               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38324

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 391
                                                 )
       Plaintiff-Respondent,                     )      Filed: March 6, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
SALENA CLAYTON,                                  )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment of conviction and sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Salena Clayton appeals from her conviction for injury to children, felony, Idaho Code
§ 18-1501(1). Clayton challenges the no contact order precluding her from contact with her
children on the grounds that the order did not contain a termination date and that the order
constituted an unconstitutional interference with her rights as a parent. For the reasons set forth
below, we affirm.
                                                I.
                     PROCEDURAL AND FACTUAL BACKGROUND
       Clayton was indicted on two counts of felony injury to children and two counts of felony
witness intimidation. Clayton has three children that are involved in this case: A.R.C., A.C., and
A.D. The indictments arose from Clayton’s child, A.R.C., reporting to police that Clayton had
sexually, emotionally, and physically abused her for several years. Similar abuses were reported




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by A.C. as well. Both children also reported that Clayton threatened them with physical harm if
they reported her.
       Pursuant to a plea agreement, Clayton pled guilty to one count of felony injury to a child.
In return, the State agreed to dismiss the remaining charges and to ask for a suspended ten-year
sentence, no contact between Clayton and the two children that reported her, and supervised
contact between Clayton and her youngest child, A.D. At the sentencing hearing, the district
court imposed a unified ten-year sentence with three years determinate, suspended the sentence,
and placed Clayton on probation for ten years. In addition, the district court entered a term of
probation precluding Clayton from contacting her children and entered a no contact order
precluding contact with the children.         The district court amended the no contact order on
August 12, 2011, to include a termination date of November 8, 2020, coinciding with the
scheduled termination of Clayton’s period of probation. Clayton timely appealed.
                                                   II.
                                              DISCUSSION
       Clayton first claims that the no contact order is invalid because the district court failed to
issue the order with a termination date. Clayton is correct in noting that the Idaho Supreme
Court has held:
               The language of amended I.C.R. 46.2, requiring inclusion of a termination
       date in no contact orders, serves important public interests. In the future, in all
       cases which come before the trial courts of this state for hearing on a motion to
       modify or terminate a no contact order entered prior to July 1, 2004, we expect
       judges to provide a termination date, regardless of whether the motion to modify
       or terminate the no contact order is granted.

State v. Castro, 145 Idaho 173, 176, 177 P.3d 387, 390 (2008). However, since the time Clayton
filed her brief, the district court amended the no contact order to expire on November 8, 2020.
The judicial relief that Clayton sought, a remand to the district court to enter a no contact order
with an expiration date, can no longer be granted. The amendment therefore has rendered this
issue moot. State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329 (2010) (holding that an issue is
moot if no judicial relief can be granted).
       The only remaining issue is whether the no contact order unconstitutionally interferes
with Clayton’s fundamental right as A.D.’s parent. A parent’s fundamental right to parent
his/her children is well established in Idaho.     See State v. Doe, 144 Idaho 534, 536, 164 P.3d



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814, 816 (2007); Leavitt v. Leavitt, 142 Idaho 664, 670, 132 P.3d 421, 427 (2006). The interest
of “parents in the care, custody, and control of their children is perhaps the oldest of the
fundamental liberty interests recognized by” the United States Supreme Court.             Troxel v.
Granville, 530 U.S. 57, 65 (2000). This interest “does not evaporate simply because they have
not been model parents . . . . Even when blood relationships are strained, parents retain a vital
interest in preventing the irretrievable destruction of their family life.” Santosky v. Kramer, 455
U.S. 745, 753 (1982). Clayton argues that the State “may not interfere with the exercise of the
fundamental rights of a parent absent clear and convincing proof that the State’s action is
necessary for the protection or best interests of the child.”
       Even accepting the standard that Clayton argues, the district court did not err in issuing
the no contact order. On appeal from a decision requiring clear and convincing proof, 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 substantial evidence test
requires a greater quantum of evidence in cases where the trial court 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 Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006).
       There was substantial and competent evidence in the record to support the district court’s
decision to issue the no contact order. Clayton’s psychosexual evaluation indicated that she
“repeatedly traumatized her children,” walked around the house naked in front of the youngest
child, and failed to provide her children with proper education. The evaluation also noted that
Clayton fails to take responsibility for any of her actions or understanding “what her children
have experienced at her hands over the past several years.” Clayton was described as either
lying to avoid responsibility for her acts or suffering from a “greatly distorted sense of reality.”
The district court noted the record established that Clayton has “virtually no capacity to parent”
and her children are at an “extremely high risk for continued abuse should they have any contact
with [Clayton].”
       With all facts considered, forbidding all contact between Clayton and her youngest child
is reasonably necessary to prevent future harm to the child. The youngest child has already


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suffered delays in academic and social development. The child has also experienced anxiety
after the supervised visits with Clayton. Moreover, Clayton has previously been afforded the
relief that she seeks--supervised visits with her youngest child. During one of those visits, the
session was ended prematurely on the basis that Clayton was acting inappropriately with the
child. Preventing contact between Clayton and her youngest child is in the child’s best interest,
particularly since Clayton has a history of abusing her other children. The district court did not
err by issuing the no contact order preventing Clayton from communication with her youngest
child.
                                               III.
                                        CONCLUSION
         Clayton’s claims as to the no contact order regarding the two older children have been
rendered moot by the amendment of the order by the district court to include a termination date.
As for Clayton’s claim that the no contact order violated her fundamental right to parent her
youngest child, the district court did not err as there was substantial and competent evidence in
the record to support the issuance of the no contact order. We affirm.
         Judge GUTIERREZ and Judge MELANSON CONCUR.




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