               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 47861

In the Matter of: John Doe I, John Doe II,     )
and Jane Doe I, Children Under the Age         )
of Eighteen (18) Years of Age.                 )
                                               )
STATE OF IDAHO, DEPARTMENT OF                  )    Filed: June 23, 2020
HEALTH AND WELFARE,                            )
                                               )    Melanie Gagnepain, Clerk
       Petitioner-Respondent,                  )
                                               )    THIS IS AN UNPUBLISHED
v.                                             )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
JANE DOE (2020-12),                            )
                                               )
       Respondent-Appellant.                   )
                                               )

       Appeal from the Magistrate Division of the District Court of the Third Judicial
       District, State of Idaho, Canyon County. Hon. A. Lynn Krogh, Magistrate.

       Judgment terminating parental rights, affirmed.

       Aaron Bazzoli, Canyon County Public Defender; Scott J. Davis, Deputy Public
       Defender, Caldwell, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Teri A Whilden, Deputy Attorney
       General, Caldwell, for respondent.
                 ________________________________________________

LORELLO, Judge
       Jane Doe (2020-12) appeals from a judgment terminating her parental rights. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Doe is the mother of the three minor children in this case, born 2014, 2016, and 2017.
On two occasions between 2014 and 2016, the Idaho Department of Health and Welfare was
granted custody over one or both of the older children after each was hospitalized within weeks
of birth due to malnourishment and unattended medical issues.              The second child’s


                                               1
malnourishment resulted in Doe pleading guilty to injury to a child and being placed on
probation. After the second child’s hospitalization, the two older children remained in foster
care while Doe and the children’s father began working court-ordered case plans.
       Over the next two years, Doe gave birth to the youngest child while making slow
progress on her case plan. 1 By the summer of 2018, all three children were residing in their
maternal grandmother’s home with Doe and her new boyfriend. However, a few months later,
Doe began living in various hotels with her boyfriend and the children. The children were once
again removed from Doe’s care due to severe malnourishment and injuries indicative of physical
abuse. The children’s malnourishment and injuries resulted in Doe again being charged with and
pleading guilty to injury to a child. As part of the criminal proceedings, a no-contact order was
entered that prevented Doe from contacting the children.
       Ultimately, the Department petitioned to terminate the parental rights of both parents.
After trial, the magistrate court terminated Doe’s parental rights, finding clear and convincing
evidence that Doe neglected the children pursuant to I.C. § 16-2002(3)(a) and that termination is
in the children’s best interests. 2 Doe appeals.
                                                   II.
                                    STANDARD OF REVIEW
       On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009).             The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required.


1
        During this period, the father was incarcerated after his probation for a previous felony
was revoked. The father remained incarcerated through the remainder of the underlying child
protection action and termination proceedings.
2
       The magistrate court also terminated the father’s parental rights.         The decision to
terminate the father’s parental rights is not at issue in this appeal.

                                                    2
In re Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is
generally understood to be evidence indicating that the thing to be proved is highly probable or
reasonably certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the
trial court’s decision must be supported by objectively supportable grounds. Doe, 143 Idaho at
346, 144 P.3d at 600.
                                                III.
                                           ANALYSIS
       Doe argues that the magistrate court erred in concluding she neglected the children
because a no-contact order prevented her from complying with her case plan and that there was
insufficient evidence to support the magistrate court’s best interests determination.           The
Department argues that Doe has not challenged the magistrate court’s actual basis for concluding
Doe neglected the children and that the magistrate court’s termination decision has sufficient
evidentiary support.    We hold that Doe has failed to show error in the magistrate court’s
termination decision.
A.     Statutory Basis
       A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d
341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States
Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the
Termination of Parent and Child Relationship Act is the philosophy that, wherever possible,
family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of
due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a
parent-child relationship be proved by clear and convincing evidence.             Id.   Because a
fundamental liberty interest is at stake, the United States Supreme Court has determined that a
court may terminate a parent-child relationship only if that decision is supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In
re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at
652. Idaho Code Section 16-2005 permits a party to petition the court for termination of the
parent-child relationship when it is in the child’s best interests and any one of the following five


                                                 3
factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between
the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities
for a prolonged period that will be injurious to the health, morals, or well-being of the child; or
(e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each
statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at
1117.
        Idaho Code Section 16-2002(3)(a) defines “neglect” as any conduct included in I.C.
§ 16-1602(31). Section 16-1602(31)(a) provides, in pertinent part, that a child is neglected when
the child is without proper parental care and control, or subsistence, medical or other care or
control necessary for his or her well-being because of the conduct or omission of his or her
parents, guardian, or other custodian or their neglect or refusal to provide them. Neglect also
exists where the parent has failed to comply with the court’s orders or the case plan in a Child
Protective Act case and the Department has had temporary or legal custody of the child for
fifteen of the most recent twenty-two months and reunification has not been accomplished by the
last day of the fifteenth month in which the child has been in the temporary or legal custody of
the Department. I.C. § 16-2002(3)(b).
        The magistrate court found there was clear and convincing evidence that Doe neglected
the children under I.C. § 16-2002(3)(a) by failing to “provide proper parental care or control, or
subsistence, medical or other care necessary for the [children’s] well-being.” Doe’s argument
that a no-contact order prevented her from complying with her case plan does not challenge the
magistrate court’s application of I.C. § 16-2002(3)(a). Rather, Doe’s arguments address only
neglect as defined under I.C. § 16-2002(3)(b)--a definition that was not applied in this case.
Satisfaction of either I.C. § 16-2002(3)(a) or I.C. § 16-2002(3)(b) constitutes an independent
basis for termination. See Idaho Dep’t of Health & Welfare v. Doe (2017-3), 162 Idaho 380,
384, 397 P.3d 1139, 1143 (2017). We can, therefore, affirm the statutory ground for termination
on the unchallenged basis found pursuant to I.C. § 16-2002(3)(a). See id. However, even if
there was not an unchallenged basis on which to affirm the magistrate court’s statutory ground
for termination, we hold that there is sufficient evidence supporting the magistrate court’s
finding that Doe neglected the children under I.C. § 16-2002(3)(a) and that the no-contact order
preventing Doe from contacting the children does not undermine that finding.


                                                4
       As previously stated, the magistrate court concluded Doe neglected the children as that
term is defined under I.C. § 16-2002(3)(a). In support of that conclusion, the magistrate court
found that the two older children were hospitalized and removed from Doe’s care within weeks
of their birth because Doe failed to provide them with necessary nourishment and was unwilling
or unable to recognize the seriousness of the children’s medical condition. The magistrate court
further found that, even when Doe was complying with her case plan during the two years
following the children’s second removal, Doe depended on the Department and foster parents to
identify and ensure that the children’s needs were met. Once all three children were placed in
Doe’s care in 2018, the magistrate court found that, despite extensive parenting education, Doe
allowed or caused the children to suffer severe malnourishment, physical injuries indicative of
physical abuse, and psychological trauma. The magistrate court also found that Doe had a
history of being unable or unwilling to acknowledge the seriousness of the children’s medical
condition, denying that the children had any problems, and accusing those asserting the contrary
of lying or being mistaken. Although Doe made progress on her case plan prior to 2018, the
magistrate court’s finding of neglect is supported by substantial and competent evidence.
       The no-contact order imposed after the third time the children were removed from Doe’s
care is not a defense to the magistrate court’s neglect finding under I.C. § 16-2002(3)(a) for three
reasons. First, although impossibility is a defense to a finding of neglect based upon a parent’s
failure to comply with a case plan, Idaho Dep’t of Health & Welfare v. Doe, 161 Idaho 596, 600,
389 P.3d 141, 145 (2016), Doe has not cited a case in which impossibility was recognized as a
defense to a finding of neglect as defined under I.C. § 16-2002(3)(a). Second, even assuming
that impossibility could serve as a defense to a finding of neglect under I.C. § 16-2002(3)(a),
Doe could not successfully assert the defense because it was her conduct that resulted in the
no-contact order’s issuance. See Doe, 161 Idaho at 600-01, 389 P.3d at 145-46 (holding that a
trial court must find the parent responsible for failing to comply with a case plan). Finally, by
the time the no-contact order was issued, Doe had already established a long history of failing to
provide proper parental care or control, or subsistence, medical or other care to the children.
B.     Best Interests of the Child
       Once a statutory ground for termination has been established, the trial court must next
determine whether it is in the best interests of the child to terminate the parent-child relationship.


                                                  5
In re Aragon, 120 Idaho 606, 611, 818 P.2d 310, 315 (1991). When determining whether
termination is in the child’s best interests, the trial court may consider the parent’s history with
substance abuse, the stability and permanency of the home, the unemployment of the parent, the
financial contribution of the parent to the child’s care after the child is placed in protective
custody, the improvement of the child while in foster care, the parent’s efforts to improve his or
her situation, and the parent’s continuing problems with the law. In re Doe, 159 Idaho 192, 198,
358 P.3d 77, 83 (2015); In re Doe, 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014). A finding
that it is in the best interests of the child to terminate parental rights must still be made upon
objective grounds. In re Doe, 152 Idaho 953, 956-57, 277 P.3d 400, 403-04 (Ct. App. 2012).
       The magistrate court found that it is in the best interests of the children to terminate
Doe’s parental rights based upon her established pattern of neglecting the children over a period
of six years, which resulted in substantial harm to all three children. The magistrate court further
found that this pattern persisted despite two criminal convictions arising from Doe’s neglect of
the children and extensive services intended to enable Doe to understand and meet the children’s
needs. Additionally, Doe continuously denied that anything was ever wrong with the children
from the time the Department took custody of the oldest child through the termination hearing.
This led the magistrate court to find that Doe’s parental shortcomings were unlikely to ever
change. Moreover, the magistrate court found that all three children had already spent three and
a half years with the same foster parents where they had not only had shown they could provide
for the children, but were also willing to adopt them.
       Doe argues that the magistrate court erred in its termination decision because there was
no evidence that termination is in her best interests and she demonstrated that she can provide for
the children under the correct conditions. First, the best interests of a parent factors into a
termination decision only when termination is sought on that ground. See State v. Doe, 143
Idaho 383, 387, 146 P.3d 649, 653 (2006). Because the Department sought to terminate Doe’s
rights on the grounds of neglect, evidence of whether termination is in Doe’s best interests is
irrelevant. As to Doe’s second argument, the magistrate court found that Doe was never able to
provide for the children on her own. Both the older children were hospitalized shortly after birth
due to Doe’s inadequate parenting. After the two older children were taken from Doe’s care,
Doe depended upon the Department and the foster parents to identify and provide for the


                                                 6
children’s needs. Finally, when Doe attempted to care for all three children outside her mother’s
home, not only did the children once again become severely malnourished, but they also suffered
psychological trauma and physical injuries indicative of abuse. Doe has not shown error in the
magistrate court’s conclusion that termination is in the children’s best interests.
                                                 IV.
                                          CONCLUSION
       Doe’s argument that the no-contact order prevented her from complying with her case
plan does not address the basis of the magistrate court’s finding of neglect. However, there was
clear and convincing evidence that Doe neglected the children under I.C. § 16-2002(3)(a) and the
no-contact order between Doe and the children does not undermine that finding. Additionally,
there was clear and convincing evidence that termination is in the children’s best interests.
Accordingly, the magistrate court’s judgment terminating Doe’s parental rights is affirmed.
       Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.




                                                  7
