DHW v. Jane Doe

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46142

In the Matter of: JOHN DOE I and JANE )
DOE I, Children Under Eighteen (18) )
Years of Age. )
IDAHO DEPARTMENT OF HEALTH )
AND WELFARE, ) Filed: November 30, 2018
)
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v. ) THIS IS AN UNPUBLISHED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 Magistrate Division of the District Court of the Second Judicial
District, State of Idaho, Clearwater County. Hon. Randall W. Robinson,
Magistrate.

Judgment terminating parental rights, affirmed.

McFarland Law Offices, LLC, Joanna M. McFarland, Lewiston, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Marcy J. Spilker, Deputy Attorney
General, Lewiston, for respondent.
________________________________________________

GRATTON, Chief Judge
Jane Doe appeals from the judgment terminating her parental rights to her minor children.
Doe argues the magistrate erred in terminating her parental rights by rejecting her argument that
the State failed to prove the Indian Child Welfare Act (ICWA) did not apply in this case and by
improperly reviewing documents not otherwise admitted as evidence at the termination trial. We
affirm.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
Doe is the mother of DS and PM. 1 On the day PM was born, both PM and Doe tested
positive for marijuana. Consequently, the Idaho Department of Health and Welfare
(Department) initiated a child protection investigation that resulted in the removal of DS and PM
from Doe’s home. As a result of the investigation, the Department filed a petition pursuant to
the Child Protective Act (CPA) alleging that Doe had neglected these children and requesting
that the court take jurisdiction of the children.
A shelter care hearing was held in November 2016. Neither parent appeared at the
shelter care hearing. Nevertheless, the magistrate placed DS and PM in the Department’s
temporary custody pending an adjudicatory hearing. The magistrate held an adjudicatory
hearing in December 2016. Both parents were present at that hearing. The parents stipulated
that the children came within the jurisdiction of the CPA due to an unstable home environment.
The parents also stipulated that it was in the children’s best interests to remain in the custody of
the Department and that it was contrary to the children’s welfare to return to their home at that
time. The magistrate found that the children came within the purview of the CPA and placed
them in the custody of the Department.
Thereafter, the Department submitted a case plan to the magistrate, and the magistrate
conducted a case plan hearing in January 2017. The parents were present at the case plan
hearing and agreed to the terms of the Department’s proposed case plan. The magistrate
approved the plan as submitted. The magistrate then held five review hearings in March, May,
June, July, and August of 2017. In October 2017, the Department submitted a permanency plan
and recommended changing the primary goal of the case from reunification with the parents to
termination of the parents’ rights and adoption of the children. The magistrate then held a
permanency hearing and approved the Department’s recommendation for termination of parental
rights and adoption. The Department filed a petition to terminate parental rights in April 2018
and amended the petition in May 2018. A trial on the petition to terminate Doe’s parental rights
was held on May 31 and June 1, 2018. Following the trial, the magistrate entered judgment
terminating Doe’s parental rights to DS and PM. Doe timely appeals.

1
The father of DS and PM is not a party to this appeal.
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II.
ANALYSIS
Doe asserts the magistrate erred in terminating her parental rights to DS and PM. Doe
also asserts the magistrate erred in rejecting her argument that the State failed to prove that the
ICWA did not apply in this case. Finally, Doe asserts the magistrate improperly reviewed
documents not otherwise admitted as evidence at the termination trial.
A. Neglect
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. 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

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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
statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at
1117.
Doe argues that the magistrate erred in terminating her parental rights to the children.
According to Doe, the court could not have found, by clear and convincing evidence, that she
neglected her children based on the testimony at trial. Doe contends that a review of the
evidence shows that the Department performed an inadequate investigation for the removal of
the children and was deficient in fulfilling its obligation for reunification.
As an initial matter, we note that the CPA contemplates that the Department will make
reasonable efforts at reunification during the pendency of CPA proceedings. In re Doe, 156
Idaho 682, 688 n.3, 330 P.3d 1040, 1046 n.3 (2014). “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.” Id.; see I.C. § 16-2002(3)(b)(i)-(ii). The
Department’s efforts at reunification 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 at 688 n.3, 330
P.3d at 1046 n.3. To the extent Doe argues the Department failed to make reasonable efforts at
reunification, such argument is irrelevant to this Court’s determination of whether the magistrate
erred in terminating Doe’s parental rights. Therefore, the sufficiency of the Department’s efforts
at reunification are not properly before this Court on appeal.
Additionally, Doe has failed to show error in the magistrate’s finding of neglect. Insofar
as Doe urges this court to “find that the Magistrate could not have found by clear and convincing
evidence that the State met its burden for a determination of Termination of Parental Rights,” her
request amounts to a request for this Court to reweigh the evidence presented to the trial court.

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“Whether a matter has been proved by clear and convincing evidence is primarily a matter for
the trial court.” Dep’t of Health & Welfare v. Doe, 149 Idaho 207, 210, 233 P.3d 138, 141
(2010). “On appeal, the appellate court does not reweigh the evidence to determine if it was
clear and convincing.” Department of Health & Welfare v. Doe, 149 Idaho 207, 210, 233 P.3d
138, 141 (2010). “In an action to terminate parental rights where a trial court has noted
explicitly and applied a clear and convincing standard, an appellate court will not disturb the trial
court’s findings unless they are not supported by substantial and competent evidence.” State v.
Doe, 144 Idaho 534, 535, 164 P.3d 814, 815 (2007). Here, the magistrate explicitly noted and
applied a clear and convincing standard in the memorandum opinion. The magistrate also
determined that Doe had neglected the children and that it was in the children’s best interests for
Doe’s parental rights to be terminated. Although Doe cites to the record in order to challenge the
magistrate’s findings, we decline to merely reweigh the evidence on appeal. Nonetheless, the
Department argues the trial court’s decision to terminate Doe’s parental rights on the basis of
neglect is supported by substantial and competent evidence. We agree.
Idaho Code § 16-2002(3) defines “neglect” as any conduct included in I.C. § 16-
1602(31), as well as situations where the parent has failed to comply with the court’s orders or
the case plan in a child protective act 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. 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. It is uncontested on appeal that the children had been in the custody of the
Department for at least fifteen out of the most recent twenty-two months. Furthermore, the
magistrate concluded that Doe neglected the children on the basis of I.C. § 16-2002(3)(a) and
(b).
1. I.C. § 16-2002(3)(b)
Substantial and competent evidence supports the magistrate’s determination that Doe
neglected her children pursuant to I.C. § 16-2002(3)(b) because she failed to comply with the
case plan. After testing positive for marijuana on the day PM was born, Doe identified herself to

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the Department’s safety assessor as an addict who had struggled with marijuana and
methamphetamine use. Doe also admitted that her home was a revolving door for friends who
come to use drugs. Thus, the case plan adopted and approved by the magistrate required Doe to
perform specific tasks addressing issues related to her substance abuse and mental health, and to
the safety and stability of her home.
To address her substance abuse, the case plan required Doe to complete a substance
abuse assessment by January 31, 2017, to comply with the recommendations set forth in that
assessment, and to sign releases of information so that social workers could speak to Doe’s
counselors about her progress and compliance. A social worker from the Department testified
that the assessment was not completed on time and that Doe did not complete inpatient
residential treatment as recommended in the assessment. The social worker also testified that
Doe initially provided a signed release of information but eventually rescinded it and then
refused to sign any new releases. The case plan also required Doe to submit to random urinalysis
testing at the discretion of the social worker. The social worker testified that Doe failed to show
up for four of the eight scheduled UA tests.
To address her mental health, the case plan required Doe to schedule and complete a
mental health assessment with a licensed mental health therapist and to sign releases of
information so that the social worker and therapist could communicate about Doe’s progress and
compliance with treatment. The case plan also required Doe to comply with appointments and
treatment recommended by the therapist. The social worker testified that she was unable to
verify that a mental health assessment had been completed or whether Doe had ever engaged in
treatment because Doe never signed a release of information for her mental health treatment.
The case plan also required Doe to allow the social workers to have access to her home
so they could determine if the home met the necessary requirements for the safety of the
children. The plan also prohibited Doe from allowing individuals who were involved in drug
and criminal activity to live in or frequent her home. A social worker testified that she once
scheduled a face-to-face home visit with Doe, but Doe was not home when the social worker
arrived for the scheduled appointment. The social worker also testified that she made some
unannounced stops at Doe’s house, but that no one answered the door despite her suspicion that
someone was home at the time.

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Finally, the case plan also required Doe to participate in weekly visitation with her
children. The children’s first foster mother testified that Doe made only three visits in the nine
months the children were in her care. The safety assessor testified that the first visitation
occurred after the adjudicatory hearing but before the case plan hearing. The social worker
testified that the Department established a visitation schedule for Doe to attend weekly visits
with the children every Monday. The social worker testified that one visit occurred after the case
plan hearing but before she had taken over the case from a prior social worker. She also testified
that only one visit occurred in the time since she had taken over the case. She testified that
Doe’s last face-to-face visit with the children occurred in April 2017, more than a year before the
termination trial. Additionally, the second foster mother, who lives in Missouri, testified that the
children came into her care in August 2017, approximately four months after the last face-to-face
visit. She also testified that in the ten intervening months between August 2017 and the
termination trial, Doe only participated in seventeen out of forty-one possible phone visits with
the children. Accordingly, substantial and competent evidence from the record supports the
magistrate’s determination that Doe neglected her children by failing to comply with the case
plan.
2. I.C. § 16-2002(3)(a)
Idaho Code § 16-1602(31) defines the conduct that constitutes neglect under I.C. § 16-
2002(3)(a). Section 16-1602(31) states in relevant part:
“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; . . . 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;
Substantial and competent evidence supports the magistrate’s finding that Doe failed to provide
proper care, control, subsistence, medical care, and other care necessary for the children’s well-
being. Substantial and competent evidence also supports the magistrate’s finding that Doe failed
to discharge her responsibilities as a parent resulting in a lack of parental care necessary for the
children’s health, safety, and well-being.
The children’s first foster mother testified that when the children were placed in her care
DS was thin, pale, dirty, had a bad odor, and DS’s clothes were too small. She testified that DS
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was below target weight, had an iron deficiency due to lack of a varied diet, and would only
drink milk which resulted in pure white stools. She also testified that DS would eat past satiation
into illness, if allowed, as if it was the last time he would have a chance to eat. She testified
further that DS exhibited self-harm behaviors including punching himself and calling himself a
bad boy. She testified that DS would mimic smoking and blowing smoke in other people’s
faces. She also testified that DS had severe speech deficiencies that required his enrollment in
speech therapy and an individualized education program.
Furthermore, the safety assessor testified that she was unable to find Doe for the first
thirty days after PM was released from the hospital. She testified that the first contact she had
with Doe after the children’s removal was approximately one month later at the adjudicatory
hearing. She also testified that Doe did not make any effort to have contact with the children or
even inquire about their welfare during that same period of time. Additionally, the safety
assessor testified that she informed Doe at the adjudicatory hearing that a family group decision
making session was to be held at the courthouse, just two blocks from Doe’s residence. The
safety assessor testified she told Doe the specific date of the meeting, but Doe did not attend.
Finally, the record is clear that during the eighteen months in which the children were in
the Department’s custody, Doe did nothing to demonstrate she had made the necessary changes
to provide proper parental care and control, safety, subsistence, or medical care needed for the
children’s well-being. Accordingly, substantial and competent evidence also supports the
magistrate’s determination that Doe neglected her children under I.C. § 16-1602(31).
B. Best Interests
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
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

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that it is in the best interests 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 that terminating the parent-child relationship was in the best
interests of the children. The magistrate cited the following factors in support of this finding:
Doe had not established a bond with the children; Doe failed to complete virtually every task in
the case plan; Doe failed to resolve concerns about her home being used as a revolving door for
drug users; Doe failed to address safety concerns arising from her mental illness; Doe failed to
resolve concerns about her drug use; Doe was facing felony drug charges; Doe had not shown
sufficient income to adequately support the children; Doe failed to show any ability to serve as a
parent; Doe failed to show she is capable of providing a safe, stable home according to the
children’s needs; and the children’s condition dramatically improved in foster care.
A party waives an issue on appeal if either argument or authority is lacking. Powell v.
Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Because Doe does not articulate
any express challenge to the magistrate’s best interests finding, she has waived this issue on
appeal. However, even if we consider the arguments Doe made in relation to the magistrate’s
neglect finding in support of any challenge to the best interests determination, these arguments
do not demonstrate error. Additionally, substantial and competent evidence supports the
magistrate’s finding that termination of Doe’s parental rights is in the best interests of the
children.
The testimony of the social workers, the guardian ad litem, and the foster parents all
support the magistrate’s conclusion that termination of Doe’s parental rights is in the children’s
best interests. The testimony in the record reveals that Doe admitted to the Department that she
had substance abuse issues and that her home was a revolving door for people to come to use
drugs. Indeed, just one week before the termination trial Doe was in jail facing charges of
possession of methamphetamine. There is no evidence in the record that her drug issues had
been resolved. Likewise, Doe made no attempt to show the Department that she had a stable
home or that she had completed treatment for her mental health. Most significantly, the
nutritional, emotional, mental, and medical aspects of the children’s lives improved markedly
while in foster care. Accordingly, substantial and competent evidence supports the magistrate’s
finding that termination of the parent-child relationship is in the best interests of the children.

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C. ICWA
Doe argues the magistrate erred by rejecting her argument that the State failed to prove
that the ICWA did not apply in this case. Doe further argues that the State has an affirmative
duty, pursuant to 25 Code of Federal Regulations § 23.107(a), to supply testimony or evidence as
to the efforts made to determine if ICWA applied to this case. The State argues that Doe did not
offer any authority or cogent argument in support of her claim. The State also argues it did not
have an affirmative duty to prove at trial that the children are not Indian children. We agree.
The ICWA only applies if the “court knows or has reason to know that an Indian child is
involved” in the proceedings. 25 U.S.C. § 1912(a) (2018). There is no evidence in the record
that Doe provided any information whatsoever about the children’s potential Indian heritage.
Absent Doe providing such information to the Department, there was no basis on which to
require the Department to supply testimony or evidence as to efforts made to determine if ICWA
applied to this case. Likewise, there was no reason for the magistrate to believe that the children
were enrolled members of an Indian tribe or even that they had a relationship to any Indian tribe.
Accordingly, the magistrate did not err in rejecting Doe’s argument with respect to ICWA
because the trial court had no reason to know that DS or PM are Indian children.
D. Improper Review of Documents
Doe argues the magistrate improperly reviewed documents not admitted as evidence at
the termination trial to influence the magistrate’s decision. Specifically, Doe points to reports
and minutes that the magistrate noted it would be reviewing for the limited purpose of
confirming whether or not the parents received notice. The State argues that Doe’s brief contains
neither cogent argument with respect to the improper review of documents issue nor any
authority to support it. We agree.
“Even in an appeal from the termination of parental rights, ‘we will not consider an issue
which is not supported by cogent argument and authority.’” Idaho Dep’t of Health & Welfare v.
Doe, 160 Idaho 824, 836, 379 P.3d 1094, 1106 (2016). Here, the entirety of Doe’s argument
with respect to this issue is contained in the heading to subpart 3 of the appellant’s brief. The
body of subpart 3 is devoid of any argument or citation. Doe has described what the magistrate
did (e.g., look at reports and minutes for the limited purpose of confirming whether or not the
parents received notice pursuant to the Department’s request for the magistrate to take judicial
notice of the court’s file). However, Doe makes no cogent argument as to how the magistrate’s

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actions amount to error. Doe also failed to provide any supporting authority and even failed to
cite to Rule of Evidence 201 which pertains to judicial notice. I.R.E. 201. Accordingly, Doe has
waived this issue on appeal.
III.
CONCLUSION
Substantial and competent evidence supports the district court’s findings that Doe
neglected the children, and that it is in the children’s best interests to terminate Doe’s parental
rights. The magistrate did not err in rejecting Doe’s argument with respect to ICWA because the
trial court had no reason to know that DS or PM are Indian children. Finally, Doe waived her
argument that the magistrate improperly reviewed documents not admitted as evidence at the
termination trial to influence its decision. Therefore, we affirm the judgment terminating Doe’s
parental rights.
Judge HUSKEY and Judge LORELLO CONCUR.

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