IDHW v. Jane Doe

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49643
In the Interest of: John Doe I, Jane Doe )
I, Jane Doe II, Jane Doe III, and Jane )
Doe IV, Children Under Eighteen (18) )
Years of Age. )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, ) Filed: September 27, 2022
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
JANE DOE (2022-12), ) BE CITED AS AUTHORITY
)
Respondent-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Second Judicial
District, State of Idaho, Idaho County. Hon. Victoria Olds, Magistrate.
Judgment terminating parental rights, affirmed.
McFarland Law Office; Joanna M. McFarland, Lewiston, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Briana Allen, Deputy Attorney
General, Lewiston, for respondent.
________________________________________________
GRATTON, Judge
Jane Doe appeals from the magistrate court’s judgment terminating her parental rights. We
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe is the mother of the five minor children who are the subject of the proceedings in
this case. The children were placed into the custody of the Department of Health and Welfare
(Department) at the shelter care hearing in October 2020. The magistrate court ordered a case plan
for Doe as part of reunification efforts.
1
In October 2021, after the magistrate court authorized the change in permanency goal to
termination and adoption, the Department filed a petition to terminate Doe’s parental rights. The
termination trial took place in February and March, 2022. After the trial, the magistrate court
found Doe neglected the minor children and that termination of Doe’s parental rights is in the best
interests of the children. Accordingly, the magistrate court entered a judgment terminating Doe’s
parental rights to the minor children.1 Doe timely 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 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
1
Father’s parental rights were also terminated but are not at issue in this appeal.
2
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. In re 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.
III.
ANALYSIS
Doe challenges the magistrate court’s judgment terminating her parental rights to her
children. Doe raised eight arguments on appeal2:
1. The magistrate court erred entering judgment in this matter on March 24,
2022 terminating [Doe’s] parental right.
2. The magistrate court erred in concluding that the children were not Indian
children under the Indian Child Welfare Act.
3. The magistrate erred in finding the circumstances that brought the children
into shelter care.
4. That the magistrate court erred in finding that [Doe] failed to provide proper
parental care and control necessary for the children’s well[-]being due to
her neglect.
5. The magistrate erred in finding that [Doe] failed to timely comply with the
case plan.
6. The magistrate court erred in finding that the [Department] had made
reasonable efforts towards reunification.
7. The magistrate court erred in finding that it was in the best interest of
[Doe’s] child for her parental rights to be terminated.
8. That [Doe’s] trial attorney was ineffective in representation throughout the
life of the CPS case as counsel made several errors throughout the
proceedings that prejudiced the outcome.
We will address each argument below.
2
Doe’s brief does not comply with Idaho Appellate Rule 35(a)(4) which requires a separate,
concise, statement of the issues presented on appeal. Instead, Doe identifies the issues individually
in section headings.
3
A. Terminating Doe’s Parental Rights
Doe lists several factual findings she argues are not supported by substantial and competent
evidence in the record because the testimony during trial did not support them. Doe’s concern is
that the magistrate court supplemented the factual findings with knowledge the court had from
prior involvement in the child protection action rather than evidence presented at the termination
trial. The Department responds by citing where in the record there is substantial and competent
evidence to support the magistrate court’s factual findings.
First, Doe challenges the magistrate court’s finding that the children are not Indian children
under the Indian Child Welfare Act (ICWA). Doe also argues this as a separate substantive claim;
as such, we will defer to the analysis of the claim below.
Next, Doe challenges the finding that Doe and the father refused to cooperate with the
safety plan that occurred prior to the children’s removal. However, the safety assessor testified
that at a particular point in time, the parents indicated that they no longer wanted to work with the
safety plan. Thus, substantial and competent evidence supports the magistrate court’s finding that
Doe and the father refused to cooperate with the safety plan.
Next, Doe challenges the magistrate court’s finding that “Law enforcement contacts
continued before [the] removal of the children from the home (based on parental conflict)” by the
Department. During trial, Doe was asked whether one of the children called law enforcement
between the time the children were placed back in the home and before removal. Doe confirmed
the child had by stating, “I made him, yes.” This is substantial and competent evidence to support
the magistrate court’s finding regarding law enforcement contact.
Next, Doe challenges the magistrate court’s finding that the Department had conducted ten
investigations of parental neglect and abuse in relation to Doe. The Department cites to Doe’s
case plan as supporting evidence. While the plan does not precisely recount ten investigations, it
does document multiple reports concerning substance abuse, domestic violence, and neglect since
2009. Thus, there is substantial and competent evidence to support the magistrate court’s finding
that multiple investigations were conducted.
Next, Doe challenges the finding that the “children had missed too much school and the
school reported serious concerns about the children’s home life.” Doe argues there is no indication
that missing the first two weeks of school was “too much,” especially since the children are
academically successful. The safety assessor testified that the children had missed more school
4
days than the allotted quota for the year. She explained this is typically around nine days and the
children’s absences were in the teens. There is substantial and competent evidence to support the
magistrate court’s reasonable finding that the children “had missed too much school.”
Next, Doe argues the magistrate court incorrectly found that Doe did not submit to random
urinalysis tests because the caseworker testified that Doe provided urinalysis tests when asked.
Doe also challenges the finding that she “eventually submit[ted] a couple [urinalysis tests] and a
hair follicle test, which confirmed methamphetamine use.” Doe argues there was no testimony
that she confirmed or admitted methamphetamine use.
To be precise, the magistrate court found:
[Doe] completed a Comprehensive Diagnostic Assessment at Riverside Recovery,
but did not follow the recommendation for Level 1 outpatient [treatment]. She
would not attend groups. She did not submit to random [urinalysis tests], claiming
not to need treatment. She was, however, open about her ongoing substance use.
She did eventually submit a couple of [urinalysis tests] and a hair follicle test, which
confirmed methamphetamine use.
The caseworker testified that Doe would not agree to substance abuse treatment, which included
random urinalysis testing. The caseworker clarified that Doe was agreeable anytime the
caseworker asked Doe to complete a urinalysis test or hair follicle test and that Doe was open and
honest about her use. However, there is no testimony or evidence in the record that any of these
urinalysis or hair follicle tests confirmed methamphetamine use. Therefore, while Doe
acknowledged methamphetamine use, Doe is correct that there is not substantial and competent
evidence that any drug tests confirmed methamphetamine use.
Next, Doe challenges the finding that one of the children, R.H., received speech therapy
for a stutter. The testimony shows that R.H. stuttered after visitation with Doe, and that R.H.
worked with a community-based rehabilitative services specialist on communication skills. This
testimony is substantial and competent evidence to support the magistrate court’s finding that R.H.
received speech therapy for a stutter.
Lastly, Doe argues the magistrate court erred in finding that the children call the foster
parents “Mama” and “Papa” when the testimony was that the children call them “NaNa” and
“Poppa.” The Department concedes this error but argues the discrepancy has no bearing on the
termination of Doe’s parental rights.
Even where a finding of fact is erroneous, this Court will disregard the error, unless it
affects a party’s substantial rights. Idaho Rule of Civil Procedure 61; Doe I v. Doe, 138 Idaho 893,
5
906, 71 P.3d 1040, 1053 (2003). Doe failed to argue how the exact number of Department
investigations, the improper names for the foster parents, and the erroneous finding that drug
testing confirmed methamphetamine use affected her substantial rights. Consequently, any error
in those factual findings are disregarded.
B. Indian Child Welfare Act
Doe argues the magistrate court erred in finding that the children were not Indian children
under ICWA. Doe explains that the magistrate court erred by only receiving testimony from the
father about the children’s tribal status because tribal status must be determined for both the
paternal and maternal sides. The Department argues the record demonstrates that the magistrate
court inquired into ICWA at every hearing prior to termination and made written findings that
ICWA did not apply. The Department further contends that even if the magistrate court should
have asked Doe about the children’s tribal status, the answer would not undermine the judgment
to terminate her parental rights.
Even if the magistrate court erred by not asking Doe about the children’s Indian status in
the termination trial, Doe failed to explain how the error affected her substantial rights. As the
Department argues, Doe has not shown how this error undermines the magistrate court’s judgment
to terminate Doe’s parental rights. Doe does not claim new information about the children’s ICWA
eligibility, nor does she argue how this affects her substantial rights or would alter the judgment.
As such, any error by the magistrate court will be disregarded because Doe has not shown that her
substantial rights have been affected.
C. Shelter Care
Doe argues the Department failed to present evidence to support the grounds for immediate
removal and consequently the magistrate court erred in finding necessary circumstances existed at
the shelter care hearing. The Department responds first by arguing the grounds for termination do
not require proving the grounds for shelter care, and second, the grounds for shelter care are moot.
Statutory grounds for termination of parental rights include: (a) abandonment; (b) neglect
or abuse; (c) lack of a biological relationship between the child and a presumptive parent;
(d) inability to discharge parental responsibilities for a prolonged period, which will be injurious
to the health, morals, or well-being of the child; or (e) incarceration for a substantial period of time
during the child’s minority. I.C. § 16-2005. Upon finding a statutory ground for termination, the
court must also find that it is in the best interests of the child to terminate the parent-child
6
relationship. I.C. § 16-2005(1). Both findings must be established by clear and convincing
evidence. Accordingly, the Department was not required to prove the circumstances of shelter
care to establish grounds for termination.3
D. Neglect
Doe argues that there was not substantial and competent evidence in the record to support
the magistrate court’s findings about mental health and substance abuse issues as a basis for finding
neglect. The Department contends the testimony and evidence supported the magistrate court’s
conclusion that Doe neglected the children by failing to provide proper parental care and control.
The magistrate court found Doe neglected her children. 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.
The magistrate court found “that [Doe] had not been sober since at least the 2020 relapse,
and continued to use illegal substances (meth) throughout the CPA case.” Doe argues there was
no testimony that confirmed methamphetamine use.
Doe first testified that her last relapse of use of methamphetamine was Father’s Day of
2020, which would have been months prior to the children being removed. Later, however, Doe
testified that she relapsed one time in February 2021, which was during the child protection case.
Additionally, the caseworker testified that Doe reported a relapse by using an illicit drug, beyond
marijuana, around May of 2021. This is substantial and competent evidence for the magistrate
court to find that Doe continued to use illegal substances, including methamphetamine.
In addition, Doe challenges the magistrate court’s findings regarding Doe’s alcohol and
marijuana use. The magistrate court found Doe “uses marijuana regularly. She ingests alcohol to
excess. She described herself as a ‘raging alcoholic’ between November 2020 and March 2021,
after the children were removed from the home.” Doe does not challenge that substantial and
competent evidence supported the magistrate court’s findings. Instead, Doe contends she is within
3
Moreover, the Department is correct that Doe was required to appeal the shelter care
determination in the child protection case, not the termination proceeding.
7
her legal rights to use marijuana in the state of Washington and consume alcohol, and that there
were no case plan tasks restricting her consumption of either. While consumption may be legal, it
does not diminish the relevancy of these factors in relation to whether Doe failed to provide proper
parental care and control. Therefore, it was appropriate for the magistrate court to consider how
Doe’s substance use affected her ability to parent.
Next, Doe challenges the magistrate court’s mental health findings. The magistrate court
found Doe “has historically refused to follow mental health treatment plans and rejected
medication management services.” Doe argues there is evidence to show she worked on her mental
health concerns. According to Doe, she tried taking the recommended medications, discontinued
only one medication for her own self-care, acquired a second opinion when she did not agree with
the schizophrenia diagnosis, and after seeing numerous counselors, she found a counselor she is
comfortable with and has visited routinely.
Dr. James Phillips’ psychological evaluation of Doe diagnosed psychotic disorder, not
otherwise specified. The recommendations included psychotropic medication, psychotherapy,
abstaining from substances, substance abuse treatment, and an appeal of a social security disability
determination. Dr. Phillips testified that Doe would need a minimum of six to twelve months of
mental health treatment and abstinence from illicit substances to clarify her diagnosis and
symptoms; this was also in the recommendations from the evaluation.
Doe explained that she had tried psychotropic medication prior to seeing Dr. Phillips but
had to stop because of side effects that included extreme fatigue. Dr. Phillips addressed this in his
recommendations, stating there are a variety of other medications to try. Doe did not seek a
different psychotropic medication.
Doe was attending counseling; however, the caseworker testified that the counselor was
not professionally qualified to provide psychotherapy. Dr. Phillips testified he recommended
psychotherapy due to the use of psychological techniques to work with mental disorders.
Furthermore, the caseworker testified that Doe did not participate in substance abuse
treatment because Doe felt she did not need substance abuse treatment. Doe testified that she
continued to use marijuana and alcohol, and the caseworker testified Doe said she would not stop
using marijuana. The psychological evaluation recommendation was to participate in substance
abuse treatment and abstain from substances for at least six months to clarify Doe’s symptoms and
diagnosis. The testimony shows Doe failed to comply with all the recommendations made by
8
Dr. Phillips, which is substantial and competent evidence to support the magistrate’s conclusion
that Doe refused to follow the mental health plan and rejected medication management.
Finally, Doe argues the magistrate court erred by finding there was a direct connection
between instances of psychosis and her substance abuse. Doe argues this finding is speculative
and not supported by the testimony at the termination trial. Dr. Phillips recommended Doe abstain
from substances for six to twelve months to clarify Doe’s diagnosis and symptoms. Doe testified
that the children’s father “shot her up” with a drug mixture three days prior to her hospitalization
for hearing voices and believing battery acid was shot up her vagina. Doe testified she later
understood that experience to be a mental break. This was substantial and competent evidence to
support the magistrate court’s finding that there was a connection between Doe’s psychosis and
her substance use.
Substantial and competent evidence in the record supports the finding that Doe
“consistently and chronically returned to the use of substances and refused to address her mental
health needs. A pattern of behavior that has endured and began long before the CPA case began.”
This finding supports the conclusion that Doe neglected her children by not being able to provide
proper parental care and control necessary for the children’s well-being.
E. Case Plan
Doe argues the magistrate court erred in finding that Doe failed to timely comply with the
case plan. Because each statutory ground of neglect is an independent basis for termination, we
need not address Doe’s arguments regarding neglect by failure of a parent to complete a case plan.
See Roe v. Doe, 142 Idaho 174, 179, 125 P.3d 530, 535 (2005). None the less, the magistrate court
did not err in finding that Doe failed to complete the case plan.
Doe argues the magistrate court erred in finding that Doe failed to timely comply with the
case plan. 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 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).
Doe argues she completed the purpose of each case plan task and that any delays in
completion were due to the negligence of the Department in assisting her. The Department points
to the caseworker’s testimony addressing Doe’s performance on each case plan task.
9
Under Task1A, Doe articulated a financial plan but was not consistent with monthly
meetings to discuss case plan progress. Under Task1B, Doe completed the substance abuse
evaluation but did not complete the recommendation for level one outpatient treatment.
Throughout the proceedings, Doe struggled with alcohol abuse, methamphetamine relapse, and
constant marijuana use. Under Task1C, Doe completed two psychological evaluations but did not
follow the recommendations of either. Doe could not complete the parenting assessment due to
COVID-19 restrictions; therefore, the Department provided an alternative through therapeutic
visitation. Doe’s mental health remained unaddressed and unmanaged through trial. Although
Doe started to consistently engage in counseling, the counselor was not qualified to provide the
necessary psychotherapy to address Doe’s mental health diagnosis.
Doe argues she completed Task1E because she acquired suitable housing with the option
for “expansion.” Yet, Doe acquired this housing just prior to trial and there had not been time for
the caseworker to visit prior to the termination trial. Doe’s history showed she struggled to acquire
stable housing and moved repeatedly throughout the case. It was unknown at the time of trial if
Doe would be able to maintain the housing she had because her history suggested otherwise; Doe
did not demonstrate she successfully completed this task.
There was substantial and competent evidence to support the conclusion that Doe failed to
comply with her case plan. Doe does not dispute that the children were in the care of the
Department at least fifteen of the last twenty-two months and reunification never occurred.
Accordingly, the magistrate court did not err when it found Doe neglected her children by virtue
of not complying with the case plan.
F. Reasonable Efforts
Doe argues the Department failed to provide reasonable efforts and that this affected her
due process rights. Doe acknowledges that an inquiry into the Department’s efforts at reunification
is irrelevant to the termination of parental rights, Idaho Dep’t of Health & Welfare v. Doe (2017-
21), 163 Idaho 83, 94, 408 P.3d 81, 96 (2017), but argues there are compelling arguments that the
lack of immediate appellate recourse “impacts her due process rights.” Yet, Doe failed to provide
any argument as to why this Court should overlook proper procedure and address the Department’s
reasonable efforts at reunification. Instead, Doe lists what she believes the Department did wrong
and continues to argue how she believes she complied with her case plan. A party waives an issue
on appeal if either argument or authority is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937
10
P.2d 434, 440 (Ct. App. 1997). Doe has failed to provide a cogent argument or proper authority;
the Department’s reasonable efforts are irrelevant to the termination decision and we will not
address them on appeal.
G. Best Interests
Doe argues the magistrate court erred in finding that termination of parental rights is in the
best interests of the children when there were alternative permanency options, including
guardianship, which would satisfy the concerns of the parties.
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 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).
Doe does not directly challenge the magistrate court’s findings that termination is in the
best interests of the children. Instead, Doe argues the magistrate court should have addressed trial
counsel’s argument that guardianship would provide a better alternative to termination because
then the children would have an ongoing relationship with their mother. When the permanency
goal changed from reunification to termination and adoption, the magistrate court could have
considered guardianship. The magistrate court was not required to expressly address guardianship
as an alternative at the termination trial, nor does that possibility undermine the magistrate court’s
finding that termination is in the best interests of the children.
The magistrate court acknowledged the improvement the children made while in foster
care, the bond each has with their foster parents, and the oldest children’s desires to be adopted.
There is substantial and competent evidence to support the magistrate court’s conclusion that
termination is in the best interests of each child.
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H. Ineffective Assistance of Counsel
Doe argues her trial counsel’s actions and omissions fell outside an objective standard of
reasonableness and constituted deficient performance, which resulted in prejudice.
Pursuant to I.C. § 16-2009, Doe has a right to counsel during a termination hearing and the
Idaho Supreme Court has determined that I.C. § 16-2009 provides for effective representation in
proceedings terminating parental rights. Idaho Dep’t of Health & Welfare v. Doe (2010-28), 150
Idaho 563, 566, 249 P.3d 362, 365 (2011). The Idaho Supreme Court, however, has not yet
established a standard for assessing ineffective assistance of counsel claims in termination cases,
and we decline to do so here. However, because the parties rely on Strickland v. Washington, 466
U.S. 668 (1984) to analyze the issue, we address Doe’s arguments to the extent the record on direct
appeal allows consideration of the challenges Doe raises.
To prevail on an ineffective assistance of counsel claim under Strickland,4 which is applied
in criminal cases, the petitioner must show that the attorney’s performance was deficient and that
the petitioner was prejudiced by the deficiency. Id. at 687-88. To establish a deficiency, the
petitioner has the burden of showing that the attorney’s representation fell below an objective
standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988);
Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). To establish prejudice,
the petitioner must show a reasonable probability that, but for the attorney’s deficient performance,
the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177;
Knutsen, 144 Idaho at 442, 163 P.3d at 231. In the context of criminal proceedings, this Court has
long adhered to the proposition that tactical or strategic decisions of trial counsel will not be
second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance
of relevant law, or other shortcomings capable of objective evaluation. Gonzales v. State, 151
Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
Doe asserts five instances that her trial counsel was ineffective. First, Doe argues counsel
failed to object to hearsay during the termination trial and consequently the magistrate court relied
upon that testimony in making its determination. The Department argues there was an independent
basis for nearly each statement Doe challenges; moreover, Doe failed to show counsel’s lack of
objection was anything more than tactical or strategic. Doe fails to provide legal authority for the
4
Strickland v. Washington, 466 U.S. 668 (1984).
12
claim that certain evidence was inadmissible hearsay. A party waives an issue on appeal if either
argument or authority is lacking. Powell, 130 Idaho at 128, 937 P.2d at 440. Even if the evidence
was hearsay, Doe fails to show prejudice. Doe alleges the magistrate court relied upon evidence
regarding: events happening inside the residence at the time the children were declared in
imminent danger; the children’s school attendance; reports that the two oldest children tried to run
away from home prior to removal; and the results of the mental health assessment from Dr. Grogan.
Disregarding all of this evidence, substantial and competent evidence supports the termination of
Doe’s parental rights. In fact, the magistrate court primarily focused upon Doe’s unmanaged
mental health, continuous substance abuse, and lack of stable housing to find that Doe had
neglected her children. Doe was not prejudiced by the alleged hearsay.
Second, Doe argues trial counsel was ineffective because he failed to question vital
witnesses during trial, which essentially conceded the facts relied on by the magistrate court. The
manner of cross-examination is considered a tactical or strategic decision. Giles v. State, 125 Idaho
921, 924, 877 P.2d 365, 368 (1994). Doe failed to point to a specific instance that necessitated
cross-examination and conceded it was unclear what difference it would have made. Trial
counsel’s lack of cross-examination is a tactical decision that this Court will not second-guess;
moreover, Doe implicitly conceded there was no proof of prejudice.
Third, Doe argues trial counsel was ineffective because he failed to present evidence of the
impossibility defense he argued in closing. The magistrate court found Doe neglected her children
both due to an inability to provide proper parental care and control as well as a failure to complete
her case plan. The impossibility defense only applies to case plan compliance. Idaho Dep’t of
Health & Welfare v. Doe (2016-14), 161 Idaho 596, 600, 389 P.3d 141, 145 (2016). The magistrate
court found Doe neglected her children due to an inability to provide proper parental care and there
was substantial and competent evidence to support this finding. Doe has failed to demonstrate
prejudice based on an impossibility defense on appeal.
Fourth, Doe argues trial counsel was ineffective because he failed to file a motion with the
magistrate court to change the permanency goal to guardianship rather than termination and
adoption. Doe contends trial counsel failed to present the motion at both prior hearings and the
termination trial. Proceedings under the child protection case are irrelevant to the termination trial.
See In re Doe I, 164 Idaho 883, 890, 436 P.3d 1232, 1239 (2019). Thus, any challenge to those
proceedings is untimely. Doe, however, fails to allege prejudice. The magistrate court found
13
termination is in the best interests of the children and it is unclear how a motion to change the
permanency goal to guardianship would have altered that finding. In addition, trial counsel did
suggest guardianship during his closing statement. Even if it was not an official motion, he brought
it to the magistrate court’s attention.
Lastly, Doe contends trial counsel was ineffective because he failed to preserve the
argument that the Department deprived Doe of her rights under the Americans with Disabilities
Act (ADA). However, trial counsel argued during closing argument that the ADA required the
Department to provide Doe with accommodations for her mental illness and that Doe had asked
for accommodations throughout the pendency of the child protection case. The magistrate court
addressed trial counsel’s argument that Doe’s claimed disability was reason for continued efforts
at reunification; and found insufficient evidence to show Doe qualified for any specific services
and how those services could sufficiently aid her in parenting. Thus, Doe failed to demonstrate
ineffective assistance of counsel for failure to preserve an ADA defense. An ADA
accommodations request must be made in the CPA proceeding. See I.C. 16-1621(3)(c). Because
the CPA case is not properly before this Court on appeal, we need not address this claim.
IV.
CONCLUSION
Substantial and competent evidence supports the magistrate court’s finding that Doe
neglected her children and that termination is in the best interests of the children. The judgment
terminating Doe’s parental rights to the minor children is affirmed.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
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