                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                               Docket No. 40517

IN THE MATTER OF THE                                       )   2013 Unpublished Opinion No. 683
TERMINATION OF THE PARENTAL                                )
RIGHTS OF JOHN (2012-15) DOE.                              )   Filed: October 2, 2013
---------------------------------------------------------- )
                                                           )   Stephen W. Kenyon, Clerk
JANE DOE and JOHN DOE,                                     )
                                                           )   THIS IS AN UNPUBLISHED
         Petitioners-Respondents,                          )   OPINION AND SHALL NOT
                                                           )   BE CITED AS AUTHORITY
v.                                                         )
                                                           )
JOHN (2012-15) DOE,                                        )
                                                           )
         Respondent-Appellant.                             )
                                                           )

        Appeal from the Magistrate Division of the District Court of the Seventh Judicial
        District, State of Idaho, Bonneville County. Hon. Steven A. Gardner, Magistrate.

        Order terminating parental rights, affirmed.

        Meacham & Babcock, PLLC, Idaho Falls for appellant. Erika Lessing argued.

        Gaffney Law Office, PLLC, Idaho Falls, for respondents. Tracy W. Gorman
        argued.
                 ________________________________________________
GRATTON, Judge
        John Doe (Father) appeals from the magistrate’s order terminating his parental rights to
his two children, A.H. and H.H. We affirm.
                                                         I.
                           FACTS AND PROCEDURAL BACKGROUND
        Father and Mother were married on June 26, 1999. They had two children during their
marriage: A.H. born in 2000, and H.H. born in 2002. Father and Mother were divorced on
February 12, 2003, and, pursuant to a settlement agreement, Mother received physical custody of
the children and Father was allowed to have supervised visitation. The divorce decree was
modified in 2005 to provide Mother with sole legal and physical custody. Father was allowed
supervised visitation, subject to successful drug and alcohol testing at Mother’s request.

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       Father saw his children sporadically from 2002-2004, with his last visit with the children
occurring in December 2004. In September 2005, Father was arrested and charged with felony
domestic battery, Idaho Code § 18-918(2)(a). Father pled guilty and the district court imposed a
unified term of ten years with five years determinate. The court suspended the sentence and
placed him on probation subject to 210 days in the Bonneville County Jail as a condition of
probation. Father was able to serve his jail time on work release. Additionally, the district court
issued a no contact order as to the children for “the duration of his probation.”
       While serving his jail time on work release, Father failed to report back to jail for a
period of ten days. After turning himself in, Father pled guilty to a probation violation, escape,
and being a persistent violator. Accordingly, his probation was revoked and he is currently
incarcerated with a maximum incarceration date of February 2025.
       In December 2006, Father anonymously sent his children Christmas cards from prison.
Mother gave the cards to the police, believing they were in violation of the no contact order.
Father’s last child support obligation was paid in March 2006 as a result of a wage garnishment.
He has not had any further contact with his children since his incarceration.
       On November 7, 2011, Mother and her current husband (Stepfather) petitioned the
magistrate for the termination of Father’s parental rights pursuant to I.C. § 16-2005. Stepfather
also petitioned to adopt the children. After a hearing, the magistrate granted the petition and
terminated Father’s parental rights as to his children. Father appeals.
                                                 II.
                                           ANALYSIS
       Father claims that the magistrate erred by: (1) finding statutory grounds for termination;
(2) failing to determine the applicability of the Indian Child Welfare Act, 25 U.S.C. 1901-1923
(“ICWA”); and (3) allowing the guardian ad litem to act as advocate and expert witness.
Grounds for termination of parental rights must be shown by clear and convincing evidence
because each parent has a fundamental liberty interest in maintaining a relationship with his or
her child. Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re Aragon, 120 Idaho 606, 608-09,
818 P.2d 310, 312-13 (1991). “Clear and convincing evidence is generally understood to be
‘[e]vidence 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) (quoting Black’s Law
Dictionary 577 (7th ed. 1999)). On appeal, this Court will not disturb the magistrate’s decision


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to terminate parental rights if there is substantial, competent evidence in the record to support the
decision. State v. Doe, 143 Idaho 343, 345, 144 P.3d 597, 599 (2006). “Substantial, competent
evidence is ‘such evidence as a reasonable mind might accept as adequate to support a
conclusion.’”   Id. at 345-46, 144 P.3d at 599-600 (quoting Folks v. Moscow School Dist.
No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997)). This Court is required to conduct an
independent review of the magistrate court record, but must draw all reasonable inferences in
favor of the magistrate’s judgment, as the magistrate has the opportunity to “observe witnesses’
demeanor, to assess their credibility, to detect prejudice or motive and to judge the character of
the parties.” Aragon, 120 Idaho at 608, 818 P.2d at 312.
A.     Statutory Grounds for Termination
       Father claims that the magistrate erred by finding statutory grounds for termination.
Pursuant to I.C. § 16-2005(1), the court may terminate the parental relationship if it finds
statutory grounds for termination and if it finds termination of parental rights is in the best
interests of the children. Both findings must be established by clear and convincing evidence.
Statutory grounds for termination of parental rights under I.C. § 16-2005(1) include:
       (a)      The parent has abandoned the child.
       (b)      The parent has neglected or abused the child.
       (c)      The presumptive parent is not the biological parent of the child.
       (d)      The parent is unable to discharge parental responsibilities and such
                inability will continue for a prolonged indeterminate period and will be
                injurious to the health, morals or well-being of the child.
       (e)      The parent has been incarcerated and is likely to remain incarcerated for a
                substantial period of time during the child’s minority.

       In this case, the magistrate found cause to terminate Father’s parental rights on two
statutory grounds: (1) abandonment; and (2) incarceration during a substantial period of time
during the children’s minority, I.C. § 16-2005(1)(a) and (e). Father does not contend that the
magistrate’s decision to terminate his parental rights is not in the best interests of the children.
Therefore, we need only determine whether abandonment or incarceration provided statutory
grounds for termination. The statutory grounds for termination under I.C. § 16-2005(1) are
independent and if any one or more of the grounds for termination are found, termination may be
granted. Aragon, 120 Idaho at 611, 818 P.2d at 315.




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       1.      Abandonment
       Father claims that he did not willfully abandon his children. Pursuant to I.C. § 16-
2002(5), abandonment occurs when “the parent has willfully failed to maintain a normal parental
relationship including, but not limited to, reasonable support or regular personal contact.” The
word “or” is a disjunctive particle used to express an alternative and, thus, the willful failure to
maintain a normal parental relationship can be based upon either the failure to pay reasonable
support, or the failure to have regular personal contact, or some other failure. Doe I v. Doe II,
148 Idaho 713, 715, 228 P.3d 980, 982 (2010).
       When a parent fails to maintain a normal parental relationship without just cause for a
period of one year, prima facie evidence of abandonment exists. I.C. § 16-2002(5). There is no
universal standard for what constitutes a normal parental relationship, and whether such a
relationship exists depends on the facts and circumstances of each case. Doe v. Doe, 150 Idaho
46, 50, 244 P.3d 190, 194 (2010). The petitioner bears the burden of persuasion to demonstrate
that the defendant lacks a normal parental relationship with the child and that there is no just
cause for the failure to maintain such a relationship. Id. If the petitioner is able to meet this
burden, the defendant then has the burden of production to present evidence of just cause. Id. If
the magistrate finds that just cause has not been established, the petitioning party has met its
burden of persuasion. Id.
       In the instant case, Father argues that he did not willfully fail to maintain personal contact
with his children but, instead, was under a legal prohibition from making contact. At the
sentencing hearing for Father’s domestic battery conviction, the district court imposed a no
contact order as to Father’s children. Father contends that the duration of the no contact order
was for ten years, thus preventing him from contacting his children. During the sentencing
hearing for the domestic battery conviction, the following colloquy took place:
       COURT:                 There will be a No Contact Order as to [victim] and as to
                              [Mother] and to your two children for the period of
                              probation, unless that restriction is expressly lifted by the
                              Court.
       DEFENDANT:             What does that mean? I don’t understand. I mean, I’m not
                              trying to be rude. I really want to understand that.
       COURT:                 That means there’s a No Contact Order until I say
                              otherwise for ten years.
       DEFENDANT:             Really?



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       COURT:                  Yes. That’s entirely within my discretion. Now, you don’t
                               like that, there’s an alternative.
       DEFENDANT:              How do I initiate that, though, Your Honor?
       COURT:                  How do you initiate what?
       DEFENDANT:              I mean, let’s say I’m in a year--I mean, I’m just looking for
                               some hope here. I mean, I’m a dad.
       COURT:                  If you, through your therapist and your probation officer,
                               reach a point in which it is therapeutically viable for you to
                               have contact, say, with your children, and your ex-wife is
                               willing to cooperate in a controlled situation, then I may
                               consider lifting that order at some point.

Based on this language, Father contends that the no contact order lasted for ten years. Therefore,
Father argues that his lack of contact with his children was not willful, but instead part of a legal
prohibition.
       Contrary to Father’s contentions, the magistrate found that the no contact order only
lasted for the duration of probation. The magistrate based this finding on the sentencing hearing
and the written sentencing order. In the district court’s written sentencing order, the court
ordered that Father “shall have no contact with [victim], [mother], or his children during the
duration of his probation.” The written sentencing order does not mention a ten-year prohibition
on contact. Therefore, the magistrate found that the sentencing order was literal and that the no
contact order was only in effect for the duration of probation. Accordingly, the magistrate found
that Father had the ability to contact his children while incarcerated. Since Father’s only attempt
to contact his children for nearly eight years was an anonymous Christmas cards, the magistrate
found that Father willfully abandoned his children.
       Further, the magistrate found that Father never attempted to “clarify his visitation status”
while incarcerated. The magistrate determined that Father had the ability and knowledge to
petition the court for clarification, but made the “willful decision that it was not worth the try.”
Based on the foregoing, the magistrate found grounds for termination based on abandonment
because Father failed to maintain regular personal contact.
          The magistrate also made a factual finding that, apart from a March 2006 wage
garnishment, Father failed to pay any child support since January 2005. Further, Father failed to
modify or stay his child support obligation while incarcerated and, at the time of the termination
hearing, owed more than $88,000 in back child support. Father claims that he was unable to pay
child support due to his incarceration. However, Father’s crimes were, by definition, willful.


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Most importantly, Father twice walked away from work release causing his incarceration.
Father’s absconding from work release, through which he could have paid child support, was
certainly willful. See Doe I v. Doe, 138 Idaho 893, 901, 71 P.3d 1040, 1048 (2003) (determining
that Doe’s failure to pay adequate child support contributed to willful abandonment).
       The record demonstrates that there is substantial, competent evidence to support the
magistrate’s decision that Father abandoned his children. Father admits that his only effort to
contact the children since his incarceration was sending anonymous Christmas cards in 2006.
Even if Father believed the duration of the no contact order was for ten years, Father still
abandoned his children by willfully failing to clarify the order. Father testified that he knew he
could file an Idaho Criminal Rule 35 motion to clarify or modify the no contact order.
Nonetheless, the Rule 35 motion filed by Father never requested that the no contact order be
clarified or modified. In addition, Father was informed by the district court at sentencing that he
could have the no contact order removed if certain conditions were met. Father never attempted
to remove the no contact order and he never attempted to clarify the conditions while
incarcerated.   Instead, Father demonstrated a willful desire to forgo a normal parenting
relationship with his children.
       Father argues that he has just cause for not seeking to remove or clarify the order: he
argues that he was waiting to get out of prison in order to hire a private attorney that would
provide him the best opportunity to succeed. This is not just cause to wait nearly eight years to
remove the no contact order. If Father wanted to see his children, he had the option to clarify or
modify the no contact order. He willfully failed to pursue this option. Therefore, we determine
that the magistrate’s decision to terminate Father’s parental rights pursuant to his willful
abandonment is supported by substantial and competent evidence.
       2.       Incarceration
       Father claims that I.C. § 16-2005(1)(e) is unconstitutional on its face and as applied to
him. “The constitutionality of a statute is purely a question of law over which the appellate court
exercises free review.” State v. Alexander, 138 Idaho 18, 25, 56 P.3d 780, 787 (Ct. App. 2002).
“The appellate court is obligated to seek an interpretation of a statute that upholds its
constitutionality.” Id.
       Father claims that I.C. § 16-2005(1)(e) is violative of his rights of due process because it
allowed the court to terminate his parental rights based on a standard of proof less than the


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required clear and convincing standard. Due process mandates that the grounds for termination
must be shown by clear and convincing evidence. See Santosky, 455 U.S. at 769; Doe v. Dep’t
of Health and Welfare, 141 Idaho 511, 513, 112 P.3d 799, 801 (2005). Accordingly, I.C. § 16-
2009 provides that “[t]he court’s finding with respect to grounds for termination shall be based
upon clear and convincing evidence under rules applicable to the trial of civil causes.” Although
Idaho statute and case law recognizes that the clear and convincing standard is the appropriate
standard, Father argues that the language in I.C. § 16-2005(1)(e) “undercuts the requirements of
the ‘clear and convincing’ standard” because it allows for termination if Father is “likely to
remain incarcerated.” Father contends that the term “likely” allows for a standard that is similar
to the preponderance of evidence standard, thus reducing the standard of proof and violating his
rights of due process.
       Contrary to Father’s contentions, the statute does not allow the court to terminate parental
rights based on a standard of proof lower than the clear and convincing standard. Pursuant to
I.C. § 16-2005(1)(e), the magistrate is required to make a factual finding that Father is “likely to
remain incarcerated for a substantial period of time during the child’s minority.” The magistrate
may consider several factors in making this factual determination, including: the length of
Father’s incarceration; the probability that Father will be paroled; the probable length of time
after release before Father would regain custody; and the age of the children, including
particularly whether the children are in the formative younger years. See Idaho Dep’t of Health
and Welfare v. Doe, 151 Idaho 605, 610, 261 P.3d 882, 887 (Ct. App. 2011). However, the
finding that Father is “likely to remain incarcerated” must be made based upon clear and
convincing evidence. Therefore, the standard of proof is not altered by the term “likely,” but still
remains a clear and convincing standard. Thus, we determine the statute does not violate
Father’s due process rights.
       Father also claims that I.C. § 16-2005(1)(e) is violative of his right of equal protection.
Father contends that the statute treats incarcerated parents different from other parents because
incarcerated parents are subject to the “likely” standard of proof instead of the clear and
convincing standard. As discussed above, the term “likely” does not alter the required “clear and
convincing” standard of proof. Therefore, Father’s equal protection rights were not violated.
The magistrate must find grounds for termination by clear and convincing evidence for both
incarcerated parents and non-incarcerated parents. Father does not challenge the factual finding


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of the magistrate regarding the likelihood of incarceration for a substantial period of the
children’s minority. Father’s last physical contact with the children was in December of 2004.
At that time, the children were two and a half and four and a half years old. The children are
now ten and twelve years old. Determination of incarceration for a substantial period of a child’s
minority includes the pretrial incarceration, which was substantial in this case. Moreover, Father
caused his hoped-for early parole to be lost because of an altercation with another inmate.
B.     Indian Child Welfare Act
       Father claims that the question of whether the children are Indian children under ICWA
was raised in the pleadings. Therefore, Father contends that the magistrate erred by failing to
determine the applicability of ICWA. In the petition, Mother claimed as follows:
               The minor children, A.H. and H.H. are not Indian children that fall under
       the application of the Indian Child Welfare Act. Upon information and belief said
       minor children may have a paternal great-great grandfather who was of mixed
       Caucasian and one-half Indian blood, the minor children are not members of any
       federally recognized Indian tribe, the minor children are not eligible for
       membership in any such tribe, and are not the biological children of a member of
       any such tribe.

In his pro se answer, Father responded:
              [Father] is a member of the Nez Perce Tribe, a federally recognized tribe,
       and has been certified for free health care on any Indian Reservation throughout
       the United States. Moreover, [Father] is of the reasonable belief that both his
       minor children are entitled to that same degree of health care and membership
       should they elect to exercise their Native American rights.

Both the petition and the answer are verified. However, neither were submitted as evidence at
the three-day termination trial. In fact, no mention at all is made of this issue in the parties’ trial
briefs or at trial. In addition, the parties were each asked to submit proposed findings of fact and
conclusions of law and neither party mentioned the issue. The magistrate made no findings in its
findings of fact and conclusions of law regarding applicability of ICWA.
       After oral argument, this Court issued a temporary remand to the magistrate for the
limited purpose of determining the applicability of ICWA. The magistrate entered an order on
April 9, 2013, determining, without objection from Father, that the children are not Indian
children under ICWA. Thereafter, Father filed a motion for reconsideration and a motion for
relief from order pursuant to Idaho Rule of Civil Procedure 60(b). The magistrate conducted a
hearing, wherein Father withdrew his motion for reconsideration. The magistrate affirmed its

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finding that the children are not Indian children under ICWA; however, the magistrate allowed
Father to supplement the record by contacting the Nez Perce Tribe (Tribe) with a notice,
pursuant to ICWA, for its determination of the Indian status of the children. Father provided
notice to the Tribe with instructions to respond within ten days of the notice by appearing in the
case if the Tribe desired to intervene in the termination proceedings, or by requesting additional
time to determine the Indian status of the children. The notice also informed the Tribe that its
failure to appear in the case would constitute a waiver of any rights the Tribe may have in
jurisdictional or child placement matters. The Tribe failed to respond or make an appearance in
the allotted time. Thereafter, the magistrate entered an order denying Father’s motion for relief
under I.R.C.P. 60(b) and affirmed its previous finding that the children are not Indian children
under ICWA. Based on the foregoing, the issue regarding the failure of the magistrate to make
the required finding is now moot and the magistrate’s determination is otherwise affirmed.
C.     Guardian Ad Litem
       Prior to the termination hearing, the magistrate appointed an attorney guardian ad litem to
represent the children. At the hearing, the guardian ad litem asked the court to clarify his role,
stating “[m]y understanding of my role today was not--was to be here for the trial and testify and
potentially present any evidence or cross-examination as I see fit on behalf of the minor
children.” In response, Father’s attorney stated, “I don’t know that I would agree that he should
be able to cross-examine witnesses or call witnesses.” The magistrate agreed with the guardian
ad litem: “Well, this is how I view [guardian ad litem’s] role today, and that is as he described.
And so he’ll have the opportunity to examine witnesses as he feels appropriate to represent the
children.”   Accordingly, the guardian ad litem questioned witnesses on direct and cross-
examination and provided expert testimony.
       Now on appeal, Father claims that the guardian ad litem violated Idaho Rule of
Professional Conduct 3.7(a) by acting as an advocate for the children during the termination
hearing when he knew he would be a necessary witness. Father argues that “[t]he only remedy
for such a pervasive error would be to instruct the Trial Court to retry the matter having [the
guardian ad litem] participate only as a guardian while another qualified person act [as] legal
counsel for the Guardian Ad Litem.”
        Father makes no claim upon which relief can be granted. The magistrate clarified the
role of the guardian ad litem at the beginning of the termination hearing. Father did not state any


                                                9
objection that would provide him relief.      Most importantly, Father did not object on any
evidentiary or professional conduct basis. Now on appeal, the only claim Father asserts is that
the guardian ad litem violated the I.R.P.C. It is not this Court’s role in an appeal from trial to
enforce the I.R.P.C. and Father failed to provide any authority holding that an asserted ethical
violation demonstrates trial error or a basis for new trial.   Father asserts no other grounds to
provide relief.
                                               III.
                                        CONCLUSION
       Substantial and competent evidence supports the magistrate’s decision to terminate
Father’s parental rights. Accordingly, the magistrate’s order terminating Father’s parental rights
to A.H. and H.H. is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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