                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46584

In the Matter of:                               )
Jane Doe I and Jane Doe II, Children            )
Under Eighteen (18) Years of Age.               )
IDAHO DEPARTMENT OF HEALTH                      )
AND WELFARE,                                    )      Filed: March 20, 2019
                                                )
        Petitioner-Respondent,                  )      Karel A. Lehrman, Clerk
                                                )
v.                                              )      THIS IS AN UNPUBLISHED
                                                )      OPINION AND SHALL NOT
JANE DOE,                                       )      BE CITED AS AUTHORITY
                                                )
        Respondent-Appellant.                   )
                                                )

        Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
        County. Hon. Andrew Ellis, District Judge.

        Judgment terminating parental rights, affirmed.

        Randall S. Barnum, Boise, for appellant.

        Hon. Lawrence G. Wasden, Attorney General; Madison N. Miles, Deputy
        Attorney General, Boise, for respondent.
                  ________________________________________________

GRATTON, Chief Judge
        Jane Doe appeals from the judgment terminating her parental rights to her two minor
children. Doe argues that the magistrate erred in terminating her parental rights because (1) the
Idaho Department of Health and Welfare (Department) did not make reasonable efforts to reunite
her with the children, (2) the Department did not provide sufficient grounds for termination, and
(3) the Department did not establish, by clear and convincing evidence, that termination was in
the best interests of the children.




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                                                I.
                      FACTUAL AND PROCEDURAL BACKGROUND
         Doe and John Doe are the biological parents of two children, L.B. born in 2016 and Z.B.
born in 2018. In June 2017, the magistrate awarded legal custody of L.B. to the Department
after police executed a search warrant on the Doe’s residence and declared L.B. in imminent
danger. The police served the warrant to investigate allegations that John Doe had victimized his
oldest daughter, A.B. At the time of the search, Doe and John Doe were married and living
together, with L.B., in a converted one-car garage. The residence did not have a toilet or running
water.    Fifteen animals were living in the residence and police found a large quantity of
marijuana. There was an overwhelming smell of stale marijuana and animal urine. Officers
observed that L.B. smelled like urine, was underweight, and had matted hair. Doe admitted that
the couple had been selling marijuana from the residence for over a year, often in the presence of
L.B. In addition, Doe admitted that she and John Doe used the drug on a daily basis.
         As a result of the search, both parents were convicted of possession of a controlled
substance with the intent to deliver and felony injury to child. Additionally, John Doe was
convicted of felony sexual exploitation of a child for possessing pornographic photos of A.B.
Doe was placed on felony probation for ten years. Later, Doe pled guilty to failure to report for
aiding John Doe by deleting five pornographic photographs from John Doe’s phone that depicted
A.B. In August 2017, the court approved case plans for both parents. In May of 2018, Z.B. was
born. At the time of Z.B.’s birth, John Doe was incarcerated for the above offenses. A month
after birth, Z.B. was placed in foster care. The Department was awarded legal custody, and the
court approved additional case plans for both parents.
         In October 2018, the Department filed an amended petition for termination of parental
rights. At John Doe’s direction, a default judgment was entered against him. Following trial, the
magistrate terminated Doe’s parental rights after finding clear and convincing evidence that Doe
had neglected the children, had an inability to discharge her parental responsibilities for a
prolonged period, and termination was in the best interests of the children. Doe timely appeals.
                                                II.
                                           ANALYSIS
         A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d

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341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States
Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the
Termination of Parent and Child Relationship Act is the philosophy that, wherever possible,
family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of
due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a
parent-child relationship be proved by clear and convincing evidence.             Id.   Because a
fundamental liberty interest is at stake, the United States Supreme Court has determined that a
court may terminate a parent-child relationship only if that decision is supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In
re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at
652.
          On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009).          The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required. Doe v.
Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally
understood to be evidence indicating that the thing to be proved is highly probable or reasonably
certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s
decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d
at 600.
          Idaho Code § 16-2005 permits a party to petition the court for termination of the parent-
child relationship when it is in the child’s best interest and any one of the following five factors
exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between the
child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities for
a prolonged period that will be injurious to the health, morals, or well-being of the child; or (e)
the parent is incarcerated and will remain incarcerated for a substantial period of time. Each

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statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at
1117.
A.      Reasonable Efforts to Reunite Children
        Doe argues that the magistrate erred in concluding the Department made reasonable
efforts to reunite her family. She alleges that, although the Department and magistrate were
aware that Doe had a disability, the Department failed to identify Doe’s disability or provide her
with reasonable accommodations in formulating her case plan. Doe bases this argument on
United States Public Law 96-272, which provides in part, “in each case, reasonable efforts will
be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for
removal of the child from his home, and (B) to make it possible for the child to return to his
home.” In response, the Department argues that (1) whether the Department made reasonable
efforts at reunification is not part of the magistrate court’s analysis when terminating parental
rights, and (2) this Court should not consider claims of error raised for the first time on appeal.
We agree with the State.
        On appeals before this Court from a termination of parental rights, “this Court will not
consider claims of error raised for the first time on appeal.” Doe v. Doe, 149 Idaho 392, 398,
234 P.3d 716, 722 (2010). Further, in the case of In re Doe, the Idaho Supreme Court explained,
        [T]he CPA (Child Protection Act) 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 not part of the magistrate court’s analysis when terminating parental rights on
        the grounds of neglect. See I.C. § 16-2002(3)(b)(i)-(ii). 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) . . . .
In re Doe, 156 Idaho 682, 690 n.3, 330 P.3d, 1040, 1048 n.3 (2014).
        Here, Doe failed to make such an argument or motion to the magistrate during the CPA
proceedings, and she did not argue that the Department did not make reasonable efforts for
reunification at the termination hearing. Thus, this argument is not properly preserved and will
not be considered by this Court on appeal. Doe, 149 Idaho at 398, 234 P.3d at 722.
B.      Statutory Grounds for Termination
        Doe argues that the magistrate erred in concluding that the Department proved the
existence of grounds for terminating the parent-child relationship by clear and convincing
evidence. Although Doe does not specifically challenge either of the statutory grounds for
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termination found by the magistrate, Doe argues that she has “demonstrated the ability to meet
the Daughters’ needs when supported by services from individuals and government agencies”
and “[t]here is no requirement in the law that Mother be able to independently meet the
Daughters’ needs.” However, a court may terminate parental rights if it finds that doing so is in
the best interests of the children and at least one of five grounds for termination is satisfied. I.C.
§ 16-2005(1).      Here, the magistrate found that the statutory grounds for termination were
(1) neglect, and (2) and inability to discharge parental responsibilities for a prolonged period that
will be injurious to the health, morals, or well-being of the child. We address each in turn.
       1.       Neglect
       Idaho Code § 16-2002(3)(a) defines “neglect” as any conduct included in I.C. § 16-
1602(31). Section 16-1602(31)(a) provides, in pertinent part, that a child is neglected when the
child is without proper parental care and control, or subsistence, medical or other care or control
necessary for his or her well-being because of the conduct or omission of his or her parents,
guardian, or other custodian or their neglect or refusal to provide them. Neglect also exists
where the parent has failed to comply with the court’s orders or the case plan in a CPA case and
the Department has had temporary or legal custody of the child for fifteen of the most recent
twenty-two months and reunification has not been accomplished by the last day of the fifteenth
month in which the child has been in the temporary or legal custody of the Department. I.C.
§ 16-2002(3)(b).
       Substantial and competent evidence supports the magistrate’s finding that Doe neglected
her children. The underlying child protection case began in June of 2017, when L.B. was sixteen
months old. L.B. was removed from the home because of unsafe and unsanitary conditions.
L.B.’s bed was urine-soaked. Doe and John Doe had been selling marijuana at the residence for
a year, often while L.B. was present. After the Department took custody of L.B., a CARES
evaluation revealed that L.B. was significantly malnourished for a child her age. In fact, L.B.
was not even on the growth chart and was diagnosed with failure to thrive. Doe was only
feeding L.B. almond milk and lacked the understanding to provide L.B. with adequate nutrition.
In addition to the CARES evaluation, L.B. underwent a hair follicle test which revealed the
presence of THC.
       The court approved a case plan for Doe which set forth various tasks for Doe to complete
such as:    undergoing substance abuse assessment and complying with recommendations,

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complying with felony probation, undergoing a psychological evaluation and complying with the
recommendations, initiating and maintaining contact with the Department, securing and
maintaining stable housing, maintaining sufficient legal income, and participating in parenting
education and protective parenting classes. While the children were in the custody of the
Department, Doe completed her psychological evaluation which revealed that Doe’s cognitive
functioning was very low compared to adults her age. The examiner opined that Doe’s “low
cognitive functioning has been responsible for much of her poor decision making as a parent,”
and makes her vulnerable to manipulation and maltreatment from others. Based on her results,
the psychologist recommended that Doe participate in various educational classes to teach Doe
parenting skills. In addition to the psychological test, Doe submitted clean urinalysis tests, and
attended various classes and programs (some of which were recommended by the psychologist)
to help her understand how to provide adequate care, protection, and nutrition for her children.
Those services included: protective parenting classes and access to behavior health, family
preservation, the infant/toddler program, and the women and children’s alliance. While it is
important to note that Doe complied with a majority of the requirements of her case plan, Doe
failed to demonstrate that she had the ability to provide the care and protectiveness necessary for
her children’s well-being.
       Through the pendency of the CPA case, Doe was repeatedly informed by the magistrate
and the Department that she had to acquire adequate housing and could not associate with
individuals that posed an unacceptable risk of domestic violence and sexual abuse to her
children. Specifically, Doe was told that it was unsafe to expose the children to John Doe, Doe’s
maternal grandfather, and Doe’s maternal great-grandfather based on their alcoholism, domestic
violence, child abuse, and inappropriate sexual behavior. The magistrate’s concern regarding
those individuals stemmed from abuse those individuals perpetrated on Doe. When Doe was a
child, she resided with her maternal grandfather until age thirteen. Doe’s grandfather exposed
her to alcoholism, domestic violence, and the physical abuse of her siblings. After the domestic
violence and physical abuse in her grandfather’s home became so pervasive, Doe chose to move
into the home of her maternal great-grandfather. When Doe was eighteen, her great-grandfather
was sexually inappropriate with Doe. At age twenty-one, Doe met and became involved with
John Doe who has engaged in inappropriate sexual behavior with his oldest daughter and has
manipulated and controlled Doe.

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       Throughout the CPA case, Doe continually assured the magistrate and the Department
that she was going to acquire adequate housing, was not in communication with John Doe, and
was distancing herself from individuals that posed a known risk of harm to her children.
However, at a disposition hearing in August 2018, the Department informed the magistrate of
frequent jail phone calls between Doe and John Doe. At trial, Doe testified that she had acquired
appropriate housing and had filed for divorce from John Doe in order to provide the care and
protection necessary for her children.    The Department provided the recorded phone calls
between Doe and John Doe as evidence during the termination trial. The recordings spanned
much of the CPA case and contradicted Doe’s assurances to the court and the Department. The
recordings showed that Doe planned to move out of her newly acquired apartment, was having
frequent contact with John Doe, had no intentions of separating from John Doe, and planned to
continue to maintain close contact with her grandfather and great-grandfather. Based on all the
evidence presented, the magistrate did not find that Doe’s testimony rebutting the Department’s
case was compelling.
       In regard to her residence, Doe continued to reside with her maternal grandfather from
June 2017 to July 2018 despite knowing that this residence would never be approved by the
court. In July 2018, Doe acquired a studio apartment from a family friend. Although the parties
initiated a lease agreement, Doe was not required to pay rent and the family friend could
terminate the lease upon a two-week notice. Additionally, during the phone calls, Doe and John
Doe discussed that the residence that Doe obtained was temporary and was a means to convince
the court to return the children to Doe’s care.      The couple made plans to return to the
grandfather’s home upon John Doe’s release from prison.
       Further, during the calls, Doe reassured John Doe that she would never leave him and
repeatedly stated “I love you.” Doe discussed sending mail and money to John Doe, addressed
from a friend, so that the magistrate and Department would not know of her contact with John
Doe. In addition, the couple conspired to appear to be getting a divorce but made plans to
reunite after the CPA case resolved. Moreover, the recording evidenced that Doe allowed John
Doe to have contact with her children through phone calls, pictures, and videos, despite John
Doe’s no-contact order with all children. Although Doe “became personally aware that at least
one (1) of the several allegations against [John Doe for] sexually exploiting his older daughter,
[A.B.], was true,” Doe “sought to protect her husband by deleting incriminating photos.” The

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magistrate found that Doe was “steadfast through the Child Protective Act case that [John Doe]
did not commit the crimes for which he was convicted . . . . Further, [Doe] has maintained that
even if [John Doe] did commit the acts, he does not pose an on-going risk of sexual offending
toward [the children].”
       In addition, the recordings revealed that Doe was in frequent contact with her grandfather
and great-grandfather throughout the proceedings. Additionally, Doe’s relatives accompanied
her to the court hearings. Doe received mail at their residence, stored personal belongings at
their residence, saw them on a weekly basis, and allowed her great-grandfather to provide child
care for Z.B. before the Department took her into custody.           The magistrate found Doe’s
testimony that she would maintain adequate housing and protect her children from unsafe
individuals was not credible. As such, this Court will not reweigh the evidence, but will defer to
the trial court’s unique ability to accurately weigh the evidence and judge the demeanor of the
witnesses. Doe, 144 Idaho at 842, 172 P.3d at 1117. Consequently, Doe failed to demonstrate
the ability to provide the proper parental care and control necessary for her children’s well-being.
Therefore, we conclude that the magistrate’s finding that Doe neglected the children is based on
substantial and competent evidence.
       2.      Inability to discharge parental responsibilities
       The magistrate’s finding that Doe has an inability to discharge her parental
responsibilities for a prolonged period was based on substantial and competent evidence. Doe
was provided with substantial assistance to educate and assist her in understanding how to be a
protective parent and to provide adequate nutrition for her children. Nonetheless, Doe failed to
show that she had the ability to discharge her parental responsibilities for a prolonged period. As
discussed above, Doe continually subjected her children to individuals that posed a substantial
threat of harm. In addition, Doe did not show the ability to ensure that her children receive
adequate nutrition. For example, although L.B. was diagnosed with failure to thrive when she
came into the Department’s custody and Z.B. was removed because of nutritional concerns, Doe
failed to take responsibility for the nutritional neglect of her children. The magistrate found that
even as late as trial, Doe “still disputes any nutritional neglect of her children, shows little
interest in learning about proper nutrition, and expressed concerns that [Z.B.]--a five month old
baby--was ‘getting too big.”’



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        Moreover, despite attending the classes required of her, she was not able to provide
adequate care for her children. The guardian ad litem noted that it appears that Doe was “simply
going through the motions of the plan to ‘check off the boxes.’” This was evidenced by Doe’s
parenting when she was allowed to take the children for three-hour visitations in the summer of
2018. On one occasion, Doe had a visit with the children when it was over one hundred degrees
outside. Doe failed to run the vehicle’s air conditioning and both children were returned to the
Department with symptoms of heat exhaustion, including L.B. vomiting. On another occasion,
Doe asked the social worker if she could take L.B. to swim in a city pond that was recently
contaminate with E Coli.       Again, on a separate occasion, Doe asked the social worker if she
could take the children, a six week old and a two year old, to a pond to go swimming. On
another occasion, Doe hosted a birthday party for L.B. at a play center in Boise and sought
permission from the Department to have a small number of adults attend the party. All of the
individuals have substantial child protection histories and two of the individuals were registered
sex offenders. Doe could not understand that those individuals posed a threat of harm to her
children. When asked about the safety of inviting those adults, Doe responded “everyone has
that kind of history.”
        Finally, the clinical psychologist, social worker, foster parent, guardian ad litem, director
of the learning center, and a friend of Doe’s all testified that Doe would be unable to safely
parent the children and meet their basic needs on her own. For these reasons, and the reasons
discussed above, the magistrate’s determination that Doe has an inability to parent for a
prolonged period is based on substantial and competent evidence.
C.      Best Interests of Children
        Doe argues that the magistrate erred in concluding that it would be in the best interests of
the children to terminate Doe’s parental rights. The Department argues that substantial and
competent evidence supports the magistrate’s finding that termination of Doe’s parental rights is
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 interests, the trial court may consider the parent’s history with
substance abuse, the stability and permanency of the home, the unemployment of the parent, the

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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, 159 Idaho 192, 198,
358 P.3d 77, 83 (2015); In re Doe, 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014). A finding
that it is in the best interest of the child to terminate parental rights must still be made upon
objective grounds. In re Doe, 152 Idaho 953, 956-57, 277 P.3d 400, 403-04 (Ct. App. 2012).
       The magistrate found it is in the best interests of the children to terminate their parent-
child relationship with Doe in light of Doe’s inability to ensure that her children receive adequate
nutrition, safe and appropriate housing, and are protected from physical and sexual abuse. Doe
argues “[i]t is possible, that with identification of Mother’s disability and the provision of
reasonable accommodation, Mother could become the adult caregiver described by the
magistrate court.   In that event, there is not clear and convincing evidence to support a
conclusion that termination is in the Daughters’ best interests.” However, the magistrate’s
findings were supported by substantial and competent evidence.
       The magistrate acknowledged that it is difficult to terminate Doe’s parental rights
because she is a vulnerable adult with a traumatic childhood but “[i]t is not acceptable, however,
to sacrifice [the children’s] physical and emotional well-being to shield [Doe] from further
hardship and pain.” The magistrate considered the evidence and concluded that
                It is clearly in [the children’s] best interest to be raised by an adult
       caregiver who can meet their basic nutritional needs, maintain safe and drug-free
       housing, provide financial security, and assist them with their education when
       they reach school age. It is clearly in [the children’s] best interest to have an adult
       caregiver who is capable and willing to protect them from adult men with a
       demonstrated history of domestic violence, physical abuse, substance abuse,
       alcoholism, and sexual offending. [Doe] cannot provide these certainties and
       stability . . . . It is seldom as clear in a Child Protective Act case that there is real
       and identifiable harm that will befall these children if they are returned to the
       exclusive care of [Doe].
We agree. Doe has failed to demonstrate that she can meet her children’s basic needs and will
protect her children from individuals that cause a risk of harm and sexual abuse. Doe is
susceptible to manipulation by adult men and has continually chosen relationships with those
individuals over the health and safety of her children. Doe’s children had not received the
stability at home that they deserve, but are making improvement while in relative foster care.
Currently, the children reside together in their foster placement. The guardian ad litem testified


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that both children are thriving in foster care and have a deep bond with their foster mother. The
foster placement provides love, support, a structured home environment, and an opportunity for
adoption. The children deserve to have permanency and stability. For these reasons and the
reasons set forth above, termination of Doe’s parental rights is in the best interests of the
children.
                                                III.
                                         CONCLUSION
       There is substantial and competent evidence to support the magistrate’s findings that Doe
neglected her children and is unable to discharge her parental responsibilities for a prolonged
period. Additionally, it is in the best interests of the children to terminate Doe’s parental rights.
Accordingly, the judgment terminating Doe’s parental rights is affirmed.
       Judge HUSKEY and Judge BRAILSFORD CONCUR.




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