               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38026

IN THE MATTER OF JANE DOE, A                     )
CHILD UNDER EIGHTEEN YEARS OF                    )
AGE.                                             )
IDAHO DEPARTMENT OF HEALTH &                     )
WELFARE and JUDY HOFFMAN,                        )      2010 Opinion No. 87
Guardian Ad Litem,                               )
                                                 )      Filed: December 20, 2010
       Petitioners-Respondents,                  )
                                                 )      Stephen W. Kenyon, Clerk
v.                                               )
                                                 )
JOHN (2010-25) DOE,                              )
                                                 )
       Respondent-Appellant.                     )
                                                 )

       Appeal from the Magistrate Division of the District Court of the Fifth Judicial
       District, State of Idaho, Twin Falls County. Hon. Howard D. Smyser, Magistrate.

       Decree terminating parental rights, affirmed.

       Williams Law Office, Chtd., Twin Falls, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Tom Baird, Deputy Attorney
       General, Twin Falls, for respondent, Department of Health and Welfare.

       Jamie LaMure, Kimberly, for respondent, Judy Hoffman.
                 ______________________________________________
MELANSON, Judge
       John Doe appeals from the magistrate’s decree terminating the parental rights of Mother
and Father to their daughter, Jane Doe.         Specifically, John challenges the magistrate’s
determination that John was not a proper party to the termination proceedings because he did not
possess parental rights subject to termination. For the reasons set forth below, we affirm.
                                                I.
                                  FACTS AND PROCEDURE
       At the time of Jane’s birth, John and Mother were in a relationship. John is listed on
Jane’s birth certificate as her father. In 2005, the Idaho Department of Health and Welfare



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initiated a child protective proceeding involving Jane, due to John and Mother’s use of
methamphetamine.      John and Mother subsequently agreed to allow Jane’s grandparents to
become her legal guardians. Six months later, Jane’s grandmother died and Jane’s grandfather
relinquished his guardianship of Jane because he could no longer care for her. Jane was placed
in foster care while the Department conducted a six-month investigation to determine a proper
placement for Jane. After the investigation, Jane was returned to the custody of John and Mother
in 2007. John and Mother later ended their relationship and separated. Sometime after their
separation, John and Mother stipulated that John would have primary legal custody of Jane.
Pursuant to the stipulation, the magistrate issued a custody order in favor of John.1
       In 2009, the Department initiated another child protective action involving Jane. At that
time, John and Mother lived in separate units of the same apartment complex. Jane spent time at
both John’s home and Mother’s home.          While at Mother’s apartment, Jane indicated that
“Daddy” had sexual contact with her.2 Mother notified the authorities, and Jane was placed in
the custody of the Department pending an adjudicatory hearing.
       At the adjudicatory hearing, the magistrate determined that it was in Jane’s best interest
to remain in the custody of the Department and required John and Mother to comply with a case
plan for reunification with Jane. Mother declined to participate in the case plan. John chose to
participate and began attending counseling and treatment for his mental health issues and visited
Jane weekly. As part of the case plan, John was required to submit to a paternity test, which later
determined that he was not Jane’s biological father.
       The Department initiated termination proceedings and identified John and Father as
Jane’s possible fathers and alleged that John had been excluded as the biological father by DNA
testing. Mother stipulated to the termination of her parental rights and expressed her desire to
have Jane adopted by one of her relatives. Father did not appear at the termination hearing. The
Department requested that John be dismissed as a party to the termination proceedings because
he did not meet the definition of “parent” under I.C. § 16-2002(11). The magistrate treated the


1
        This custody order is not included in the record on appeal. However, the magistrate
referred to the custody order during the termination proceedings and recognized that such an
order had been issued in favor of John pursuant to a stipulation.
2
       The Department investigators apparently believe Jane must have been referring to John.
The record does not disclose whether John actually committed such acts.

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Department’s request as a motion for summary judgment, found that John was a proper party to
the action, and allowed him to participate in the hearing. However, in its memorandum decision
and in its decree terminating Mother and Father’s parental rights, the magistrate determined that
John did not meet the statutory definition of a parent and, therefore, was not a proper party to the
termination action. John appeals.
                                                 II.
                                    STANDARD OF REVIEW
       This Court exercises free review over a trial judge’s conclusions of law. Opportunity,
L.L.C. v. Ossewarde, 136 Idaho 602, 605, 38 P.3d 1258, 1261 (2002). The determination of the
meaning of a statute and its application is a matter of law over which this Court exercises free
review. Woodburn v. Manco Prods., Inc., 137 Idaho 502, 504, 50 P.3d 997, 999 (2002).
       In an action to terminate parental rights, an appellate court will not disturb the trial
court’s findings unless they are not supported by substantial and competent evidence. Roe
Family Servs. v. Doe, 139 Idaho 930, 934, 88 P.3d 749, 753 (2004). Only clearly erroneous
findings will be overturned. Opportunity, 136 Idaho at 605, 38 P.3d at 1261.
                                                III.
                                              ANALYSIS
       John asserts that the magistrate erred when it determined that John was not a parent for
purposes of the parental termination proceedings involving Jane. John argues that he is a parent
under the equitable doctrines of in loco parentis and equitable adoption (also referred to as
adoption by estoppel). In addition, John contends that the equitable doctrine of judicial estoppel
should prevent the Department from objecting to John’s participation in the parental termination
proceedings. Finally, John argues that his constitutionally protected rights of access to the courts
and the right to parent have been violated.
A.     John’s Status as a Parent
       John contends that he comes within the purview of the Termination of Parent and Child
Relationship Act, I.C. §§ 16-2001 to 16-2014.          In the alternative, John asserts that he has
parental rights subject to termination under the equitable doctrines of in loco parentis and
equitable adoption.




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          1.     Statutory definition
          Idaho Code Section 16-2005 permits the Department to petition the court for termination
of the parent-child relationship when it is in the child’s best interest and any one of the following
five factors exist: (a) the parent has abandoned the child; (b) the parent has neglected or abused
the child; (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 which 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. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117
(2007).
          Idaho Code Section 16-2002(11) states in relevant part that a “parent” is either the
adoptive father, the biological father of a child conceived or born during the father’s marriage to
the mother, or the unmarried biological father whose consent to an adoption of the child is
required pursuant to I.C. § 16-1504. Idaho Code Section 16-2002(12) defines a “presumptive
father” as a “man who is or was married to the birth mother and the child is born during the
marriage or within three hundred (300) days after the marriage is terminated.”
          During the termination hearing, John did not argue that he and Mother were married or
that he was Jane’s adoptive father. In addition, the paternity test established that John was not
Jane’s biological father. Therefore, substantial and competent evidence supports the magistrate’s
determination that John was never married to Mother and was not Jane’s adoptive or biological
father.    As a result, the magistrate did not err when it determined that John did not meet the
statutory definition of a “parent” or “presumptive father” under the Termination of Parent and
Child Relationship Act.
          2.     Equitable parental rights
          In the alternative, John argues that the magistrate erred when it determined that John did
not possess equitable parental rights under the doctrines of in loco parentis and equitable
adoption. The doctrine of in loco parentis is defined as “relating to, or acting as a temporary
guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.”
BLACK’S LAW DICTIONARY 803 (8th ed. 2004). The Idaho Supreme Court has held that a couple
stood in loco parentis to a child once the Department transferred custody of the child to the
couple. Craven v. Doe, 128 Idaho 490, 493, 915 P.2d 720, 723 (1996). Due to the couple’s


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status as prospective adoptive parents acting in loco parentis, the Court held the couple had
standing to file a petition for the termination of the biological parents’ rights to the child under
I.C. § 16-2004. Craven, 128 Idaho at 493, 915 P.2d at 723. Idaho Code Section 16-2004
specifically permits a person standing in loco parentis to file a petition for termination of
parental rights.3
        John asserts that, like the couple in Craven, he is a nonbiological parent who should be
permitted to defend his parental rights in a termination proceeding. However, the Court’s
holding in Craven narrowly applies to a party’s ability to file a petition for termination of
parental rights. Craven does not stand for the proposition that a party acting in loco parentis
possesses parental rights subject to termination under I.C. § 16-2005.
        John also argues that he possesses parental rights under the doctrine of equitable
adoption. The doctrine of equitable adoption applies equity to create a status which confers
certain benefits to a child, such as child support or an inheritance. Poncho v. Bowdoin, 126 P.3d
1221, 1226-28 (N.M. Ct. App. 2005). The doctrine allows a child to enjoy part of the advantage
of an adoptive status in cases where no formal adoption has taken place. Id. For example, in
certain jurisdictions, the doctrine of equitable adoption allows a child to receive an inheritance
from a presumed adoptive parent, even if the parent had yet to formalize the adoption prior to his
or her death. See In re Estate of Ford, 82 P.3d 747, 753-54 (Cal. 2004) (law of equitable
adoption in intestate succession case requires proof of intent to adopt); see also Osterkamp v.
Stiles, 235 P.3d 193, 196 n.14 (Alaska 2010) (equitable adoption doctrine applied in Alaska in
intestate succession and paternity cases).
        It appears that Idaho appellate courts have not applied or addressed the doctrine of
equitable adoption. Courts in other jurisdictions that recognize equitable adoption in some cases



3
        Idaho Code Section 16-2004 states:

                A petition may be filed by:
                a.      Either parent when termination is sought with respect to the other
                parent.
                b.      The guardian of the person or the legal custodian of the child or
                person standing in loco parentis to the child.
                c.      An authorized agency.
                d.      Any other person possessing a legitimate interest in the matter.


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have declined to apply the doctrine in child custody or parental rights cases. See Pierce v.
Pierce, 645 P.2d 1353, 1355 (Mont. 1982); Hermanson v. Hermanson, 887 P.2d 1241, 1245-46
(Nev. 1994). Further, the cases that John relies upon in support of the application of equitable
adoption involve a party’s refusal to pay child support. See Frye v. Frye, 738 P.2d 505 (Nev.
1987); Sargeant v. Sargeant, 495 P.2d 618 (Nev. 1972). These cases are distinguishable from
the facts of this case.
        Idaho does not recognize equitable adoption, and we decline to apply the doctrine here.
Unlike other cases where courts have recognized equitable adoption, John did not initiate
adoptive proceedings involving Jane, and this case does not involve Jane’s portion of John’s
inheritance or a request for child support. Therefore, John has failed to establish that the
magistrate erred by determining that John possessed no equitable parental rights subject to
termination in this matter. In addition, because we conclude that John did not possess parental
rights subject to termination and was not a proper party to the termination proceedings, we will
not address John’s argument that the Department is estopped from objecting to John’s
participation in the termination action.
B.      Constitutional Arguments
        John argues that the statutory scheme for termination of parental rights denies him his
constitutionally protected right of access to the courts. Idaho Code Section 16-1604(2) states in
relevant part that, “in the event there are conflicting orders from Idaho courts concerning the
child, the child protection order is controlling.” John asserts that the magistrate’s decision to
award custody of Jane to the Department conflicted with an order granting John legal custody to
Jane after he and Mother separated. Therefore, he argues, I.C. § 16-1604(2) deprived him of the
opportunity to defend his custody rights under a prior custody order.
        Despite his claims, John has not been denied access to the courts. In regard to the
question of parental rights, he was allowed to participate in the proceedings fully, including
argument and evidence relating to his status as parent as well as the merits of the termination
claims. The determination that John was not a parent under I.C. § 16-2002(11), leading to the
magistrate’s refusal to address the merits of the termination, does not mean that John was denied
access to the courts. Indeed, the magistrate, as well as this Court, has entertained his equitable
and constitutional claims on the merits. As to the parental rights claims, John confuses denial of




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access to the courts with having failed to demonstrate a right cognizable in the instant
proceeding.
        Moreover, the existence of the prior custody order was presented to and considered by
the magistrate relative to John’s parental rights claims. The prior custody order did not render
John a parent under I.C. § 16-2002(11) as relates to this termination proceeding. John was not
denied access to the courts in regard to his ability to litigate the effect, if any, of the custody
order relative to his parental status.
        Finally, it appears that John contends that the effect of this matter--determination of
parental status, termination of parental rights, and vesting custody in the Department--will deny
him access to the courts relative to his ability to defend his custody rights. To the extent this
argument is meant as a basis for standing to participate in the termination proceeding, as noted
above, that access to the courts was provided. To the extent this argument is meant as a
challenge to the effect of I.C. § 16-1604(2) on John’s custody rights from the custody order
entered in another proceeding, that claim is not properly before this Court. A copy of John’s
custody order is not included in the record on appeal. It is the responsibility of the appellant to
provide a sufficient record to substantiate his or her claims on appeal. Powell v. Sellers, 130
Idaho 122, 127, 937 P.2d 434, 439 (Ct. App. 1997). In the absence of an adequate record on
appeal to support the appellant’s claims, we will not presume error. Id.
        John also argues that the magistrate’s decision deprived him of his fundamental right to
parent, asserting that his relationship with Jane creates a liberty interest protected by the Due
Process Clause of the Fourteenth Amendment. John contends that, because the magistrate
awarded custody of Jane to the Department without allowing him to defend his liberty interest in
court, he was deprived of his constitutional right to parent Jane. To determine whether an
individual’s due process rights under the Fourteenth Amendment have been violated, a court
must engage in a two-step analysis. First, it must decide whether the individual’s threatened
interest is a liberty or property interest under the Fourteenth Amendment. Schevers v. State, 129
Idaho 573, 575, 930 P.2d 603, 605 (1996). Only if it finds a liberty or property interest will the
court reach the next step, in which it determines the extent of due process procedural protections.
Id.
        The United States Supreme Court has long held that the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make decisions concerning


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the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65-67 (2000).
In other words, the Court has recognized that parents hold a liberty interest in parenting their
children. In Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510,
534-35 (1925), the Court held that the “liberty of parents and guardians” includes the right “to
direct the upbringing and education of children under their control.” However, the Court has
declined to find a liberty interest in parenting a foster child because the foster-parent relationship
stems from state law, resulting in a more limited interest in the child. Smith v. Org. of Foster
Families for Equality and Reform, 431 U.S. 816, 845-46 (1977). Further, courts have also held
that the liberty interest of an unwed biological father will only be recognized when the father has
developed a significant relationship with his child. Lehr v. Robertson, 463 U.S. 248, 261-62
(1983); see also I.C. § 16-1504(2); Doe v. Roe, 142 Idaho 202, 206-07, 127 P.3d 105, 109-10
(2005). Neither the United States Supreme Court nor any Idaho appellate court has addressed
whether an unwed nonbiological male has a liberty interest in parenting a child who he assumed
was his own.
       This Court declines to recognize a liberty interest in this case. No jurisdiction has
identified a liberty interest in a nonbiological person who is neither a legal guardian, adoptive
parent, step-parent, blood relative, nor foster parent. Therefore, because John has failed to
demonstrate that he possesses a liberty interest in parenting Jane, we cannot conclude that his
constitutional right to parent has been violated.
                                                 III.
                                          CONCLUSION
       The magistrate did not err in its determination that John does not possess statutory or
equitable parental rights subject to termination. In addition, John has failed to demonstrate that
the magistrate’s decision violated his constitutional rights.         Accordingly, we affirm the
magistrate’s decree terminating the parental rights of Mother and Father to their daughter, Jane.
No costs or fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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