                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                             Docket No. 45435


In the Interest of the: DOE CHILDREN,   )
Children Under Eighteen (18) Years of Age.
                                        )
--------------------------------------------------------
                                        )
IDAHO DEPARTMENT OF HEALTH AND          )
                                                                Boise, February 2018 Term
WELFARE,                                )
                                        )
                                                                2018 Opinion No. 34
      Petitioner-Respondent,            )
                                        )
                                                                Filed: April 13, 2018
v.                                      )
                                        )
                                                                Karel A. Lehrman, Clerk
JOHN DOE (2017-32),                     )
                                        )
      Respondent-Appellant.             )
_______________________________________ )

        Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
        Twin Falls County. Hon. Roger Harris, Magistrate Judge.

        The magistrate court’s judgment is vacated.

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

        Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent
        Idaho Department of Health and Welfare.

        Jamie LaMure, Kimberly, for respondent Guardian Ad Litem.
                                  _____________________

                                    SUBMITTED ON THE BRIEFS
BRODY, Justice.
        This is an expedited appeal from a magistrate court’s judgment terminating John Doe’s
parental rights as to his minor children KB and AB.
                                            I. BACKGROUND
        John Doe is the father of minor children KB and AB (the “Children”). The Children
entered the Idaho Department of Health and Welfare’s (“IDHW”) custody in December 2014
after the Twin Falls Police declared them to be in imminent danger. The Children were in their



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mother’s (“Mother”) care when the police arrested her for possession of a controlled substance.
Law enforcement described the condition of Mother’s home at this time as “filthy, cluttered, and
containing numerous safety hazards, including raw sewage being present in the basement.” Doe
and Mother’s contacts with IDHW date back to as early as 2002.
       IDHW met with Doe and Mother to develop a case plan. The plan was filed on January
21, 2015, and included a number of enumerated tasks for both Doe and Mother to complete in
order for them to reunite with the Children. The case plan sought to provide Doe and Mother a
framework to address “stable housing, sanitary living conditions, the need to obtain controlled
substance abuse treatment, to remain clean/sober, and [to] stay out of jail.” The magistrate court
issued an order regarding the case plan on January 26, 2015, in which the court stated, “It is
contrary to the welfare of the children to remain in their parent’s custody.” The court also stated
that reunification of the Children with their parents is the permanency plan, “which shall be
finalized within twelve (12) months.”
       The magistrate court held review hearings throughout 2015. On December 21, 2015,
IDHW petitioned the court for termination, as Doe and Mother had not completed their case
plans nor reunited with the Children. The magistrate court held a trial on that petition on October
5, 2016, at which thirteen witnesses testified, including Doe and Mother. The magistrate court
issued an order on December 9, 2016, concluding that the parents had showed enough progress
“that it would not be in the children’s best interest to terminate their parental rights at this time,”
yet holding its decision in abeyance for three to six months rather than entering judgment. The
court stated, “This additional time will allow the parents the opportunity to continue to work
their case plans and try to demonstrate that they have the ability to safely and successfully
reunite with their children.”
       Mother relapsed within weeks of the December 2016 order and was arrested for felony
possession, kicked out of Drug Court, and went to prison. IDHW again sought to terminate
Doe and Mother’s parental rights, requesting a date for trial during a subsequent permanency
hearing on March 9, 2017. The second trial took place on August 23, 2017. Five witnesses
testified, again including Doe and Mother. Though Doe had not completed his required drug
treatment regimen by the first trial, he became more actively involved in his treatment plan by
the time of the second trial. Doe showed other encouraging signs between the first and second
trial as well, including significant progress on his case plan. However, the magistrate court noted



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that, despite progress between the first and second trials, Doe still had not completed his case
plan nor reunified with his children in the intervening period between the first and second trial.
The court issued a Memorandum Decision granting termination of Doe and Mother’s parental
rights on October 2, 2017, and entered a corresponding judgment ten days later on October 12,
2017. Mother did not appeal, but Doe timely filed his notice of appeal on October 17, 2017.
                                 II. STANDARD OF REVIEW
       Courts must find clear and convincing evidence of grounds for terminating parental
rights. Idaho Dep’t of Health & Welfare v. Doe (2015–01), 158 Idaho 764, 767, 351 P.3d 1222,
1225 (2015). “Clear and convincing evidence is generally understood to be evidence indicating
that the thing to be proved is highly probable or reasonably certain.” Id. This Court will not
disturb a lower court’s decision to terminate parental rights if substantial, competent evidence in
the record supports the decision. Id. “Substantial, competent evidence is such evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. This Court must
independently review the magistrate court record, but is required to draw all reasonable
inferences in favor of the magistrate court’s judgments since “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.” Id.
                                          III. ANALYSIS
A. The magistrate court’s procedural error violated Doe’s due process rights.
       Parents have a fundamental liberty interest in family autonomy and in maintaining a
relationship with their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); Doe (2015–01),
158 Idaho at 767, 351 P.3d at 1225. Though this Court generally will not consider on appeal
issues not raised by the parties, we have “made exceptions for certain issues in certain types of
cases.” State v. Doe, 144 Idaho 534, 535, 164 P.3d 814, 815 (2007). In State v. Doe, this Court
outlined one of these narrow carve-outs in addressing the parallel between due process violations
in the criminal context and those in child termination cases:
       Fundamental error, as defined in criminal cases, is error which “so profoundly
       distorts the trial that it produces manifest injustice and deprives the accused of his
       constitutional right to due process.” While this is not a criminal case, the
       magistrate court’s error in applying the incorrect standard affects Doe’s
       fundamental right to raise his own child and violates the due process clause of the
       Fourteenth Amendment.
Id. (quoting State v. Sheahan, 139 Idaho 267, 281, 77 P.3d 956, 970 (2003)).


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        We must ensure that the judiciary functions “in a manner consistent with the individual
constitutional rights, both state and federal, of all who appear before the bar of justice.” State v.
LePage, 102 Idaho 387, 391, 630 P.2d 674, 678 (1981). The magistrate court committed
procedural error that affected Doe’s fundamental rights in this case. In its December 2016 order,
the magistrate court stated that “the parents have made enough progress that it would not be in
the children’s best interest to terminate their parental rights at this time.” Thus, IDHW failed to
meet its burden at the first trial to provide clear and convincing evidence that Doe’s parental
rights should be terminated. Idaho Code section 16-2010 mandates that “[w]here the court does
not order termination of the parent and child relationship, it shall dismiss the petition.” Given the
statute’s requirement, the magistrate court should have issued a judgment for Doe in accordance
with his finding that termination did not serve the Children’s best interest. Instead, the magistrate
court held its ruling in abeyance rather than entering judgment, and did not dismiss IDHW’s
petition.
        This timeline illustrates the problem with the magistrate court’s failure to follow the
statutorily-mandated procedure:
        September 14, 2016: The court issued an order approving adoption as the
        permanent plan for the Children.
        October 5, 2016: The court held a termination hearing (the first trial).
        December 9, 2016: The court issued an order finding that termination is not in
        the Children’s best interest, but did not dismiss the petition nor issue a judgment.
        March 2, 2017: In its first progress report after the permanency hearing—and the
        very next docket entry of any kind—IDHW changed to a concurrent permanency
        goal, but listed “Adoption Relative” as the primary goal and “Reunification” as
        the secondary goal. In the “Recommendations” section of this report, IDHW
        requested that the “pending petition to terminate parental rights be once again
        considered by the court as the Department feels Termination remains in the
        children’s best interest.”
        The magistrate court’s December 2016 order stating that termination is not in the
Children’s best interest is irreconcilable with IDHW’s first official recommendation following
that order that termination “remains” in the Children’s best interest. This dichotomy is especially
noteworthy given Doe’s claims regarding IDHW’s lack of cooperation in assisting him with
reunification efforts with the Children. The magistrate court’s October 2017 decision following
the second trial highlighted Doe’s failure to reunify with the Children as a substantial factor in
his ultimate decision to terminate. The magistrate court’s procedural error in not entering


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judgment for Doe and dismissing the petition upon finding that termination was not in the
Children’s best interest affected Doe’s fundamental rights in this case. Indeed, one of the
potential effects of a lack of judgment and dismissal—IDHW continuing with termination as the
primary goal—may have led directly to Doe’s failed reunification efforts.
                                       IV. CONCLUSION
       For the foregoing reasons, the Court vacates the judgment terminating Doe’s parental
rights and remands the case with instruction to enter a judgment for Doe, nunc pro tunc to
December 9, 2016, consistent with the order finding that IDHW had not met its burden to show
that termination was in the Children’s best interest.


       Chief Justice BURDICK and Justice BEVAN CONCUR.




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