Doe] at that time, he would have been switching schools. He would have been switching
friends. It’s not a stable environment for him. And he is very impressionable at his age and
really needs a stable, firm foundation.” Doe also resided with unapproved individuals in several
of the residences. Doe was then incarcerated from mid-January 2009 until late January 2009 and
then from mid-February 2009 up through the time of the hearing in July 2009.
       As to Doe’s employment, the case manager testified:
       It’s been sketchy, at best. He has reported employment, at times, but has never
       provided a pay stub. . . . [W]ithout employment, you’re not able to obtain
       housing. You’re not able to have food. Again, going back to the stability that
       needs to be provided to his son, you are not able to do that without having secure
       employment or finances of some sort.
In addition, Doe had been charged with four different misdemeanors, which concerned the case
manager because Doe was “not able to be a stable and consistent parent for his son. He is
continually in and out of jail with pending jury trials. He could go to prison. I don’t know what
the outcome of those criminal charges will be. Subsequently, [D.C.] will have nowhere—
nowhere to go.”
       The case manager further testified that Doe did not provide her with proof of completion
of the ordered fifty-two weeks of domestic violence treatment. Doe had not provided her with
proof that he was meeting any of the recommendations relating to his mental health and
substance abuse, including attending psychiatric treatment, complying with medication
management, attending outpatient treatment, and participating in a cognitive self-change course.

                                                6
Finally, the case manager stated that Doe’s compliance with random drug testing had “been hit
and miss.”
       The case manager also spoke as to how well D.C. was doing in foster care and Doe’s
interactions with D.C. D.C. was taking violin lessons, participating in the Boy Scouts, playing
sports, and attending summer camp. While in foster care, he was doing well in school and had
no behavioral problems. According to the case manager, Doe “engages with [D.C.] very well.
He is very kind to his son the times that he is supervised. . . he truly does care for his son. He
does have that connection there and really cares for him.”
       The filing clerk from the counseling center testified that Doe missed five scheduled
classes between November 2008 and January 2009, attending only one treatment session. After
five absences, a person is taken out of the program.
       Doe testified that he completed thirty hours of his domestic violence classes before
becoming incarcerated. He also stated that he checked himself out of the counseling program
and transferred his treatment to another program where he was going to be living. Around that
time, however, he was arrested. He stated that all he could do while he was in prison from
February 10, 2009, until June 28 or 29, 2009, in the Valley County jail was AA and church
because there were no other programs. Doe further stated that although Ada County offers more
programs, he has been unable to join them because of the high cost of the classes.
       The magistrate court admitted five exhibits during the hearing, including two “Road to
Recovery Assessment Summary” documents prepared by a substance abuse liaison, a document
detailing Doe’s criminal history in Ada County, a psychological evaluation of Doe, and a
summary of Doe’s drug testing results from May 2007 through November 2008.
       On September 21, 2009, the magistrate court terminated Doe’s parental rights to D.C.
based upon its findings that Doe neglected the child by failing to comply with the court’s orders
in the case plan and reunify within fifteen of the last twenty-two months, and by failing to
demonstrate consistency in housing, employment, and/or abstinence from controlled substances,
impairing his ability to provide proper parental care for D.C. In addition, the court concluded
that termination of parental rights would be in the best interest of the child. On October 5, 2009,
the final decree was issued. Doe timely filed his Notice of Appeal.




                                                7
                                         II. ANALYSIS
       “When the State intervenes to terminate the parent-child relationship, the requisites of
due process must be met.       This requirement necessitates the State prove the grounds for
terminating a parent-child relationship by clear and convincing evidence.” In re Doe, 143 Idaho
343, 345, 144 P.3d 597, 599 (2006) (internal citation omitted). “[W]here the trial court has
explicitly determined the case by application of the clear and convincing evidentiary standard,
this Court must determine if the decision was supported by substantial and competent evidence.”
In re Doe, 146 Idaho 759, 761, 203 P.3d 689, 691 (2009). Substantial competent evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Folks v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997) (quoting
Welch v. Cowles Publ’g Co., 127 Idaho 361, 365, 900 P.2d 1372, 1376 (1995)).
A. There is substantial and competent evidence supporting the magistrate court’s
   determination that Doe neglected D.C.
       Idaho’s Termination of Parent and Child Relationship Act includes in its purpose:
       Implicit in this chapter is the philosophy that wherever possible family life should
       be strengthened and preserved and that the issue of severing the parent and child
       relationship is of such vital importance as to require a judicial determination in
       place of attempts at severance by contractual arrangements, express or implied,
       for the surrender and relinquishment of children.
I.C. § 16-2001(2). In that spirit, I.C. § 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 one of the
following factors exist: (a) abandonment, (b) neglect or abuse, (c) lack of a biological
relationship between the child and a presumptive parent, (d) inability to discharge parental
responsibilities, or (e) incarceration of parent for a substantial period of time during the child’s
minority. The magistrate court here found that the Department proved the following grounds for
termination of the parent-child relationship by clear and convincing evidence: (1) neglect as
defined in I.C. § 16-2002(3)(a) and I.C. § 16-1602(25), and (2) neglect as defined in I.C. § 16-
2002(3)(b).
       Idaho Code § 16-2002(3)(a) provides that “neglected” means conduct as defined in I.C. §
16-1602(25), which includes a child who:
       [I]s 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. . . [w]hose parents, guardian or other custodian are unable to discharge their


                                                 8
       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.
I.C. § 16-1602(25)(a)-(b). Idaho Code § 16-2002(3)(b) defines “neglected” as “[t]he parent has
failed to comply with the court’s orders in a child protective act case or the case plan, and
reunification of the child with his or her parent(s) has not occurred within the time standards set
forth in section 16-1629(9), Idaho Code.” Idaho Code § 16-1629(9) states:
       There shall be a rebuttable presumption that if a child is placed in the custody of
       the department and was also placed in out of the home care for a period not less
       than fifteen (15) out of the last twenty-two (22) months from the date the child
       entered shelter care, the department shall initiate a petition for termination of
       parental rights. This presumption may be rebutted by a finding of the court that
       the filing of a petition for termination of parental rights would not be in the best
       interests of the child or reasonable efforts have not been provided to reunite the
       child with his family, or the child is placed permanently with a relative.
This statute “merely creates a presumption in favor of the department initiating a termination
petition when a child has been in the state’s custody and not in the parent’s care for fifteen out of
twenty-two months. It does not create a presumption that it is in the best interests of the child to
terminate parental rights.” State v. Doe, 144 Idaho 534, 536, 164 P.3d 814, 816 (2007).
       In the instant case, the State sought to terminate Doe’s parental rights on the basis of
neglect. The magistrate court agreed with the State and held there was clear and convincing
evidence that Doe neglected D.C. by failing to comply with the court’s orders in the case plan
and reunify within fifteen of the last twenty-two months, and by failing to demonstrate
consistency in housing, employment, and/or abstinence from controlled substances, impairing his
ability to provide proper parental care for the child. We affirm.
       Over an eight-year span, Doe was the subject of six referrals to the Department regarding
his care of D.C. and other children. Reports from 2003 and 2004 included concerns about Doe’s
abuse of controlled substances as well as domestic violence. D.C. was first placed in foster care
in March 2007, following Doe’s arrest on drug related charges. D.C. was reunited with Doe six
months later, after the Department worked with Doe on services to address drug and alcohol
issues, parenting skills, anger management, employment, and housing. D.C. was then placed in
foster care on April 18, 2008, once again as a result of Doe’s incarceration.
       A case plan was approved by the court on June 19, 2008, requiring Doe to complete fifty-
two weeks of domestic violence treatment; participate in a mental health evaluation and follow
any recommendations; participate in a substance abuse evaluation and follow any


                                                 9
recommendations, including random drug tests; obtain and maintain a stable, safe and healthy
home environment for himself and D.C. in which no unauthorized persons resided; obtain and
maintain appropriate employment/income to provide for himself and D.C.; and refrain from
further illegal activity.
        At the hearing on July 16, 2009, the case manager testified that Doe had not provided her
with proof of completion of the ordered fifty-two weeks of domestic violence treatment. Doe
testified that he had completed thirty hours before he was incarcerated in January 2009.
Regarding Doe’s participation in a mental health program, the case manager testified that Doe
had failed to provide her with proof that he was meeting any of the recommendations relating to
his mental health and substance abuse, including attending psychiatric treatment, complying with
medication management, attending outpatient treatment, and participating in a cognitive self-
change course. Doe stated that he had checked himself out of the counseling program and
transferred this treatment to another program, but that upon his incarceration he did not have
access to the required programs. The case manager also testified that Doe’s compliance with
random drug testing was “hit and miss,” and the Permanency Hearing Affidavit filed on January
15, 2009, had stated that Doe’s November 20, 2008, hair follicle test was positive for
methamphetamine.
        Testimony at the hearing also indicated that Doe was not maintaining a stable home
environment. The case manager identified six residences that Doe had resided at between April
2008, and the hearing, not including the jails at which he was incarcerated. Doe also did not
provide the case manager with pay stubs that indicated he was maintaining employment and was
able to provide for himself and D.C. Finally, Doe was arrested in January 2009, and at the time
of the hearing in June, Doe was still incarcerated, with four misdemeanor counts pending.
        Based upon the testimony at trial and the reports issued by the Department, we find that
the magistrate court based its determinations that Doe failed to comply with the court’s ordered
case plan, and failed to demonstrate consistency in housing, employment, and abstinence from
controlled substances upon substantial and competent evidence.
B. There is substantial and competent evidence supporting the magistrate court’s
   determination that termination was in D.C.’s best interest.
        “When a judge finds a statutory ground, such as neglect, he or she must then decide if
termination of parental rights is in the best interests of the child[].” Doe v. Dept. of Health and
Welfare, 141 Idaho 511, 516, 112 P.3d 799, 804 (2005). The magistrate court here found that it

                                                10
was in the best interest of D.C. to have Doe’s parental rights terminated because Doe “cannot
provide safety and stability to [D.C.].” We hold that there is substantial and competent evidence
to support the court’s finding that termination is in the best interest of D.C.
                                       III. CONCLUSION
       This Court affirms the magistrate court’s order terminating Doe’s parental rights to D.C.
Costs to respondent.
       Chief Justice EISMANN and Justices J. JONES, W. JONES, and HORTON, CONCUR.




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