                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 41149

IN THE MATTER OF THE                                 )
TERMINATION OF PARENTAL RIGHTS                       )
JANE (2013-14) DOE.                                  )
_____________________________________                )
JOHN DOE and JANE DOE,                               )
                                                     )
      Petitioners-Respondents,                       )
                                                              Boise, September 2013 Term
                                                     )
v.                                                   )
                                                              2013 Opinion No. 115
                                                     )
JANE (2013-14) DOE,                                  )
                                                              Filed: November 26, 2013
                                                     )
      Respondent-Appellant,                          )
                                                              Stephen W. Kenyon, Clerk
                                                     )
and                                                  )
                                                     )
JOHN DOE 1,                                          )
                                                     )
    Respondent.                                      )
______________________________________               )

        Appeal from the District Court of the Third Judicial District of the State of Idaho,
        Payette County. Hon. A. Lynne Krogh, Magistrate Judge.

        The judgment of the magistrate court is affirmed.

        Shane Darrington, Weiser, for respondent-appellant.

        Virginia Bond, Payette, for petitioners-respondents.
                                    _____________________



J. JONES, Justice.

        Jane (2013-14) Doe (“Mother”) appeals the termination of her parental relationship with
her son JLS. Mother left JLS in the care of family members, who then placed JLS with Mr. and
Mrs. Doe. The Does petitioned to terminate Mother’s parental rights on the grounds of
abandonment. Following trial, the magistrate court granted that petition, resulting in this appeal.

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                                       I.
                         FACTUAL AND PROCEDURAL HISTORY
       JLS was born in January 2007. In March 2008, Mother left JLS in the care of his great
grandmother (“Great Grandmother”). Mother did not have contact with JLS again until May
2009. In May 2008, Great Grandmother could no longer care for JLS, and JLS then went to live
with Mr. and Mrs. Doe. JLS has been in the Does’ care and custody since he moved in with
them. Since March 2008, Mother has lived in Nampa, Caldwell, and Las Vegas.
       In August 2009, the Does sought and were granted guardianship over JLS. As part of that
guardianship proceeding, the Does and Mother stipulated to a visitation agreement. After the
parties executed the visitation stipulation, Mother had six visits with JLS. Mother has not had
contact with JLS since February 27, 2010, her last visit under the stipulation. The parties dispute
whether Mother thereafter attempted to have contact with JLS but Mrs. Doe acknowledged that
the Does would not have allowed more visits between Mother and JLS after the visitation
agreement expired.
       The parties were to have a visitation hearing on March 1, 2010, which Mother attempted
to vacate on February 27, 2010. None of the parties appeared for the hearing. On May 1, 2012,
the Does filed a motion to terminate the parental rights of Mother and JLS’ father (“Father”).
Father did not respond, and on July 12, 2012, the magistrate judge terminated Father’s parental
rights by default. Father’s parental rights are not at issue in this appeal. Following a two day trial,
the magistrate judge terminated Mother’s parental rights. Mother now appeals.
                                            II.
                                    STANDARD OF REVIEW
       The question presented on appeal is whether substantial, competent evidence supports the
magistrate court’s determination that Mother’s failure to maintain a normal parental relationship
with JLS was (1) willful and (2) without just cause. This Court’s “standard of review in parent-
child termination cases is well settled.” In Interest of Crum, 111 Idaho 407, 408, 725 P.2d 112,
113 (1986). “On appeal, this Court will not disturb the magistrate court’s decision to terminate
parental rights if there is substantial, competent evidence in the record to support the decision.”
Doe v. Doe, 150 Idaho 46, 49, 244 P.3d 190, 193 (2010). 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). This Court


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must “conduct an independent review of the magistrate court record, but must draw all
reasonable inferences in favor of the magistrate court’s judgment, as the magistrate court has the
opportunity to observe witnesses’ demeanor, to assess their credibility, to detect prejudice or
motive and to judge the character of the parties.” Doe v. Doe, 150 Idaho at 49, 244 P.3d at 193
(internal quotation marks omitted).
                                              III.
                                          DISCUSSION
       Every “parent has a fundamental liberty interest in maintaining a relationship with his or
her child.” Id. (citing Santosky v. Kramer, 455 U.S. 745, 796 (1982)). Thus, under Idaho Code §
16-2009, grounds for termination of parental rights must be “based upon clear and convincing
evidence . . . .” I.C. § 16-2009. “‘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)).
       Under Idaho Code § 16-2005, a court may terminate a parent-child relationship where it
finds that “[t]he parent has abandoned the child” and that termination of parental rights is in the
best interests of the child. I.C. § 16-2005(1). A parent has abandoned her child when she “has
willfully failed to maintain a normal parental relationship including, but not limited to,
reasonable support or regular personal contact.” I.C. § 16-2002(5). A parent’s failure “to
maintain this relationship without just cause for a period of one (1) year shall constitute prima
facie evidence of abandonment . . . .” I.C. § 16-2002(5).
       Mother does not dispute the magistrate’s findings that she failed to maintain a normal
parental relationship with JLS and that terminating her parental rights is in JLS’s best interests.
Therefore, the Court must determine whether there is substantial, competent evidence in the
record to support the magistrate court’s decision that the Does showed by clear and convincing
evidence both (1) the willfulness of Mother’s failure to maintain a normal parental relationship
with JLS and (2) Mother’s lack of just cause for this failure.
                   1. The magistrate court’s decision that Mother’s failure to maintain a
                      normal parental relationship with JLS was willful is supported by
                      substantial, competent evidence.




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       There is substantial, competent evidence to support the magistrate court’s finding that
Mother willfully failed to maintain a normal parental relationship with JLS because the record
shows that Mother had the ability to care for and support JLS, but chose not to do so. The key
issue regarding willfulness is whether the parent is capable of maintaining a normal relationship
with the child. Doe I v. Doe II, 148 Idaho 713, 716, 228 P.3d 980, 983 (2010) (“For one to
willfully fail to do something, he or she must have the ability to do it.”). For example, in Doe v.
Doe I, “there was nothing that prevented [the parent] from making some attempt to develop a
parent-child relationship” with his daughter, but he nonetheless made “no meaningful effort” to
do so. 149 Idaho 392, 397, 234 P.3d 716, 721 (2010). From the time the child was born, the
father “never attempted to provide [his child] with gifts, clothing, ‘tokens of love’ or moral
guidance nor has he attempted to offer financial support for [his child].” Id. Although the father
did eventually succeed in “‘getting [his] life in order’” and “‘achieved stability,’” he nonetheless
limited his efforts on his daughter’s behalf to “‘pray[ing] for her and her family.’” Id. While both
this Court and the magistrate judge “commended” the father “for repairing his life,” his failure to
make “any attempt to create a parent child relationship with [his daughter] constitutes substantial
evidence supporting the magistrate court’s finding of abandonment.” Id.
       Similarly, in In re Doe, a mother had no contact with her child for approximately one and
a half years. 146 Idaho 759, 763, 203 P.3d 689, 693 (2009). After this period of no contact, she
visited the child four or five times. Id. During the relevant time, the mother had been in and out
of prison, but “[e]ven after she was placed on probation, [she] had no contact with [her child].”
Id. at 764, 203 P.3d at 694. Indeed, “[i]t was only after her release from prison and after the
Department sought to terminate her parental rights that [the mother] initiated contact with [her
child].” Id. The Court concluded that the record contained substantial, competent evidence to
support the trial court’s finding that based on her limited contact with the child, the mother
willfully failed to maintain a parental relationship. Id.
       When, however, a parent is legally prohibited from seeing his children, he does not have
the ability to maintain a normal relationship with them, and his failure is therefore not willful. In
Doe I v. Doe II, this Court held that a father was not capable of maintaining a normal parental
relationship with his children because he was legally barred from visiting or even contacting
them. 148 Idaho at 718, 228 P.3d at 985. There, the father was in a probation program that


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prohibited him from having contact with children and, absent his estranged wife’s consent,
which she refused to give, this prohibition extended to his own children. Id. Furthermore, even
when not in the program, the father could not contact his children because his visitation rights
were suspended by court order and his wife had previously terminated his phone contact. Id.
Thus, the Court held that the magistrate court’s finding that the petitioners failed to prove
willfulness by clear and convincing evidence was supported by substantial and competent
evidence.
       Mother argues that the Does have not established that her failure to maintain a normal
parental relationship with JLS was willful. She contends that she visited JLS when permitted to
do so under the visitation stipulation and that the Does prohibited her from visiting JLS once the
stipulation expired. Additionally, Mother argues that under Doe I v. Doe II, she was not under a
duty to move the custody court for a modification of the visitation period. Finally, she maintains
that even if she did have a duty to attempt to secure visitation, she was precluded from doing so
because she was not legally sophisticated and had been told she needed to contact an attorney to
secure visitation, but she could not afford counsel.
       The magistrate court found that the Does established, by clear and convincing evidence,
that Mother abandoned JLS. It stated that Mother left JLS “with her grandmother in March 2008,
and had no contact with him whatsoever until May 2009, a period in excess of one year. This
constitutes prima facie evidence of abandonment.” (emphasis in original). As to willfulness, the
court held that Mother did have the ability to support and care for JLS, but simply chose not to.
The court found as follows:
       Prior to March, 2008, [Mother] had a home with her grandmother, maintained
       employment, and together they made a home for [JLS]. In March, 2008, [Mother]
       left that home and embarked on a life of drug abuse, prostitution, and repeated
       arrests. [Mother’s] grandmother bailed her out of jail so that she could come home
       to [JLS], but she did not. Whatever reasons [Mother] had for the choices she made
       during that time, they were nonetheless her choices, and those choices did not
       include any attempt to even communicate with [JLS], let alone maintain any
       semblance of a parental relationship.
       The magistrate court’s findings are supported by substantial, competent evidence, which
shows that Mother had the ability to visit JLS. Mother does not dispute that she left JLS with




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Great Grandmother in March 2008, and had no contact with him until May 2009. 1 When JLS
went to live with the Does, Mother was living in Nampa and Caldwell. Even though she was
geographically close enough to visit, she chose not to “because [she] was out doing things that
[JLS] didn’t need to be around.” Thus, like the mother in In re Doe, Mother failed to have
contact with her child for over a year even though she was able to do so.
         Furthermore, once the parties entered into the visitation stipulation, Mother’s visitation
with JLS was sporadic and she took advantage of only a fraction of the days available to her.
Mrs. Doe testified, and Mother does not dispute, that Mother visited JLS only six times under the
visitation stipulation. Under the stipulation, for the first three months following the
commencement of visitation Mother could have visited JLS every Saturday plus one additional
day per month. For the fourth and fifth months following the commencement of visitation,
Mother could have visited JLS every Saturday plus two additional days per month. For the sixth
and seventh months following the commencement of visitation, Mother could have visited JLS
every Saturday plus four additional days per month. Thus, like the father in Doe v. Doe I, Mother
was not prohibited from seeing JLS, but simply failed to make a meaningful effort to develop a
parent-child relationship.
         Unlike the father in Doe I v. Doe II, Mother was not in a program prohibiting her from
having contact with her child, nor was she subject to a court order precluding visitation.
Although Mother argues she was prohibited from contacting JLS “as soon as her court-granted
ability to visit her son expired,” she fails to consider that at the conclusion of the seventh month,
the parties were to convene for a review hearing. Mother attempted to vacate this review hearing
and did not have it put back on the calendar. She contends that under Doe I v. Doe II, she did not
have a duty to secure visitation through the courts. A reading of Doe I v. Doe II simply does not
support this assertion, and Mother fails to elaborate on her point. If Mother wished to maintain a
relationship with JLS after the visitation stipulation expired, she needed to do so through the
courts, an avenue she simply failed to pursue.




1
 Mother did not argue that this finding was clearly erroneous in her opening brief, but in oral argument her counsel
attempted to raise the issue. This Court will not consider arguments unsupported by “argument and authority in the
opening brief.” Liponis v. Bach, 149 Idaho 372, 374, 234 P.3d 696, 698 (2010).


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       Furthermore, Mother argues that she could not afford an attorney and did not have the
legal sophistication to secure visitation through the courts. The magistrate court was not
persuaded by this argument because it found that
       [Mother] was able to send the court a letter seeking to vacate the March 1, 2010
       review hearing after her grandfather’s death (and her recent arrest on new drug
       charges), and could have sent the court a letter asking that it be put back on the
       calendar, in an effort to assert her parental rights in the guardianship case. Instead
       she chose to wait another two years until the petition to terminate was filed, at
       which point she did file an answer, counterclaim, and affidavit in response to the
       petition, using forms she obtained from the Idaho Supreme Court website, without
       the assistance of counsel . . . .
       Thus, substantial, competent evidence supports the magistrate court’s finding that the
Does showed by clear and convincing evidence that Mother willfully failed to maintain a normal
parental relationship with JLS. Mother failed to contact JLS for over a year, even though at times
she was geographically close to him. Even after this abandonment occurred, when she eventually
was in contact with him under the visitation stipulation, her visits were sporadic and she took
advantage of only a fraction of the visits available to her. Mother’s argument that she could not
navigate the legal system is unconvincing because she attempted to vacate the guardianship
hearing on her own and represented herself in the preliminary stages of the termination suit.
                   2. Substantial, competent evidence supports the magistrate court’s
                      decision that Mother did not have just cause for her failure to
                      maintain a normal parental relationship with JLS.
       The magistrate court’s finding that Mother lacked just cause for her failure to maintain a
normal parental relationship with JLS is supported by substantial, competent evidence because
the record shows that Mother chose to spend her time and money on pursuits that did not involve
JLS. “[E]vidence regarding the financial and logistical difficulties associated with maintaining a
relationship with one’s child is evidence of just cause that should be adequately considered by
the magistrate court.” Doe v. Doe, 150 Idaho at 501, 244 P.3d at 194.
       In a termination proceeding, the petitioner bears the burden of persuasion to show that the
respondent parent is without just cause for her failure to maintain a normal relationship with her
child. In re Adoption of Doe, 143 Idaho at 192, 141 P.3d at 1061. If the petitioner “makes the
prima facie case,” including a showing that the parent is without just cause, “then the defendant
parent holds the burden of production to present evidence of just cause.” Id. “If the trier of fact


                                                 7
finds that there are no valid defenses or ‘just causes,’ then the petitioning party has met the
burden of persuasion.” Id. Evidence offered to rebut a showing by petitioners that a failure to
maintain a normal parental relationship was not willful or was excused by just cause must be
relevant to the period of abandonment. For example, in Doe v. Doe, the father offered evidence
to show that the mother of his children prevented him from visiting them and that his ability to
travel was limited. 152 Idaho 77, 80–81, 266 P.3d 1182, 1185–86 (Ct. App. 2011). The Court of
Appeals noted, however, that this evidence only related to a small portion of his twenty-two-
month absence from his children’s lives. Id. at 81, 266 P.3d at 1186. Because the evidence did
“not explain the lack of contact for the balance of relevant timeframe,” the evidence was
insufficient to “legitimize his near-total failure to visit or communicate with his children for
twenty-two months.” Id.
       Mother argues that the Does failed to satisfy their burden of demonstrating that she
lacked just cause for her failure to maintain contact or pay support. Specifically, she contends the
Does prevented her from visiting with JLS and that the Does failed to prove she had sufficient
resources to pay for JLS’s support. Finally, Mother maintains that when she did offer financial
support to the Does, they refused to accept it. The Does counter that Mother failed to make a
meaningful effort to have a normal parental relationship with JLS, and that this failure was based
on her “own, voluntary decision to leave her son behind” so she could pursue a lifestyle not
conducive to raising children. They argue that Mother was offered an opportunity to reunite with
JLS and simply failed to take it.
       The magistrate court did not specifically address just cause, but did consider each of the
points Mother raises in her just cause argument. As previously discussed, the magistrate court
found that the Does had proved that Mother was capable of caring for and supporting JLS and,
although nothing prevented her from doing so, she chose not to maintain a parental relationship.
       Mother failed to rebut the Doe’s showing because she did not present evidence of just
cause. The court stated “[w]hatever reasons [Mother] had for the choices she made . . . they were
nonetheless her choices, and those choices did not include any attempt to even communicate
with [JLS], let alone maintain any semblance of a parental relationship.” Furthermore, the
magistrate court did not accept Mother’s argument that the Does prevented her from visiting
JLS. The court stated that Mother’s argument “ignores the fact that the abandonment had


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occurred well before that time.” Additionally, the court found “that for seven months prior” to
the Does’ refusal to allow visiting, the Does “made extensive efforts to support renewal of the
relationship between [JLS] and his mother, including scheduling and rescheduling visits on short
notice, waiting when the parents were late, and providing transportation,” while Mother only
“visited her son a total of six times in seven months, and continued a lifestyle that included drug
abuse and multiple arrests.” Furthermore, as previously discussed, Mother attempted to justify
her failure to maintain contact with JLS prior to May 2009 by explaining that she “was out doing
things that [JLS] didn’t need to be around.” Thus, Mother did not overcome the Does’ prima
facie case because she failed to present evidence relevant to the time period relating to
abandonment.
       The issue of whether Mother had the resources to financially support JLS is probably
better cast as an issue of willfulness, not just cause, because it goes to the question of whether
she was actually capable of support. Regardless, the Does did present evidence that Mother was
capable of supporting JLS. Mother testified that she has held various jobs and admitted that she
purchased drugs with money she could have used to support JLS. There is substantial, competent
evidence in the record to support a finding that Mother’s failure to maintain a normal parental
relationship with JLS was without just cause.
                                            IV.
                                        CONCLUSION
       The magistrate court’s judgment terminating Mother’s parental rights is affirmed. Costs
to Respondents.

       Chief Justice BURDICK, and Justices EISMANN and HORTON, and Justice Pro Tem
SCHROEDER CONCUR.




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