               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38100

IN THE MATTER OF JOHN DOE AND         )               2011 Unpublished Opinion No. 360
JOHN DOE I, CHILDREN UNDER            )
EIGHTEEN YEARS OF AGE                 )               Filed: February 14, 2011
______________________________________)
IDAHO DEPARTMENT OF HEALTH &          )               Stephen W. Kenyon, Clerk
WELFARE,                              )
                                      )               THIS IS AN UNPUBLISHED
      Petitioner-Respondent,          )               OPINION AND SHALL NOT
                                      )               BE CITED AS AUTHORITY
v.                                    )
                                      )
JANE (2010-26) DOE,                   )
                                      )
      Respondent-Appellant,           )
                                      )
and                                   )
                                      )
JOHN DOE II, and ERIN SMITH, Guardian )
Ad Litem,                             )
                                      )
      Respondents.                    )
                                      )

       Appeal from the Magistrate Division of the District Court of the Fourth Judicial
       District, State of Idaho, Ada County. Hon. Carolyn M. Minder, Magistrate.

       Judgment of the magistrate terminating parental rights, affirmed.

       Alan E. Trimming, Ada County Public Defender; Adam C. Kimball, Deputy
       Public Defender, Boise for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Deena A. Layne, Deputy Attorney
       General, Boise, for respondent.

                  ________________________________________________
GRATTON, Chief Judge
       Jane Doe appeals from the magistrate’s decision terminating her parental rights as to two
of her children, K.L. and J.O. Specifically, Doe contends the magistrate erred in finding she
neglected her children as defined in Idaho Code § 16-2002(3)(a) and (b). We affirm.



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                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Doe is the mother of K.L., born in 2003, and J.O., born in 2005. 1 This case originated
from a 2009 referral to the Idaho Department of Health and Welfare (Department), which was
the ninth referral concerning Doe and her children. From a 2003 referral, K.L. was declared in
imminent danger and removed from Doe’s custody three months after his birth. His father was
convicted of child abuse and sent to prison. K.L. was returned to Doe following the shelter care
hearing. From an August 27, 2008 referral, K.L. and J.O. were declared in imminent danger
because of bruising on J.O.’s head and face. The children were returned to Doe after two months
in the Department’s custody.     On May 27, 2009, Doe checked herself into Intermountain
Hospital due to self-reported suicidal and homicidal thoughts. Consequently, the Department
received a referral beginning this case, declared K.L. and J.O. to be in imminent danger, and
placed them in foster care. On May 29, 2009, the Department filed a petition for hearing under
the child protective act, asserting that Doe had neglected her children due to her hospitalization
and her inability to obtain stable housing. Doe waived her adjudicatory hearing and stipulated
that by admitting herself to Intermountain Hospital she was unable to provide care for her
children.
       On July 24, 2009, the court, after hearing, approved a case plan. The children remained
in foster care over the life of the case plan. On May 12, 2010, a permanency hearing was held
and the court adopted a plan of termination of parental rights as to Doe. On July 7, 2010, the
Department filed a petition for termination of parent-child relationship alleging neglect as the
basis for termination. A two-day trial was held in September 2010 and on September 20, 2010,
the magistrate issued its order and final judgment granting the petition to terminate Doe’s
parental right as to K.L. and J.O. Doe appeals.




1
        This case only concerns Doe’s parental rights to K.L. and J.O. Neither K.L. nor J.O.’s
fathers appealed the decision below that terminated their rights. Doe also has a daughter that is
not part of this case who is being cared for by her biological father, Doe’s husband. In 2009,
Doe placed another infant child for adoption.

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                                                 II.
                                          DISCUSSION
       Doe contends that the magistrate’s decision is not supported by the evidence. In an
action to terminate parental rights, due process requires this Court to determine if the
magistrate’s decision was supported by substantial and competent evidence. In re Doe, 143
Idaho 343, 345, 144 P.3d 597, 599 (2006). Substantial and competent evidence is such evidence
as a reasonable mind might accept as adequate to support a conclusion. Id. at 345-46, 144 P.3d
at 599-600. This Court will indulge all reasonable inferences in support of the trial court’s
judgment when reviewing an order that parental rights be terminated. Doe v. Doe, 148 Idaho
243, 246, 220 P.3d 1062, 1064 (2009). We conduct an independent review of the record that was
before the magistrate. Doe, 143 Idaho at 346, 144 P.3d at 600.
       A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002); see also Quilloin v. Walcott,
434 U.S. 246, 255 (1978). 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
family life should be strengthened and preserved . . . .” I.C. § 16-2001(2). Therefore, the
requisites of due process must be met when the Department intervenes to terminate the parent-
child relationship. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006). Due process
requires that the Department prove grounds for terminating a parent-child relationship by clear
and convincing evidence. Id. 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 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 which will be injurious to the health,
morals, or well-being of the child; or (e) the parent is incarcerated and will remain incarcerated
for a substantial period of time. Each statutory ground is an independent basis for termination.
Doe, 144 Idaho at 842, 172 P.3d at 1117.




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A.     Neglect
       The magistrate terminated Doe’s parental rights on the ground of neglect, I.C. § 16-
2005(1)(b). Idaho Code § 16-2002(3) defines “neglect” as any conduct included in I.C. § 16-
1602(25), as well as situations where the “parent(s) has failed to comply with the court’s orders
in a child protective act case or the case plan, and reunification of the child with his or her
parent(s) has not occurred within the time standards set forth in section 16-1629(9).” I.C. § 16-
2002(3)(b). The time standard established by I.C. § 16-1629(9) is defined as when “a child is
placed in the custody of the department and was also placed in out of the home care for a period
not less than fifteen (15) out of the last twenty-two (22) months from the date the child entered
shelter care.” The magistrate found that pursuant to I.C. § 16-2002(3)(a) Doe had neglected her
children within the meaning of I.C. § 16-1602(25). The magistrate also found that Doe had
neglected her children under I.C. § 16-2002(3)(b) because she had failed to comply with the case
plan and reunification had not occurred within the time limit imposed by I.C. § 16-1629(9).
Each will be addressed in turn.
       1.      Parental care and parental responsibilities
       The magistrate found that Doe neglected her sons under the general definition of neglect.
Idaho Code § 16-1602(25) provides that “neglected” means a child:
               (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, guardian or other custodian or their neglect or
       refusal to provide them; however, no child whose parent or guardian chooses for
       such child treatment by prayers through spiritual means alone in lieu of medical
       treatment shall be deemed for that reason alone to be neglected or lack parental
       care necessary for his health and well-being, but this subsection shall not prevent
       the court from acting pursuant to section 16-1627, Idaho Code; or
               (b) Whose parents, guardian or other custodian 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; or
               (c) Who has been placed for care or adoption in violation of law; or
               (d) Who is without proper education because of the failure to comply with
       section 33-202, Idaho Code.

The magistrate found that the State demonstrated, with clear and convincing evidence, that Doe
had neglected K.L. and J.O., under I.C. § 16-1602(25)(a), because of her instability in housing
and employment and her failure to consistently treat her mental health needs. The magistrate
also found that Doe neglected K.L. and J.O., under I.C. § 16-1602(25)(b), because she was


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unable to discharge her parental responsibilities and the inability will continue for a prolonged
period.
          In regard to housing and employment the magistrate stated:
                   In May 2009, and for at least six years preceding this third child protection
          case, [Doe] has not had a safe, stable and healthy home environment nor any
          income to provide for herself and her children. [Doe] has not, in the last 15
          months, actively sought or maintained legitimate employment. In the last seven
          years there is no work history. There has been no documentation of income and
          the fact that SSI in the amount of $722.00 per month may become available in
          October 2010 is not sufficient to meet the needs of [Doe] and her children. [Doe]
          testified that she hopes to buy a car, pay for insurance and get a drivers license to
          be able to get these children to their many appointments. [Doe] testified that she
          owes the State $209.00 per month since May 2009 for [K.L.]’s care and $179.00
          per month since May 2009 for [J.O.]’s care. She admitted that between insurance
          and arrearages she will have very little money to spend on food, shelter, clothing
          and necessities for herself.

          Doe’s history of failing to secure stable housing casts considerable doubt on her future
ability to maintain stable housing. Doe’s past circumstances and conduct may be considered
when evaluating whether any current improvements would be long lasting. In re Doe 2009-19,
__ Idaho __, __ P.3d __ (November 24, 2010). Doe, age twenty-five, has had unstable housing
since she left her parent’s home at age fourteen. In February 2009, she was aided by a local
church in obtaining housing; however, she lost the house when she could not pay the rent. She
then moved into her father’s home, which further put her children at risk because Doe had been
sexually abused by her father. After only three days in his home she left, filed a police report,
and took her sons to FACES for an examination because of a concern her father was
inappropriately touching K.L. In addition, over the course of the case plan she continued to
move frequently, and for a period of time was living in a car. While Doe had stable housing for
the four months leading up to the termination hearing, Doe testified she intended to move on to
another, not yet secured, housing arrangement in December 2010.                An additional concern
regarding Doe’s ability to maintain stable housing is her ability to secure employment. Doe did
not graduate from high school. She began working toward earning her GED with the assistance
of a family support specialist, but at the time of the trial she had still not completed it. Doe’s
lack of employment experience or education reflects negatively on her prospects for future
employment.



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          The Department placed K.L. and J.O. in foster care because Doe checked herself into a
hospital for possible suicidal and homicidal thoughts. Doe has had a difficult life as a victim of
physical and sexual abuse. The social workers that have spent time with Doe recognized that it
will take her a lot of work to progress past these difficulties so that she can successfully parent,
and Doe acknowledged she needs to keep working on her mental health. Doe did not diligently
follow through with the mental health assistance provided by the Department over the course of
the case plan. Doe failed to attend counseling meetings for over six months. When Doe’s six
sessions that had been scheduled through the Department ended, the clinician testified that Doe
needed more counseling sessions. While Doe testified she was receiving weekly counseling
from Lutheran Community Services, she had only been receiving this counseling for a few
months leading up to the termination hearing.        The individual that performed the risk to child
assessment of Doe testified that based on the risk factors she saw in Doe’s life, Doe would
require at least weekly counseling sessions for a minimum of a year to deal with the issues in her
life. Doe’s recent counseling was not sufficient to demonstrate progress in improving her mental
health.
          The record does not demonstrate that Doe’s parenting skills have improved over the
course of the case plan or that she has learned to better care for her children’s needs. J.O.
entered foster care with impaired hearing that required surgery. J.O.’s hearing problem caused
him to develop a speech impediment, making him so difficult to understand that K.L. interpreted
for J.O. Doe’s failure to recognize J.O.’s medical needs for his hearing loss and J.O.’s needs for
speech therapy demonstrated a lack of parenting skills. Moreover, J.O. entered foster care at the
age of four and was still not potty trained. Both of Doe’s children had significant cavities and
neither were current on their immunizations. The children also had behavioral problems that the
children’s psychologist identified as the children writing their own rules. The psychologist
believed it was a coping mechanism caused by Doe’s lack of nurturing and failure to provide a
well-supervised setting. Doe’s interaction with the children during visits failed to demonstrate
learned parenting skills. Doe was resistant to parenting coaching until shortly before trial.
          The magistrate recognized that Doe had a seven-year history with the Department. K.L.
was first declared in imminent danger as an infant and had been removed from Doe’s care three
times. J.O. had been removed twice. K.L. and J.O. have been the subject of nine referrals to the
Department concerning abuse by father figures and Doe. The magistrate’s findings that Doe had


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neglected K.L. and J.O under I.C. § 1602(25)(a) and (b) is supported by substantial and
competent evidence.
       2.      Case plan
       The magistrate found clear and convincing evidence that Doe had failed to comply with
the case plan. In doing so, however, the magistrate appropriately recognized that Doe had made
some personal gains in the last few months before the termination hearing, but found it was too
little too late. It is undisputed that the children had been in foster care for fifteen months and
reunification with Doe had not taken place. The case plan was designed to address Doe’s mental
health and her ability to provide a safe, stable, nurturing, and healthy home. The case plan
identified several requirements for Doe to complete, including: (1) mental health evaluation and
follow-up; (2) obtain and maintain safe, stable housing; (3) actively seek and obtain employment
or other sources of income; (4) participate in addressing the children’s needs; (5) attend and
demonstrate skills learned from parenting classes; and (6) complete a risk to child assessment.
       The first task required Doe to successfully complete and follow any recommendations
from a psychological evaluation that would verify the impact of mental illness on Doe’s daily
life and her ability to provide appropriate care and supervision of her children. The magistrate
held “[Doe] did not and has not followed through with the recommendations of the psychological
evaluation. [Doe]’s history of mental health issues which impact her ability to effectively and
appropriately care for her children, has not been addressed adequately and consistently.” Doe
argues she substantially complied with the case plan because she completed the evaluation,
attended counseling sessions, and received medication management. She also argues that she
completed all of the approved counseling sessions through About Balance and is positioned to
maintain other counseling sessions.
       The magistrate’s finding is supported by substantial and competent evidence. Doe first
met with a clinician with About Balance Mental Health, twice in August 2009 to complete the
psychological evaluation. The evaluation assessed that Doe suffers from severe mental illness
that impacts her daily functioning and ability to cope with life stressors and recommended
psycho-social rehabilitation services to deal with symptoms in order to cope with life stressors.
The evaluation also recommended that Doe utilize counseling and pharmacological services
available from the Department and obtain Medicaid.         While Doe attended one meeting in
September for therapy, Doe failed to attend her next counseling session and did not meet with


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the clinician again until seven months later. It was not until Doe re-engaged in April 2010, just
prior to the permanency plan hearing, that she began her treatment plan, there was no
explanation for the delay. It was over ten months after her children had been placed in foster
care before the clinician felt that Doe began to take her treatment more seriously. Doe testified
she was, at the time of the hearing, attending weekly counseling sessions with Lutheran
Community Services. While Smith acknowledged that Doe could satisfy the recommendation
from the mental health evaluation if she maintained pharmacological treatment and continued
long-term counseling from another provider, Doe’s failure to timely follow through with her
counseling from About Balance demonstrates that this was unlikely.
       Doe was required to attend medication management meetings through About Balance to
receive medication for her mental health.       Doe attended her meetings in September and
October 2009, but she did not attend another meeting until May 26, 2010, and by that time she
had been without her medication for about one month. Despite Doe testifying she was on the
wait-list for Terry Reilly Mental Health Services, which would enable her to continue
pharmacological treatment, at the time of the termination hearing Doe had still not completed her
Medicaid application, as was required.
       Doe’s second task in the case plan was to obtain and maintain a safe, stable, and healthy
home environment for herself, K.L, and J.O, which also required complying with random home
visits and not allowing other individuals to reside in the home without Department approval.
The magistrate found that Doe “demonstrated no ability to independently and consistently
provide food and shelter for herself and whatever her family unit might need at any given time.”
(Emphasis original.) When the children were placed in foster care, Doe was in Intermountain
Hospital. Doe then moved to City Lights Shelter until she had problems with other residents and
moved to the Salvation Army Booth Memorial House. She stayed at Booth Memorial House for
three months, but in February 2010 moved in with friends. Doe did not provide the Department
with the names of her roommates, as the case plan required. In March, Doe and her roommates
were required to leave the place they were staying; this led to Doe living in a car. In April 2010
the Booth Memorial House for single mothers gave her a bed. Doe secured transitional housing
at the Booth Memorial House in June 2010, which provided her with a highly-structured
environment.    The Department’s case manager acknowledged that the transitional housing
provided by the Booth Memorial House was an approved home for reunification. Doe argued


                                                8
her stay at the Booth Memorial House for the last four months of the case plan demonstrated she
could maintain a safe, stable home environment. While Doe testified she could possibly stay at
the Booth Memorial House until June 2012, she also testified she intended to leave for a low-
income housing apartment in December 2010, although that housing had not been secured.
Doe’s extremely poor history in housing casts doubt over her ability to actually secure low-
income housing. Substantial and competent evidence supports the magistrate’s finding that Doe
failed to maintain stable housing.
       Doe was to actively seek and maintain legitimate employment and/or a legitimate source
of income sufficient to provide for herself and her children. The magistrate found:
              From May to November, [Doe] had no employment. [Doe] reported
       having a job in November 2009 but there was never verification of the same.
       [Doe] had a part-time job for a period in late January to February, but lost that job
       due to an inability to transport herself when she had to leave her “friend’s”
       residence. Since March she has not been employed. She says she has filled out
       applications but [t]here has been no verification of the same. [Doe]’s very limited
       educational skill set impacts what work might be available to her.

Doe contends that her act of getting two jobs, applying for seventy-two jobs over the course of
the case plan, and securing SSI income satisfies the case plan. Doe was unable to maintain the
employment she obtained, a critical requirement of the case plan. As noted above, Doe’s lack of
education and work experience and failure to complete her GED limit her employment
opportunities. The magistrate also found “[t]he income she will begin to receive in October
[from SSI] is inadequate to support herself and is distinctly inadequate to consistently provide for
herself and these boys.” The magistrate’s findings are supported by substantial and competent
evidence.
       Doe was required to participate in addressing her children’s needs, including attending
medical appointments and following the doctor’s recommendations. The magistrate found that
Doe did not actively participate in addressing her children’s needs. During preschool screening,
while in foster care, it was discovered that J.O. had a hearing impairment, which caused a speech
impediment. The Department provided Doe with a letter outlining appointments for hearing
evaluations and meetings for speech therapy. Doe did not attend those meetings as the case plan
required. J.O. was scheduled for surgery. On the day of J.O.’s surgery, Doe arrived late and she
left the hospital before the surgery was complete. Doe contends the reason she was late was



                                                 9
because she forgot the location of the surgery, not about the surgery itself, and claims she was
unaware she could stay longer than an hour, despite testimony indicating that she was
encouraged to stay throughout the surgery. There was also no evidence that Doe attended either
of the children’s multiple dentist appointments. Doe did meet with the children’s psychologist,
but only twice. While Doe attended some of her children’s appointments, she did not attend
them in a sufficient manner to enable her to understand her children’s needs and to aid in
satisfying those needs. The magistrate’s finding is supported by substantial and competent
evidence.
       Doe was required to attend Department-approved parenting education classes and receive
parenting instruction. She was also required to demonstrate and apply the developed skills in
caring for her children. The magistrate found Doe did not demonstrate her ability to follow
recommendations in caring for her children. Doe argues she completed the parenting program
and demonstrated the skills she learned in parenting her children. While Doe completed the
homemaking services discipline module though AmeriPsych from the Department’s referral, the
instructor testified that Doe did not demonstrate the techniques taught in the module. The case
manager observed in the visits which included Doe’s husband, that Doe was more flirtatious with
her husband than she was attentive of K.L. and J.O. Doe received general parenting instruction
from the Department’s case manager during supervised visits. The case manager acknowledged
that Doe was open and receptive to parenting coaching and attempted to implement the feedback,
but only after refusing the coaching for many months. Towards the end of the case plan, the case
manager acknowledged that Doe was making progress in interacting with K.L. and J.O. This
progress, however, was not sufficient to demonstrate she had successfully learned and applied
the parenting skills taught in her parenting class. Substantial and competent evidence supports
the magistrate’s determination.
       Doe was to complete a risk to child assessment from a Department-approved social
worker and follow all recommendations. The risk assessment was completed on August 7, 2009,
and found Doe to be a moderate risk to her children.         Based on the assessment, it was
recommended that Doe obtain individual, weekly counseling sessions for at least a year,
assuming progress occurred quickly.      The assessment recommended long-term individual
counseling and medication management to deal with past emotional, physical, and sexual abuse
and to deal with the grief from releasing her fourth child for adoption. The assessment also


                                              10
recommended that she and her husband attend couples therapy to resolve interpersonal issues.
The assessment recommended that K.L. and J.O. receive individual counseling. Finally, the
assessment recommended that a definitive after-care plan should be implemented before the
children return to Doe’s home to prevent further harm. The magistrate found Doe failed to
follow the recommendations of the risk to child assessment. Doe argues she completed the risk
to child evaluation and had been attending counseling.
       As noted above, Doe significantly delayed working on managing her mental health
issues. The assessment recommended she attend weekly sessions, but Doe did not actively begin
counseling until April 2010. While Doe argues that she attended couples counseling with her
husband, she and her husband were not attending marriage counseling at the time of the
termination hearing, even though she recognized they had significant work to do on their
relationship. Doe has not carried these steps out with the diligence necessary to mitigate the
risks to her children. Further, K.L. and J.O. are receiving counseling through the Department,
and Doe did not develop a plan for her children to maintain counseling. The magistrate’s finding
is supported by substantial and competent evidence.
       This Court concludes there is substantial evidence supporting the magistrate’s finding
that Doe did not comply with the case plan. Because of her poor history, Doe had significant
need for improvement over the course of the case plan. While Doe made progress with some
areas of the case plan, the plan was approved in July 2009, and Doe did not seriously begin
addressing the plan until April 2010, when she obtained housing at the Booth Memorial House
and began counseling. Doe did not make sufficient progress during this short period of time to
demonstrate she could care for her children.
B.     Best Interest
       In concluding that termination was in the best interests of the children, the magistrate
considered the conflicting policies of the parent’s fundamental liberty interest in maintaining a
relationship with her children versus the need to provide permanency in a child’s life. The
decision also included an extensive consideration of the record. The children entered foster care
in a state of medical neglect and at the beginning of their care both children behaved
inappropriately, which included tantrums, cursing, and aggressive behavior. They have both
made vast improvements. K.L. is doing well in school, and J.O.’s behavior has improved at day
care. The social workers and guardian ad litem generally expressed their opinions that it was in


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the children’s best interest to terminate Doe’s parental rights. Doe has not challenged the
magistrate’s determination as to best interest on appeal, and while we need not address it, we
have reviewed the record and conclude that there is substantial and competent evidence
supporting that determination.
                                              III.
                                        CONCLUSION
       Substantial and competent evidence supports the magistrate’s decision to terminate Doe’s
parental rights. The magistrate’s judgment terminating Doe’s parental rights to K.L. and J.O. is,
therefore, affirmed. No costs or attorney fees are awarded on appeal.
       Judge LANSING and Judge MELANSON CONCUR.




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