                     IN THE SUPREME COURT OF THE STATE OF IDAHO
                                    Docket No. 45995
    In the Matter of: JANE and JOHN DOE II, )
    Children Under Eighteen (18) Years of Age. )
    -------------------------------------------------------- )
    JOHN and JANE DOE I,
                                                             )             Pocatello, September 2018 Term
               Petitioners-Respondents,                      )
                                                             )             Opinion Filed: December 21, 2018
    v.                                                       )
                                                             )             Karel A. Lehrman, Clerk
    JANE DOE (2018-20),                                      )
                                                             )
               Respondent-Appellant.
                                                             )


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

          Judgment terminating parental rights, affirmed.

          Twin Falls County Public Defenders Office, Twin Falls, for appellant. Laura Z.
          O’Connell argued.

          Roy Nielson Barini-Garcia & Platts, Twin Falls, for respondents. Eric B. Nielson
          argued.
                              ______________________________

BURDICK, Chief Justice.
          Jane Doe (“Mother”) appeals the Twin Falls County magistrate court’s termination of her
parental rights to her minor children, Jane Doe II (“T.T.”) and John Doe II (“D.T.”). On February
7, 2017, John and Jane Doe I 1 (“Guardians”) filed a petition to terminate Mother’s parental rights
to T.T. and D.T. that was amended on May 17, 2017. After holding a one-day trial, the
magistrate court (“trial court”) ordered written closing arguments by both parties. Afterwards,
the termination petition was granted. 2 The trial court found: (1) Mother had neglected her
children; (2) Mother had abandoned her children; and (3) termination of Mother’s parental rights

1
  John and Jane Doe I are currently the children’s primary caregivers. When this opinion refers to “Guardian” as a
singular noun, it refers to Jane Doe I. When it refers to the plural, “Guardians,” it refers to both John and Jane Doe I.
2
  The judgment also terminated any putative father’s parental rights to the children, but that termination is not
challenged on appeal.

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was in the best interest of the children. Because each of these findings was supported by clear
and convincing evidence, the trial court granted Guardians’ request for termination. The trial
court entered a final judgment to that effect on May 11, 2018. Mother timely appeals.
                    I.   FACTUAL AND PROCEDURAL BACKGROUND
       Mother voluntarily placed T.T. and D.T. under Guardian’s care in December 2015. This
voluntary placement was instigated by Mother’s desire to avoid removal of the children by the
Idaho Department of Health and Welfare (“the Department”) which would have resulted in their
placement in foster care. At the time of their placement, both T.T. and D.T. were less than two
years of age (17 and 2 months old, respectively). At the time of this appeal, both children have
remained in Guardians’ exclusive care for over two-and-a-half years.
       T.T. is the elder of the two children. When Mother first became pregnant with T.T., she
initially told everyone at her workplace that she had cancer instead of explaining that she was, in
fact, pregnant. Prior to T.T.’s birth, Mother asked one of her coworkers whether she might want
to adopt T.T., who Mother claimed was her sister’s child. Once T.T. was born, Mother would
frequently leave T.T. in the care of others—sometimes for weeks at a time—and these caretakers
would often purchase formula, food, diapers, clothing, and other items for the child. These
caretakers would also arrange and pay for babysitting when they couldn’t watch T.T. instead of
Mother arranging for T.T.’s care. When Mother would deliver T.T. to others for supervision,
T.T. would be hungry, fussy, and dirty to the point of matted hair and a diaper rash so severe that
the child would be bleeding and have to be bathed immediately and ointment applied to the
diaper rash. Mother appeared to show no tenderness toward the child and was usually taking T.T.
from person to person so as to not have to care for the child herself.
       D.T. is the younger of the two children. D.T.’s short life thus far has been marked by
significant medical issues. D.T. was only in Mother’s care for a period of less than two months
which spanned the time from his birth until placement with Guardians. In that short time, D.T.
had already experienced a trip to the emergency room for breathing difficulties. D.T.’s visit to
the emergency room occurred the night before he was placed in Guardians’ custody.
       By the time D.T. was born, Mother no longer worked, had changed housing several
times, and had settled in a house with other residents. Mother’s practice of continuing to ask
others to watch the children continued at the house. When no such arrangement could be
secured, Mother would often leave the children alone and unattended while she watched

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television upstairs or went outside to smoke cigarettes. It was around this time that Guardians
began to care for T.T. and D.T., including caring for the children upwards of five days a week.
Eventually, Mother’s pattern of inattention to her children became a cause for concern for the
residents of the house, and this concern prompted a call to the Department.
       While there is some conflicting testimony as to what happened the morning the
Department became involved, what is clear is that D.T. was left unattended in a bassinet for
several hours while Mother went to work. Mother left D.T. to attend work but contends that she
expected a babysitter to arrive shortly after her departure. In any event, a resident of the house
awoke to find D.T. alone (T.T. was staying with Mother’s parent at the time) and unattended in a
bassinet. After discovering the newborn with no supervision, the resident, knowing that Guardian
typically cared for the children during the week, contacted Guardian for advice. Guardian had, in
fact, previously informed Mother that she would not be able to watch the children that morning.
Eventually, the resident decided to contact the police, prompting Guardian to depart for the
house and, after the police officer arrived, Guardian requested that the children be placed in her
custody instead of placing them in foster care. The police officer contacted Mother, causing
Mother to come to the scene where she eventually agreed to the children’s placement with
Guardians for the immediate future. Thereafter, Mother was given the option of placing the
children either with Guardians or in foster care. Mother selected Guardians and a formal
guardianship was put into place.
       Once the guardianship was established, Guardians realized that T.T. exhibited a number
of alarming behaviors. It became clear that T.T. had serious issues with hoarding food and self-
stimulation. Guardian found T.T. to be hungry—eating to the point of pain. In addition, Guardian
noticed that T.T. would frequently masturbate, going so far as inserting foreign objects into her
vagina to the point of injury. These sexualized behaviors were especially alarming given that at
the time the guardianship was established, T.T. was only a year and a half old. Given these
concerns, Guardians sought the help of a licensed social worker for counseling for T.T.
       The counselor observed that T.T. would masturbate daily, hoard food, and would never
stop eating if food were available—to the point where T.T. would rummage through garbage
cans looking for food. T.T.’s counselor opined that the child’s issue with food is the result of
periods of starvation during her very early childhood. The counselor testified that T.T.’s sexual
behaviors likely stem from being sexually abused as an infant. The social worker testified that

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girls of T.T.’s age do not usually recognize their genitals as sexual organs unless someone shows
them how to masturbate, they are sexually abused, or they see someone else masturbating.
        D.T. was less than two months old when he was entrusted into the care of Guardians.
Guardians immediately took the newborn to see the family doctor given D.T.’s perceptible
difficulty breathing and keeping food down. D.T. has several conditions that have required
medical intervention including problems with reflux that causes difficulties with his larynx and
trachea. He has issues keeping food down which necessitates placement of a feeding tube. Most
recently, D.T. has developed seizures. These issues have required surgeries on both his stomach
and the top part of his throat. As described by his doctor, D.T. is a sort of “moving target” given
that his symptoms and conditions don’t fit into well-defined syndromes or illnesses making his
future medical needs unpredictable. D.T. currently receives nourishment from a feeding tube
attached to a small backpack that he must constantly wear. Guardians have taken D.T. to all of
his medical appointments, including those that are a considerable distance away from home, and
paid for the portions of D.T.’s medical expenses not covered by insurance.
        During the time her children were under the Guardians’ care, Mother lived a nomadic
lifestyle and used methamphetamine. For significant periods of time, Mother was homeless.
While Mother has on occasion attempted to reach out to T.T. and D.T. during their time under
Guardians’ care, Mother has never attempted to reunite with her children. Mother moved back in
with her own mother. Since then she has enjoyed some semblance of stability in her life and
secured employment. Despite this stability, Mother is still not requesting to reunite with or regain
custody of her children. She wishes the guardianship to continue regardless of the disposition of
this case.
        Guardians have been the exclusive caretakers of T.T. and D.T. Guardians have been
present at every surgery, medical appointment, and counseling session while taking an active
role in learning how to care for T.T. and D.T. and handle their physical and behavioral
challenges. The children have bonded with Guardians over the course of the guardianship. The
children consider themselves part of Guardians’ family. Despite their hardships and obstacles,
D.T. and T.T. have progressed and are thriving in Guardians’ home. Even though D.T.’s medical
issues are some of the most demanding his physician has ever seen, his physician is impressed by
Guardians’ ability to provide care for the infant. Likewise, T.T. has progressed in the counseling
secured by Guardians. The children have had limited contact with Mother since the guardianship

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began, but at least one visit from Mother caused T.T. to regress in much of her progress. The
child suffered from uncontrollable bowel movements for several weeks after the visit. T.T.’s
counselor opined that this regression was likely a negative emotional reaction to seeing her
Mother.
       On February 7, 2017, a little over a year after the guardianship was established,
Guardians filed a petition to terminate Mother’s parental rights to T.T. and D.T. as well as an
amended petition on May 17, 2017. Subsequent to filing their petition for termination of parental
rights and adoption, Guardians were the subject an Investigative Report and a Pre-Adoption
Home Study Report by the Department. Both inquiries resulted in the conclusion and
recommendation that the children remain with Guardians. After holding a one-day trial and the
submission of written closing arguments by both parties, the trial court granted Guardians’
petition on the basis that Mother neglected and abandoned the children and that termination was
in the children’s best interests. The trial court entered a judgment to that effect on May 11, 2018.
Mother timely appeals.
                                      II.    ISSUES ON APPEAL
   1. Whether there is substantial, competent evidence to support the trial court’s
      determination that:
             a) Mother abandoned T.T. and D.T.;
             b) Mother neglected T.T. and D.T.; and
             c) terminating Mother’s parental rights was in the best interests of T.T. and D.T.
   2. Whether Guardians are entitled to attorney’s fees.
                               III.         STANDARD OF REVIEW
       Pursuant to Idaho Code section 16-2005(1), “a court may terminate parental rights if it
finds that doing so is in the best interest of the child and that at least one of five grounds for
termination is satisfied.” In re Doe (2014-23), 157 Idaho 920, 923, 342 P.3d 632, 635 (2015).
The enumerated grounds for terminating a parent-child relationship “must be proved by clear and
convincing evidence.” In re Doe (2013-15), 156 Idaho 103, 105–06, 320 P.3d 1262, 1264–65
(2014); I.C. § 16-2009. As generally understood, the clear and convincing evidentiary standard is
met when there is “evidence indicating that the thing to be proved is highly probable or
reasonably certain.” Doe Children, 163 Idaho 536, 538, 415 P.3d 945, 947 (2018) (quoting Idaho
Dep’t of Health and Welfare v. Doe (2015-01), 158 Idaho 764, 767, 351 P.3d 1222, 1225
(2015)).

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         On appeal, “the appellate court does not reweigh the evidence to determine if it was clear
and convincing.” In re Doe (2014-09), 157 Idaho 14, 18, 333 P.3d 125, 129 (2014) (quoting
Dep’t of Health and Welfare v. Doe, 149 Idaho 207, 210, 233 P.3d 138, 141 (2010)). Where the
trial court has explicitly noted that it applied the clear and convincing standard, the appellate
court “will not disturb the [trial] court’s decision to terminate parental rights if there is
substantial, competent evidence in the record to support the decision.” Doe I v. Doe II, 150 Idaho
46, 49, 244 P.3d 190, 193 (2010). Substantial, competent evidence is “such evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (quoting State v. Doe,
143 Idaho 343, 346, 144 P.3d 597, 600 (2006)).
         In our review of the factual findings, “this Court will indulge all reasonable inferences in
support of the trial court’s judgment . . . .” In re Doe (2013-15), 156 Idaho at 106, 320 P.3d at
1265 (quoting In the Matter of Aragon, 120 Idaho 606, 608, 818 P.2d 310, 312 (1991)). This
Court considers that
         the finder of fact has the opportunity to observe witnesses’ demeanor, to assess
         their credibility, to detect prejudice or motive and to judge the character of the
         parties. In parental-termination cases, this is immensely important. A cold record
         of the trial does not tell the whole story. An independent review by our court
         could not take into account the trial court’s superior view of the entire situation.
Id.
                                         IV.    ANALYSIS
      A. Mother has (1) waived the issues of neglect and abandonment on appeal for failure
         to support them with argument and (2) the trial court’s determination that
         termination was in the children’s best interests is supported by substantial,
         competent evidence.
         Termination of the parent-child relationship requires the satisfaction of a two-part
finding: (1) at least one of the five bases for termination needs to be met, and (2) termination
must be in the best interest of the child.
            1. Bases for Termination under Idaho Code section 16-2005(1)(b)
         On appeal, Mother does not make specific arguments as to how or why the trial court
erred in its determination that Mother neglected and abandoned her children. Instead, Mother
merely recites these issues in her statement of the issues on appeal while the bulk of her brief
deals only with the best-interests-of-the-child prong of the termination statute. As a result,
without argument or citation to advance the issues, she has waived these issues. Bach v. Bagley,
148 Idaho 784, 797, 229 P.3d 1146, 1159 (2010) (“Regardless of whether an issue is explicitly
                                                  6
set forth in the party’s brief as one of the issues on appeal, if the issue is only mentioned in
passing and not supported by any cogent argument or authority, it cannot be considered by this
Court.”).
            2. Best Interests of the Children
       Even if one of the statutory bases for parental-rights termination is found, termination is
only proper if it is also in the best interests of the child. I.C. § 16-2005(1). The best interests
analysis is an expansive analysis with “no set list of factors a court must consider . . . .” In re
Doe (2015–03), 159 Idaho 192, 198, 358 P.3d 77, 83 (2015). Nonetheless, this Court has
articulated numerous factors that a trial court may consider, including a “parent’s history with
substance abuse, whether the parent has provided financial support, the child’s relationship with
those currently caring for him or her and whether the child has improved under that care, the
child’s need for stability and certainty, and the parent’s incarceration.” Id. Other factors include
       the parent’s ability to change his or her conduct to assume parental
       responsibilities, whether there is a good relationship between the child and parent,
       whether the child has improved while in the parent’s care, whether the child’s
       needs are being met, and the parent’s ability to provide stability and certainty.
Idaho Dep’t of Health & Welfare v. Doe I (2017-21), 163 Idaho 83, 89, 408 P.3d 81, 87 (2017).
       The trial court found that “[c]onsidering all of the various factors involved, and weighing
the children’s current needs against the hope that [Mother] will ever be able to put herself in a
position to safely reunite with the children, this court concludes that achieving some permanency
for the children now is in their best interests at this point.” This finding is supported by
substantial, competent evidence in the record.
       On appeal, Mother argues that termination is not in the best interests of T.T. and D.T.
because “[Guardians] have failed to show that there would be any harm to the children if the
termination of parental rights petition was denied.” In support of this argument, Mother relies on
In re Doe (2014–09) where this Court acknowledged that “the lack of any evidence showing that
termination of a parent’s parental rights is necessary to prevent harm to the children is a factor
that the trial court can consider,” in upholding a trial court’s finding that termination of a
biological father’s rights was not in the best interests of the child as supported by substantial
competent evidence. 157 Idaho 14, 17, 333 P.3d 125, 128 (2014). While this is a valid
observation, this Court never intimated that this factor is a determining factor. Id. To the
contrary, this Court has addressed Mother’s exact argument and held this factor “is only one


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factor in a wide-ranging analysis and not an overriding concern or emphasized principle.” Doe v.
Doe (2016–45), 162 Idaho 194, 198, 395 P.3d 814, 818 (2017). Whether harm to the child will
result from a termination of parental rights is simply an area of inquiry that the trial court may
assess in its broad discretion to determine whether termination is in the best interests of the child.
       Mother also argues that she has “corrected the problems that led to her agreeing to the
original guardianship case.” Mother supports this argument by pointing out she has successfully
completed probation, has a full-time job, and her employer has a no-drug policy. While the
parent’s ability to change his or her conduct to assume parental responsibilities is a factor the
trial court may consider, it is only one of many that goes into the best-interests analysis. This
Court has held on prior occasions that the lower court did not err by finding that a parent’s recent
improvement is outweighed by the other factors of the best interests analysis. See, e.g., Idaho
Dep’t of Health & Welfare v. Doe (2011-18), 152 Idaho 644, 650, 273 P.3d 685, 691 (2012)
(finding no error when the trial court “weighed the totality of the evidence and concluded that
‘quite frankly it is too little, too late.’”); Idaho Dep’t of Health & Welfare v. Doe (2016-32), 161
Idaho 754, 761, 390 P.3d 1281, 1288 (2017) (finding “no error in the magistrate’s conclusion
that Mother’s recent and modest improvements were insufficient to overcome her history of
demonstrated unfitness.”)
       Ultimately, the focus of the best interests analysis rests with the best interest of the child,
not the parent. Mother was employed when she left D.T. unattended at the house. Mother was
intermittently employed during the period of time she failed to physically care for T.T. during
the child’s early life. Furthermore, this argument is unavailing because Mother’s progress did not
go unnoticed by the trial court. Rather, the trial court noted her progress, but expressly found:
       Allowing [Mother] additional time to try and put herself in the position to get the
       children back, hoping she might be successful, all the while knowing that she
       intends to leave the children with [Guardians], leads this court two [sic] the
       conclusion that allowing her additional time would be detrimental to the
       children’s mental and physical well-being and would not allow them to achieve
       permanency.
       Lastly, Mother urges this Court to adopt the Washington Supreme Court’s holding in In
re Welfare of A.B., where that court held “that a parent has a constitutional due process right not
to have his or her relationship with a natural child terminated in the absence of a trial court
finding of fact that he or she is currently unfit to parent the child.” 232 P.3d 1104, 1110 (2010),
as amended (Sept. 16, 2010). This argument is unpersuasive. First, the decision of a sister state

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is not binding on this Court. State v. Elison, 135 Idaho 546, 549, 21 P.3d 483, 486 (2001).
Second, the requirement that the Washington Supreme Court imposes stems from its statutory
scheme and the subsequent case law interpreting it. See Krause v. Catholic Cmty. Servs., 737
P.2d 280, 284 (1987). Succinctly put:
       The Washington parental rights termination statutes require clear, cogent and
       convincing evidence of not only a prior determination that the parent has fallen
       below minimal standards, RCW 13.34.180(1), but of the fact that parental
       deficiencies still exist which are not likely to be remedied so that the child can be
       returned to the parent in the near future, RCW 13.34.180(5)
Id.
       A requirement of current unfitness is not required under Idaho law. See I.C. § 16-2005.
Furthermore, this Court has previously upheld termination of parental rights as being in the
child’s best interest despite recent lifestyle improvements on the part of the parent. See Idaho
Dep’t of Health & Welfare v. Doe (2011-18), 152 Idaho at 650, 273 P.3d at 691 (finding
sufficient evidence to support trial court’s termination order where the trial court found parents
improvements were “too little, too late.”); Doe (2016-32), 161 Idaho at 761, 390 P.3d at 1288
(“We find no error in the [trial court’s] conclusion that Mother’s recent and modest
improvements were insufficient to overcome her history of demonstrated unfitness.”).
       The trial court’s finding that termination of Mother’s parental rights is in D.T. and T.T.’s
best interests is supported by substantial, competent evidence. Mother has a history of substance
abuse before, during, and after her time caring for the children. Mother has provided little to no
financial support for the children while they were in her care and only minimal support while the
children were under Guardians’ care. Both children have thrived under Guardians’ care. Both
children are treated as members of the family by Guardians and Guardians’ other children.
Guardians sought termination in part to have both D.T. and T.T. placed on their family’s health
insurance. Both the Pre-Adoption Home Study and Investigative Report completed by the
Department regarding the children’s placement with Guardians recommended that the children
stay with Guardians. The trial court agreed with each report’s finding that delaying termination
would not be in the children’s best interests because the children deserve the permanency
required to grow and develop.
       T.T. exhibited extremely alarming behaviors for a child her age when she came into
Guardians’ care. Such behavioral issues appear to result from considerable and consistent neglect
while in Mother’s care. T.T. needs stability and certainty in order to progress and develop as a
                                                9
child. Guardians offer that stability and consistency. Upon taking physical custody of T.T.,
Guardians immediately secured counseling for T.T. and have made considerable efforts to
address her issues. When T.T. was reunited with Mother, even though it was only a brief
meeting, the stress of the interaction was enough for T.T. to regress in her progress and suffer
physical symptoms of anxiety. Based on these facts, there is substantial, competent evidence to
support the trial court’s determination that termination of Mother’s parental rights is in T.T.’s
best interest.
        D.T. has spent almost his entire young life with Guardians. That life has been marked by
taxing and recurring medical afflictions and treatment. Given the timeframe of D.T.’s time with
Guardians, they are the only parent figures D.T. has ever really known. Guardians have
stewarded D.T.’s tumultuous journey through his illnesses and remained an ever-present source
of care and attention for the child. Given Mother’s history of caring for T.T., it is difficult to
envision Mother providing the adequate care and attention required by D.T.’s special needs.
Based on these facts, there is substantial, competent evidence to support the trial court’s
determination that termination of Mother’s parental rights is in D.T.’s best interest.
        Therefore, the trial court’s finding that termination of Mother’s parental rights is in the
best interests of the children is supported by substantial, competent evidence. Accordingly, we
affirm the trial court’s termination of Mother’s parental rights to T.T. and D.T.
    B. Guardians’ request for attorney’s fees is denied because of the seriousness of the
       liberty interest at stake and the conflicting evidence in the record.
        Guardians raise the issue of attorney’s fees in their reply brief. Guardians argue that they
are entitled to attorney’s fee under section 12-121 of the Idaho Code because “[Mother’s] appeal
has been brought frivolously, unreasonably and without foundation” and Mother “simply
request[s] the appellate court to second guess the determination of the trial court.”
        An award of attorney fees on appeal is proper under I.C. § 12-121 only if this Court is left
with the abiding belief that the appeal “was brought, pursued or defended frivolously,
unreasonably or without foundation.” I.C. § 12-121. “Generally, when an appeal simply disputes
the trial court’s factual findings, which are supported by substantial although conflicting
evidence, the appeal is considered frivolous and an award of attorney fees is proper under I.C. §
12–121.” Doe v. Roe, 133 Idaho 805, 810, 992 P.2d 1205, 1210 (1999) (citing Zanotti v. Cook,
129 Idaho 151, 155, 922 P.2d 1077, 1081 (Ct. App. 1996)). That said, this Court has held that


                                                 10
“considering the seriousness of the liberty interest affected in parental termination cases,” an
appeal in such cases “to reexamine conflicting evidence is not frivolous.” Id.
       Because of the fundamental right implicated by the termination of parental rights and the
conflicting testimony in this case, we deny Guardians’ request for attorney’s fees under Idaho
Code section 12-121.
                                      V.    CONCLUSION
       The termination of Mother’s parental rights is affirmed and Guardians’ request for
attorney’s fees is denied. Costs on appeal are awarded to Guardians.
       Justices HORTON, BRODY, BEVAN and STEGNER, CONCUR.




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