               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 47079

In the Interest of: Jane Doe I, A Child        )
Under Eighteen (18) Years of Age.              )
                                               )
STATE OF IDAHO, DEPARTMENT OF                  )    Filed: September 18, 2019
HEALTH AND WELFARE,                            )
                                               )    Karel A. Lehrman, Clerk
       Petitioner-Respondent,                  )
                                               )    THIS IS AN UNPUBLISHED
v.                                             )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
JANE DOE (2019-13),                            )
                                               )
       Respondent-Appellant.                   )
                                               )

       Appeal from the Magistrate Division of District Court of the Fourth Judicial
       District, State of Idaho, Ada County. Hon. Andrew Ellis, Magistrate.

       Judgment terminating parental rights, affirmed.

       Anthony R. Geddes, Ada County Public Defender; Justine E. Parker, Deputy
       Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John R. Shackelford, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Jane Doe (2019-13) appeals from the judgment terminating her parental rights. For the
reasons set forth below, we affirm.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Doe is the mother of a child who was born in July 2017. Police removed the child from
the hospital, and she was placed into foster care after it was determined that Doe and the child
tested positive for methamphetamine at the time of the child’s birth. Temporary custody of the



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child was awarded to the Idaho Department of Health and Welfare. The magistrate approved
case plans for Doe and the child’s father and conducted several review hearings while the child
was in the Department’s custody. Ultimately, the State filed a petition to terminate the parental
rights of both parents. Following trial, the magistrate terminated Doe’s rights after finding clear
and convincing evidence that Doe neglected the child and that termination is in the child’s best
interests. 1 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). In a termination proceeding, due process and the
substantial evidence test require the trial court’s findings be supported by clear and convincing
evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982); Doe v. Doe, 143 Idaho 343, 346, 144
P.3d 597, 600 (2006); State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (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 magistrate’s decision must be supported by objectively supportable grounds.
Doe, 143 Idaho at 346, 144 P.3d at 600.         The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order terminating parental
rights. Doe, 148 Idaho at 245-46, 220 P.3d at 1064-65.
                                                III.
                                           ANALYSIS
       Doe challenges the magistrate’s decision terminating her parental rights, contending there
was not substantial and competent evidence from which the magistrate could find that Doe
neglected her child by failing to comply with her case plan or that termination is in the best
interests of the child. The State responds that this Court should affirm on the magistrate’s
unchallenged finding that Doe also neglected her child by failing to provide proper parental care

1
        The magistrate also terminated the father’s parental rights; that termination is the subject
of a separate appeal.

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and control of the child. The State further asserts that the evidence was sufficient to prove that
Doe neglected her child by failing to comply with the case plan and that termination is in the
child’s best interests. We affirm the magistrate’s decision.
A.     Statutory Basis for Termination
       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). 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 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.
       The magistrate found, by clear and convincing evidence, that the statutory ground for
termination was neglect. Idaho Code Section 16-1602(31)(a) provides 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 the child’s well-being because of the conduct or omission of his or her
parents, or their neglect or refusal to provide them. Neglect also includes situations where the
parent has failed to comply with the court’s orders or the case plan in a child protection case, 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 State alleged and the magistrate found that Doe neglected her child by failing to
comply with the case plan (Count I) and by failing to provide proper care and control (Count III).
On appeal, Doe only challenges the magistrate’s findings in relation to Doe’s compliance with


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the case plan as alleged in Count I. Doe does not assert any error in the magistrate’s finding that
she also neglected her child by failing to provide proper care and control as alleged in Count III.
We can, therefore, affirm the statutory basis for termination on the unchallenged finding of
neglect found under Count III. See Fischer v. Fischer, 92 Idaho 379, 382, 443 P.2d 463, 466
(1968) (recognizing that appellate court must uphold the finding and judgment of the trial court
if it is capable of being upheld on any theory). Even if there was not an alternative ground on
which to affirm the magistrate’s statutory basis for termination, we hold there was sufficient
evidence to support the magistrate’s finding on Count I.
       After the underlying child protection action was filed, a case plan for Doe was developed.
Doe’s case plan required her to: (1) complete a substance abuse assessment approved by the
Department and follow any and all recommendations, including random drug testing; (2) attend
all visits with the child; (3) participate in a specific parenting program each week until the close
of the case; (4) participate in family group decision-making meetings; (5) obtain and maintain
employment or a source of legitimate income; and (6) demonstrate her ability to provide for the
child by establishing appropriate drug-free housing. The magistrate found that, overall, Doe
failed to comply with her court-ordered case plan. The magistrate made the following findings
in support of this conclusion.
       Although Doe completed the required substance abuse evaluation, she failed to comply
with treatment recommendations.       While the child protection case was pending, Doe was
charged with and pled guilty to possession of a controlled substance. Doe then submitted to a
substance abuse evaluation, was placed on probation, and was required to comply with intensive
substance abuse treatment through a drug court program. However, Doe failed to comply with
drug court requirements. Doe admitted frequent relapse on “bath salts,” was arrested after
absconding from drug court, and remained in custody for the next three months. Although she
completed a substance abuse program while in custody, Doe again violated drug court
requirements upon being released, resulting in her discharge. Doe’s probation was then revoked,
and she was placed in the retained jurisdiction program, which will likely keep her incarcerated
until September 2019.
       Doe also missed many supervised visits with the child and Doe was often late for those
she did attend. Doe’s multiple absences and tardiness resulted in her scheduled visits being


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reduced from twice a week to once a week.            Additionally, after drug paraphernalia was
discovered in Doe’s laundry, the visits had to be held in the offices of the Department, as the
child’s foster parent was no longer willing to host them. When Doe did attend visits, she would
often fall asleep, leaving the child unsupervised. Although Doe would sometimes bring a diaper
bag to the visits, she always lacked essential items, like a bottle or diapers. Doe was also “loud”
and “rough” when interacting with the child. After visits with Doe, the child had to be fed or
consoled for around fifteen minutes before she could be taken home. Throughout the visits, Doe
failed to improve her nurturing skills or bond with the child.
        Doe’s lack of improvement in her parenting skills is likely due, at least in part, to her
failure to participate in required parenting classes. After participating in two sessions of the
parenting program required by her case plan, Doe stopped attending the classes, finding them
inapplicable to her situation.
        Although Doe reported that she was employed by two different restaurants during the
child protection case and provided a letter to the Department purportedly from one of the
restaurant’s managers, Doe never provided a paystub or W-2 from either restaurant. Doe also
failed to establish stable, independent, drug-free housing. For the first eleven months of the child
protection case, Doe lived with her parents, the child’s paternal grandparents, or various friends.
Subsequently, Doe lived in a shelter for about one month. Doe was thereafter arrested and
remained in custody throughout the remainder of the child protection case, with the exception of
one week in February 2019.
        Doe asserts that the magistrate erred in finding that Doe failed to comply with her case
plan by ignoring relevant and admissible evidence to the contrary. Specifically, Doe argues that
she enrolled in a treatment program the same month this case began, was “in treatment” through
a drug court program until March 2019, attended some of the parenting classes required under
her case plan, attempted to enroll in a different parenting class, attended many visits with the
child, maintained employment, and secured housing for the child through family members and
the shelter.
        Doe does not dispute that the child had been in the Department’s custody for
approximately twenty-one months at the time of the termination trial, which is beyond the
statutory goal of achieving reunification within fifteen months. The magistrate found that Doe


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was directly responsible for her failure to comply with her case plan. Despite her ability to
comply, Doe chose not to do so. Although Doe did make some efforts relating to the tasks in her
case plan, which the magistrate acknowledged, there was substantial and competent evidence to
support the magistrate’s finding of neglect, and Doe has failed to show error in this finding. 2
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.
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 found it is in the child’s best interests to terminate Doe’s parental rights in
light of her substance abuse history, unstable housing, and lack of consistent employment to
meet the financial needs of herself and the child.         The magistrate noted that, despite the
considerable resources provided to Doe in her battle against substance abuse, she was unable to
maintain sobriety. Additionally, the magistrate concluded that Doe had deficits in her parenting
abilities, which she had not addressed through parent education. Moreover, the magistrate found
that the child had been in the care of her foster family for so long and Doe’s visitation was so
inconsistent that the child now sees the foster parents as her parents and relies upon them for her
emotional and physical support. Thus, the magistrate determined that a meaningful bond no




2
       Because this Court affirms the finding that Doe failed to comply with her case plan, it is
unnecessary to consider the State’s argument that this Court should summarily affirm because
Doe failed to challenge the magistrate’s finding that Doe neglected the child under I.C. § 16-
1602(31)(a).

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longer exists between Doe and the child and that severing the parental relationship between the
two will not damage the child emotionally.
       Doe argues that the magistrate erred in finding that termination is in the best interests of
the child because “there is no indication that terminating” Doe’s parental rights would better
serve the child’s needs as opposed to guardianship. Doe agrees with the magistrate’s finding that
the child deserved to be “raised by adult caregivers who are present, sober, consistent, nurturing,
and committed to meeting [the child’s] daily physical and emotional needs.” However, Doe
argues that the child’s need for stability and permanency could be met through a guardianship.
       At the beginning of the termination trial, Doe moved for a guardianship of the child in
lieu of termination. The magistrate concluded that the child deserved permanency and stability
that guardianship could not achieve. Doe’s conduct during the pendency of the child protection
action does not establish that guardianship is in the child’s best interests. Doe’s visitation with
the child was inconsistent. Doe failed to improve her parenting abilities, maintain stable housing
and employment, or adequately address her substance abuse issues. Moreover, at this point, the
child sees her foster parents as her parents and looks to them for support. In sum, Doe has not
shown error in the magistrate’s finding that termination is in the child’s best interests.
                                                 IV.
                                          CONCLUSION
       There was clear and convincing evidence that Doe neglected the child and that it is in the
best interests of the child for Doe’s parental rights to be terminated.            Accordingly, the
magistrate’s judgment terminating Doe’s parental rights is affirmed.
       Judge HUSKEY and Judge BRAILSFORD, CONCUR.




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