                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 45805


In the Interest of: JANE DOE II, a Child )
Under Eighteen (18) Years of Age.        )
                                         )
 JANE DOE (2018-11),                     )
                                         )
      Plaintiff-Appellant,               )              Boise, June 2018 Term
                                         )
 and                                     )              Filed: July 10, 2018
                                         )
 JANE and JOHN DOE I,                    )              Karel A. Lehrman, Clerk
                                         )
      Counter Petitioners-Respondents    )
                                         )
 and                                     )
                                         )
 JOHN DOE,                               )
                                         )
       Third Party Petitioner.           )
________________________________________)


      Appeal from the Magistrate Court of the Fourth Judicial District of the State
      of Idaho, Ada County. Hon. Christopher Bieter, Magistrate Judge.

      The final decree appointing Aunt as Jane’s permanent guardian is vacated.
      This case is remanded for a new trial.

      Whitney Welsh, Boise, and W. Christopher Pooser, Stoel Rives, LLP, Boise,
      attorneys for Petitioner Jane Doe. W. Christopher Pooser argued.

      C.K. Quade Law, PLLC, Boise, and Sandra L. Clapp & Associates, PA, Eagle,
      attorneys for Counter Petitioners-Respondents Jane and John Doe I.
      Charlene K. Quade argued.
                          ________________________________________

BEVAN, Justice

                                I. NATURE OF THE CASE
      This appeal concerns the guardianship of a ten-year-old child, Jane Doe II (“Jane”). Both
of Jane’s parents passed away in 2017. Thereafter, a family friend with whom Jane and her



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mother had been living, (“Friend”), petitioned for guardianship. Jane’s father’s twin sister
(“Aunt”) also petitioned for guardianship. During proceedings the magistrate court appointed a
local attorney, Auriana Clapp-Younggren (“Clapp-Younggren”), to serve as both the attorney
and the guardian ad litem for Jane. After trial the magistrate court followed Clapp-Younggren’s
recommendation and awarded temporary guardianship to Friend so that Jane could finish the
school year, but appointed Aunt as Jane’s permanent guardian. Friend appealed the magistrate
court decision.
                                      II. FACTS AND PROCEDURE

         Jane was born in 2007. Throughout her childhood, both of Jane’s parents struggled with
substance abuse and had multiple encounters with the criminal justice system. Jane’s parents
both tried to co-parent Jane, while relying on other family members to assist them with raising
her. In 2011, Jane’s mother (“Mother”) developed a romantic relationship with Friend’s son
while residing in the Idaho State Hospital. Following Mother’s release from the hospital, she
and Jane began living with Friend and Friend’s son. Jane was four-years-old at that time. Friend
is Jane’s godmother, and assisted in helping Mother raise Jane while they lived with her.
Evidence at trial showed that they all lived together in Boise and operated as a family unit, i.e.,
attending school functions, helping with homework, and providing discipline for Jane. As a
result of Jane’s parents relying on various family and friends to help raise Jane, Friend knew
Jane’s father (“Father”) and his family, including Aunt.
         Aunt had a friendly relationship with Mother. Aunt was familiar with the struggles that
both parents had with substance abuse, but remained supportive of their desire to co-parent Jane.
In January 2017, Father suddenly and unexpectedly died. Following Father’s death, in May of
2017, Mother arranged for Jane to visit Aunt in Montana. After Father’s death Jane and Mother
continued to live with Friend. Then, on August 30, 2017, Mother relapsed and died as a result of
a drug overdose.
         On Friday, September 1, 2017, Friend filed a pro se petition for guardianship of Jane.
After filing the petition, Friend notified Jane’s paternal family of Mother’s passing. Aunt filed a
petition for guardianship on the following business day, September 5, 2017. 1 The magistrate
court immediately appointed Clapp-Younggren to act as a guardian ad litem and attorney for

1
 On October 20, 2017, Jane’s grandfather also petitioned for guardianship; however, he did not appear at the trial,
and therefore the court did not consider his petition for guardianship.



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Jane. After a hearing on September 19, 2017, Friend was granted temporary guardianship of
Jane until trial, which was set for January of 2018.
       On November 22, 2017, Friend moved to have an attorney appointed to represent Jane
pursuant to Idaho Code section 15-5-207. On November 28, 2017, the judge summarily denied
the motion during a telephonic conference. Also in November, Friend and Aunt entered into a
Preliminary Agreement regarding Aunt’s contact with Jane, which was mediated by Clapp-
Younggren. On December 10, 2017, Friend filed a motion requesting Jane be allowed to testify
at the guardianship proceeding.
       On December 7, 2017, Clapp-Younggren filed the Guardian Ad Litem Initial Report.
The report stated that Jane’s best interests would be served by her moving to Montana with Aunt
at the end of the school year. As part of determining what would be in Jane’s best interest,
Clapp-Younggren interviewed several people including Jane’s third and fourth grade teachers,
her school counselor, an outside counselor, Jane, Friend, Aunt, and Jane’s grandfather. Clapp-
Younggren did not visit Montana or interview anyone from Montana other than Aunt; however,
Aunt provided pictures of her Montana residence as well as letters from various family and
friends.    Additionally, Clapp-Younggren obtained information regarding the criminal
backgrounds of the parties and Friend’s son.
       Prior to the trial, Clapp-Younggren submitted her final report, which again recommended
that Jane remain with Friend until the end of the school year, and then that Jane move to
Montana with Aunt. The report noted as well that Jane had “consistently stated to [Clapp-
Younggren] that Jane would like to stay with [Friend], that she enjoys her friends and is doing
well in her current school. [Jane] does not want to move to Montana with [Aunt].”
       After trial the magistrate court adopted Clapp-Younggren’s recommendation.          The
magistrate court also set a six-month review hearing for December of 2018, to determine
whether it was still in Jane’s best interest to remain in Montana. On February 15, 2018, the
magistrate court entered a decree appointing Aunt as permanent guardian of Jane. Friend filed
an expedited appeal.
                                   III. ISSUES ON APPEAL
   1. Whether the magistrate court erred when it appointed the same person to serve as both
      the attorney representing Jane and the guardian ad litem for Jane.




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     2. Whether the magistrate court abused its discretion in finding the appointment of Aunt as
        permanent guardian served Jane’s best interests.

                                 IV. STANDARD OF REVIEW

        An appellate court will not set aside a magistrate’s factual findings so long as they are
supported by substantial, competent evidence. In re Doe, 156 Idaho 682, 687, 330 P.3d 1040,
1045 (2014). “Substantial competent evidence is 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) (internal quotation omitted). “This Court is required to conduct an independent
review of the magistrate court record, but must draw all reasonable inferences in favor of the
magistrate court’s judgment because the magistrate court has the opportunity to observe
witnesses’ demeanor, to assess their credibility, to detect prejudice or motive, and to judge the
character of the parties.” Doe, 156 Idaho at 687, 330 P.3d at 1045 (internal citation omitted).
This Court freely reviews the magistrate’s interpretation of a statute. In re Guardianship of Doe,
157 Idaho 750, 756, 339 P.3d 1154, 1160 (2014).
                                          V. ANALYSIS
A.      The magistrate court abused its discretion by failing to conduct a reasonable
        inquiry into whether Jane possessed sufficient maturity to direct her own attorney.
        On appeal, Friend argues that the magistrate court erred when it appointed Clapp-
Younggren as both the attorney and the guardian ad litem for Jane. Specifically, Friend asserts
that the court erred because the purpose of an appointed attorney is to advocate for the child’s
wishes, while the purpose of a guardian ad litem is to represent the child’s best interests. Friend
argues that the magistrate conflated these roles by treating Clapp-Younggren as Jane’s attorney
in certain situations, i.e., refusing to allow Friend to cross-examine Clapp-Younggren, and at
other times treating her as the guardian ad litem, i.e., accepting the report advising the court of
Jane’s best interests.
        Idaho Code section 15-5-207 sets forth the procedure for court appointment of a guardian
ad litem or attorney for a minor and provides, in pertinent part:
        The court shall appoint an attorney to represent the minor if the court determines
        that the minor possesses sufficient maturity to direct the attorney. If the court
        finds that the minor is not mature enough to direct an attorney, the court shall
        appoint a guardian ad litem for the minor. The court may decline to appoint an
        attorney or guardian ad litem if it finds in writing that such appointment is not



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       necessary to serve the best interests of the minor or if the Idaho department of
       health and welfare has legal custody of the child.

Idaho Code § 15-5-207(7). Notably, section 15-5-207(7) previously mandated that upon the
filing of a petition, the court was required to appoint an attorney to represent the minor, and that
the attorney would have all the powers and duties of a guardian ad litem. However in 2005, the
Legislature, recognizing the distinct roles that attorneys and guardians ad litem play, amended
section 15-5-207 to allow for the appointment of an attorney based on the minor’s maturity.
Under the amended statute, the court must appoint an attorney if the court determines that the
child possesses sufficient maturity to direct an attorney, but the court must appoint a guardian ad
litem if the child does not. 2005 Idaho Laws Ch. 113 (S.B. 1053). The Legislature eliminated the
provision granting the attorney the powers and duties of a guardian ad litem.
       Under section 15-5-207(7) as it exists today, the court has discretion to decide whether or
not to appoint an attorney for the minor based on the minor’s maturity. Id. In considering
whether the district court abused its discretion this Court reviews whether the lower court: (1)
correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its
discretion; (3) acted consistently with the legal standards applicable to the specific choices
available to it; and (4) reached its decision by the exercise of reason. Lunneborg v. My Fun Life,
Inc., No. 45200, 2018 WL 3150964 (Idaho June 28, 2018).
       Here, the magistrate court checked two boxes on the form order appointing Clapp-
Younggren in this case. One box appointed her as the attorney for Jane and the other box
appointed her as Jane’s guardian ad litem. Thereafter, Friend filed a motion for the magistrate
court to appoint an attorney for Jane under Idaho Code section 15-5-207(7). This motion was
accompanied by an affidavit of a psychotherapist who testified that Jane possessed sufficient
maturity to direct her own attorney. However, the judge denied the motion simply stating “I’m
denying the motion. Ms. Clapp-Younggren is going to represent [Jane’s] interests in the case.”
The magistrate court judge gave no explanation for why he was denying the request. Further, the
record reflects that the magistrate court made no effort to determine Jane’s maturity level. The
only evidence in the record pertaining to Jane’s maturity level at the time of the hearing is the
affidavit of the psychotherapist who opined that Jane could direct counsel.
       We hold that the magistrate court’s error is twofold. First, the magistrate court erred by
checking both boxes and appointing Clapp-Younggren as the attorney and the guardian ad litem



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for Jane. The purpose of the 2005 amendment was to strip away the ability for counsel to wear
two hats. See 2005 Idaho Laws Ch. 113 (S.B. 1053). Thus, the court has three options: it can
appoint an attorney, it can appoint a guardian ad litem, or both. However, if the court chooses to
appoint an attorney and a guardian ad litem, one person may not fill both of those roles. 2 In
cases where a child is unable to direct an attorney, then the court shall appoint a guardian ad
litem. See I.C. § 15-5-207(7).
        Second, the magistrate court abused its discretion by failing to conduct a hearing
regarding Jane’s maturity level and by summarily denying the request for an attorney without
providing an explanation for doing so. A child’s maturity must be determined on a case-by-case
basis. In cases where older children are involved, we take guidance from the Legislature’s recent
amendment to Idaho Code section 16-1614 which mandates an attorney be appointed for
children “twelve (12) years of age or older.” See I.C. § 16-1614. While this is a different statute
with different circumstances at play, the procedural fairness provided in that statutory scheme is
relevant in all proceedings involving children, including petitions to determine guardianship. We
appreciate the fact that here, Jane is a ten-year-old child who may not possess the requisite
maturity to direct an attorney. However, the only evidence in the record concerning her maturity
level is the testimony of the psychotherapist who opined that she could.
        Friend also raised the issue of whether she had a right to cross-examine Clapp-
Younggren at trial. Other jurisdictions have routinely held that guardians ad litem may be
subjected to cross-examination in child protection cases, and we see no reason why guardianship
proceedings should be treated any differently. See, e.g., Kelley v. Kelley, 175 P.3d 400, 403
(Okla. 2007) (parties in a custody proceeding have the right to cross-examine guardian ad litem
concerning basis for custody recommendation); In re Hoffman, 776 N.E.2d 485, 489 (Ohio 2002)
(“[I]n a permanent custody proceeding in which the guardian ad litem’s report will be a factor in
the trial court’s decision, parties to the proceeding have the right to cross-examine the guardian
ad litem concerning the contents of the report and the basis for a custody recommendation.”);
Scheibe v. Scheibe, 241 N.W.2d 100 (Minn. 1976) (a party to a custody dispute has the right to
cross-examine the author of any report or recommendation on the custody and visitation of a
minor child); In re Kosek, 871 A.2d 1, 7 (N.H. 2005) (“[T]he right to be heard in custody and

2
 We take this opportunity to remind counsel that they must consider their roles and obligations under the Rules of
Professional Responsibility when serving as both guardian ad litem and counsel. The Rules prohibit acting as both
when the attorney has a reason to know of a conflict, as is apparent in this case.



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visitation cases encompasses the right to call and cross-examine witnesses, to be informed of all
adverse evidence, and to challenge such evidence.”). If a guardian ad litem is offering facts and
opinions upon which the court will rely, then the guardian ad litem may be subjected to
questioning by both parties. See Yearsley v. Yearsley, 94 Idaho 667, 671, 496 P.2d 666, 670
(1972) (this Court held that a father seeking a change in the custody of his daughter had the right
to confront and cross-examine an investigator who conducted an independent investigation of the
child’s circumstances).
       We vacate the decree appointing Aunt as Jane’s permanent guardian and remand for new
trial and to allow the magistrate court to conduct a hearing to determine whether Jane is capable
of “sufficient maturity to direct [an] attorney.” I.C. § 15-5-207(7). Because we remand for new
trial we do not reach the second issue on appeal.
                                      VI. CONCLUSION

       The final decree appointing Aunt as Jane’s permanent guardian is vacated and the case is
remanded so that the magistrate court can conduct a hearing to determine whether Jane possesses
sufficient maturity to direct her own attorney prior to the new trial. Pursuant to Idaho Code
section 15-5-207(7), “[t]he court shall appoint an attorney to represent the minor if the court
determines that the minor possesses sufficient maturity to direct the attorney.” No costs are
awarded on appeal; however, we take this opportunity to express our appreciation to the
attorneys who represented Jane pro bono in this case. While that fact did not affect the outcome
of this appeal, the Court encourages counsel to make the time to make a difference through the
Idaho Volunteer Lawyers Program, as counsel did in this case.
       Chief Justice BURDICK, Justices HORTON, BRODY and STEGNER, CONCUR.




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