IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37220
IN THE MATTER OF JOHN DOE AND )
JANE DOE, MINOR CHILDREN UNDER )
EIGHTEEN YEARS OF AGE. )
-------------------------------------------------------- ) Boise, December 2010 Term
IDAHO DEPARTMENT OF HEALTH & )
WELFARE, ) 2011 Opinion No. 23
)
Petitioner-Respondent, ) Filed: February 25, 2011
v. )
) Stephen W. Kenyon, Clerk
JANE DOE I (2009-21), )
)
Respondent-Appellant. )
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. Bryan Kenneth Murray, Magistrate.
Order taking jurisdiction over children pursuant to Child Protective Act, affirmed;
decree vesting custody of children in Idaho Department of Health and Welfare,
vacated.
Kumm Law Offices, Pocatello, for appellant. Reed B. Willis argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
James P. Price, Deputy Attorney General argued.
__________________________________
BURDICK, Justice
Jane Doe’s two children (Son and Daughter) were placed in shelter care and foster care
after Son was hospitalized for physical injuries inflicted by their father, John Doe. At the shelter
care hearing for each child, John and Jane Doe stipulated to their children being placed in shelter
care. At the adjudicatory hearing held on October 21, 2009, the magistrate placed the children in
the legal custody of the Idaho Department of Health and Welfare (the Department). At the
planning hearing held on November 13, 2009, the magistrate court returned the children to Jane
Doe’s physical custody under an extended home visit effective November 16, 2009, while
keeping the children under the legal custody of the Department. Jane Doe appeals on multiple
grounds. We affirm the magistrate in taking jurisdiction over the children at both the shelter care
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hearings and the adjudicatory hearing; however, we reverse and vacate the magistrate’s order
vesting legal custody in the Department upon the conclusion of the adjudicatory hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
John and Jane Doe admitted Son to the hospital on August 26, 2009, suspecting that his
leg was broken. X-rays indicated Son had a broken femur and two fractured clavicle bones and
that the injuries resulted from at least two separate incidents. Initially, neither parent took
responsibility for the injury. On September 29, 2009, law enforcement declared Son to be in
imminent danger, and the Bannock County Prosecutor’s Office filed a petition under the Child
Protective Act (CPA) asking the magistrate court to: (1) determine whether Son should be placed
in shelter care; and (2) place Son in the legal custody of the Department. On September 30,
2009, John Doe admitted to the police that he purposely injured Son on multiple occasions due to
anger problems he had when Son would not stop crying. John Doe explained that none of the
incidents took place in the presence of Jane Doe but that Daughter was present during each
incident.
On October 1, 2009, the Bannock County Prosecutor’s Office filed a CPA petition asking
the magistrate to place Daughter in shelter care, place her in the legal custody of the Department
and remove her from her home. In an affidavit attached to the petition, a Department social
worker recommend that Daughter be placed in temporary custody, pending a shelter care
hearing, due to Son’s injuries and the risk of harm to Daughter. That day, the magistrate court
ordered that Daughter be taken into the temporary custody of the Department and found that
Daughter should be removed from the home in order to protect her welfare, that Daughter’s
continuation in the home would be contrary to her welfare and that the Department made
reasonable efforts to eliminate the need for removal. On October 6, 2009, the magistrate
consolidated the children’s cases.
The notice for both shelter care hearings sent to John and Jane Doe provided “you have
the right to appear at the Shelter Care Hearing and to be represented by legal counsel.” On
September 30, 2009, the magistrate appointed public defenders to both parents. The order
appointing counsel notified Jane Doe that she should call the public defender’s office within two
days to set up an appointment and stressed the importance of contacting the office in order to be
fully represented.
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On October 13, 2009, the magistrate issued shelter care orders consistent with the
stipulations of the parties, ordering that Daughter and Son be placed in the Department’s legal
custody until the adjudicatory hearing. On October 15, 2009, the Bannock County Public
Defender’s Office submitted a motion to withdraw from representing Jane Doe on the ground
that it had a conflict of interest because it was representing John Doe. The magistrate granted the
motion to withdraw. Also on October 15, Reed Bradley Willis filed a notice of appearance on
behalf of Jane Doe.
On October 21, 2009, an adjudicatory hearing was held pursuant to the CPA. Willis
appeared as Jane Doe’s attorney at the hearing. One of the officers to whom John Doe confessed
testified that he thought Jane Doe was aware of Son’s injuries but that she did not know how
they occurred and that she promptly took Son to the hospital. The magistrate issued a decree on
October 28, 2009, vesting legal custody of the children in the Department. The magistrate found
that it had jurisdiction over Son because of the abuse inflicted by John Doe and that it had
jurisdiction over Daughter pursuant to I.C. § 16-1603(2) because Daughter lived in the same
house as Son and was exposed to or was at risk of being a victim of abuse, neglect or
abandonment. The magistrate also found that it was contrary to their welfare for the children to
remain in the home, that no safety plan was advanced by any party as to how the children could
go home and that it was in the children’s best interest to vest legal custody in the Department. In
deciding to vest legal custody in the Department, the magistrate stated that while there were no
allegations or evidence that Jane Doe abused the children, her apparent innocence did not stop
the Court from acting to protect the children. The magistrate ordered the Department to make
reasonable efforts to return the children to Jane Doe.
On November 10 and 13, 2009, the magistrate held disposition hearings pursuant to the
CPA. While the magistrate kept the children in the Department’s legal custody, the magistrate
ordered an immediate thirty-day extended home visit for the children. On December 9, 2009, at
the Case Plan Review Hearing, the magistrate extended the home visit from thirty days to sixty
days. Jane Doe appealed to this Court.
II. STANDARD OF REVIEW
The Supreme Court reviews the magistrate court record to determine whether there is
substantial, competent evidence to support the magistrate’s findings of fact and whether the
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magistrate’s conclusions of law follow from those findings. Losser v. Bradstreet, 145 Idaho 670,
672, 183 P.3d 758, 760 (2008).
A “decision will be upheld if it appears that the trial court (1) correctly perceived the
issue as discretionary, (2) acted within the boundaries of its discretion and consistent with the
applicable legal standards, and (3) reached its determination through an exercise of reason.” Eby
v. State, 148 Idaho 731, 734, 228 P.3d 998, 1001 (2010).
III. ANALYSIS
A. The magistrate did not violate Jane Doe’s right to counsel at the shelter care hearings.
Jane Doe argues that the magistrate violated her right to counsel at both shelter care
hearings. Jane Doe acknowledges that the magistrate appointed counsel to her for both cases,
but she claims that she was never given a meaningful opportunity to exercise that right because
she was not afforded an opportunity to meet with her attorney and seek legal advice prior to
stipulating to each child’s placement in shelter care. Constitutional issues are questions of law
over which this Court exercises free review. City of Idaho Falls v. Fuhriman, 149 Idaho 574, ,
237 P.3d 1200, 1202 (2010).
When a child is taken into shelter care, the court must hold a shelter care hearing within
forty-eight hours to determine whether the child should be released or held in shelter care. I.C. §
16-1608. Each parent from whom the child was removed must be given notice of the shelter care
hearing, and that notice shall include “that such person is entitled to be represented by legal
counsel.” I.C. § 16-1615(2). In compliance with I.C. § 16-1615(2), the notices for Son’s and
Daughter’s shelter care hearings were sent to Jane Doe and included the following language,
“you have the right to appear at the Shelter Care Hearing and to be represented by legal counsel.”
Idaho Juvenile Rule 39(g) provides that at the time of the shelter care hearing, the court
must advise the parent of the right to be represented by counsel and, if they are financially unable
to hire counsel, of the right to be represented by a court-appointed attorney. At the outset of the
Son’s shelter care hearing on September 29, 2009, the magistrate had the following exchange
with John and Jane Doe:
COURT: In civil cases, we normally don’t appoint attorneys to represent
parents, but in child protection cases because it involves a child, parental rights,
those types of things, the law allows me to appoint attorneys to represent parents
because they are conflict type cases. Are you going to hire your own attorneys to
represent you?
[JOHN DOE]: No.
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COURT: It would be important to have an attorney. Can you afford an
attorney?
[JOHN DOE]: Not right now.
COURT: Okay. Do you want me to appoint an attorney to represent you?
[JOHN DOE]: Yes, sir.
COURT: I can appoint an attorney to represent [you and Jane Doe] or a
different attorney to represent each of you individually. Sometimes parents have
different opinions as to what should happen.
[JOHN DOE]: Just an attorney for the both of us.
COURT: Okay, and then I’ll let that attorney decide if they think after
meeting with you that two attorneys would be more appropriate, they can refer it
out to a separate. So, I’ll appoint a public defender to represent you. I have a
booklet for each of you that reviews child protection cases. If you could read that
and then review it, it will answer some of your questions and also help you in
communicating with your attorney about this proceeding. You do not have
attorneys with you here today though. I didn’t receive a request or anything for
them as was provided in the notice. At this time the State is still requesting
shelter care and I have to decide what happens with the child until we can have
another hearing. Do [sic] either of you have an objection to [Son] remaining in
the custody of the State temporarily until we can fully review this matter?
[JANE DOE]: No, sir.
[JOHN DOE]: No, sir.
The magistrate appointed an attorney to the Does and ordered them to contact the public
defender’s office within forty-eight hours to meet with their attorney.
At the outset of Daughter’s shelter care hearing on October 2, 2009, the magistrate had
the following exchange with Jane Doe:
COURT: . . . [A]s you’re aware, an attorney is available. Can I appoint an
attorney in this matter?
[JANE DOE]: Not right now, sir.
COURT: You don’t want an attorney to represent you?
[JANE DOE]: I do. I might be getting one.
COURT: I appointed you one in the other case.
[JANE DOE]: Okay.
COURT: Remember?
[JANE DOE]: Right.
COURT: You might be getting one different on your own?
[JANE DOE]: Right.
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COURT: If you do that then you just notify us and we’d release the other
attorney.
[JANE DOE]: Okay. Thank you, sir.
COURT: But we’ll go ahead and appoint one for you. It would probably be good
to appoint separate attorneys for you. Sir, is it agreeable that I appoint an attorney
for you?
[JOHN DOE]: Yes, sir.
COURT: Okay. All right. So, we’ll appoint a public defender for you in these
proceedings. Is the State requesting shelter care today?
WEBSTER: Absolutely, Your Honor.
COURT: As parents, are you objecting to the State’s request for shelter care [for
Daughter] today?
[JANE DOE]: No, sir.
[JOHN DOE]: No, sir.
The magistrate once again appointed Jane Doe an attorney and ordered her to contact the public
defender’s office within forty-eight hours.
The magistrate could have been more plain and explicit in communicating to Jane Doe
precisely what her right to counsel entailed, such as her right to renew the petition and what her
options were prior to her decision at the shelter care hearing. However, we find that the bare
minimum requirements for notifying Jane Doe of her right to counsel were met with the written
notices and the magistrate’s comments at both shelter care hearings.
At Son’s shelter care hearing, the magistrate notified Jane Doe that she had a right to
counsel, and he appointed counsel for her; however, the magistrate failed to inform Jane Doe that
she could meet with her counsel before proceeding with the shelter care hearing. A shelter care
hearing may be continued for a reasonable time upon request by the parent. I.C. § 16-1615(4).
The magistrate should have also informed the Does that the shelter care hearing could be
continued to give them the opportunity to meet with their appointed counsel. As to the second
shelter care hearing, which was for Daughter, it would normally have been improper for the
court to proceed in the absence of counsel for a parent at a subsequent hearing even if the hearing
involved another child. However, in this case, Jane Doe told the court that she was considering
hiring another attorney and did not wish to be appointed counsel.
Furthermore, Jane Doe suffered no prejudice in stipulating to shelter care for each child
at the shelter care hearings. Shelter care is a place “for temporary care of children pending court
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disposition or placement.” I.C. § 16-1602(32). If, upon completion of the shelter care hearing,
the court orders shelter care, it must schedule an adjudicatory hearing to be held “as soon as
possible, but in no event later than thirty (30) days from the date the petition was filed.” I.C. §
16-1615(6). At the adjudicatory hearing, the court determines whether the child can go home,
requires protective supervision or shall be put in the Department’s custody. I.C. § 16-1602(4).
Jane Doe was represented by counsel very shortly after the shelter care hearings. She was also
represented at the adjudicatory hearing, at which the magistrate vested legal custody in the
Department.
B. The magistrate was permitted to take jurisdiction over the children, even though the
allegations of abuse were against only one parent.
Jane Doe argues that in order to take jurisdiction over a child, the CPA requires a court to
find jurisdictional grounds as to both parents, at least when the child is being removed from the
care of both parents. Jane Doe argues that it was undisputed that she was willing and able to
parent the children. While Jane Doe makes a number of due process-related arguments, she
clarifies in her Reply Brief that the due process arguments are not an attack on the
constitutionality of the CPA but, rather, that the due process arguments support her proposed
reading of the CPA.
“The interpretation of a statute is a question of law, over which this Court exercises free
review.” State v. Hensley, 145 Idaho 852, 855, 187 P.3d 1227, 1230 (2008). The statute is
viewed as a whole, and the analysis begins with the language of the statute, which is given its
plain, usual and ordinary meaning. Id. In determining the plain meaning of the statute, “effect
must be given to all the words of the statute if possible, so that none will be void, superfluous, or
redundant.” State v. Mercer, 143 Idaho 108, 109, 138 P.3d 308, 309 (2006) (quoting In re
Winton Lumber Co., 57 Idaho 131, 136, 63 P.2d 664, 666 (1936)). The plain meaning of a
statute will prevail unless the clearly expressed legislative intent is to the contrary or unless the
plain meaning leads to absurd results. Gillihan v. Gump, 140 Idaho 264, 266, 92 P.3d 514, 516
(2004), abrogated on other grounds by Gonzalez v. Thacker, 148 Idaho 879, 231 P.3d 524
(2009). “If the language of the statute is capable of more than one reasonable construction it is
ambiguous,” and a statute that is ambiguous must be construed with legislative intent in mind,
which is ascertained by examining “not only the literal words of the statute, but the
reasonableness of the proposed interpretations, the policy behind the statute, and its legislative
history.” State v. Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007).
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Idaho Code § 16-1603(1) provides:
Except as otherwise provided herein, the court shall have exclusive original
jurisdiction in all proceedings under this chapter concerning any child living or
found within the state:
(a) Who is neglected, abused or abandoned by his parents, guardian or other
legal custodian, or who is homeless; or
(b) Whose parents or other legal custodian fails to provide a stable home
environment.
(Emphasis added). The magistrate took jurisdiction over Son pursuant to I.C. § 16-1603(1)(a)
based on John Doe’s abuse of Son, while noting that the there were no allegations that Jane Doe
abused, neglected or abandoned Son.
Jane Doe argues that the use of “parents” in subsections (a) and (b) means that the court
must find that both parents neglected, abused or abandoned the child or failed to provide a stable
home environment. According to Jane Doe, had the Legislature intended the abuse of one parent
to suffice, it would have used “a parent” instead of “parents.” The Department counters, arguing
that the word “parents” includes “parent” and that if the Legislature intended what Jane Doe
claims it intended, it would have used something like, “every parent from whom the child was
removed.” Both interpretations are reasonable under a plain reading of the CPA. Idaho Code §
16-1603(1) is therefore ambiguous as to whether a court has jurisdiction over a child who has
been abused by only one parent.
While the preservation of the family unit is one of the stated policies of the CPA, the
policy also states, “[a]t all times the health and safety of the child shall be the primary concern.”
I.C. § 16-1601. Thus, the focus is on the child—whether the child has been abused, neglected or
abandoned as defined by statute. The clause “by his parents, guardian or other legal custodian”
is aimed at distinguishing instances in which the child has been abused, neglected or abandoned
by someone who legally cares for the child from instances in which the child has been abused,
neglected or abandoned by a person who is not legally responsible for the child’s care. When a
child is abused by someone who is legally entrusted to care for him or her, the child’s health and
safety is at risk such that taking jurisdiction over the child and removing him or her from home is
justified.
Jane Doe argues that this interpretation leads to an absurd result, as it permits a court to
take a child from his or her home based on the actions of one parent, even when there is another
parent who did not take part in the abuse and who is willing and able to care for the child. While
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we are sympathetic to such a parent, as Jane Doe appears to be, when a child has suffered abuse
by a parent, the court must be able to take swift initial action to protect the child. A child might
have a deceased parent, a parent outside the court’s jurisdiction or a parent that cannot be readily
located and contacted, in which case, under Jane Doe’s proposed interpretation, the court would
be crippled from protecting a child who is being abused by a parent.
Jane Doe’s argument brushes over the distinction between a finding of jurisdiction over a
child and other actions the court might take pursuant to the CPA, such as removing a child from
his or her home and vesting legal custody in the Department. Taking jurisdiction over a child is
an initial step under the CPA and does not dictate the ultimate disposition of the case. Under the
CPA, the court can keep a child in shelter care only if, upon completion of the shelter care
hearing, it is shown that:
(a) A petition has been filed; and
(b) There is reasonable cause to believe the child comes within the jurisdiction of
the court under this chapter and either:
(i) The department made reasonable efforts to eliminate the need for
shelter care but the efforts were unsuccessful; or
(ii) The department made reasonable efforts to eliminate the need for
shelter care but was not able to safely provide preventive services; and
(c) The child could not be placed in the temporary sole custody of a parent having
joint legal or physical custody; and
(d) It is contrary to the welfare of the child to remain in the home; and
(e) It is in the best interests of the child to remain in temporary shelter care
pending the conclusion of the adjudicatory hearing . . . .
I.C. § 16-1615(5) (emphases added). Thus, the court cannot keep the child in shelter care merely
upon finding reasonable cause to believe it has jurisdiction over the child. The court must
additionally find, amongst other factors, that it is in the child’s best interests to remain in shelter
care and that the child could not be placed in the care of another parent who has joint legal or
physical custody. Similarly, after an adjudicatory hearing, the court can vest legal custody in the
Department or other authorized agency only if a preponderance of the evidence at the
adjudicatory hearing shows that the court has jurisdiction over the child and that “continuation of
residence in the home would be contrary to the welfare of the child and that vesting legal custody
with the department or other authorized agency would be in the best interests of the child.” I.C.
§ 16-1619(6).
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As to Daughter, the magistrate took jurisdiction pursuant to I.C. § 16-1603(2),
which provides:
(2) If the court has taken jurisdiction over a child under subsection (1) of this
section, it may take jurisdiction over another child living or having custodial
visitation in the same household without the filing of a separate petition if it finds
all of the following:
(a) The other child is living or is found within the state;
(b) The other child has been exposed to or is at risk of being a victim of
abuse, neglect or abandonment;
(c) The other child is listed in the petition or amended petition;
(d) The parents or legal guardians of the other child have notice as
provided in section 16-1611, Idaho Code.
(Emphasis added). Since the magistrate took jurisdiction over Son pursuant to I.C. § 16-1603(1),
the magistrate was authorized to take jurisdiction over Daughter, who lived in the same home
and who witnessed John Doe’s abuse of Son.
C. Upon concluding the adjudicatory hearing, the magistrate did not abuse his discretion
in determining that the children were within the court’s jurisdiction.
Jane Doe argues that even if the CPA permits a court to take jurisdiction over a child
based upon the actions of only one parent, the magistrate abused his discretion in finding the
children to be within the court’s jurisdiction after the adjudicatory hearing. Pursuant to I.C. §
16-1619(4):
If a preponderance of the evidence at the adjudicatory hearing shows that the
child comes within the court’s jurisdiction under this chapter upon the grounds set
forth in section 16-1603, Idaho Code, the court shall so decree and in its decree
shall make a finding on the record of the facts and conclusions of law upon which
it exercises jurisdiction over the child.
The magistrate took jurisdiction over Son pursuant to I.C. § 16-1603(1), which provides in part
that the court “shall have exclusive original jurisdiction” in all CPA proceedings for a child who
meets the relevant criteria. (Emphasis added). Taking jurisdiction over Son was not a
discretionary decision; thus, the magistrate did not abuse his discretion in exercising jurisdiction
over Son. The magistrate took jurisdiction over Daughter pursuant to I.C. § 16-1603(2), which
provides that the court “may” take jurisdiction over a child if specified criteria are met.
Jane Doe acknowledges that the magistrate perceived the decision to exercise jurisdiction
over Daughter as a discretionary issue but argues that no findings support finding jurisdiction
when Jane Doe was willing and able to care for Daughter and when John Doe was the sole
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abuser, had been arrested, was held in jail on a $100,000.00 bond and was the subject of a
protective order. The court is authorized to take jurisdiction over a child living in the same
household as a child over whom the court has taken jurisdiction pursuant to I.C. § 16-1603(1),
but only if the court finds, amongst other things, that “[t]he other child has been exposed to or is
at risk of being a victim of abuse, neglect or abandonment.” I.C. § 16-1603(2) (emphasis added).
Following the CPA adjudicatory hearing, the magistrate decreed:
The Court has jurisdiction over this case in that each child lives or was
found in the state of Idaho and because of the physical abuse of [John Doe].
Jurisdiction is taken over [Daughter] because of the court’s assertion of
jurisdiction over another child, [Son]. [Daughter] was listed in this petition.
[Daughter] is living or has custodial visitation in the same household and has
been exposed to or is at risk of being a victim of abuse, neglect or abandonment.
The abuse consisted of the father intentionally harming [Son] while angry,
fracturing the child’s leg. The child was less than two months old at the time of
the injury. The harm was not the product of an accident.
Once there was a finding of abuse on [Son], Idaho Code 16-1603(2)
allows this court to take jurisdiction over [Daughter] and this court does so . . . .
(Emphasis added).
While the magistrate could have been more clear in the decree as to why it found
Daughter to be exposed to or at risk of being abused, the record supports the magistrate’s
decision. The police reports admitted during the adjudicatory hearing show that Daughter
witnessed John Doe’s abuse of Son and, thereby, was exposed to abuse. Furthermore, the same
police reports and the testimony at the adjudicatory hearing show that John Doe committed the
abuse against Son due to difficulties controlling his anger triggered during normal incidences of
parenting, which supports a finding that Daughter was at risk of being a victim of abuse. We
hold that the magistrate acted within the bounds of his discretion and through an exercise of
reason in taking jurisdiction over Daughter.
D. The magistrate abused his discretion in vesting legal custody in the Department.
Upon concluding the adjudicatory hearing, the magistrate vested legal custody of the
children in the Department. Jane Doe argues that the magistrate abused his discretion in vesting
legal custody in the Department instead of placing the children in her home under protective
supervision given that she was willing and able to care for the children and that John Doe was
the sole abuser, had been arrested, was held in jail on a $100,000.00 bond and was the subject of
a protective order.
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At a CPA adjudicatory hearing, if the court finds that the child comes within the court’s
jurisdiction, the court has the discretion to either place the child under protective supervision in
his own home or vest legal custody of the child in the Department or other authorized agency.
I.C. §§ 16-1619(4) to (5). In making this decision, “the court shall consider any information
relevant to the disposition of the child.” I.C. § 16-1619(5). If the court vests legal custody in the
Department, the court is instructed to make “detailed written findings based on facts in the
record, that . . . continuation of residence in the home would be contrary to the welfare of the
child and that vesting legal custody with the department or other authorized agency would be in
the best interests of the child.” I.C. § 16-1619(6). The court is authorized to issue or extend a
protective order as part of the decree in order to preserve family unity and to protect the child’s
interests. I.C. § 16-1619(9).
The magistrate decreed, in relevant part:
It is contrary to the welfare of the children to remain in the home. It is in
the best interest of the children to vest legal custody of the children in the
[Department]. No safety plan was advanced by any party as to how the children
could go home or remain in the home with one parent and be safe. The Court
makes this finding based on the information set forth in the affidavit prepared by
Carol Jeffries and dated October 1, 2009 which is incorporated by reference in
this order and the testimony and exhibit at trial.
The children’s mother [Jane Doe] chose to invoke her 5th amendment
right to not incriminate herself. She has every right to do this however, it left
issues of the children’s safety unresolved, these include the mother’s ability or
willingness to protect these children. In this case one parent horribly abused an
infant child. There are no allegations or evidence that the children’s mother
abused the child. She has not been charged of any crime. She may well be a
victim of the vicious conduct of her husband. Her apparent innocence does not
stop the Court from action to protect the children.
The Court orders the Department to make reasonable efforts to return the
children to the mother. For the Court to allow the return home it must be assured
for the Court that children will be safe and that the mother will choose the
children over the influence of her husband.
Jane Doe argues that the magistrate impermissibly shifted the burden on her to prove she
was a fit parent. We agree. Because the right to parent one’s children is a fundamental right, we
presume that a parent is fit to care for their child and that it is in the child’s best interest to live
with their parents. In Martin v. Vincent, which involved an alleged wrongful detention of a
child, this Court explained:
The right of a parent to the custody, control, and society of his child is one
of the highest known to the law. The family is a unit of society and is so
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recognized by the state. The parents of children are recognized as their natural
guardians, and the presumption is that they are fit and proper persons to exercise
that trust. It is incumbent upon him who seeks to invade the home and remove a
child from its protection, and from the custody of its natural guardians to show
facts sufficient to justify his action under the law. Parents are not required in the
first instance to take upon themselves the burden of proving their fitness to have
the care of their children, or that they are properly exercising their parental
control.
34 Idaho 432, 435–36, 201 P. 492, 493 (1921).
It seems that the magistrate failed to fully recognize the different standards for taking
jurisdiction over a child pursuant to I.C. § 16-1603 and the standard for vesting custody in the
Department pursuant to I.C. § 16-1619. For a child to be within the court’s jurisdiction pursuant
to I.C. § 16-1603(1)(a), the Department must show that a child has been abused, neglected or
abandoned by his parents, and we held earlier in this opinion that the Department need only
show that one parent abused the child. Whereas, when deciding whether to order protective
supervision or to vest legal custody in the Department pursuant to I.C. § 16-1619, the court is to
consider any information relevant to the disposition of the child in order to determine whether
remaining home is contrary to the child’s welfare and whether it is in the child’s best interests to
vest custody in the Department. I.C. §§ 16-1619(5) to (6). This standard puts a different burden
on the Department. Evidence that the child has been abused by one parent, which suffices for
jurisdiction, is not necessarily enough, by itself, to show that remaining home is contrary to the
child’s welfare and that vesting legal custody in the Department is in the child’s best interest.
In this case, there were no allegations that Jane Doe abused, neglected or abandoned her
children. The magistrate recognized these facts but felt that there were not adequate assurances
that the children would be safe at home without a safety plan yet in place and feared that Jane
Doe would choose the children over her husband. There was no direct evidence that Jane Doe
would choose her husband over her children. The magistrate seems to have inferred that Jane
Doe might chose to protect her husband over the children based on Jane Doe’s assertion of her
Fifth Amendment rights. We note that it is generally permissible in civil cases to make
inferences against someone who invokes her Fifth Amendment rights. See Baxter v. Pamigiano,
425 U.S. 308, 318–19 (1984) (holding that prison officials could draw reasonable inferences
from prisoner’s silence in prison disciplinary proceeding case, because such a case is not
criminal in nature). In this case, however, any inferences that could have been drawn from Jane
Doe’s invocation of her Fifth Amendment rights were not enough to support a finding that it
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would be contrary to the children’s welfare to be placed in her care. John Doe was the sole
abuser, and he was in jail and subject to a protective order. The Department put forth no
evidence suggesting Jane Doe could not care for her children. There was no evidence of Jane
Doe’s complicity in inflicting the injuries on Son or that she was aware of John Doe’s violent
behavior toward Son when the injuries were being inflicted, and the evidence showed she took
appropriate, timely action to protect Son after he sustained the injuries.
While the magistrate was rightly concerned for the children’s safety in light of the
horrific abuse suffered by Son, protective supervision affords sufficient protection in a case like
this. Protective supervision allows the children to remain home but under the supervision of the
Department. I.C. § 16-1602(29). Where a child has been placed under protective supervision of
the Department, the court can order the child to be removed from the home if facts are presented
showing both that continuation in the home would be contrary to the child’s welfare and that
vesting legal custody would be in the child’s best interests. I.C. § 16-1623. At the adjudicatory
hearing, the magistrate abused his discretion in vesting custody in the Department. The
Department did not put forth substantial and competent evidence to support a finding that it was
contrary to the welfare of the children to remain in the home and that it is was in the best
interests of the children to vest legal custody in the Department. Thus, the children should have
been placed in Jane Doe’s care under the protective supervision of the Department.
VII. CONCLUSION
We affirm the magistrate in taking jurisdiction of Son and Daughter, first at the shelter
care hearings, and later at the adjudicatory hearing, based on John Doe’s abuse of Son and
Daughter’s exposure to that abuse, even though Jane Doe did not take part in the abuse and was
willing and able to care for her children. However, we reverse and vacate the magistrate’s
decision vesting legal custody in the Department at the adjudicatory hearing. Jane Doe is
presumed to be a fit parent, and there was insufficient evidence for the magistrate to find that
placing the children in Jane Doe’s care under the protective supervision of the Department was
contrary to the children’s welfare and that vesting custody in the Department was in their best
interests.
Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.
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