              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 44838

In the Matter of JOHN DOE, A Child             )
Under Eighteen (18) Years of Age.              )
IDAHO DEPARTMENT OF HEALTH                     )    2017 Unpublished Opinion No. 508
AND WELFARE,                                   )
                                               )    Filed: June 29, 2017
       Petitioner-Respondent,                  )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
JANE DOE (2017-11),                            )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Respondent-Appellant.                   )
                                               )

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

       Judgment terminating parental rights, affirmed.

       Tera Ann Harden, Chief Canyon County Public Defender; Scott J. Davis, Deputy
       Canyon County Public Defender, Caldwell, for appellant. Scott J. Davis argued;
       Mikel Hautzinger, appeared.

       Hon. Lawrence G. Wasden, Attorney General; Matthew R. Thompson, Deputy
       Attorney General, Boise, for respondent. Matthew R. Thompson.
                 ________________________________________________

GRATTON, Chief Judge
       Jane Doe appeals from a judgment terminating her parental rights to her minor son, G.J.
We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Doe is the mother to H.J., born in 2010, and G.J., born in 2014. Early one morning, after
having injected bath salts, Doe began hallucinating, became paranoid, and was fearful for her
own life and for the lives of her children. She woke her children and left her grandmother’s




                                               1
house where they were staying along with G.J.’s father. 1 G.J., who was nine months old at the
time, was wearing only a diaper and four-year-old H.J. was wearing a nightgown with no shoes.
Doe was also not wearing shoes. Doe started walking down the street, carrying both children.
She fell into someone’s yard and a woman came out of the house, asking if Doe needed help.
Doe, crying hysterically, asked the woman if she would take the children. The woman refused
and returned to her home. Doe continued walking, now carrying only G.J., while H.J. followed
behind.
          A woman driving by saw Doe walking in the middle of the street and stopped to ask Doe
if she needed help. Doe did not respond. The woman continued driving but kept watching Doe
and the children. Doe and G.J. suddenly disappeared from her view. The driver turned around
and got out of her car. She found H.J. standing on a ditch bank crying and Doe and G.J. partially
submerged in the ditch.           Tall grass partially concealed the shallow ditch which was
approximately three feet wide, muddy, and held approximately ten inches of water. The ditch is
located roughly a mile from Doe’s grandmother’s house. The driver observed that Doe was
lying on her back in the water. G.J. was on Doe’s hip with his head and upper body on his
mother’s abdomen and the lower part of his body in the water. The driver jumped into the ditch
and grabbed G.J. By that time, another driver and his wife had also stopped. The wife took G.J.
while the other two attempted to assist Doe, who resisted their help. The police arrived and were
able to get Doe out of the ditch while the passersby tended to the children.
          A video recording taken with an officer’s body camera shows Doe to be conscious but
unable to respond coherently to officers’ questions. In response to a request to identify herself,
Doe stated: “If you want to know who I am, ask [G]od.” Sometimes she sat or laid down
limply, other times her body was rigid and arched.              She intermittently began screaming,
apparently whenever someone blocked the sun from her face. Doe was taken away in an
ambulance and the children were declared in imminent danger.
          That day, H.J. and G.J. were placed in foster care by the Idaho Department of Health and
Welfare (the Department), initially with non-relative foster parents. A shelter care hearing was
held and the court entered a shelter care order. Thereafter, G.J. and H.J. were placed with their
respective paternal grandparents. 2 Subsequently, a case plan hearing was held and the magistrate

1
          H.J. and G.J. have different fathers.
2
          H.J. has since reunified with her father and is not subject to this case.
                                                    2
reviewed and approved the case plan. Doe was incarcerated at the time the case plan was
approved.
       Doe was subsequently sentenced on two felony convictions in separate cases: felony
injury of a child as a result of the events described above, and felony grand theft for money she
stole from her grandparents’ bank account. In each case, she was sentenced to a minimum of
two years, followed by an indeterminate period of eight years, with the sentences to run
concurrently. She was given credit for 230 days served; however, the judgment was later
amended to reflect credit for an additional 223 days. The parties stipulated that the earliest date
Doe would be eligible for release is August 2017.
       The State filed a petition for termination of parental rights on the following grounds:
(1) Doe failed to comply with the court’s orders in a child protection act case or case plan, and
reunification of the child with the parents has not occurred within the time standards set forth in
Idaho Code §§ 16-1622(g), 16-2002(3)(b); (2) Doe neglected G.J. as that term is defined in I.C.
§ 16-2002(3); and (3) Doe has been incarcerated and is likely to remain incarcerated for a
substantial period of time during the child’s minority. The magistrate granted the State’s petition
to terminate Doe’s parental rights.     In the decision, the magistrate entered the following
conclusions of law:    (1) Doe neglected G.J. by not providing the parental care or control
necessary for the child’s well-being; (2) Doe neglected G.J. by not completing her case plan; and
(3) due to Doe’s history of drug use and the uncertainty surrounding her ability to stay sober
once she is released from custody, it is in G.J.’s best interest that Doe’s parental rights be
terminated. 3 Doe timely appeals.
                                                II.
                                           ANALYSIS
       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,




3
       G.J.’s father consented to the termination of his parental rights if Doe’s were terminated.
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family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of
due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a
parent-child relationship be proved by clear and convincing evidence.            Id.   Because a
fundamental liberty interest is at stake, the United States Supreme Court has determined that a
court may terminate a parent-child relationship only if that decision is supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982). See also I.C. § 16-2009;
In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d
at 652.
          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).         The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required. Doe v.
Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (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.
          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 interest 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.



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        Doe argues the magistrate’s decision to terminate her parental rights should be reversed.
Doe asserts first that the magistrate erred because there was no clear and convincing evidence
that G.J. was neglected pursuant to I.C. § 16-2002(3)(a). Second, Doe avers that the magistrate
erred in finding that compliance with the case plan was not impossible despite Doe’s
incarceration for the entirety of this action. Third, Doe argues that the magistrate erred in finding
that there was substantial and competent evidence to support the conclusion that termination of
Doe’s parental rights is in the best interest of the child. Finally, Doe argues that the magistrate
erred by terminating the parent-child relationship without considering guardianship as an
alternative.
A.      Neglect--Inability or Failure to Provide Care
        On appeal, Doe argues the magistrate erred by terminating her parental rights based on
the finding that Doe “has not provided the parental care or control necessary for the child’s
well-being.” 4 Idaho Code Section 16-2002(3) defines “neglect” as any conduct included in I.C.
§ 16-1602(31), as well as situations where the parent has failed to comply with the court’s orders
or the case plan in a child protective act case and 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. Section 16-1602(31)(a) provides, in pertinent
part, 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 his or her well-being because of the
conduct or omission of his or her parents, guardian, or other custodian or their neglect or refusal
to provide them.
        Doe argues that the magistrate erred in concluding that the incident involving the ditch
which led to G.J.’s removal from Doe’s care constituted neglect in that her “break with
reality . . . seriously endangered her child, and could have resulted in the child’s injury or death.”
Doe avers that this conclusion was not supported by substantial or competent evidence because

4
         Doe relies on this Court’s reasoning in Idaho Dep’t of Health & Welfare v. Doe III, 150
Idaho 752, 250 P.3d 803 (Ct. App. 2011) to argue that the magistrate placed excessive emphasis
upon Doe’s behavior prior to the removal of the children from the home. In Doe III, this Court
reversed the magistrate’s decision to terminate a father’s parental rights. Id. at 765, 250 P.3d at
816. However, in that case, on appeal, the father did not contest neglect but only contested the
finding that termination was in the children’s best interests. Therefore, that case is not relevant
to the issue of neglect here.
                                                  5
even though “[Doe] acknowledges that drug use in general is dangerous,” her actions also
suggest that she was “hyper-focused on protecting her children.” Doe asserts that she believed
H.J. and G.J. were in danger and she was trying to “protect her children by getting them to
safety.” Further, that after falling into the ditch she managed to hold on to G.J. and keep his
head out of the water, proving that protecting her children was her only concern.
       The magistrate concluded that the State demonstrated, with clear and convincing
evidence, that Doe had neglected G.J. under I.C. § 16-1602(31)(a), because Doe’s “drug use
[impacted] her ability to care and provide for her children.” The magistrate observed that for the
sixteen months prior to the termination hearing, Doe had not provided for any of G.J.’s “basic
needs, for food, clothing, shelter, or attachment, all of which are necessary for a child’s
well-being.” The magistrate acknowledged that Doe had been incarcerated throughout that time
but discerned that the incarceration was due to Doe’s own criminal conduct, noting that “the
Idaho Supreme Court has specifically ruled that inability to provide care for a child due to
incarceration constitutes neglect.”
       In addition, the magistrate noted that Doe had been under the Department’s supervision
even prior to the event involving the ditch. When G.J. was approximately six months old, Doe
and G.J.’s father were staying with a friend. The children were residing with them. The
Department was alerted as to a possible concern with the friend’s child and the police and a
Department safety assessor went to the home. Drug paraphernalia, including syringes, was
found. Doe testified that the paraphernalia did not belong to her and that she had only used
drugs a few times since G.J.’s birth. The safety assessor testified at the termination hearing that
both Doe and G.J.’s father showed her track marks on their arms which they said were the result
of injections. A voluntary safety plan was put into place. The children were to live with their
respective paternal grandmothers. Doe and G.J.’s father went to live with Doe’s maternal
grandmother. Doe and G.J.’s father had visitation rights, including overnights, to be supervised
by Doe’s maternal grandmother. 5 Doe was also referred for drug treatment. Doe reported to the
case manager that she complied with the treatment for about a week. At the termination hearing,
Doe testified that after this incident with the Department she began using drugs heavily. She
stated that she was under stress, interacting with a bad crowd, and would take any drug available
to her, including methamphetamine, opiates, and bath salts. On appeal, Doe argues that she did

5
       It was during one of these overnight visits that the event described above occurred.
                                                6
not sufficiently understand the parameters of the voluntary safety plan put into place at that time.
Doe asserts that she was not advised of her rights by an attorney nor was she warned that failure
to comply could result in termination of her parental rights.
       Even assuming Doe would have behaved differently had she more fully understood the
ramifications of not following the voluntary safety plan, this is not a defense to a finding of
neglect. Willingness is not necessary to support a finding of neglect and its absence is not a
defense to neglect. Idaho Dep’t of Health & Welfare v. Doe, 158 Idaho 764, 768, 351 P.3d 1222,
1226 (2015). Regardless, evidence of incarceration is competent evidence of neglect. Id.; see
also Idaho Dep’t of Health & Welfare v. Doe (2011-12), 151 Idaho 846, 852, 264 P.3d 953, 959
(2011) (holding that a father’s imprisonment alone constitutes neglect under I.C. § 16-1602(25). 6
In Doe (2011-12), the Court recognized that a parent who is incarcerated for a substantial portion
of his or her child’s life cannot provide any amount of parental control, subsistence, medical or
other care, or control necessary for the child’s well-being. Doe, 151 Idaho at 852, 264 P.3d at
959. Further, an incarcerated parent is unable to discharge his or her responsibilities to and for
his or her children, and he or she is leaving his or her children without the parental care
necessary for the child’s health, safety, or well-being. Id. Additionally, the Idaho Supreme
Court has recognized that a parent’s inability to comply with the law is contrary to providing for
the health, morals, and well-being of a child.        Doe, 158 Idaho at 768, 351 P.3d at 1226.
Therefore, the magistrate properly considered Doe’s incarceration in finding that Doe neglected
G.J.
       Additionally, the magistrate made specific findings that support the ruling that Doe failed
to provide proper parental care and support. Despite Doe’s assertions, her actions on the day that
she and G.J. fell into the ditch did not demonstrate “hyper-focus” on her child’s safety. Rather,
Doe’s paranoid fear for her children’s safety was a direct result of her decision to inject bath salts
on a night when she had been given the opportunity for an overnight visit with her children. Doe
knew that the use of bath salts had caused her to hallucinate and/or become paranoid in the past.
Doe’s drug addiction recklessly endangered her children and, if not for the actions of bystanders,
very likely could have resulted in severe injury to or even the death of her children. Further, the
magistrate specifically found that “it was [Doe’s] drug use, and the impact of her drug use on her
ability to care and provide for her children, that resulted in the voluntary safety plan.” The

6
       This statute section is now renumbered as I.C. § 16-1602(31).
                                                  7
record demonstrates that Doe’s drug use continued despite being previously separated from her
children as part of the voluntary safety plan. In fact, Doe testified that her drug use escalated
after the children were removed from her care, as opposed to giving her motivation to seek
treatment for her addiction. Doe has failed to show that the magistrate erred in finding that Doe
failed to provide the parental care or control necessary for the child’s well-being for purposes of
I.C. § 16-1602(31).     Therefore, there is substantial and competent evidence to support the
magistrate’s finding that Doe neglected G.J. 7
B.       Best Interest of the Child
         Doe also argues substantial and competent evidence did not support the magistrate’s
determination that it was in the best interest of the child to terminate Doe’s parental rights. Once
the trial court establishes a statutory ground for termination, it must next determine whether it is
in the best interest 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 interest, the trial court may consider the stability and permanency of the home, the
employment 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, 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014); see also Doe v. Roe, 133 Idaho
805, 809-10, 992 P.2d 1205, 1209-10 (1999); Doe v. State, Dep’t of Health & Welfare, 122
Idaho 644, 648, 837 P.2d 319, 323 (Ct. App. 1992). Thus, a finding that it is in the best interest
of the child to terminate parental rights must be made upon objective grounds, supported by
substantial and competent evidence. In re Doe, 152 Idaho 953, 957, 277 P.3d 400, 404 (Ct. App.
2012).
         The State’s petition sought termination based on the likelihood that Doe would remain
incarcerated for a substantial period of time during the child’s minority. The magistrate correctly
stated that the appropriate standard is the time before which Doe could be entrusted with the care
of the child without supervision. The magistrate found that although Doe had been sober while
incarcerated, there would be “a substantial period of monitoring and supervision” along with

7
       Doe also argues that the magistrate erred in finding that Doe neglected G.J. under I.C.
§ 16-2002(3)(b). Because we have concluded that Doe has failed to show that the magistrate
erred in finding that Doe neglected the child pursuant to I.C. § 16-2002(3)(a), we need not
address Doe’s arguments regarding I.C. § 16-2002(3)(b).
                                                 8
drug treatment and testing to demonstrate her continued recovery from drug addiction.
Therefore, the magistrate held: “It is not in the child’s best interest to wait indefinitely for his
mother to start the case plan, and to continue to wait for permanency based on the hope that his
mother will successfully complete the case plan.”
       Doe asserts that she will likely be paroled in August 2017 because she has not had any
behavioral issues and has complied with all the terms of incarceration. Further, Doe avers that
she has participated in every class offered and maintained contact with her children, although
admits that circumstances largely out of her control have made contact with G.J. infrequent. Doe
argues that after receiving programming offered at the Pocatello Women’s Correctional Center,
she will gain valuable skills that will aid in her drug addiction recovery and that she has the work
experience and education to be successful.
       In Doe v. Roe, the Idaho Supreme Court upheld the trial court’s termination of Roe’s
parenting rights because Roe’s plans for the future were uncertain. Roe, 133 Idaho at 810, 992
P.2d at 1210. In that case, Roe had not taken any definite steps to obtain steady employment or
provide for an otherwise stable environment.         Id.     The Court affirmed the trial court’s
determination that such uncertainty was not in the child’s best interest because “it is not in the
best interests of [the minor] child to have to wait while possibly other types of legal proceedings
develop regarding visitation, custody, support, etc. The child deserves stability and certainty in
her life, none of which her mother can provide.”           Id.   Likewise, here, Doe has failed to
demonstrate that she will be able to provide stability for her child now or in the future. The
primary case manager testified at the termination hearing that she believes Doe has done all of
the programming available to her while incarcerated.              In her Investigation Report for
Termination of Parental Rights, the case manager noted that she observed Doe “to be loving,
caring, and empathetic during visits with her children.” Regardless, the case manager also
testified at the termination hearing that she believes it to be in the child’s best interests to
terminate Doe’s parental rights. She stated that she has seen G.J. at least once a month while this
case has been open and that in foster care, G.J. currently has “a stable home environment where
he can be secure and flourish and develop.” The case manager noted that G.J. has his own room,
a swing set in the backyard, and that the home is appropriate for a small child. Further, she
testified that G.J. appears to be a very happy child who is meeting all of his developmental
milestones.

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       The earliest date Doe could possibly be released is August 2017, at which time G.J. will
be nearly three years old. Doe would not be eligible to care for G.J. until she could demonstrate
that she is able to provide a safe, structured, and stable home environment sufficient to care for a
young child. Given Doe’s drug abuse history, criminal record, and previous dealings with the
Department, we agree it is possible that considerable additional time would pass before Doe is
able to regain custody of G.J. and sufficiently care for him. Doe has failed to show that the
magistrate erred in finding that it was not in the child’s best interest to delay permanency and to
disrupt the child’s current environment and development based on a hope for Doe’s potential
success outside of custody.
C.     Guardianship as an Alternative
       Doe argues that the district court should have considered guardianship as an alternative to
terminating Doe’s parental rights.      Doe’s maternal grandmother had filed a petition for
guardianship; however, the State indicated such a petition was contrary to its goal of termination
and adoption. Doe does not cite to any legal authority in support of her argument. A party
waives an issue on appeal if either argument or authority is lacking. Powell v. Sellers, 130 Idaho
122, 128, 937 P.2d 434, 440 (Ct. App. 1997). In this case, Doe has not cited authority for her
argument nor has she specifically identified why the district court should have considered
guardianship when addressing the petition for termination. The issue is thus waived.
                                                III.
                                         CONCLUSION
       There was substantial and competent evidence Doe neglected G.J. and that termination of
Doe’s parental rights was in the best interest of the child. For the reasons set forth above, we
affirm the magistrate’s order terminating Doe’s parental rights.
       Judge MELANSON and Judge HUSKEY CONCUR.




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