               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44179

In the Matter of JANE DOE, A Child             )
Under the Age of Eighteen Years.               )
IDAHO DEPARTMENT OF HEALTH                     )   2016 Unpublished Opinion No. 651
AND WELFARE,                                   )
                                               )   Filed: August 22, 2016
       Petitioner-Respondent,                  )
                                               )   Stephen W. Kenyon, Clerk
v.                                             )
                                               )   THIS IS AN UNPUBLISHED
JANE DOE I (2016-19),                          )   OPINION AND SHALL NOT
                                               )   BE CITED AS AUTHORITY
       Respondent-Appellant,                   )
                                               )
and                                            )
                                               )
GUARDIAN AD LITEM/CASA,                        )
                                               )
       Intervenor.                             )
                                               )

       Appeal from the Magistrate Division of the District Court of the Third Judicial
       District, State of Idaho, Canyon County. Hon. Angela Lynne Krogh, Magistrate.

       Judgment terminating parental rights, affirmed.

       Michael J. Nelson, Nampa, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Alana P. Minton, Deputy Attorney
       General, Boise, for respondent.

                  ________________________________________________

GUTIERREZ, Judge
       Jane Doe appeals from the magistrate’s order terminating her parental rights.
Specifically, Doe contends the magistrate’s findings of neglect and inability to parent are not
supported by the evidence. We affirm.




                                               1
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Jane Doe is the mother to ten children. This child protection case involves only one of
those children, A.B., born in February 2014. In August 2014, police declared A.B. to be in
imminent danger after Doe was reported to be suicidal and acting irrationally. A.B. was then
placed in the protective custody of the Department of Health and Welfare (the Department). At
the time of A.B.’s removal from Doe’s care, A.B. was in a low percentile for her weight, near the
10th percentile, despite having been born at a healthy birth weight of eight pounds and four
ounces. Within four months of being placed in protective care, A.B. gained substantial weight,
increasing to the 40th percentile for weight. By the time A.B. was one year of age, her weight
was in the 70th percentile.
       After fifteen months without successful reunification, the Department filed a petition for
parental termination. The court bifurcated the termination trials of Doe and A.B.’s father. At
Doe’s trial on the termination petition, the Department presented evidence regarding Doe’s long
history of mental illness and current mental health diagnoses. The court also heard evidence that
Doe has been involved in numerous other child protection actions resulting in the termination of
her parental rights to eight of her other children. Multiple witnesses testified as to Doe’s erratic
behavior during various supervised visits with A.B., Doe’s failure to progress to having
unsupervised visits with A.B., and Doe’s demonstration of poor attachment toward A.B. during
those visits. Multiple witnesses also testified as to the extensive services that have been offered
to and utilized by Doe during this and other child protection proceedings. Despite Doe’s access
to and utilization of these services, these witnesses attested to Doe’s failure to improve her
parenting abilities to the point where her children could safely remain in her care.
       In her defense, Doe acknowledged that she has had issues with her mental health since
the 1990s, but testified that her mental health issues do not affect her ability to parent. Her
current therapist testified that while working with Doe, he saw improvements in her mental
health, but also stated that he had never observed her with any of her children.
       At the conclusion of the trial, the magistrate found that termination of Doe’s parental
rights was in A.B.’s best interests on the grounds of neglect and Doe’s inability to discharge her




                                                 2
parental responsibilities for a prolonged period of time that was likely to be injurious to A.B.
Doe timely appeals.1
                                                   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
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. Idaho Code § 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. 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 magistrate’s



1
          The father does not appeal the termination of his parental rights.
                                                   3
decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d
at 600.
          Idaho Code Section 16-2005 permits a party to petition the court for termination of the
parent-child relationship when it is in the child’s best interests 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
statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at
1117.
          Here, the magistrate terminated Doe’s parental rights on the basis of neglect and on the
basis that Doe is unable to discharge parental responsibilities for a prolonged period that will be
injurious to A.B.’s health and well-being. On appeal, Doe contends that neither finding by the
magistrate is supported by substantial and competent evidence. We address each finding in turn.
A.        Neglect
          Idaho Code Section 16-2002(3) 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.
          Doe contends the finding of neglect is not supported by substantial and competent
evidence because there was no evidence presented at trial from a medical professional regarding
A.B.’s health, and there was no evidence presented that A.B.’s low weight percentile was caused
by Doe’s failure to feed the child. Doe’s contentions ignore the significance of the evidence that
was presented at trial as well as the reasonable inferences the court permissibly drew from that
evidence.
          The magistrate determined that Doe neglected A.B. by failing to feed her over a
significant period of time. The court based its finding on evidence that, despite being born at a
healthy weight of eight pounds and four ounces, by the time A.B. was six months old, she was in
a low percentile for her weight. Then, after being removed from Doe’s care and placed in foster
care, A.B.’s weight increased to the 40th percentile within four months and continued increasing

                                                 4
until reaching the 70th percentile, where it remained through the time of trial. The court
considered that because A.B. had no medical or developmental issues to account for such low
weight, the evidence supported an inference that A.B.’s low weight was “due to a simple failure
to feed the child.”   The court reasoned that because failure to feed a child constitutes a
fundamental failure to meet a child’s basic needs, the Department met its burden of showing
neglect by clear and convincing evidence.
       Idaho courts have consistently held that it is the province of the trial court to assess the
credibility of witnesses, assign weight to their testimony, and draw reasonable inferences from
the evidence. In re Doe, 157 Idaho 955, 958, 342 P.3d 667, 670 (2015). The test for reviewing
inferences drawn by the trial court is whether the record reasonably supports the inferences.
Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354, 361, 93 P.3d 685, 692 (2004). Here, the
magistrate’s inference that Doe’s feeding of A.B. was insufficient to maintain a healthy weight is
supported by the record. A.B. was born at a healthy weight. By the time she was six months of
age, she was significantly underweight. After being removed from Doe’s care and placed into
foster care, A.B. gained substantial weight, ultimately reaching the 70th percentile for her age.
Notably absent from the record is any plausible alternative explanation as to why A.B.’s weight
dropped so significantly between the time of her birth and six months of age. Also absent is any
explanation as to why A.B.’s significant weight gain was immediate upon being placed into
foster care. It was reasonable for the magistrate to infer that, absent any other condition or
explanation, A.B.’s significant weight loss was caused by insufficient feeding, which was
subsequently remedied upon her placement into foster care, as evidenced by her immediate
weight gain.   Thus, the evidence in the record supports the magistrate’s finding that Doe
neglected A.B. by failing to provide proper care necessary for A.B.’s well-being.
       Relatedly, Doe contends the magistrate’s finding of neglect was unsupported by evidence
because there was no testimony that A.B.’s low weight was negatively impacting her health.
However, nothing in the statutory definition of neglect requires a child to suffer demonstrable
harm before the parent-child relationship can be terminated on the grounds of neglect. Doe v.
Roe, 133 Idaho 805, 808, 992 P.3d 1205, 1208 (1999). Thus, the Department was not required to
show that A.B.’s underweight condition was detrimental to her health before the court could find
neglect.



                                                5
       Based on the record before this Court, we conclude that there is substantial and
competent evidence to support the magistrate’s finding of neglect.
B.     Inability to Parent
       Doe next contends there is not substantial and competent evidence to support the
magistrate’s finding that Doe is presently unable to discharge her parental responsibilities.
Specifically, she argues the magistrate erred in relying on testimonial evidence from an expert
witness who never met with Doe, but instead relied upon old mental health evaluations and
reports to form his opinion on Doe’s inability to parent. Relatedly, Doe argues the magistrate did
not place sufficient weight on testimony from Doe’s current mental health provider, who testified
that Doe is presently capable of parenting A.B.
       First, as to Doe’s contention that it was error for the magistrate to consider the testimony
of an expert that never met with Doe, this argument is not supported by any authority and is
waived. See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (“A party waives an
issue cited on appeal if either authority or argument is lacking.”). However, even if we consider
the issue as not being waived, the argument contradicts evidentiary rules. An expert may form
an opinion based upon any facts or data available in a case. Idaho Rule of Evidence 703. Here,
in forming his opinion, the expert relied on Doe’s extensive mental health records. Thus, we
cannot say it was error for the magistrate to consider the expert’s testimony simply because he
never met personally with Doe.
       Next, to the extent the magistrate may have assigned more weight to one expert over
another, Idaho courts have repeatedly held that, on appeal, the appellate court does not reweigh
the evidence that was considered by the magistrate. Dep’t of Health & Welfare v. Doe, 149
Idaho 207, 210, 233 P.3d 138, 141 (2010). “It is the province of the trial court to determine the
credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn
from the evidence.” Doe, 157 Idaho at 958, 342 P.3d at 670. In this regard, it was the province
of the magistrate to assess the credibility of the witnesses and assign weight to their testimony
regarding their opinions on Doe’s parenting ability.
       Moreover, to the extent that Doe contends the magistrate’s findings are based
predominantly on the opinions of one mental health professional over those of another, Doe
misconstrues the basis of the court’s findings.        In announcing its findings, the magistrate
referenced numerous sources of evidence put forth both by the Department and by Doe. This

                                                  6
included reports and testimony pertaining to Doe’s current mental health disorders, prior mental
health diagnoses and treatments, concerns of suicidal threats, and her lack of improvement in
demonstrating adequate parenting skills despite her extensive access to mental health and family
services. Notably, the record demonstrates that the court placed considerable weight on the
Department’s evidence that Doe’s parental rights to eight of her ten children had already been
terminated.   It is well-settled that a magistrate may consider a parent’s past conduct in
determining whether the parent will be a neglectful parent in the future. In re Dayley, 112 Idaho
522, 525, 733 P.2d 743, 746 (1987). In regard to evidence of the prior terminations, the court
found this evidence showed “a persistent mental health disorder . . . [and] the persistent effect of
that disorder on [Doe’s] ability to parent.” The court ultimately opined:
       Despite extensive services, [Doe’s] mental health disorder and the impact of that
       disorder on her parenting persist and persist to the point that she is not able to
       parent [A.B.] and there’s no reason to believe that there will be a sufficiently--a
       sufficient improvement in her skills in a reasonably foreseeable future time for the
       child to be returned to her care without State intervention.
       Based on the record in this case, which demonstrates a long-standing history of mental
illness and demonstrated inability to parent previous children, there is substantial and competent
evidence to support the magistrate’s finding that Doe is unable to discharge her parental
responsibilities for a prolonged period that will be injurious to A.B.’s health and well-being.
Therefore, the magistrate did not err in terminating Doe’s parental rights to A.B. on these
grounds.
                                                III.
                                         CONCLUSION
       There is substantial and competent evidence in the record to support the magistrate’s
decision to terminate Doe’s parental rights on the grounds of neglect and on the separate grounds
of her inability to discharge parental responsibilities for a prolonged period of time.
Accordingly, we affirm the magistrate’s judgment terminating Doe’s parental rights.
       Judge GRATTON and Judge HUSKEY CONCUR.




                                                 7
