IDHW v. Jane Doe

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49730
In the Matter of: John Doe I and Jane )
Doe I, Children Under Eighteen (18) )
Years of Age. )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, ) Filed: October 27, 2022
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
JANE DOE (2022-21), ) 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 Offices, LLC; Joanna M. McFarland, Lewiston, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Briana R. Allen, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Judge
Jane Doe appeals from the magistrate court’s judgment terminating her parental rights.
Doe alleges substantial evidence does not support the magistrate court’s findings that Doe
neglected the minor children and that termination of her parental rights is in the children’s best
interests. Doe also argues substantial evidence does not support the magistrate court’s findings
that the minor children were not Indian children under the Indian Children Welfare Act (ICWA)
and that the Idaho Department of Health and Welfare (Department) did not make reasonable efforts
at reunification. Finally, Doe asserts that her counsel provided ineffective assistance during the
termination trial. Because substantial evidence supports the magistrate court’s findings, the
1
magistrate court did not err. The judgment terminating Doe’s parental rights to the minor children
is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Doe is the biological mother of W.C. and N.R. On June 28, 2020, the minor children came
into care because of concern of lack of supervision and a report that W.C. had sexually abused
N.R. The Department was additionally concerned about the living conditions of the home and a
report that Doe’s husband, a registered sex-offender but not the father of W.C. or N.R., had
previously sexually abused his biological daughter. The magistrate court granted the Department
temporary custody of the children and ordered a case plan for Doe as part of reunification efforts.
On October 7, 2021, the State filed a petition to terminate Doe’s parental rights to the
children. After a three-day trial beginning on March 9, 2022, the magistrate court found Doe
neglected the minor children by failing to provide them proper care and control and failing to
comply with the case plan. The court also found 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 children.1 Doe timely appeals.
II.
STANDARD OF REVIEW
On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable inferences
in support of the trial court’s judgment when reviewing an order that parental rights be terminated.
Id. The Idaho Supreme Court has also said that the substantial evidence test requires a greater
quantum of evidence in cases where the trial court’s finding must be supported by clear and
convincing evidence than in cases where a mere preponderance is required. State v. Doe, 143
Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood
to be evidence indicating that the thing to be proved is highly probable or reasonably certain. Roe
1
The children’s father’s parental rights were also terminated but are not at issue in this
appeal.
2
v. 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 alleges substantial evidence does not support the magistrate court’s findings that Doe
neglected her children and termination of her parental rights is in the children’s best interests.
Additionally, Doe alleges that substantial evidence does not support the magistrate court’s findings
that the children are not Indian children, as defined by the ICWA, and alleges that the Department
did not provide reasonable efforts at reunification. Finally, Doe alleges her trial counsel provided
ineffective assistance at the termination trial by failing to ask the magistrate court for
accommodations relative to her disability and by failing to call additional witnesses. In response,
the State argues the magistrate court did not err in any of the findings Doe challenges and that Doe
has failed to show trial counsel provided effective assistance during the termination trial.
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; Doe v. Dep’t of
Health & Welfare, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386,
146 P.3d at 652.
Idaho Code Section 16-2005 authorizes 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
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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.
A. The Magistrate Court Did Not Err in Finding Doe Neglected the Children
Idaho Code Section 16-2002(3)(a) defines “neglect” as any conduct included in I.C. § 16-
1602(31). Section 16-1602(31)(a) provides, in pertinent part, that a child is neglected when the
child is without proper parental care and control, or subsistence, medical or other care or control
necessary for his or her well-being because of the conduct or omission of his or her parents,
guardian, or other custodian or their neglect or refusal to provide them. Neglect also exists where
the parent has failed to comply with the court’s orders or the case plan in a Child 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).
The magistrate court found two statutory bases for terminating Doe’s parental rights. First,
Doe neglected the minor children by failing to provide proper care and control. Second, Doe
neglected her minor children by failing to comply with the terms of her case plan. However, on
appeal, Doe only challenges the magistrate court’s finding of neglect by failing to provide proper
parental care and control. Where a lower court makes a ruling based on two alternative grounds
and only one of those grounds is challenged on appeal, the appellate court must affirm on the
uncontested basis. Rich v. State, 159 Idaho 553, 555, 364 P.3d 254, 256 (2015). Accordingly, we
affirm the magistrate court’s finding of neglect on the uncontested basis that Doe neglected the
minor children by failing to comply with the case plan.
B. Substantial Evidence Supports the Magistrate Court’s Finding That Termination of
Doe’s Parental Rights Is in the Children’s Best Interests
Once a statutory ground for termination has been established, the trial court must next
determine whether it is in the best interests of the child to terminate the parent-child relationship.
Tanner v. State, Dep’t of Health & Welfare, 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
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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. Doe
(2015-03) v. Doe, 159 Idaho 192, 198, 358 P.3d 77, 83 (2015); Idaho Dep’t of Health & Welfare
v. 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. Idaho Dep’t
of Health & Welfare v. Doe, 152 Idaho 953, 956-57, 277 P.3d 400, 403-04 (Ct. App. 2012).
The magistrate court found that termination of Doe’s parental rights is in the best interests
of the children because Doe did not make significant efforts to improve her situation, including
that she continued to struggle to care for her own basic needs and to achieve consistent employment
and financial stability and because the children greatly improved while in foster care. These
findings are supported by substantial evidence.
First, substantial evidence was presented at the termination trial that despite sustained,
substantial resources, Doe failed to make meaningful efforts to improve her situation, specifically
in her ability to properly and safely parent, such that the children were at risk of continued harm if
returned to Doe’s care. Leana Demasters, a licensed social worker who worked for the Department
when the children first came into care, testified that since W.C.’s birth, the Department performed
“quite a few” referrals, including at least fifteen safety assessments involving Doe and her children,
the majority of which concerned lack of supervision and medical neglect. During these
assessments, Demasters stated the Department provided Doe resources, including developmental
disability resources, occupational therapy, and in-home services, but Doe never followed through
with these resources and once the Department closed a case, Doe would not follow through with
necessary services for herself or the children.
Similarly, multiple witnesses testified that Doe was provided with resources and support,
yet she did not make meaningful progress in developing and advancing her parenting skills,
including her ability to notice and appropriately respond to safety risks. For instance, Demasters
testified that Doe believed each excuse her husband told her concerning his three convictions for
sex offenses against children and, as a result, Doe struggled to understand that her husband posed
a threat to the minor children.
Tricia Klement, another social worker at the Department assigned to Doe’s case, testified
that despite the resources the Department provided and Doe’s participation in relevant case plan
tasks, Klement did not see any progress in Doe’s ability to recognize both unhealthy relationships
5
and individuals who posed safety risks to her and her children. Klement testified that Doe never
progressed in the case plan to the point where it was safe for the minor children to have at-home
visits with Doe. Klement also stated she had significant concerns about Doe’s ability to protect
her children in the future. Further, Klement testified that Doe’s denial that her husband posed any
kind of safety threat to her children raised significant concerns about Doe’s ability to protect her
children. Finally, despite Doe telling Klement that she was not going to have contact with her
husband, Klement received reports that Doe and her husband had been seen together in the
community.
Similarly, Libby Sheffler, Doe’s primary caseworker beginning in August 2021, testified
that, despite Doe attending multiple parenting classes and participating in five or six conversations
about safety risks to her children, Doe did not gain any knowledge or insight into her children and
what they might have experienced while in her care. Sheffler was never able to recommend a
transition to an extended home visit during the life of the case; Doe continued to live with unsafe
individuals during the course of the proceeding; and even when she lived by herself, Doe was not
able to provide a safe or stable environment for her children. Sheffler also testified that, despite
the minor children’s significant needs, Doe expressed that she would not continue any of the
services the children needed if they were returned to Doe’s care. Ultimately, Sheffler’s primary
concern was that Doe did not recognize the safety factors that had been in place throughout the
case and, as such, she believed “the likelihood that [Doe] is going to intervene and negate any
safety issues in the future is very minimal.”2
Klement and Sheffler’s concerns about Doe’s ability to protect the children from future
harm were also reflected in Dr. Rehil-Crest’s testimony. Dr. Rehil-Crest, a clinical psychologist,
conducted Doe’s psychological evaluation and parenting assessment, during which she assessed
Doe’s parenting skills, developmental knowledge, and ability and willingness to protect her
children from future harm. She testified that Doe’s responses to the personality tests suggested
2
Sheffler testified that Doe’s other child, who is not subject to this proceeding because she
was not present at Doe’s home when the other children were removed, was currently in
Washington with Doe’s husband’s parents because Doe did not want the child coming into the
Department’s care. Sheffler explained that Washington’s Department of Health and Welfare had
received multiple referrals for the child, but Doe’s husband’s parents had been evading
Washington authorities.
6
that she was not honest in the assessment, although Dr. Rehil-Crest acknowledged that Doe’s
cognitive disability may have impacted her responses. Further, Dr. Rehil-Crest testified:
So I felt like [Doe] was displaying some clear cognitive limitations in her ability to
do some basic parenting tasks. So things like being able to talk about how to
determine risk or threat in different situations, she struggled with that, and given a
history of a cognitive delay I felt like that was a concerning, limiting factor for her.
She also reported a lot of trauma in childhood and a lot of her discussion with me
revolved around her beliefs about how to assess safety. And they were not
consistent with what I would consider most healthy and emotionally kind of
functioning parents to be able to talk about. . . . And so my conclusions were,
looking at her trauma history and her cognitive delays are likely reducing her ability
to parent effectively and to be aware of safety concerns, to be able to identify them
and to be able to problem solve how to remediate them.
Dr. Rehil-Crest concluded that, without intervention, Doe continued to be at risk for victimization
and her minor children would be placed at continued risk.
Doe’s own testimony supported the conclusion that Doe did not make meaningful
improvements throughout the proceeding because she lacked the ability to recognize and respond
to safety risks posed to her children and, as such, the children would face continued risks if returned
to her care. Doe testified that her husband had been convicted of three sex offenses for conduct
against children stemming from three separate instances with three separate victims. Moreover,
his thirteen-year-old biological daughter had accused him of rape, which was, in part, the genesis
of the investigation resulting in this case. However, Doe believed that her husband was a victim
of the offenses because he was innocent, framed, set-up, or forced into the conduct underlying his
convictions. Doe further believed that she can recognize a sex offender by how an individual looks
and acts. Although Doe testified that she filed for divorce from her husband and he would not be
around W.C. and N.R. going forward, Doe also stated she did not believe her husband posed a
safety risk to the children. Moreover, Doe’s husband had not been served with the divorce
complaint prior to trial.
Similarly, Doe was aware of a report that W.C. previously sexually abused N.R. and heard
testimony from N.R.’s foster mom about the fear, emotional escalation, and behavioral regression
N.R. displayed when W.C. stayed overnight with N.R. at her foster placement on a respite visit.
Despite that information, Doe testified that she never felt the need to protect N.R. from W.C. and
did not believe N.R.’s accusation that W.C. sexually abused her. Doe testified that while she
believed N.R. had been manipulated into making an accusation, her safety plan was “keeping eyes
open at all times” on W.C. and N.R and ensuring they slept apart if they were returned to her care.
7
Although Doe did not think that a safety plan was needed because W.C. was not sexually active
or interested, Doe also stated that if she witnessed W.C. doing something to N.R., she would
remove him and “bust his ass with a belt.”
Doe testified that she did not have any fault in the children being removed from her care
and that she believed the Department was solely responsible for her not having custody of the
children. Substantial evidence was presented to support the magistrate court’s finding that despite
sustained, substantial resources, Doe failed to make meaningful efforts to improve her situation,
specifically in her ability to properly and safely parent, such that the children would be at risk of
continued harm if returned to Doe’s care.
Second, substantial evidence supports the magistrate court’s finding that the children made
significant improvements after being removed from Doe’s care. Specific to N.R., Demasters
testified that when the children came into care, N.R. had significant speech delays, swelling in her
eardrums due to extensive, untreated allergies, and substantial dental issues. N.R.’s foster mom
testified that when N.R. first came into care, N.R. was unstable and very abrupt, had behavioral
issues, and even damaged some items in her foster home. She also testified that N.R. had speech
issues, a lot of sinus issues and ear infections, dental issues, over-ate, and wet the bed. However,
N.R.’s foster mom testified that N.R. is a “whole different little girl now” and “just thriving.”
N.R.’s foster mom explained that N.R. had been introduced to a routine and received consistent
medical and dental care, and speech therapy and, as a result, her sinus issues and ear infections
subsided, her dental issues were being addressed, her speech improved tremendously, her over-
eating stopped, her behavioral issues at home and in school ended, and she no longer wet the bed.
As further evidence of N.R.’s improvements, N.R.’s foster mom testified that N.R.
regressed when she spent an extended visit with W.C. N.R.’s foster mom testified that N.R. was
fearful of W.C. when the children spent four days at her house for a respite visit together. N.R.’s
foster mom explained that N.R.’s behavior “changed completely” in that she became emotionally
escalated, regressed in her potty-training, barricaded herself in her room at night, stopped sleeping
with her sound machine and eye mask on, and booby-trapped her door with a motion activated toy.
N.R.’s foster mom testified that N.R. told her that “she was scared that [her] brother was the
monster that was going to come into her room.” N.R.’s foster mom testified that once W.C. left
the house, these behaviors ended “like a flip of a switch.”
8
Sheffler’s testimony regarding N.R.’s improvements aligned with testimony from N.R.’s
foster mom. Sheffler testified that when she took over the case, N.R. displayed negative behaviors
in school and that her speech was so delayed that she was difficult to understand. However, since
coming into care, Sheffler explained that N.R. has been attending school, counseling, and speech
therapy, and made a lot of progress in these areas.
Next, substantial evidence was also presented that W.C. improved after removal from
Doe’s care. DeMasters testified that when W.C. came into care, he had substantial speech delays.
W.C.’s foster mom testified that W.C. was insecure and very timid when he initially came to live
with her family. She stated that W.C. would self-stimulate and self-soothe in order to calm himself,
displayed a nervous tick and stutter, and required sleep aids. W.C.’s foster mom also testified that
W.C. was very skinny and presented with food issues and, while very smart, he was undereducated
and appeared to have fallen through the cracks in his education. But, W.C.’s foster mom stated
that since coming into her family’s care, many of these behaviors dissipated and people now
comment that “he looks like a different kiddo.” She explained that W.C.’s health improved; he
put on weight; his issues around food diminished; and his teeth improved as a result of regular
dental care. W.C.’s foster mom also testified that W.C. made educational improvements and,
while not yet at grade level, he had made great strides.3 Accordingly, substantial evidence supports
the magistrate court’s finding that the children improved while in foster care.
Doe argues on appeal that the magistrate court erred in terminating her parental rights
because she loves her children. While it is undisputed that Doe loves the children and the children
love her, love does not always translate into the ability to discharge parental responsibilities. Idaho
Dep’t of Health & Welfare v. Doe (2014-17), 157 Idaho 694, 703, 339 P.3d 755, 764 (2014).
Substantial evidence supports the magistrate court’s conclusion that termination of Doe’s parental
rights is in the best interests of the children.
C. The Magistrate Court Did Not Err in Finding the Children Were Not Indian Children
Under the ICWA
Although not listed in her statement of issues presented on appeal, in her analysis Doe
alleges the magistrate court erred in finding that Doe’s children are not Indian children under the
ICWA because there was no testimony at the termination trial regarding the ICWA status of the
3
W.C.’s foster mom testified that her son with autism is home schooled and she believed
that W.C., who is also autistic, may also benefit from school options other than public school where
W.C. could receive more one-on-one assistance.
9
children. The failure of an appellant to include an issue in the statement of issues required by
Idaho Appellate Rule 35(a)(4) will eliminate consideration of the issue from appeal. Kugler v.
Drown, 119 Idaho 687, 691, 809 P.2d 1166, 1170 (Ct. App. 1991). This rule may be relaxed,
however, where the issue is argued in the briefing and citation to authority is provided. Everhart
v. Washington Cnty. Rd. and Bridge Dep’t, 130 Idaho 273, 274, 939 P.2d 849, 850 (1997). Doe
neither provided any argument or evidence that the children are Indian children under the ICWA
or any information about the children’s ICWA eligibility, nor explain how the alleged error
impacted her substantial rights. Accordingly, as this claim is not listed in the statement of issues
presented on appeal and not supported by any argument, Doe waived consideration of this claim
on appeal.
Even assuming Doe can challenge ICWA status for the first time on appeal from the
judgment terminating her rights, she has failed to establish any error in relation thereto. The ICWA
only applies if the “court knows or has reason to know that an Indian child is involved” in the
proceedings. 25 U.S.C. § 1912(a) (2018).4 The petition alleged the children are not Indian children
and the Department’s Adjudicative / Disposition Report of Investigation indicated the children are
not of Indian heritage. Further, at the shelter care hearing, Doe indicated the children are not
Indian children. Given that information, there was no basis on which to require the Department to
supply additional testimony or evidence at the termination trial on efforts made to determine if the
ICWA applied to this case. Likewise, there was no reason for the magistrate court to believe that
the children are enrolled members of an Indian tribe or even that they had a relationship to an
Indian tribe. Accordingly, the magistrate court did not err in finding the ICWA did not apply
because the court had no reason to believe that either of the minor children are Indian children.
D. We Decline to Address Doe’s Argument That the Department Did Not Provide
Reasonable Efforts Towards Reunification
Doe alleges that the magistrate court’s finding that the Department provided reasonable
efforts at reunification is not supported by substantial and competent evidence because the
4
A challenge to the constitutionality of the Indian Child Welfare Act is currently pending
before the Supreme Court of the United States. In Brackeen v. Haaland, 994 F.3d 249, 294 (5th
Cir. 2021), the United States Court of Appeals for the Fifth Circuit recently held certain sections
of the Indian Children Welfare Act are unconstitutional. The parties appealed and the Supreme
Court of the United States granted certiorari. Brackeen v. Haaland, 142 S. Ct. 1205 (2022).
10
Department did not provide adequate resources for Doe to be able to satisfy all of her case plan
tasks. As Doe acknowledges, because reasonable efforts are requirements under the Child
Protection Act (CPA), not Idaho’s parental rights termination statute, such findings are irrelevant
to termination proceedings. Matter of Doe I, 164 Idaho 883, 889, 436 P.3d 1232, 1238 (2019).
Therefore, as it is not relevant to the termination proceeding, we will not address Doe’s claim that
the Department did not provide reasonable efforts at reunification.
E. Ineffective Assistance of Counsel
Doe alleges that her counsel provided ineffective assistance of counsel by failing to:
(1) ask the magistrate court or the Department for accommodations relative to her disability based
on her “social security eligibility” “due to her confirmed mental health diagnosis of ADHD, ADD,
PTSD, and fetal alcohol syndrome”; and (2) present testimony from additional witnesses “to
clarify, contradict, or confirm any of the prior testimony” which “placed the entirety of the burden
on [Doe] to accurately remember and articulate the facts.” 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.
In applying the Strickland standard, at least in the context of post-conviction proceedings,
which are another type of civil case, to prevail on a claim that trial counsel was ineffective, the
petitioner must show that the attorney’s performance was deficient and that the petitioner was
prejudiced by the deficiency. Strickland, 466 U.S. at 687-88; Self v. State, 145 Idaho 578, 580,
181 P.3d 504, 506 (Ct. App. 2007). 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
11
442, 163 P.3d at 231. In the context of post-conviction 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 has not established her trial counsel provided ineffective assistance by failing to ask
the magistrate court or the Department for accommodations relative to her disability. The
substance of Doe’s claim is that her counsel failed to “preserve defenses and exercise potential
additional rights” under the American’s With Disabilities Act (ADA) because:
[Doe’s] social security eligibility is due to her confirmed mental health diagnosis
of ADHD, ADD, PTSD, and fetal alcohol syndrome. The assessment confirmed
her diagnosis. [Doe’s] trial counsel failed to ask the Court or the Department for
accommodations in accordance with her disability eligibility. Generally, issues not
raised below may not be considered for the first time on appeal. Sanchez v. Arave,
120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Because trial counsel failed to
properly preserve this argument by raising it timely, the higher Court will be limited
or prevented from considering it on appeal.
(Record citations omitted.) Doe does not assert what defenses, rights, or accommodations were
applicable to her or how the absence of these unspecified defenses, rights, or accommodations
impacted the outcome of the proceedings. Without this information, Doe cannot establish that her
counsel provided deficient performance by failing to ask for accommodations or that she was
prejudiced by such failure. As such, she cannot establish ineffective assistance of counsel on this
basis. Moreover, the magistrate court found that Doe’s disability did not render it impossible for
her to complete her case plan and that Doe did not point to any supportive services that would
enable her to carry out her parental responsibilities, noting: “[Doe] did not present evidence of any
specific additional services that she qualified for, had been approved for, or that those supportive
services could sufficiently aid her in parenting.” Without identifying any necessary
accommodations either in the magistrate court or on appeal, Doe cannot establish deficient
performance on this ground.
Doe has also failed to establish her trial counsel provided ineffective assistance by
declining to present testimony from additional witnesses. What witnesses to call at trial is a
strategic or tactical decision. Pomrenke v. State, 169 Idaho 474, 479, 497 P.3d 548, 553 (Ct. App.
2021). 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
12
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). There is a strong
presumption that trial counsel rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment. Pomrenke, 169 Idaho at 479, 497 P.3d at 553.
As such, it is incumbent on the appellant to provide admissible evidence on the substance of the
witnesses’ testimony. Self, 145 Idaho at 581-82, 181 P.3d at 507-08. Absent an affidavit from the
potential witness explaining what she would have testified to, or some other verifiable information
about what the substance of the testimony would have been, an appellant fails to raise a genuine
issue of material fact for an ineffective assistance of counsel claim. Id.; see also Hall v. State, 126
Idaho 449, 453, 885 P.2d 1165, 1169 (Ct. App. 1994).
While Doe states that her trial counsel should have called her husband, mother-in-law, and
the Idaho County detective who performed an initial home visit, Doe does not identify any
evidence in the record that these decisions were not strategic, especially given the testimony that
Doe’s husband is a thrice-convicted sex-offender and Doe’s mother-in-law was hiding Doe’s other
child to evade Washington’s child protection services. Further, Doe does not assert or identify any
evidence in the record or make any argument on appeal indicating what these potential witnesses
would have testified to, beyond a sweeping statement that they could have clarified, contradicted,
or confirmed other unspecified testimony at trial. Doe has failed to show that any of the claimed
actions or omissions constituted deficient performance and resulted in prejudice. As a result, Doe
has failed to establish counsel was constitutionally deficient, much less that she was prejudiced as
a result.
IV.
CONCLUSION
Substantial evidence supports the magistrate court’s finding that Doe neglected her
children and termination of Doe’s parental rights is in the best interests of the children.
Additionally, Doe’s challenges to the children’s ICWA status and to the Department’s efforts at
reunification are unavailing. The magistrate court did not err in relying on the representations of
the Department and Doe that the children are not Indian children under the ICWA. Further,
whether the Department provided reasonable efforts at reunification is not properly before the
Court in this appeal. Finally, based on the record before this Court and Doe’s arguments, Doe has
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failed to demonstrate her counsel provided ineffective assistance. Accordingly, the magistrate
court did not err and the judgment terminating Doe’s parental rights is affirmed.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
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