IDHW v. John Doe ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48930
In the Interest of: John Doe I and Jane )
Doe II, Children Under Eighteen (18) )
Years of Age. )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, ) Filed: November 1, 2021
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
JOHN DOE (2021-25), ) BE CITED AS AUTHORITY
)
Respondent-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Fourth Judicial
District, State of Idaho, Elmore County. Hon. Brent Ferguson, Magistrate.
Judgment terminating parental rights, affirmed.
Ratliff Law Offices, Chtd., Elmore County Public Defender; Matthew F. Keen,
Mountain Home, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John R. Shackelford, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
John Doe appeals from the magistrate court’s judgment terminating his parental rights.
John Doe argues the magistrate court erred in finding that it was not impossible for John Doe to
comply with the case plan. John Doe also argues the magistrate court erred by presiding over the
case. The magistrate court’s judgment terminating John Doe’s parental rights is affirmed.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
John Doe is the father of J.G. and I.G. John Doe’s spouse,1 Jane Doe, is the mother of
K.G., J.G., and I.G. In September 2018, K.G., J.G., and I.G. were removed from the Does’ home
and placed in foster care. The magistrate court granted the Department of Health and Welfare
(Department) temporary custody of the children and subsequently held an adjudicatory hearing
where the Does stipulated to having an unstable home environment. Approximately one month
later, the magistrate court approved case plans for John Doe and Jane Doe and authorized an
extended home visit for K.G., J.G., and I.G. The children remained in the Does’ home for
approximately eleven months, but were again removed from the home and returned to the care of
the Department in October 2019.
In August 2020, the State petitioned to terminate John Doe’s and Jane Doe’s parental
rights. In spring 2021, the magistrate court found by clear and convincing evidence that John Doe
neglected his children and that termination of John Doe’s parental rights is in the best interests of
the children. The magistrate court entered a judgment terminating John Doe’s parental rights to
J.G. and I.G. John Doe timely appeals.
II.
STANDARD OF REVIEW
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,
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John Doe and Jane Doe have been in a relationship since December 2009 and hold
themselves out as husband and wife but are not legally married.
2
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
On appeal, John Doe does not dispute the magistrate court’s conclusion that he failed to
comply with his case plan, that he neglected his children by failing to provide proper parental care
and control, or that termination is in the best interests of the children. Instead, John Doe argues
there is not substantial and competent evidence to support the magistrate court’s finding that John
Doe’s failure to complete the tasks was due to John Doe’s choices and not because of impossibility.
John Doe also asserts the magistrate court erred by presiding over the case. In response, the State
argues this Court should affirm the judgment terminating John Doe’s parental rights because John
Doe failed to challenge the magistrate court’s finding that he neglected his children by failing to
provide proper parental care and control. The State further argues John Doe waived any argument
regarding impossibility by failing to raise the issue in the magistrate court. Finally, the State argues
John Doe waived any argument that the magistrate court erred by presiding over the case by failing
to establish an adequate record for review.
A. Substantial and Competent Evidence Supports the Magistrate Court’s Finding of
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. 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.
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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 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.
The magistrate court terminated John Doe’s parental rights on the basis that he neglected
his children pursuant to Idaho Code § 16-2002(3)(a) and I.C. § 16-2002(3)(b). 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 Child Protection 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. I.C. § 16-2002(3)(b). Failure
to provide children with stable and safe housing may be considered in a neglect determination.
See Matter of Doe Children, 162 Idaho 69, 77-78, 394 P.3d 112, 120-21 (Ct. App. 2017).
The magistrate court found that John Doe neglected his children because he failed to
comply with his court-ordered case plan and because he failed to provide proper parental care and
control for his children. Regarding John Doe’s affirmative defense of impossibility, the magistrate
court found that John Doe had the ability to complete his case plan but chose not to. John Doe
does not dispute the magistrate court’s conclusion that he failed to complete his case plan or that
he failed to provide proper parental care and control for his children. Instead, John Doe asserts
that his compliance with the incomplete tasks of the case plan was rendered impossible by the
COVID-19 pandemic and the Department’s statement that the Does were required to secure a
three-bedroom residence. The State asserts that John Doe waived his right to assert an
impossibility defense because he did not timely raise the issue below and, alternatively, that the
magistrate court correctly found that it was not impossible for John Doe to complete his case plan.
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If the court grants a judgment on more than one independent basis and the appellant does
not challenge each basis for termination, then we must affirm the judgment. Idaho Dep’t of Health
& Welfare v. Doe (2017-36), 163 Idaho 274, 278, 411 P.3d 1175, 1179 (2018) (noting court need
not address parent’s argument because “magistrate court’s order contains additional, unchallenged
findings of neglect that must be affirmed”); Idaho Dep’t of Health & Welfare v. Doe (2016-09),
163 Idaho 707, 711, 418 P.3d 1216, 1220 (2016) (“When a judgment is granted on alternative
grounds and one of them is not addressed on appeal, we must affirm the judgment.”). Because
John Doe does not challenge the magistrate court’s finding that he neglected the children by failing
to provide proper parental care and control, we affirm the magistrate court’s judgment finding that
John Doe neglected his children on those grounds.
Additionally, and notwithstanding the State’s argument that John Doe waived
consideration of the issue, the magistrate court’s finding that John Doe failed to comply with his
case plan by choice, not impossibility, is supported by substantial and competent evidence. The
incomplete tasks in John Doe’s case plan required him to demonstrate his ability to provide for his
children by verifying his income and maintaining a safe and stable home free of hazards; attend to
his children’s physical, dental, developmental, and mental health needs; and participate in family
preservation services (FPS) and gain demonstrable skills.
In September 2018, John Doe moved out of the home he previously resided in with Jane
Doe due to a no-contact order with Jane Doe’s now adult son.2 At some point, it appears John Doe
was able to return to the residence. In November 2018, the Department approved an extended
home visit to allow K.G., J.G., and I.G. to return to the home. In October 2019, John Doe and
Jane Doe lost the residence and John Doe, without notifying the Department, took the children to
live with a former foster parent for K.G. The Department informed the Does that they needed to
secure a three-bedroom residence for the children, but within a week of that notification, the
Department notified the Does that a two-bedroom apartment would be acceptable.3 John Doe
2
Jane Doe’s older son and daughter were originally taken into foster care, but they reached
age eighteen during the pendency of the case and are no longer in the care of the Department.
Thus, they are not the subject of this case.
3
At trial, a Department employee testified that within the week after the Department
informed John Doe that he needed to secure a three-bedroom apartment, it corrected itself and
informed John Doe that he needed to secure only a two-bedroom apartment. The Department also
acknowledged that a two-bedroom home would have been sufficient. Notwithstanding this
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located a three-bedroom apartment in October 2019, but he felt it was “just too small.” After
rejecting this housing option, John Doe took no significant steps to secure any suitable housing.
From October 2019 to March 2021, John Doe lived with friends or in a local motel. Three weeks
prior to trial and more than two years after the children were taken into the care of the Department,
the Does obtained suitable housing.
On appeal, John Doe relies, in part, on the Department’s statement that he needed to secure
a three-bedroom apartment as a basis for his impossibility defense. The magistrate court concluded
that although the Department made John Doe’s search for a residence more difficult by telling the
Does they needed a three-bedroom residence, it was not impossible for John Doe to secure suitable
housing, as evidenced by the fact that John Doe located, but rejected, a three-bedroom apartment
in October 2019. The magistrate court found that although John Doe eventually complied with
the housing requirement, it was too late to successfully reunite with the children.
As to the COVID-19 pandemic as a basis for his impossibility claim, aside from his
testimony that the COVID-19 pandemic led to an increase in the cost of housing, John Doe
provided no evidence in support of his argument that the pandemic rendered his search for housing
impossible. John Doe’s ability to secure housing shortly before trial demonstrates that compliance
with this task was not impossible. As a result, substantial and competent evidence supports the
magistrate court’s finding that John Doe was directly responsible for his failure to obtain suitable
housing in timely manner.
In addition to failing to secure suitable housing, John Doe did not demonstrate the ability
to meet his children’s needs. John Doe did not provide any medical care for his children. John
Doe claimed he was unable to attend appointments because restrictions related to the COVID-19
pandemic allowed only one person in addition to the patient to attend the appointments. In
contrast, the children’s foster mother testified that she had difficulty getting John Doe to attend
any doctor or therapy appointments or to care for the children in any significant way. For example,
John Doe did not attend any appointments between October 2019 and March 2020, before
pandemic-related restrictions were imposed. When asked to take the children to appointments,
John Doe refused because attending the appointments would have precluded him from getting
sufficient sleep due to his work schedule. John Doe testified that he did not consider altering his
testimony, the magistrate court found that the requirement for a three-bedroom apartment was in
place between October 2019 and March 2021.
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work schedule to allow him to attend his children’s appointments. In total, John Doe attended no
more than two of I.G.’s appointments and he did not attend any appointments for J.G. As the
magistrate court stated, this was “simply a matter of priority”; John Doe was aware of the
requirements outlined in his case plan and chose not to attend appointments. As a further example
of John Doe’s lack of engagement with his children’s medical needs, prior to the pandemic and
shortly after being placed in foster care, I.G. needed medical care before the Department had
formally approved the foster placement. The foster parent was unable to reach John Doe to get
the necessary approval for the care. Consequently, the foster parent could not obtain medical care
for I.G. until the Department intervened and approved the foster parent as a placement for I.G.
With respect to the FPS task, John Doe did participate in FPS from January 2019 to July
2019. The FPS specialist initially assigned to the Does’ case worked with John Doe to identify
safety concerns in their home, including moldy food, lice, bed bugs, and rodent infestations. The
FPS specialist reported that John Doe would not engage in visits or put forth meaningful effort
towards improving his parenting skills. In July 2019, many of the safety concerns identified when
John Doe initially engaged with FPS remained in the home. When FPS informed John Doe that a
frequent visitor to their home was a registered sex-offender, John Doe continued to allow the
individual to visit his home and to interact with the children. On one occasion, the individual was
present with the children while both John Doe and Jane Doe were absent from the home.
John Doe asserts that had he been able to secure a residence, he would have been able to
demonstrate the skills he learned through participating in FPS. This argument is unpersuasive.
Six months after John Doe began working with FPS, many of the safety concerns initially
identified were still present in the home, with the addition of allowing a known registered sex-
offender to interact with the children. In fact, after participating with FPS, when John Doe
voluntarily relinquished the children to the former foster parent in October 2019, the clothing he
left with the children was unserviceable and the food he left was expired. Throughout this case,
John Doe had many opportunities to demonstrate the skills he allegedly learned through FPS but
did not do so.
The magistrate court’s conclusion that it was not impossible for John Doe to comply with
his case plan and that John Doe was responsible for his failure to comply with his case plan is
supported by substantial and competent evidence. Additionally, John Doe does not challenge the
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magistrate court’s finding that termination of his parental rights is in the best interests of the
children. As a result, we affirm the magistrate court’s order terminating John Doe’s parental rights.
B. The Magistrate Court Did Not Err by Presiding Over the Case
John Doe asserts the magistrate court erred by presiding over this case because, at the time
of trial, the magistrate judges of Elmore County were represented by the Attorney General’s Office
in a civil lawsuit. John Doe asserts that because the Department is also represented by the Attorney
General’s Office, it was error for the magistrate court to preside over this case.
Issues not raised below are typically not considered for the first time on appeal. Matter of
Doe II, 169 Idaho 82, 86, 491 P.3d 644, 648 (Ct. App. 2021). The minutes from an adjudicatory
hearing in March 2021 indicate that the issue of a conflict for the magistrate court was raised.
However, the minutes do not provide any detail as to what the alleged conflict was or who raised
the issue. No objection or motion for disqualification was filed at any time during the pendency
of the case. In the absence of a motion for disqualification, this Court will not review that issue
on appeal. Idaho Dep’t of Health & Welfare v. Doe, 150 Idaho 563, 568, 249 P.3d 362, 367 (2011).
However, even if John Doe had properly raised the issue below, his argument fails on
appeal. Denial of a motion for disqualification of a judge is reviewed under an abuse of discretion
standard. Idaho Dep’t of Health & Welfare v. Doe, 161 Idaho 660, 664, 389 P.3d 946, 950 (2016).
A judge may be disqualified for cause where it is shown that the judge is biased or prejudiced for
or against any party or the case in the action. Id. However, a judge may not be disqualified for
prejudice unless it is shown that the prejudice is directed against the party and is of such nature
and character as would render it improbable that the party would receive a fair and impartial trial.
Id.Beyond his conclusory statement that the “appearance of a possibility of impartiality
should give one pause,” John Doe provides no argument or authority in support of this claim. This
Court generally does not address issues not supported by cogent argument and citation to legal
authority, even in a case terminating parental rights. Idaho Dep’t of Health & Welfare v. Doe
(2018-24), 164 Idaho 143, 147, 426 P.3d 1243, 1247 (2018). Furthermore, there is no indication
in the record that the magistrate judge was biased or prejudiced against John Doe. Thus, John Doe
has failed to show the magistrate court erred by presiding over the case.
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IV.
CONCLUSION
The magistrate court’s finding that John Doe neglected his children is supported by
substantial and competent evidence and John Doe does not challenge the magistrate court’s
conclusion that terminating his parental rights is in the best interests of the children. John Doe has
failed to show the magistrate court erred by presiding over this case. Accordingly, the magistrate
court’s judgment terminating John Doe’s parental rights is affirmed.
Judge LORELLO and Judge BRAILSFORD CONCUR.
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