               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41978

IN THE MATTER OF THE                    )               2014 Unpublished Opinion No. 670
TERMINATION OF THE PARENTAL             )
RIGHTS OF JANE (2014-08) DOE.           )               Filed: August 14, 2014
_______________________________________ )
                                        )               Stephen W. Kenyon, Clerk
IDAHO DEPARTMENT OF HEALTH &            )
WELFARE,                                )               THIS IS AN UNPUBLISHED
                                        )               OPINION AND SHALL NOT
      Petitioner-Respondent,            )               BE CITED AS AUTHORITY
                                        )
v.                                      )
                                        )
JANE (2014-08) DOE,                     )
                                        )
      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.

       Decree terminating parental rights, affirmed.

       Mimura Law Offices, LLC; William Jacobson, Caldwell, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Brent R. King, Deputy Attorney
       General, Caldwell, for respondent. Brent R. King argued.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Jane Doe appeals from the magistrate’s decree terminating her parental rights to her six
children. Specifically, she contends the magistrate erred by not making a finding as to whether
the Idaho Department of Health and Welfare (the Department) engaged in reasonable efforts
toward reunification and by determining that Doe neglected her children and that termination
was in the best interests of the children. For the reasons set forth below, we affirm.




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                                                 I.
                                  FACTS AND PROCEDURE
        The subjects of these proceedings are Doe’s six children: M.Y.G., born in 2001; F.J.G.,
born in 2003; M.A.G., born in 2005; A.N.G., born in 2008; D.G., born in 2009; and E.G., born in
2010.
A.      Removal of the Children
        On May 25, 2012, an officer arrived at Doe’s residence to conduct a safety check in
response to a report that the children, ranging in age from under two years old to eleven years
old, had been left unattended all day.       The home was extremely dirty, had debris strewn
throughout, and smelled of urine, feces, and rotting food. There was no running water and little
food or sanitation products in the house. The officers observed exposed wiring in the bathroom,
broken windows patched with duct tape, and steep, narrow stairs to the basement with no safety
gate. The children and their clothes were dirty and grimy. It was later discovered that the
children had head lice and the younger children had flea bites on their necks. The two youngest
children had several rotting teeth that required extensive dental care.
        Doe gave conflicting stories as to who had been supervising the children.              The
responding officer concluded the children had been subjected to long-term neglect and that due
to safety issues, the children were in imminent danger. The children were transferred to the
custody of the Department. Doe was arrested on six counts of misdemeanor injury to a child.
        On May 29, 2012, the Department filed a petition alleging the children came under the
jurisdiction of the Child Protective Act (CPA), Idaho Code § 16-1601 et seq. The next day, the
magistrate held a shelter care hearing where the parties stipulated to the entry of an order placing
the children in shelter care. A shelter care order was entered on June 13, 2012. On July 11,
2012, the court held an adjudicatory hearing where the parties stipulated that the children came
within the purview of the CPA on the basis that they lacked a stable home environment, and
stipulated to the placement of the children in the custody of the Department.
B.      Case Plan
        On August 8, 2012, a case plan hearing was held. On August 23, 2012, the court entered
an order approving an amended case plan which focused on four areas of parenting deficiencies,
each of which contained tasks designed for Doe to correct those deficiencies. The first was
Doe’s lack of parental supervision and failure to provide a safe and stable home environment.


                                                 2
The tasks assigned included obtaining employment and safe housing, attending her children’s
medical appointments and contacting their mental health providers, completing a Protective
Parenting class, completing Family Preservation Services upon reunification with her children,
and demonstrating protective parenting skills during interactions with her children. The second
and third areas of concern were Doe’s substance abuse and mental health issues, the latter of
which included the fact that several of the children had been in foster care on two prior occasions
due to Doe’s substance abuse and a hazardous home environment. 1               Doe was directed to
complete a drug and alcohol assessment and psychological examination, follow all
recommendations, submit to random drug tests, complete an anger management program, and
demonstrate the ability to manage her anger and to protect her children and meet their needs.
Finally, the case plan identified Doe’s pending charges of six counts of injury to a child and
felony burglary as a concern and she was tasked with resolving those issues and complying with
the terms of her sentencing.
       A caseworker from the Department engaged in monthly meetings and phone calls with
Doe, following up on the requirements of the case plan. In regard to the task that Doe was to
obtain and maintain legitimate employment and income and provide the Department with
verification, Doe did report working at several different employers, but only provided
verification for approximately three months of employment. When the Department identified
transportation as a barrier to Doe obtaining employment, it provided her with bus passes and gas
vouchers. When Doe’s driver’s license suspension expired, she did not obtain a new license due
to the prohibitive costs of obtaining insurance. Doe was not employed at the time of the



1
        In addition to the six children at issue in this case, Doe had another child, G.G., born in
2004 with methamphetamine in his system. G.G. was declared in imminent danger and Doe’s
other children residing in the home at the time, M.Y.G. and F.J.G., were also taken into
Department custody. Doe satisfactorily completed the ordered case plan and the children were
returned home after spending approximately nine months in foster care.
        In 2006, G.G. was again removed from Doe’s home due to his failure to thrive. Doe
agreed to termination of her parental rights to G.G., testifying she did so out of fear that her other
children would be taken from her if she did not.
        In 2007 or 2008, M.Y.G., F.J.G., and M.A.G., were removed from Doe’s home due to a
hazardous living environment, which included no running water, the toilet being full of waste,
animal feces in the home, and the children reporting they had not eaten. Doe was arrested at the
scene, but again satisfactorily completed her case plan and the children were returned to her after
approximately a year in foster care.

                                                  3
termination trial, but was attending a class on job searching in order to maintain her food stamp
benefits.
        Regarding the requirement that she obtain and maintain suitable housing, during the time
her children were in foster care, Doe lived some of the time with her mother. The Department
identified this residence as not being a safe environment for the children given, among other
things, the condition of the home, the criminal and child protection history of Doe’s mother, and
the criminal history of several other residents. Doe did obtain suitable housing for a period, but
subsequently lost it due to an inability to pay the rent. Doe was directed to housing assistance
resources, but at the time of the trial, she still did not have stable housing for her children.
        Doe was also tasked with being involved in her children’s medical and mental health
care.   Although she was provided with contact information for the four oldest children’s
counselors and was regularly reminded to contact them, she did not do so until the fall of 2013.
Doe never completed Family Preservation Services (where the provider works with the children
and parent in the home) because visitation between her and her children never progressed beyond
supervised visitation. In regard to the Protective Parenting class, Doe attended, but did not
initially successfully complete the class because, in part, she did not complete a required safety
plan. In December 2013, Doe successfully completed the class.
        The magistrate found there were significant deficiencies concerning the requirement that
Doe demonstrate protective parenting skills, largely in regard to visitation with her children.
After the adjudicatory hearing, the Department arranged for Doe to have supervised visits with
her children at a local park. During the first visit, Doe made a threatening comment to the
guardian ad litem within earshot of the children. During the second visit, Doe angrily yelled and
swore at the visitation supervisor, after which community visits were terminated.                  Doe
consistently attended supervised weekly visits with her children at the Department’s offices, but
a number of problems occurred, including Doe’s persistence in talking to the children about
when they would be returning home despite repeatedly being told not to (including by the
magistrate during a review hearing), Doe’s interaction with her oldest daughter as a peer and
M.Y.G.’s “parentized” behavior in attempting to parent not only the younger children but Doe as
well, and Doe’s inability to set boundaries for the children and engage with them in constructive
activity. Doe also responded with hostility and defiance to the visitation supervisor and/or




                                                   4
caseworker who would attempt to guide her as to appropriate behavior during visits, and Doe
often expressed herself with profanity and violent language in front of the children.
       In October 2013, there was a significant change in Doe’s behavior--she became less
hostile and more open to the suggestions of Department personnel and began to more
constructively engage with her children. Nonetheless, significant problems continued which
prevented the Department from proceeding to unsupervised visits, the typical next step. The
primary issue was that as long as Doe and the children were physically contained within the
walls of a single room, Doe was able to supervise the children; however, once they were outside
the room, she was unable to set boundaries, including those necessary for their safety. Despite
repeated instruction and modeling of behavior, the visitation supervisor and/or caseworker
continued to have to intervene to stop the children from running into traffic outside the building,
concerns which continued during visitations occurring up until the time of trial.
       Doe’s caseworker testified that due to Doe’s resistant attitude, the caseworker continued
to try to engage with Doe on an individual level as opposed to sending her to parenting classes.
The caseworker indicated the plan was for further parenting education classes to be provided to
the family in the home through Family Preservation Services once the children were returned,
but that Family Preservation Services refused to work with Doe due to threats of violence that
occurred during the initial community visits. The caseworker continued to work with Doe and
Family Preservation Services in the hope that Doe would become more amenable to parenting
education and Family Preservation Services would agree to work with her, which finally
occurred in October 2013.
       Regarding the second area of concern identified by the case plan, Doe’s history of
substance abuse that has impacted her ability to parent, Doe did complete a drug and alcohol
assessment/evaluation in the summer of 2012, but denied having used drugs for a considerable
period--an assertion she later admitted was not true--and was not referred for further treatment.
After Doe admitted to a caseworker in October 2012 that she had recently used
methamphetamine and marijuana, she underwent another evaluation and was referred for
substance abuse treatment, which she successfully completed in September 2013. During the
time her children were in foster care, Doe signed several admissions of substance abuse forms
provided by her probation officer, admitting to using drugs on approximately five occasions
between October 2012 and January 2013. Since the spring of 2013, however, Doe had thirty-one


                                                 5
negative drug tests, along with five no-shows which may have occurred during the period she
was in jail for a probation violation. She testified at the termination trial that she had not taken
drugs since March 2013.
       Pertaining to the mental health area of concern in the case plan, Doe underwent a
psychological examination in the summer of 2012. The evaluator noted her difficult and often
violent upbringing and reported concerns with depressed mood, attention deficient hyperactivity
disorder, and post-traumatic stress disorder. The examiner stated that Doe met the criteria for
intermittent explosive disorder and antisocial personality disorder, that she took little
responsibility for the circumstances that brought her children into the custody of the Department,
and that she “does not believe there are any changes that she needs to make in her parenting, is
harsh with the children, and appears to have little empathy for them.” The evaluator indicated
her anti-social personality patterns “appeared pervasive and inflexible, and would be extremely
difficult to successfully treat” and her mental health was a significant risk factor for future
parenting.   He further indicated Doe reported some methamphetamine use but only a few
instances since 2004 when her third child was born. The evaluator recommended various mental
health treatments, but as the evaluator predicted, Doe was “actively resistant to treatment” and
did not access mental health services provided to her until sometime after March 2013. Doe
attended six counseling sessions, but when offered more she declined, saying she had done what
was required. She also declined to take medication. She began attending anger management
counseling, but stopped before the course was complete.
       In October 2013, Doe was referred for another psychological evaluation to determine
whether her psychological functioning had changed since the previous evaluation. At this point,
Doe was attending drug treatment and acknowledged to the evaluator that she had been using
methamphetamine at the time the first psychological examination was conducted. Doe stated she
had been drug-free for approximately six months. The evaluator stated that Doe’s participation
in mental health counseling and drug treatment was a significant step for her, but that she was
resistant to further counseling and treatment and her remaining substantial issues with depression
and post-traumatic stress would “continue to impact her stability, her sobriety, and her ability to
parent her children.” The evaluator reported that Doe had made progress in controlling her anger
and no longer met the criteria for intermittent explosive disorder, noting this improvement
coincided with her abstinence from using methamphetamine. The evaluator stated, however, that


                                                 6
Doe did not “demonstrate much insight into her addiction, did not have a realistic plan for
maintaining her sobriety, was at a high risk of relapse, and there was no way to predict whether
the sobriety and the improvement in anger management would continue.” 2 Finally, the evaluator
reported that Doe showed greater insight into her parenting and her children’s needs and took
greater responsibility for her actions than in the previous evaluation, but indicated that Doe
continued to give excuses and explanations for her poor parenting decisions and did not have a
realistic plan for how she was going to provide a stable home for the children in the future. The
evaluator concluded the improvement Doe had shown would not enable her to adequately parent
the children in the near future.
       In regard to the final area of concern identified in the case plan, Doe’s pending criminal
charges, Doe apparently spent some time in jail on the burglary charge in the late summer or
early fall of 2012. Pursuant to a plea agreement, Doe pled guilty to four counts of misdemeanor
injury to a child in exchange for dismissal of the other two counts and was placed on
misdemeanor probation. Doe spent time in jail on at least two other occasions while her children
were in foster care, the last time in the fall of 2013 for a probation violation. While her children
were in foster care, Doe committed and was convicted of several additional misdemeanor
offenses, including disturbing the peace, driving without insurance and driving while suspended,
and was on felony probation for the burglary conviction at the time of the termination trial.
C.     Termination Proceedings
       On August 8, 2013, the Department filed a petition to terminate Doe’s parental rights as
to her six children. 3 The petition sought termination on the basis that it was in the best interests
of the children, Doe failed to comply with the court’s orders or the case plan, and reunification
had not occurred within the time standards set forth in section 16-1629(9); that the children were
neglected as defined by section 16-2002(3); and that Doe was unable to discharge her parental


2
        The magistrate noted that when Doe testified at the termination trial, she continued to
minimize the extent of her drug use, attributing it to the removal of her children, and stated that
her plan for maintaining her sobriety was simply the statement that she would not use drugs.
3
        The petition also sought to terminate the parental rights of the children’s three different
fathers. At the time the magistrate issued its decision and order terminating Doe’s parental
rights, the magistrate noted that two of the fathers’ parental rights had been terminated in
October 2013, but the petition to terminate the parental rights of one of the fathers remained
pending due to lack of service.

                                                 7
responsibilities and such inability would continue for a prolonged indeterminate period and
would be injurious to the health, morals, or well-being of the children. Doe filed an answer on
September 10, 2013. A termination trial was held on various days between January 7 and
January 20, 2014. The magistrate issued a memorandum decision and order granting the petition
for termination on March 17, 2014, and a decree terminating Doe’s parental rights was issued on
March 28, 2014. This appeal followed.
                                                 II.
                                            ANALYSIS
       Doe contends the magistrate erred by determining it need not make a finding that the
Department engaged in “reasonable efforts” toward reunification in order to terminate Doe’s
parental rights. She also contends there was not clear and convincing evidence to support the
two bases on which the magistrate found that Doe neglected her children and that it was in the
best interests of the children that Doe’s parental rights be terminated.
       The United States Supreme Court has held that a parent’s interest in maintaining a
relationship with his or her child is a fundamental liberty interest protected by the Fourteenth
Amendment to the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982);
Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978). The CPA directs that “the state of Idaho shall,
to the fullest extent possible, seek to preserve, protect, enhance and reunite the family
relationship.”   Idaho Code § 16-1601.         Likewise, the Termination of Parent and Child
Relationship Act states, “Implicit in this chapter is the philosophy that wherever possible family
life should be strengthened and preserved . . . .” I.C. § 16-2001(2).
       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, 455 U.S. at 769. See also I.C.
§ 16-2009; In re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); State v. Doe, 143
Idaho 383, 386, 146 P.3d 649, 652 (2006). 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, 220 P.3d 1062, 1064 (2009). The appellate court
will indulge all reasonable inferences in support of the trial court’s judgment when reviewing an
order terminating parental rights. Id. at 245-46, 220 P.3d at 1064-65. The Idaho Supreme Court


                                                  8
has also stated, however, 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. In re 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 trial court’s decision must be supported by
objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600. In our review of the
record, this Court will not set aside a magistrate’s findings of fact unless they are clearly
erroneous. Idaho Rule of Civil Procedure 52(a); Doe I v. Doe, 138 Idaho 893, 906, 71 P.3d
1040, 1053 (2003). Giving due regard to the trial judge’s opportunity to assess the credibility of
the witnesses, we will liberally construe the trial court’s findings of fact in favor of the judgment
entered. Doe I, 138 Idaho at 906, 71 P.3d at 1053. Even if a finding of fact is in error, this Court
should disregard such error unless it affects the substantial rights of the parties. I.R.C.P. 61.
       Idaho Code § 16-2005 permits the Department to petition the court for termination of the
parent-child relationship when it is in the child’s best interests and any one of five factors exist,
including neglect or abuse. Each statutory ground is an independent basis for termination. State
v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007).
A.     Reasonable Efforts
       Doe contends the magistrate erred by failing to make a finding as to whether the
Department made reasonable efforts to return the children to their home. Specifically, she
objects to the magistrate’s specific finding that the question of whether the Department made
reasonable efforts for unification is not an element of the termination statute and need not be
considered when a court is determining whether to terminate parental rights.
       In support of her argument that such a finding is necessary, Doe contends the purpose
statements of the termination statutes, I.C. § 16-2001, and the Child Protective Act (CPA), I.C.
§ 16-1601, place a burden on the Department to seek reunification, and therefore, whether the
Department made reasonable efforts must be explicitly considered in a court’s termination
decision. The Idaho Supreme Court, however, recently made clear that such a finding is not
required:
              We note that the CPA contemplates that the Department will make
       reasonable efforts at reunification during the pendency of CPA proceedings.
       However, whether the Department has made reasonable efforts at reunification is

                                                  9
        not part of the magistrate court’s analysis when terminating parental rights on the
        grounds of neglect. See I.C. § 16-2002(3)(b)[].
In re Doe, ___ Idaho ___, ___ n.3, ___ P.3d ___, ___ n.3 (Aug. 1, 2014) (remittitur pending)
(emphasis added). 4 See also Idaho Dep’t of Health & Welfare v. Doe, 151 Idaho 498, 506, 260
P.3d 1169, 1177 (2011) (“[T]he purpose provision in the termination statute is not a source of
specific substantive criteria for termination[.]”). Accordingly, the magistrate was not required to
make an explicit finding at the termination stage as to whether the Department engaged in
reasonable efforts toward reunification.
B.      Neglect
        Doe contends there is not clear and convincing evidence to support the magistrate’s
determination that she neglected her children. Section 16-2002(3) defines “neglect” in two
ways.    The first is conduct defined in I.C. § 16-1602(28), 5 which defines “neglected,” in
pertinent part, as a child:


4
        The Court further noted:

        Where the Department’s efforts at reunification are substandard, this should be
        addressed during the CPA proceedings by motion or argument to the court under
        I.C. § 16-1622(2)(g)(iii), which provides:
                If the child has been in the temporary or legal custody of the
                department for fifteen (15) of the most recent twenty-two (22)
                months, the department shall file, prior to the last day of the
                fifteenth month, a petition to terminate parental rights, unless the
                court finds that:
                        ....
                        (iii) The department has failed to provide reasonable efforts
                        to reunify the child with his family.

In re Doe, ___ Idaho ___, ___ n.3, ___ P.3d ___, ___ n.3 (Aug. 1, 2014) (remittitur pending).
         In addition, we note that a magistrate is explicitly required to make a finding of
reasonable efforts at numerous earlier stages of the proceedings, including the shelter care
hearing, Idaho Code § 16-1615(5)(b); the adjudicatory hearing, I.C. § 16-1619(6); the case plan
hearing, I.C. § 16-1621(3); and the permanency hearing, I.C. 16-1622(2)(c). Thus, by the time
termination proceedings are instigated, the magistrate has repeatedly been tasked with
determining whether the Department engaged in reasonable efforts.
5
        At the time the magistrate issued its memorandum decision and order granting the
petition for termination in this case, neglect was defined in section 16-1602(26). As of July 1,
2014, this subsection was renumbered to subsection (28), but was not substantively altered.


                                                10
               (a) Who is without proper parental care and control, or subsistence,
       medical or other care or control necessary for his well-being because of the
       conduct or omission of his parents . . . or their neglect or refusal to provide
       them . . .; or
               (b) Whose parents . . . are unable to discharge their responsibilities to and
       for the child and, as a result of such inability, the child lacks the parental care
       necessary for his health, safety or well-being . . . .
Second, a child is considered neglected in situations where:
               The parent(s) has failed to comply with the court’s orders or the case plan
       in a child protective act case and:
               (i) The department has had temporary or legal custody of the child for
       fifteen (15) of the most recent twenty-two (22) months; and
               (ii) 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    magistrate    determined    that   Doe    neglected    her   children   under    both
section 16-1602(28)(a) and section 16-2002(3)(b). Doe challenges both grounds on appeal. In
regard to the latter basis, Doe contends that the proper timeline was not observed. As the
Department points out, however, Doe’s argument is premised on the previous version of the
statute. In 2013, section 16-2002(3)(b) was amended as excerpted above. As of the issuance of
the magistrate’s order terminating Doe’s parental rights, the children had been in the
Department’s custody for twenty-two months; thus, it is uncontested that reunification did not
occur by the end of the fifteenth month as provided in subsection (ii) and there was substantial,
competent evidence to support the magistrate’s finding. 6
       Doe also contends there was not substantial and competent evidence to support the
finding of the magistrate court that she is “unable to discharge her parental responsibilities and
any such inability will continue for a prolonged period of time and will be injurious to the health,
morals or well-being of the children.” Specifically, she points out the significant improvements
she began to make around October 2013, as both the guardian ad litem and the Department’s
visitation supervisor testified. However, although this was a basis of the Department’s petition
to terminate her parental rights, and such a finding is an alternate ground for termination in


6
        Doe does not challenge the magistrate’s associated finding pursuant to
section 16-2002(3)(b) that she “failed to comply with the court’s orders or the case plan in a
child protective act case,” and thus we do not address it.

                                                 11
section 16-2005 (in concert with a finding that termination is in the best interests of the child),
the magistrate did not make or rely on such a finding in this case. Rather, the magistrate relied
exclusively on its findings that Doe neglected her children as defined in sections 16-1602(28)
and 16-2002(3)(b). Thus, we do not address the issue further as we cannot review a finding the
magistrate did not make. To the extent Doe believes the magistrate erred by not adequately
taking into consideration her progress, we address that contention below.
C.     Best Interests of the Children
       Doe also contests the magistrate’s finding that termination of her parental rights was in
the best interests of the children. 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 interest, the trial court may consider 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, 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.
Dep’t of Health & Welfare, 122 Idaho 644, 648, 837 P.2d 319, 323 (Ct. App. 1992). A finding
that it is in the best interests of the child to terminate parental rights must still 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).
       Doe’s primary complaint in regard to the magistrate’s best interests finding is the
Department’s alleged speed in seeking termination which, she claims, deprived her of a fair
opportunity to reunify with her children. Specifically, she points to the guardian ad litem’s
assertion, within only twenty days of the children entering shelter care, that termination was in
the best interests of the children. Doe characterizes this opinion as a disregard of the guardian ad
litem’s legal obligation to work toward reunification and an exhibition of bias that the magistrate
should have taken into account when considering the reasonable efforts of the Department
toward rehabilitation. Doe cites to Idaho Dep’t of Health & Welfare v. Doe, 149 Idaho 59, 66,
232 P.3d 837, 844 (Ct. App. 2010), where the court commented on the speed of proceedings in
some circumstances:


                                                 12
               [T]he speed within which the Department sought termination of Doe’s
       rights with just five months elapsing between the Department’s taking custody of
       [the child] and its designation of termination as the primary plan, and eight
       months between [the child] entering custody and the Department filing a petition
       for termination--would weigh against termination in view of the fundamental right
       at stake and the legislative policy, expressed in I.C. § 16-1601, that the
       Department, ‘to the fullest extent possible, seek to preserve, protect, enhance and
       reunite the family relationship.’
Id.
       This is simply not a case where the speed at which the Department sought termination
weighs against the granting of termination. The guardian ad litem, an advocate for the children,
expressed an opinion that termination was in the children’s best interests shortly after the
children were taken into the Department’s custody, but the Department did not seek termination
until August 8, 2013, over thirteen months after the children were taken into custody and within
the statutory time frame. Doe does not support her assertion that the Department did not make
significant effort toward reunification because of a bias toward termination with any evidence on
the record. Rather, the evidence indicates that Doe was given over a year to work on the case
plan that was developed to help her meet the requisite level of stability in order to reunify with
her children before the termination petition was granted.        She did not start to make any
noticeable progress toward cooperation with the Department until October 2013, approximately
sixteen months after her children were taken into custody.
       The magistrate’s determination that termination was in the best interests of the children
was well-reasoned, comprehensive, and supported by substantial and competent evidence. The
magistrate first noted that completing the case plan “is not simply a matter of checking items off
a to-do list” but is designed “to produce changes in behavior to resolve the problems that brought
the children into foster care.” The magistrate noted that despite warnings “early and often that
failure to work the case plan could result in termination of her parental rights,” prior to
summer/fall of 2013, Doe continued to use methamphetamine and showed little progress. The
magistrate credited the significant change in attitude and behavior that occurred in Doe in the fall
of 2013, but also recognized Doe’s continued limitations:
               The change in Mother’s attitude and behavior in the fall of 2013 is of huge
       significance. It is, however, only a beginning. Mother is currently unemployed,
       currently does not have a home for the children, and does not have transportation.
       Mother needs continuing mental health counseling to address her own trauma and
       anger issues, which in turn impact her ability to maintain employment and to

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       parent her children. Mother needs further drug counseling, so she can have a
       realistic plan for maintaining her sobriety, including a safe and sober support
       group, if she is to have a realistic expectation that she can remain drug free while
       supporting and raising six children. Mother needs intensive, individualized
       parenting education. In other words, if the petition to terminate is not granted,
       Mother is for all practical purposes just beginning a plan that would have a hope
       of enabling the children to return to a safe and stable home with their mother.
       In addition to these continued deficiencies, the magistrate explained that the definition of
neglect for failure to comply with the case plan imposes a time limit on a parent’s efforts to
achieve reunification which is not arbitrary:
       It recognizes the significance of time in a child’s life. Further waiting in the hope
       that Mother will successfully complete a reunification plan, when the children
       have already been in state custody for the last twenty-two months, is beyond the
       statutory time frame and is too long for these children to wait for the safe and
       stable home that they deserve (particularly when [taking] into consideration that
       the two oldest children previously spent 19 months in foster care and the next
       oldest previously spent 12 months in foster care, for the same issues that brought
       the children into foster care this time).
       Finally, the magistrate noted that the children were faring well in their current situation:
       Their normal needs for a safe and stable home are being met. Their special
       mental health and medical needs are being met. They are engaging in
       extracurricular activities, and experiencing some success academically and
       socially. All of the children are together in a home that is likely to be their
       adoptive placement. They have the care all children should have, and that their
       mother cannot currently provide and will not be able to provide in the foreseeable
       future.
       Based on the record before us, we agree with the finding that termination of Doe’s
parental rights was in the best interests of the children. Doe was given almost a year from the
time the case plan was approved until a petition for termination was filed, but showed very little
progress and indeed was often hostile to the Department’s efforts to assist her, until at least
sixteen months after her children were taken into the Department’s custody.              Doe never
developed the skills necessary to extend her visitation with her children beyond one to two hours,
once a week, in the controlled environment of the Department--a far cry from what would be
required of a parent. Although Doe’s improved attitude and behavior is laudable, the fact
remains that she is still not in a position to parent six children and is not likely to be in the
foreseeable future.   She lacks stable housing and income, exhibits a continued inability to
properly supervise all of the children outside the confines of a room at the Department, and has


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not demonstrated a likelihood that she will be able to maintain her sobriety or the requisite level
of mental health to be a parent. This is especially true given that it is the third time the older
children have been removed for significant periods from the home for essentially the same
issues. In addition, the children are thriving in their current environment. Given the time that
has passed, the children simply cannot afford to wait for Doe to reach a goal that is still so far
away and may never be achieved. This is, unfortunately, a classic example of “too little, too
late.” The magistrate did not err in determining it was in the children’s best interests for Doe’s
parental rights to be terminated.
                                                III.
                                         CONCLUSION
       The magistrate was not required to make an explicit finding that the Department engaged
in “reasonable efforts” to reunite Doe with her children. The magistrate did not err in its
determination that Doe neglected her children as defined by both section 16-1602(28) and
section 16-2002(3)(b) or in finding that termination was in the best interests of the children. The
magistrate’s decree terminating Doe’s parental rights to her six children is affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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