In the Matter of Termination of Parent-Child Relationship

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36690
IN THE MATTER OF THE ) 2010 Opinion No. 28
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF JOHN DOE, JOHN ) Filed: April 15, 2010
DOE II AND JANE DOE, PARENT. )
IDAHO DEPARTMENT OF HEALTH AND ) Stephen W. Kenyon, Clerk
WELFARE, )
)
Plaintiff-Respondent, )
)
v. )
)
JANE DOE, )
)
Defendant-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Third Judicial
District, State of Idaho, Canyon County. Hon. William B. Dillon, III, Magistrate.
Order terminating parental rights, affirmed.
Mark J. Mimura, Canyon County Public Defender; Elizabeth K. Allen, Deputy
Canyon County Public Defender, Caldwell, for appellant. Elizabeth K. Allen
argued.
Hon. Lawrence G. Wasden, Attorney General; Ty A. Ketlinski, Special Deputy
Attorney General, Caldwell, for respondent. Ty A. Ketlinski argued.
________________________________________________
GRATTON, Judge
Jane Doe (Doe) appeals from the magistrate court‟s order terminating her parental rights
as to her two children, K.E.P. and K.A.P. Specifically, Doe contends that the magistrate erred in
finding that termination would be in the best interests of Doe and the children, that Doe failed to
substantially complete her case plan, and that Doe is likely to be incarcerated for a substantial
period of time during the children‟s minority.
1
I.
FACTS AND PROCEDURAL BACKGROUND
Jane Doe is the mother of three children. The oldest child is from a different father than
the two younger children and is not involved in this case. The two younger children, K.E.P. and
K.A.P. (the children), were born on September 30, 2004, and September 15, 2005, respectively.
The children‟s father lives in Mexico and has not had any contact with the children.
On June 27, 2007, police officers arrived at an apartment where Doe and the children
were staying in order to evict any remaining tenants. Upon performing a records check on Doe,
the police discovered that Doe had an outstanding warrant from Lewiston for possession of
methamphetamine. Doe requested permission to make arrangements for her children, which was
granted. Doe called her friend, whose apartment she and her children had been staying in, and it
was decided that the friend‟s daughter would pick up the children.
The following day, Doe‟s friend went to the Department of Health and Welfare and told
Department social worker, Tracy Warriner, that he was unable to take care of the children. He
was advised by the social worker to speak with Doe about whether there were any suitable
family members that could care for the children. He returned to the Department the next day and
reported that he had been unsuccessful. The children were then declared in imminent danger and
placed in protective custody on June 29, 2007. On July 1, 2007, Warriner met with Doe at the
Canyon County Jail to discuss whether or not any family members would be viable as a
placement option, and Warriner determined that there were none.
On July 2, 2007, the Department filed a petition under the Child Protective Act seeking
custody or, in the alternative, protective supervision of the children. A shelter care hearing was
held on July 9, 2007, at which the parties stipulated that the children would remain in the custody
of the Department pending the adjudicatory hearing. An adjudicatory hearing was held on July
30, 2007, and the matter was continued for a pre-trial hearing because Doe was not present due
to her incarceration. Doe failed to appear at the continued hearing held on August 15, 2007, and
the court ordered that the Department retain custody of the children for an indeterminate period
of time not to exceed their eighteenth birthdays. On August 28, 2007, the court entered a decree
of protective custody concluding that the children came within the purview of the Child
Protective Act.
2
The Department prepared a case plan, dated September 9, 2007, and a hearing was held
on September 10, 2007, to review the case plan. The case plan required Doe to complete the
following tasks: (a) resolve legal problems; (b) obtain a substance abuse evaluation, complete
substance abuse treatment, submit to urinalyses, and remain drug free; (c) maintain safe and
stable housing; (d) maintain employment to provide financially for the children; (e) complete an
approved parenting class; (f) attend ninety percent of the scheduled visits with the children; (g)
complete approved domestic violence and anger management classes; and (h) attend all of the
children‟s doctor, WIC, and other developmental appointments. The magistrate court approved
the case plan on September 24, 2007.1
The magistrate held permanency plan and case plan review hearings on January 1, 2008,
and on July 16, 2008, with Doe attending the second hearing by phone. An updated case plan
was filed on January 2, 2008. This case plan is substantially the same as the initial case plan
with the exception that the requirement of attending ninety percent of the scheduled visits with
the children was changed to require Doe to attend all of the scheduled visits. On December 9,
2008, the Department filed a petition seeking to terminate Doe‟s parental rights in the children.
On January 28, 2009, the case was set for a termination hearing. Doe did not appear as
she was in the “rider”2 program at the time. The court set the case for a pre-trial hearing on
March 11, 2009, and a termination hearing on April 1, 2009. A permanency plan review hearing
was held on February 18, 2009, and continued to March 11, 2009. At the March 11, 2009,
hearing Doe indicated that she had family members who were interested in adopting the children,
and the court advised her to have those family members present for the termination hearing. Doe
did not appear for the April 1, 2009, termination hearing due to the fact that she had failed to
successfully complete her rider and was incarcerated. The court continued the termination
hearing to April 29, 2009. The termination hearing was held on April 29, 2009, and the
magistrate continued hearings on June 3, 2009; June 10, 2009; and June 17, 2009.
1
Doe was not present for the case plan review hearing and testified that she did not
participate in preparation of the case plan. However, Department case worker, Shelisa Miller,
testified that she met with Doe in the Canyon County Jail to discuss the case plan and that she
“agreed to do the things on the case plan and she did sign it.”
2
The incarceration during a period of retained jurisdiction is commonly referred to as a
“rider.”
3
At the final termination hearing, the magistrate entered oral findings on the record
terminating Doe‟s parental rights to the children. On July 8, 2009, the magistrate court filed its
written decision and decree incorporating its oral findings. Doe appeals.
II.
ANALYSIS
The State must prove the grounds for terminating a parent-child relationship by clear and
convincing evidence. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006); Idaho Code §
16-2009. “In an action to terminate parental rights, where the trial court has explicitly
determined the case by application of the clear and convincing evidentiary standard, this Court
must determine if the decision was supported by substantial and competent evidence.” In re
Doe, 146 Idaho 759, 761, 203 P.3d 689, 691 (2009). “Substantial competent evidence is such
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotations omitted) (quoting In re Doe, 143 Idaho 343, 345-46, 144 P.3d 597, 599-600 (2006)).
“This Court will indulge all reasonable inferences in support of the trial court‟s judgment when
reviewing an order that parental rights be terminated.” Doe v. Doe, 148 Idaho 243, 245-46, 220
P.3d 1062, 1064-65 (2009) (internal quotations omitted) (quoting Matter of Aragon, 120 Idaho
606, 608, 818 P.2d 310, 312 (1991)).
A parent has a fundamental liberty interest, protected by the Fourteenth Amendment of
the United States Constitution, in maintaining a relationship with his or her child. In re Doe, 146
Idaho at 761, 203 P.3d at 691; see also Quilloin v. Walcott, 434 U.S. 246 (1978). The Idaho
legislature has also recognized the importance of maintaining the parent-child relationship:
“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.
“Therefore, the requisites of due process must be met when the Department intervenes to
terminate the parent-child relationship.” In re Doe, 146 Idaho at 761, 203 P.3d at 691 (citing
State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006)). “It is well settled that, in a
proceeding to terminate a parent-child relationship, the due process clause mandates that the
grounds for termination must be shown by clear and convincing evidence.” Doe, 148 Idaho at
246, 220 P.3d at 1065 (citing Doe v. Department of Health and Welfare, Human Services
Division, 141 Idaho 511, 513, 112 P.3d 799, 801 (2005)).
4
In this case, the Department filed a petition for the termination of the parent-child
relationship pursuant to Title 16, chapter 20 of the Idaho Code. Idaho Code § 16-2005 sets forth
the conditions under which termination of the parent-child relationship may be granted. It states,
in relevant part:
(1) The court may grant an order terminating the relationship where it finds that
termination of parental rights is in the best interests of the child and that one (1) or
more of the following conditions exist:
(a) The parent has abandoned the child.
(b) The parent has neglected or abused the child.
(c) The presumptive parent is not the biological parent of the child.
(d) The parent is unable to discharge parental responsibilities and such
inability will continue for a prolonged indeterminate period and will be
injurious to the health, morals or well-being of the child.
(e) The parent has been incarcerated and is likely to remain incarcerated
for a substantial period of time during the child‟s minority.
I.C. § 16-2005(1). “Each statutory ground is an independent basis for termination.” State v.
Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). The court may also terminate parental
rights if it finds that termination is in the best interest of the parent and child. I.C. § 16-2005(3).
The magistrate court determined that termination was in the best interests of the children,
that the children had been neglected, that Doe had been incarcerated and was likely to remain
incarcerated for a substantial period of time during the children‟s minority, and that termination
was in the best interests of the children and Doe. Doe challenges these findings and conclusions
on appeal.
A. Neglect
A finding of neglect, coupled with the determination that termination is in the best
interests of the child, is grounds for terminating the parent-child relationship. I.C. § 16-
2005(1)(b). The magistrate court concluded that the children were neglected as defined by I.C. §
16-2002(3)(b). “Neglected,” as defined under this provision, means “[t]he parent(s) has failed to
comply with the court‟s orders in a child protective act case or the case plan, and reunification of
the child with his or her parent(s) has not occurred within the time standards set forth in section
16-1629(9), Idaho Code.” Idaho Code § 16-1629(9) provides, in relevant part:
There shall be a rebuttable presumption that if a child is placed in the
custody of the department and was also placed in out of the home care for a
period not less than fifteen (15) out of the last twenty-two (22) months from the
date the child entered shelter care, the department shall initiate a petition for
5
termination of parental rights. This presumption may be rebutted by a finding of
the court that the filing of a petition for termination of parental rights would not
be in the best interests of the child or reasonable efforts have not been provided to
reunite the child with his family, or the child is placed permanently with a
relative.
Thus, a child is “neglected,” as defined by I.C. § 16-2002(3)(b), if the parent has failed to
comply with the case plan and reunification has not occurred where the child has been in foster
care for at least fifteen out of the last twenty-two months. The magistrate specifically found that
Doe had not substantially completed her case plan and that reunification had not occurred within
the requisite statutory timeframe.3
1. Case plan
Failure to comply with the case plan and the court‟s orders mandating such compliance
can form the basis for neglect as defined in I.C. § 16-2002(3)(b). See State Department of
Health and Welfare v. Doe, 144 Idaho 312, 313, 160 P.3d 751, 752 (2007); see also Department
of Health and Welfare v. Doe, 147 Idaho 353, 356, 209 P.3d 650, 653 (2009) (failure to complete
case plan meets definition of neglect). As noted, the magistrate determined that Doe had not
substantially completed her case plan. Specifically, the magistrate found that: (1) Doe had not
resolved her legal problems such that she could care for the children and that she had been and
was likely to remain incarcerated; (2) that Doe had not finished substance abuse counseling; (3)
that Doe had “come close” to living in one or two places for a 90-day period but that she had not
maintained stable housing for a period of at least three months; (4) that Doe was not able to
financially provide for the children due to her unstable employment record; (5) that Doe did not
complete a parenting class; (6) that Doe had not visited the children consistently; and (7) that
Doe did not attend the children‟s doctor, WIC, and other developmental appointments. The
magistrate also found that Doe was “credibility challenged.”
The Idaho Supreme Court recently stated:
Magistrate courts generally have broad discretion in their deliberations;
this Court does not reweigh evidence, but “defer[s] to the trial court‟s unique
ability to „accurately weigh the evidence and judge the demeanor of the
witnesses‟ and take into account the trial court‟s „superior view of the entire
3
Doe does not contest on appeal the magistrate‟s finding that reunification did not occur
within the statutory timeframe. Indeed, as Doe is incarcerated, it is evident that this did not
occur.
6
situation.‟” Doe, 144 Idaho at 842, 172 P.3d at 1117 (quoting Doe v. Roe, 133
Idaho 805, 809, 992 P.2d 1205, 1209 (1999)). “Findings are competent, so long
as they are supported by substantial, albeit possibly, conflicting, evidence.” Roe
v. Doe, 142 Idaho 174, 177, 125 P.3d 530, 533 (2005) (internal quotations
omitted) (quoting Roberts v. Roberts, 138 Idaho 401, 405, 64 P.3d 327, 331
(2003)). “[T]his Court will indulge all reasonable inferences in support of the
trial court‟s judgment when reviewing an order that parental rights be
terminated.” Roe, 142 Idaho at 177, 125 P.3d at 533 (internal quotations omitted)
(alteration in original) (quoting Doe I v. Doe, 138 Idaho 893, 900, 71 P.3d 1040,
1047 (2003)).
Doe, 148 Idaho at 246, 220 P.3d at 1065.
Doe contends that she is “not at fault for failing her Case Plan,” that the “testimony
clearly shows that she substantially completed her Case Plan,” and that the “only problem is not
having enough time to finish her incarceration and resolve all her legal issues.” Doe supports her
argument with respect to the case plan by referencing the testimony at the termination hearing,
although she provides little or no citation to the record. As a general rule, this Court will not
search the record for error. In re Gibbar, 143 Idaho 937, 946, 155 P.3d 1176, 1185 (Ct. App.
2006). Error is never presumed on appeal and the burden of showing it is on the party alleging
it. Stewart v. Sun Valley Co., 140 Idaho 381, 384, 94 P.3d 686, 689 (2004). Nevertheless, we
have reviewed the record and while there is conflicting evidence, it cannot be said that the
magistrate‟s findings are not supported by substantial and competent evidence.
Doe was required to cooperate with the justice system in order to satisfy any pending
charges and/or jail time. Doe claims that because she satisfied her pending battery charges and
because the probation violation and failed rider did not occur until after the case plan was
created, she has completed this requirement “to the best of her ability” as the “Case Plan did not
recognize that there would be additional time required to complete this element.”
Doe maintains that additional time would allow her to resolve her legal issues. However,
Doe‟s actions compounded her legal problems rather than resolved them. While it is true that the
probation violation and the subsequent failed rider did not exist at the time the case plan was
created, Doe was on felony probation when the case plan was created and it was her
responsibility to follow through with the terms of her probation. Doe was required to “resolve”
her legal problems. She was aware of the consequences, should she fail to be successful. Doe
repeatedly violated the terms of her probation while in Boise, and her probation officer in Boise,
Julie Bryant, testified that she had exhausted her resources there. She was given the option to
7
transfer her probation to Lewiston to see whether she could be successful or to continue in Boise
and receive a probation violation. In Lewiston, she again violated the terms of her probation.
Thereafter, she was given an opportunity to be successful on a rider. However, she was involved
in an altercation with another inmate. Consequently, the district court relinquished jurisdiction
and ordered into execution her original sentence of five years incarceration, with two years
determinate. Thus, Doe‟s contention that she needs more time to finish her incarceration and
resolve her legal issues is unavailing as Doe‟s actions resulted in her extended incarceration. See
Idaho Department of Health and Welfare v. Doe, 148 Idaho 124, 128, 219 P.3d 448, 452 (2009)
(acknowledging that while Doe argued that the Department should have given her more time to
overcome her methamphetamine addiction, it was not required to do so before moving to
terminate her parental rights). The magistrate‟s finding that Doe did not resolve her legal
problems is supported by substantial and competent evidence.
Doe was required to schedule and attend a substance abuse evaluation, follow all of the
recommendations for treatment suggested in the evaluation, participate in random drug testing,
and remain drug free. While Doe apparently did attend a substance abuse evaluation, the
evidence is conflicting as to whether she completed the recommended treatment and ultimately
remained drug free. Some evidence suggested that Doe did participate in substance abuse
classes, but the Department never received verification of participation and Doe‟s probation
officer in Lewiston, Tabitha Shears, testified that her attendance was “sporadic.” Shears testified
that Doe was enrolled in a drug and alcohol cognitive behavioral class but was dismissed due to
anger management issues. Evidence in the record shows that Doe did participate in random drug
testing, which generally yielded negative results. However, Shears testified that Doe admitted to
having used methamphetamine. Thus, while the evidence is conflicting, the magistrate‟s finding
that Doe did not complete substance abuse counseling is supported by substantial and competent
evidence.
Doe was required to attend, participate in, and successfully complete an approved
parenting class and provide verification of completion. She did not complete this requirement.
Doe was required to attend scheduled visits with the children, which she did not do consistently.
Doe was also required to attend all of the children‟s doctor, WIC, and other developmental
appointments. While Doe did attend one of these visits, there is substantial and competent
8
evidence to support the magistrate‟s findings that Doe failed to substantially complete these
requirements.
Doe was required to maintain stable housing and employment. She was also required to
participate in and complete domestic violence and anger management classes. Department case
worker, Shari Woodall, testified that she met with Doe to discuss three areas of the case plan
“that she still really needed to work on which was employment, housing and her anger
management.” On cross-examination, Woodall acknowledged that she had made an entry to the
Department narrative indicating that Doe “ha[d] completed all but three areas.” Woodall
testified that when she left the Department at the beginning of December 2008, Doe was enrolled
in an anger management class, had an apartment, and was employed. While it does appear from
the record that Doe had, at that time, made some progress on her case plan, her inability to
comply with the terms of her probation and subsequent failure to be successful on her rider,
ultimately determined the fate of her parental status.
The magistrate court found that while Doe had “come close to living in one or two places
for a 90-day period, her overall housing record is extremely unstable.” The magistrate also noted
that Doe had received a large income tax refund, with which she purchased a car and clothing
rather than to obtain housing. Between June 2007 and December 2008, Doe was incarcerated,
lived in various shelters in Boise, lived with family and friends, lived at the Lewiston Inn, lived
in her car, lived at the Hillary Hotel, and lived in an apartment in Lewiston. We recognize that
the actions of the parent are severely restricted while incarcerated, and thus focus on Doe‟s
actions when not incarcerated. See In re Doe, 146 Idaho at 763, 203 P.3d at 693. Doe testified
that the shelters were family friendly. However, there was also testimony that Doe was kicked
out of shelters for failure to maintain employment and, in one instance, for engaging in a
physical confrontation with another resident. Doe lived at the Hillary Hotel for approximately
four months and at the apartment for close to three months. Doe contends that this satisfies the
case plan requirement to maintain stable housing. While Doe testified that she had a room at the
Hillary Hotel that was “livable” for the children, Probation Officer Shears testified that the hotel
was not a “suitable living environment” because it was in a “drug and alcohol infested” area of
Lewiston. In addition, Shears testified that while at the Hillary Hotel, Doe‟s living arrangements
were unstable due to the fact that she did not stay in just one room for the entire four months and
that the accommodations were not suitable for children. While the two-bedroom apartment that
9
Doe obtained toward the end of 2008 was “suitable” for children, that situation was cut short by
Doe‟s inability to follow the terms of her probation and consequent incarceration.
The magistrate court also found that Doe had not been able to financially provide for her
children and that her employment record was very unstable as evidenced by the fact that while in
Lewiston she had five jobs in a seven-month period. Between June 2007 and December 2008,
Doe had approximately six jobs. Doe testified that while in Boise she obtained a weekend job
with Renaissance Staffing. Probation Officer Bryant testified that while Doe informed her that
she had submitted applications for employment, employment was never verified while under
supervision in Boise. Probation Officer Shears testified that once Doe arrived in Lewiston, she
obtained work at Quiznos from May 29, 2008 to June 12, 2008, but was fired due to aggression
and anger. Doe testified that she was fired because she “didn‟t peel the onions right.” Shears
testified that Doe then made arrangements at the Hillary Hotel to exchange housing for cleaning
and landscaping services from June 21, 2008 until October of 2008. Shears testified that she was
working “off and on” at the hotel. Doe also obtained employment at The Guest House doing the
“graveyard night audit” and worked there from approximately July 15, 2008 until October 7,
2008. While working at the Hillary Hotel and The Guest House, Doe also obtained employment
at Rusty‟s Ranch Café, working as a waitress from approximately July 16, 2008 until
September 21, 2008. Neither the hours worked nor the amounts earned were documented. She
ultimately obtained full-time employment with Macy‟s from approximately September 19, 2008
until December 11, 2008, when, again, her progress was cut short by her incarceration.
The magistrate court did not make any specific findings as to completion of domestic
violence and anger management classes. The court did find generally, however, that Doe “has a
long-term anger problem and does not respond well to authority.” Doe testified that she
completed a domestic violence course through TurnAround called Helping Healthy Women
Recover, which was approved by the Department. She testified that she also completed another
course on her rider called Building Healthy Relationships. Doe testified that she participated in
an anger management class through Probation Officer Shears in Lewiston. Shears testified that
Doe was dismissed the first day of class. Doe was informed that she needed to find another
anger management class to attend, which she did through Lewis-Clark State College (LCSC) in
Lewiston. Doe did participate in “one to one counseling.” Shears testified that while Doe
maintained that she was using the tools she was learning, Shears “never saw her use them.”
10
While we acknowledge that Doe did make some progress on her case plan, continued
progress was dependent upon her ability to follow through with the terms of her probation.
Shears testified that she discussed with Doe the need to complete the requirements of probation
and her case plan if she wanted to reunite with the children. Shears testified that Doe was “fully
aware of her consequences and her actions.” Nevertheless, Doe repeatedly violated the terms of
her probation and subsequently failed on her rider. The magistrate‟s finding that Doe has a long-
term anger problem and does not respond well to authority is supported by substantial and
competent evidence. Doe was removed from multiple classes, various housing facilities, some
employment, and, ultimately, her rider due to her anger management issues and her inability to
take responsibility for her own actions. Doe‟s own testimony at the termination hearing supports
this conclusion. The State engaged Doe in the following discussion:
Q: Okay. So pretty much what I‟m hearing you from (sic) then, [Doe] from your
first day of testimony to today is that everyone else has not done their job or at
fault and you‟ve done everything that you‟re supposed to have done. Correct?
Is that what I‟m understanding?
A: If that‟s the way you want to word it. My part --
Q: It sounds like everyone else --
A: My part, I did. So whether you‟re crediting your State‟s ability to do it, that‟s
up to you. I mean I did my part.
It was not the Department‟s responsibility to complete Doe‟s case plan for her.4 Nor were the
probation officers obligated to fulfill the terms of Doe‟s probation. Doe was responsible to work
her case plan and comply with the terms of her probation. She failed to do so. While the
evidence is conflicting, there is substantial and competent evidence in the record supporting the
magistrate court‟s finding that Doe failed to follow her case plan. See Doe, 147 Idaho at 356,
209 P.3d at 653 (concluding that while the case was not as “clear-cut” as most parental
termination cases, there was substantial, competent evidence in the record to support terminating
parental rights where the parents had failed to comply with the magistrate‟s orders to complete
their case plan); see also State, Department of Health and Welfare v. Doe, 145 Idaho 662, 665,
182 P.3d 1196, 1199 (2008) (recognizing that while evidence was conflicting, there was
substantial and competent evidence to support magistrate‟s findings that Doe failed to comply
with the case plan where she had seventeen months to do so and only began some compliance in
4
Of course, completion of a case plan is with the assistance of the Department, including
reasonable efforts to achieve return of a child and family reunification. See I.C. § 16-1621.
11
the last six months by following the terms of her probation); Doe, 144 Idaho at 314, 160 P.3d at
753 (concluding that there was substantial and competent evidence upon which to base a
termination where Doe did not complete three of the tasks in her case plan and where testimony
indicated that while she did what she could in order to complete the case plan, she did not gain
what she was supposed to from the completed tasks). Thus, the magistrate court‟s finding that
the children were neglected as defined by I.C. § 16-2002(3)(b), is supported by substantial and
competent evidence.
B. Best Interests of the Child
The magistrate court determined, generally, that termination was in the best interests of
the children. The court specifically referenced, as support for that determination, that (1) Doe
failed to substantially complete her case plan; (2) Doe is likely to remain incarcerated for a
substantial period of time during the children‟s minority; and (3) it is extremely remote that the
family can ever be reunited. The facts and findings, addressed above, that Doe neglected the
children were relied upon by the magistrate for the determination that termination was in the best
interests of the children and, as noted, are supported by the record.
The magistrate further determined that it was likely Doe would remain incarcerated for a
substantial period of the children‟s minority. While this finding would also provide a basis for
termination under I.C. § 16-2005(1)(e), we consider it only as a factor relevant to the best
interest determination itself. Doe was incarcerated at various times prior to the termination
proceedings and, as noted, presently incarcerated on a five-year sentence with two years
determinate. Considering Doe‟s anger issues, inability to accept responsibility and prior
performance on probation and during her rider, the magistrate‟s finding that she is likely to
continue to be incarcerated beyond the determinate term of her sentence is supported by the
record.
Additionally, the magistrate found that it was extremely remote that the family could ever
be reunited. The State argues that Doe made little effort to provide stability and continuity for
the children when she was not incarcerated. The State points to Doe‟s “anger problem” as an
example of thwarting her progress of building a home for the children. The visitation log
included in the record does indicate that at the various visits that Doe attended with the children,
there were generally hugs and kisses, gifts, playing, and reading. She testified that she loves the
children and that she wants them “to come home.” Department case worker, Jason Hooper, also
12
testified that there was no question that Doe loves the children. However, as the Idaho Supreme
Court has observed, “a child may not live on parental affection alone.” State ex rel. Child v.
Clouse, 93 Idaho 893, 896, 477 P.2d 834, 837 (1970); see also Doe, 147 Idaho at 355, 209 P.3d
at 652 (noting that “while Appellants love their kids „dearly,‟ their efforts to improve their
parenting skills were not consistent or long-lasting”).
Hooper also testified that he believed termination was in the best interests of the children
because they had been “in the system” for over two years and needed to be placed in a
permanent, safe, and stable home. See In Interest of S.W., 127 Idaho 513, 518, 903 P.2d 102,
107 (Ct. App. 1995) (holding that Department employee opinions were relevant and admissible
as they could “aid the magistrate in determining facts surrounding the care of the children and
what would be in their best interests”). The children‟s foster parent, Lacy Widdison, testified
that when the children came to her home they were “badly behaved” and used “monkey type
language.” Widdison testified that the older of the two children had speech problems and
cognitive disabilities, but that now he is a “happy little kid” and is “good with other children
now.” Widdison testified that when they arrived they were “really unhappy” but now “[t]hey‟re
happy, normal children.” She also testified that the children come to them for comfort, that they
verbally express love to one another, and that they are very close.
While some of the evidence is conflicting, it cannot be said that the magistrate‟s
determination that termination is in the best interests of the children is not supported by
substantial and competent evidence.5
III.
CONCLUSION
There was substantial and competent evidence to support the magistrate court‟s decision
to terminate Doe‟s parental rights. The magistrate court‟s order terminating Doe‟s parental
rights to K.E.P. and K.A.P. is, therefore, affirmed. No costs or attorney fees are awarded on
appeal.
Chief Judge LANSING and Judge MELANSON, CONCUR.
5
Because we affirm the magistrate court on the statutory ground set forth in I.C. § 16-
2005(1)(b), we need not address the court‟s other findings or Doe‟s contentions with respect to
those findings.
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