Doe I v. John Doe ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49322
In the Matter of: John Doe II and John )
Doe III, Children Under Eighteen (18) )
Years of Age. )
JANE DOE I and JOHN DOE I, )
) Filed: March 11, 2022
Petitioners-Respondents, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JOHN DOE (2020-51), ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Sixth Judicial
District, State of Idaho, Bannock County. Hon. David R. Kress, Magistrate.
Judgment terminating parental rights, affirmed.
David R. Martinez, Bannock County Public Defender; Jessalyn R. Hopkin, Deputy
Public Defender, Pocatello, for appellant.
Penrod Swenson, PLLC; David K. Penrod, Pocatello, for respondent.
________________________________________________
HUSKEY, Judge
John Doe appeals from the magistrate court’s judgment terminating his parental rights.
Doe alleges the magistrate court erred, arguing that there was insufficient evidence to establish a
statutory ground for termination and that termination is in the best interests of the children.
Because substantial and competent evidence supports the magistrate court’s findings, the court did
not err and the judgment terminating Doe’s parental rights is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Doe and Jane Doe (Mother) were previously married and are the biological parents of G.P.
and N.P. Around the time G.P. was born in 2008, Doe was injured while working and was
prescribed pain medication for his injury. He became addicted to the pain medication. Doe sought
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medical assistance for his addiction but was unsuccessful. Soon after the birth of N.P. in 2011,
Doe was incarcerated for possession of methamphetamine and burglary. Shortly thereafter, Doe
and Mother separated and eventually divorced. Since Doe’s first incarceration after N.P.’s birth,
Doe has been incarcerated thirteen times for various criminal offenses, including convictions for
felony possession of methamphetamine, burglary, driving while intoxicated, and numerous
probation violations.
In 2014, Mother and John Doe I (Stepfather) married. A few years later, Mother filed a
petition to modify the divorce decree between her and Doe and was awarded sole physical and
legal custody of the children. In 2019, Mother and Stepfather filed a petition for adoption and
termination of Doe’s parental rights to G.P. and N.P. The magistrate court held the termination
trial in May of 2020. After the termination trial, the magistrate court found that Doe abandoned
G.P. and N.P. and that termination is in the best interests of the children. The magistrate court
entered a judgment terminating Doe’s parental rights. Doe appealed. This Court held that the
magistrate court erred by applying the wrong standard of review and that the evidence presented
at the termination trial did not establish, by clear and convincing evidence, that Doe abandoned
his children. Accordingly, we vacated the judgment terminating Doe’s parental rights and
remanded the case to the magistrate court. Matter of Doe II, Docket No. 48270 (Ct. App. Jan. 27,
2021) (unpublished).
On remand, Mother moved for another hearing. The magistrate court held the hearing in
August of 2021. At the hearing, the parties agreed to provide additional testimony and argument
concerning events that occurred after the termination trial. Doe testified that after the termination
trial, he was released from incarceration, relapsed, stole two vehicles, and was currently serving a
sentence for misdemeanor depriving an owner of his vehicle. The magistrate court incorporated
the factual findings from the previous order and made additional, new factual findings based on
the evidence from the hearing.1 The magistrate court found that Doe abandoned and neglected
G.P. and N.P. and termination is in the best interests of the children. The magistrate court entered
a judgment terminating Doe’s parental rights. Doe timely appeals.
1
By the time the magistrate court entered its findings, Doe’s parole had been revoked.
2
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,
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
Doe argues the magistrate court erred by terminating his parental rights because there was
not clear and convincing evidence for the magistrate court’s findings of a statutory ground for
termination and that termination of Doe’s parental rights is in the best interests of the children. In
response, Mother argues the magistrate court did not err.
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
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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.
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 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.
The magistrate court found Doe neglected his children by failing to provide them with the
proper care and control necessary for their well-being, which is a statutory ground that supports
termination of Doe’s parental rights to G.P. and N.P.2 Although Doe alleges various reasons there
was insufficient evidence of neglect, we are not persuaded.3
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 well-
being because of the conduct or omission of his parents, guardian, or other custodian or their neglect
or refusal to provide them. Because a parent who is in prison for a substantial part of his children’s
2
Although the magistrate court later discussed additional statutory grounds, including the
inability to discharge parental responsibilities and incarceration, we understand the magistrate
court used these as components of its neglect finding, not as independent statutory grounds, and
as such, we decline to address them independently. To the extent that the magistrate court intended
Doe’s inability to discharge parental responsibilities and incarceration as independent statutory
grounds supporting termination of Doe’s parental rights, we need not address them because we
affirm the order on the grounds of neglect. See In re Doe, 143 Idaho 343, 345, 144 P.3d 597, 599
(2006) (“Each statutory ground is an independent basis for termination.”).
3
Additionally, Doe argues that, as part of a private termination proceeding, he did not have
the same level of support (i.e. state facilitated treatment, programming, and visitation) if the
proceeding had been part of a child-protection action. Doe does not assert how the absence of
these state resources relates to the magistrate court’s finding that Doe neglected G.P. and N.P.
Accordingly, we decline to address this issue. See Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d
434, 440 (Ct. App. 1997) (party waives an issue on appeal if either argument or authority is
lacking).
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lives cannot provide the parental care and control, or subsistence, medical, or other care necessary for
the children’s wellbeing, evidence of incarceration is competent evidence of neglect. Idaho Dep’t of
Health & Welfare v. Doe, 158 Idaho 764, 768, 351 P.3d 1222, 1226 (2015); see also Idaho Dep’t
of Health & Welfare v. Doe, 151 Idaho 846, 852, 264 P.3d 953, 959 (2011) (holding father’s
imprisonment alone constitutes neglect); Idaho Dep’t of Health & Welfare v. Doe, 162 Idaho 400,
404, 397 P.3d 1159, 1163 (Ct. App. 2017) (“A parent’s inability to comply with the law is contrary to
providing for the health, morals, and well-being of a child.”). While a court must consider both past
and current efforts by a parent to maintain a parent-child relationship, Doe, 137 Idaho at 761-62,
53 P.3d at 344-45, it may find an incarcerated parent neglected his children even when he made
efforts to provide for them within the confines of his incarceration, because willfulness is not a
component of, nor a defense to, neglect. Doe, 158 Idaho at 768, 351 P.3d at 1226.
We have also recognized that evidence of unstable employment, insecure housing, a substance
abuse problem that interferes with the ability to parent, and failure to pay child substantiate a
finding of neglect. Int. of Doe I, 166 Idaho 173, 177-78, 457 P.3d 154, 158-59 (2020); Doe v. Doe
I (2017-15), 162 Idaho 653, 659, 402 P.3d 1106, 1112 (2017). In determining whether neglect has
occurred, a court may consider past character evidence in order to determine future behavior. Doe,
162 Idaho at 658-59, 402 P.3d at 1111-12.
Here, the magistrate court found that Doe neglected G.P. and N.P. because of Doe’s
criminal behavior, lengthy periods of incarceration, failure to abide by the terms of his probation,
failure to maintain employment, failure to meet his child support obligations, and inability to
discharge his parental duties for much of the last decade, which the court found likely to continue
based on Doe’s criminal history. Specifically, the magistrate court found that as a result of Doe’s
criminal choices, he spent nearly seventy-five percent of his life incarcerated since 2013, which
included thirteen separate incarcerations in the last ten years. The magistrate court emphasized
Doe’s testimony during the termination trial in May 2020 that a future substance abuse relapse
would not be good for his children and would require the court system to take action to protect
them and that Doe subsequently was released from incarceration, relapsed, and was arrested for
grand theft in November 2020. The magistrate court noted that although the criminal charge
stemming from this particular arrest was ultimately reduced, the result was Doe’s continuous
incarceration from the time of the arrest. Thus, while the magistrate court acknowledged its
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previous optimism that Doe’s behavior would improve after the termination trial, after the hearing
in August 2021, the court found this belief was mistaken because:
between the time [Doe’s] appeal commenced and some time before it was decided,
he was already back on drugs, committed new crimes and had his parole revoked.
Since it is impossible for me to know the future, I can only say it appears highly
unlikely that [Doe] will be free from the shackles of the law or the shackles of his
drug addictions and bad choices.
Additionally, the magistrate court found that Doe failed to maintain stable housing,
employment, and sobriety during the periods when he was released from incarceration. The
magistrate court incorporated its findings from the first order and then specifically found that Doe
“has been unable to provide a stable place of residence for the minor children during their lifetime,”
“substantially failed to maintain employment as a result of his drug addictions and incarceration,”
and “chose to resume his methamphetamine use and was no longer able to have custody of the
minor children.” Although the magistrate court acknowledged that Doe paid small amounts of
child support while working in the prison work center, the court found these payments stopped
upon release from prison and Doe was currently more than $20,000 behind in his child support
obligation.
The magistrate court acknowledged that Doe loves his children and maintained
communication with them while he was incarcerated through weekly phone calls. However, the
magistrate court found the calls were generally short in duration and did not promote a normal
parent-child relationship. Further, like his child support payments, the magistrate court found that
during periods that Doe was released from incarceration, his attempts to contact the children
declined. For example, upon his last release, Doe waited over two weeks before reaching out to
Mother about seeing the children. Doe does not challenge any of these factual findings.
The magistrate court found Doe has numerous criminal convictions, has a long history of
addiction, has a long history of failed treatment for the addiction, has not maintained stable
employment or housing, has been incarcerated for seventy-five percent of the time since 2013, and
has spent limited time with the children or caring for the children. Substantial and competent
evidence supports the magistrate court’s findings that Doe neglected the children. See Doe, 158
Idaho at 768, 351 P.3d at 1226 (holding parent’s history of incarceration, addiction, unstable
employment, unstable housing, limited time with child, and admission that he was not ready to
care for his child was substantial and competent evidence of neglect).
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B. Substantial and Competent Evidence Supports the Magistrate Court’s Finding That
Termination of Doe’s Parental Rights Is in the Best Interests of the Children
Doe argues there was insufficient evidence to support the magistrate court’s finding that
termination of Doe’s parental rights is in the best interests of the children. Although Doe concedes
that his continued drug use and incarceration are factors that weigh heavily in a court’s
determination of best interests of the children, he argues there is no evidence to support the
magistrate court’s finding that termination would create a beneficial sense of finality for the
children because, even upon his release from incarceration, under the current custody order, he
cannot have contact with the children without Mother’s permission or a court order.
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 a range of factors, including:
the parent’s history with substance abuse, whether the parent has provided financial support, the
children’s relationship with those currently caring for them and whether the children have
improved under that care, the children’s need for stability and certainty, the parent’s efforts to
improve his situation, and the parent’s incarceration or 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). When a case involves an incarcerated parent, the trial court may consider the quality
and extent of time spent with the children prior to incarceration, the nature of the offense leading
to incarceration, charged or uncharged prior criminal behavior while in the home, previous
incarcerations, the impact incarceration has had on the children, and the quality of efforts made by
the parent to keep a meaningful relationship with the children. Doe, 159 Idaho at 198, 358 P.3d at
83. A finding 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).
Regardless of the current custody order, substantial and competent evidence supports the
magistrate court’s finding that termination of Doe’s parental rights to G.P. and N.P. is in the best
interests of the children. The magistrate court found Doe had not been present to be a parent and
participate in his children’s lives because of his continuous periods of incarceration. Further, the
magistrate court found the children have been doing better since Mother ended the children’s
communication with Doe in October of 2019, are happy and healthy in the custody of Mother and
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Stepfather, and would benefit from termination as it would bring a sense of finality, normalcy, and
permanency without the continued stress and uncertainty of Doe’s incarceration and drug
addictions. These findings are supported by substantial and competent evidence.
It is undisputed that Doe has not had any contact with the children since Mother stopped
answering his calls in October 2019. Mother testified during the evidentiary proceedings that if
the children had asked about or expressed a desire to speak with Doe, she would have allowed the
phone calls but the children had not mentioned Doe since the calls stopped. Since communication
with Doe stopped, Mother has seen improvements in both children. Specifically, Mother testified
that the children are “extremely thriving” and more emotionally stable, and she no longer sees the
“dips in emotion” which occurred after Doe’s weekly phone calls. Additionally, G.P. has made
significant improvements in school. In the past, G.P. required special education programming for
reading, writing, and spelling but he improved so significantly that his school anticipates he will
no longer need such programming in his next school year. Further, G.P. went from requiring
assistance 100% of the time with his homework, to being able to complete it unassisted seventy-
five percent of the time. G.P.’s teacher’s testimony supported this improvement; she testified that
towards the end of October 2019, she began to see substantial improvements in G.P.’s school work
and emotional stability, which she agreed constituted a “night and day” progression.
The testimony revealed how Doe’s periods of incarceration impacted the children. Mother
testified that G.P. worried about Doe’s condition in prison and that both children would go through
periods of acting out when Doe would be released and subsequently re-incarcerated until they
adjusted to Doe’s incarceration. Stepfather testified that Doe’s repeated incarcerations created a
lack of trust between the children and Doe. And, Doe himself testified that he was concerned
about the long-term effects of his incarcerations upon the children and that Doe knew the children
were stable, healthy, and happy with Mother and Stepfather. Further, in August 2020, Doe
expressed to Mother that “I am not a fit parent, I can’t even take care of myself.” Although Mother
testified that she tried repeatedly to provide Doe with avenues back into his children’s lives, she
ultimately believed it was in the best interests of the children to terminate Doe’s parental rights
because it would create a safety net in a consistent, reliable home; eliminate the children’s
heartache caused by Doe’s cycle of addiction and incarceration; and fulfill the children’s expressed
wish for Stepfather to adopt them.
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Taken together, there was substantial and competent evidence that Doe’s substance abuse
addiction and repeated periods of incarceration led to his physical absence for the majority of his
children’s lives and cycles of emotional stress when Doe was released and then re-incarcerated.
Over thirteen separate periods of incarceration, Doe had numerous opportunities to change his
criminal behavior, but did not do so; Doe is approximately $20,000 in arrears in his child support
obligation. Although while incarcerated prior to October 2019, Doe had communication with the
children through weekly phone calls, the children often displayed negative emotional behavior
before the calls and the children did not ask about Doe after the calls stopped. Once
communication with Doe ended, the children showed behavioral and, at least in G.P.’s case,
scholastic improvement. Although Doe loves his children, Doe does not provide them with the
stability and certainty they need. Accordingly, substantial and competent evidence supports the
magistrate court’s finding that termination of Doe’s parental rights to G.P. and N.P is in the best
interests of the children.
Mother and Stepfather request attorney fees on appeal, arguing, “Pursuant to Idaho
Appellate Rule 41, Father claim[s] attorney fees in accordance with Idaho Code §12-121.”
Because Father did not request attorney fees, we interpret this as a request by Mother and
Stepfather. However, no argument is provided explaining why awarding attorney fees is
appropriate in this case. 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). Consequently,
we decline to award attorney fees in this case.
IV.
CONCLUSION
The magistrate court’s findings that Doe neglected his children and that termination of his
parental rights is in the best interests of his children is supported by substantial and competent
evidence. Accordingly, the magistrate court did not err, and the judgment terminating Doe’s
parental rights to G.P. and N.P. is affirmed. Costs, but not attorney fees, to Mother and Stepfather.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
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