               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 47338

In the Interest of: John Doe I, A Child          )
Under Eighteen (18) Years of Age.                )
STATE OF IDAHO, DEPARTMENT OF                    )
HEALTH AND WELFARE,                              )    Filed: December 6, 2019
                                                 )
       Petitioner-Respondent,                    )    Karel A. Lehrman, Clerk
                                                 )
v.                                               )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
JOHN DOE (2019-24),                              )    BE CITED AS AUTHORITY
                                                 )
       Respondent-Appellant.                     )
                                                 )

       Appeal from the Magistrate Division of the District Court of the Fifth Judicial
       District, State of Idaho, Minidoka County. Hon. Rick L. Bollar, Magistrate.

       Judgment terminating parental rights, affirmed.

       Clayne S. Zollinger, Jr., Burley, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; James T. Baird, Deputy Attorney
       General, Twin Falls, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       John Doe (Father) appeals from the magistrate court’s order terminating Father’s parental
rights to John Doe I (Son). We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Son was born in May 2015. In May 2017, Son’s Mother gave birth to another child, and
both Mother and infant tested positive for methamphetamines. Son was also tested and received
a positive result. Son was taken into the protective custody of the Department of Health and
Welfare (Department). Since that time, Son has been in the care of Mother’s grandmother.
       When Son was born, Father was in the custody of the Idaho State Board of Correction
performing a rider related to a sentence for a burglary conviction. Although released in early

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July 2015, Father shortly thereafter committed another burglary and was reincarcerated in late
July 2015 until October 29, 2018, when he was released on parole.             At the time of the
termination trial, Father had been incarcerated for all but approximately five months of Son’s
life.
        Despite Father’s incarceration and that he was not identified on Son’s birth certificate,
Father participated in the Department’s June 2017 family group decision meeting to formulate a
case plan. He agreed to the case plan, which the magistrate court adopted in July 2017. The case
plan set forth several tasks for Father to perform including, among other things, that he would
take a paternity test; explore any available opportunities while incarcerated to take substance
abuse classes and parenting classes; and seek mental health treatment. The plan also set forth
tasks related to Father’s anticipated release from incarceration, including that he would submit to
random drug testing and maintain stable housing. Further, the case plan anticipated that upon
Father’s release, the Department would meet with him to “assess for further needs and services”
and add “any needed tasks” to the case plan.
        In July 2018, the Department filed a petition to terminate Mother’s and Father’s parental
rights. Originally, the magistrate court scheduled a termination trial for January 2019. However,
because Father was to be released from incarceration in October 2018, the court rescheduled the
trial for May 2019 to “allow [Father] an opportunity to complete the requirements of the case
plan.” Regardless, Father delayed contacting the Department for approximately a month after
his release.
        At the termination trial in May 2019, numerous witnesses testified, including Father.
Father testified he was “pretty sure” he received a copy of the case plan. Further, he testified he
had not completed the case plan and had never contacted the Department about his progress on
the case plan. Father admitted that he had not received any mental health counseling and denied
having any mental health issues needing treatment; he had not yet found stable housing for Son
and lived in a halfway house that did not allow children; he had not completed his parenting
classes yet; and he had not provided the Department with his drug test results but had missed one
and failed two urinalysis tests since being released from incarceration. Further, Father testified
that he had an “ongoing battle” with the Department about visitation with Son because Father did
not want to travel from Twin Falls to Burley to visit Son but rather wanted the Department to
transport Son to him. Father also admitted he had never provided any financial support for Son

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or given Son a gift. Father acknowledged that it is in Son’s best interests to be in “a stable
home”; Son was at that time in a “good, stable home”; and Son did not know Father. As Father
testified, “He still doesn’t know who I am.” According to the Department case worker, Father
had visited with Son three times since Father’s release from incarceration, but he had as many as
thirty-two additional opportunities to visit Son if Father had requested visitation.
       After the termination trial, the magistrate court terminated Father’s parental rights.
Among other things, the court found that Father had failed to comply with his case plan and that
his failure was not a result of his incarceration but, rather, his own conduct:
       [Father] has not attempted to cultivate a parental relationship, bonding with [Son]
       in the time [Father] has had available since [Father’s] release from custody.
       Those failures were not the product of impossibility resulting from his
       incarceration; rather, they reflected his decision to ignore the requirements of the
       case plan and elevate the priority of his own convenience. . . . [Father] is directly
       responsible for noncompliance with the requirements of the case plan by engaging
       in behaviors with no thought or consideration of the effect of that behavior on the
       case plan.
Further, the court found that Son had been in the Department’s custody for more than twenty-two
months and that termination of the Father’s parental rights is in Son’s best interests. 1 Father
appeals.
                                                 II.
                                   STANDARD OF REVIEW
       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
1
       During the termination trial, Mother voluntarily terminated her parental rights.


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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
court’s decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346,
144 P.3d at 600.
                                                 III.
                                            ANALYSIS
        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). 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.
        Idaho Code Section 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

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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 Child
Protective Act case; 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).
       The magistrate court ruled that Father neglected Son under I.C. § 16-2002(3)(b) by
failing to comply with the case plan. Father does not dispute this ruling or any of the court’s
specific findings supporting it. Rather, he asserts “the Department’s failures” violated his due
process rights. Father’s argument is twofold. First, he argues the Department “fail[ed] to
promptly conduct a paternity test” thereby denying him “the opportunity to complete a case
plan.” Second, he argues the Department violated his due process rights by failing to amend the
case plan once his paternity was established.
       Father’s arguments, however, are not supported by the record. Contrary to Father’s
assertion, the fact that the paternity test was not “prompt” did not adversely affect his
opportunity to complete his case plan. As noted above, Father participated in the June 2017
meeting that gave rise to the case plan adopted by the court in July 2017. A specific task of the
case plan was for Father to complete the paternity testing, which the court had already ordered.
Per the case plan, Father submitted to a paternity test. This test confirmed his paternity in
February 2018, and this confirmation was conveyed to the court in June 2018.
       Although the court did not receive confirmation of Father’s paternity until June 2018 (for
reasons which are unclear from the record), this delay did not adversely impact his ability to
perform his case plan. Importantly, at no time during the course of this case did Father, Mother,
or the Department actually dispute Father’s paternity.      Rather, his paternity was assumed
throughout the case’s entirety. Indeed, the case plan specifically provided for his participation
before his paternity was confirmed. To the extent Father was unable to perform certain tasks in
the case plan between its adoption in July 2017 and June 2018 when the court received




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confirmation of his paternity, that inability was a result of his incarceration--not of any challenge
to his paternity. 2
        Likewise, the fact that the Department did not “amend” Father’s case plan to add more
specific tasks did not adversely impact his ability to perform the case plan. 3 The case plan
clearly set forth the expectation that Father demonstrate the ability “to provide for the child’s
basic and emotional needs”; “to parent in a safe, drug free and caring manner”; and “to provide
[Son] with a stable, safe, sanitary and drug free home.” Further, the case plan clearly identified
that Father needed to take parenting and substance abuse classes and to seek treatment for mental
health issues. Finally, the case plan specifically provided tasks for him to perform upon his
release from incarceration, i.e., to submit to random drug testing and to “obtain and maintain
stable housing for at least 3 months.” Contrary to Father’s assertion, he was not “treated as
merely an interested bystander” because he lacked “an official finding of paternity.” Rather, the
Department’s inclusion of Father in the case plan demonstrates the Department’s efforts to
establish expectations and tasks for his reunification with Son in July 2017--almost a year before
the court received confirmation of Father’s paternity. Furthermore, as early as June 2017 the
record indicates court-appointed counsel represented Father in this case, further contradicting his
claim that he “could not fully participate in attempting to reunify with [Son].”
        Moreover, Father’s due process rights are protected by the requirement that clear and
convincing evidence support the magistrate court’s factual findings.         As the United States
Supreme Court has held, a standard of clear and convincing evidence “adequately conveys to the
factfinder the level of subjective certainty about [the court’s] factual conclusions necessary to
satisfy due process.” Santosky, 455 U.S. at 769.



2
        After Father’s paternity was confirmed, the magistrate court notified him in a July 2018
order that he must register with the Bureau of Vital Statistics as Son’s father to avoid “a prima
facie case of abandonment” under Idaho Code § 16-2005. Father, however, did not register as
Son’s father. Regardless, the court did not conclude Father had abandoned Son.
3
        Father asserts that “once an individual is found to be a parent, then the Department
amends the service plan to include specific tasks for the parent to perform to be reunited with
their [sic] child.” Father, however, cites no authority for the proposition that the Department
must amend the case plan and, therefore, waives the argument. See Powell v. Sellers, 130 Idaho
122, 128, 937 P.2d 434, 440 (Ct. App. 1997) (ruling party waives issue on appeal if either
authority or argument is lacking).
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       Father does not challenge the sufficiency of the evidence supporting the magistrate
court’s termination of his parental rights. Nevertheless, we conclude substantial and competent
evidence, including Father’s testimony, supports the magistrate court’s findings of clear and
convincing evidence that Father neglected Son by failing to perform the case plan; Son was in
the Department’s custody for more than twenty-two months; and termination of Father’s parental
rights is in the best interests of Son. See I.C. § 16-2002(3)(b). Accordingly, Father’s due
process rights were not violated.
                                             IV.
                                       CONCLUSION
       Substantial and competent evidence supports the magistrate court’s finding that Father
neglected Son and that the termination of Father’s parental rights is in Son’s best interests.
Accordingly, Father’s due process rights were not violated, and we affirm the court’s judgment
terminating his parental rights.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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