IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39394
IDAHO DEPARTMENT OF HEALTH & )
WELFARE, ) 2012 Opinion No. 15
)
Petitioner-Appellant, ) Filed: March 16, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
JOHN (2011-20) DOE, )
)
Defendant-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Seventh Judicial
District, State of Idaho, Bonneville County. Hon. Ralph L. Savage, Magistrate.
Decree terminating parental rights, affirmed.
James H. Barrett, Bonneville County Public Defender; Scott J. Davis, Deputy
Appellate Public Defender, Idaho Falls, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark V. Withers, Deputy Attorney
General, Idaho Falls, for respondent.
________________________________________________
MELANSON, Judge
John Doe appeals from the magistrate’s decree terminating his parental rights to his two
children. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Doe has an extensive criminal history that includes multiple charges of battery,
aggravated assault, malicious injury to property, and driving under the influence. Doe also has a
history of gang association and controlled substance use. Doe’s children were born in 2008 and
in 2009. In November 2009, Doe was on probation for a malicious injury to property conviction
and absconded from the Wood Project, a therapeutic court for individuals who would otherwise
be sentenced to serve a period of incarceration. Thereafter, Mother did not allow Doe to see the
children, and Doe did not have physical custody or care of his children.
1
On March 4, 2010, Doe met with Mother in a car and attempted to flee from police who
had outstanding warrants for his arrest. Doe had a firearm in his possession and shot several
times at a police officer. Doe then attempted to flee on foot but was arrested and charged with
aggravated assault on a police officer. Doe was high on methamphetamine and alcohol at the
time of this incident and tested positive for marijuana. Doe remained in jail until he was
convicted of aggravated assault with an enhancement for use of a deadly weapon in July 2010,
and was sentenced to a unified term of fifteen years, with a minimum period of confinement of
six years. Doe’s earliest parole eligibility date is March 21, 2016. However, if required to serve
his entire sentence, Doe will not be released until March 20, 2025.
Beginning in January 2010, the Idaho Department of Health and Welfare received six
referrals regarding neglect, physical abuse, and lack of supervision of the children by Mother.
Like Doe, Mother has a history of criminal charges and controlled substance use. The last
referral occurred after Mother took one of the children to the hospital in 2010 because the child
ingested medication Mother took for substance abuse addiction. Mother left the hospital and did
not return until the next evening. After attempting, unsuccessfully, to locate Mother from
April to May and determining that the children were being primarily cared for by their teenage
aunt, the Department filed a petition under the Child Protective Act (CPA), I.C. §§ 16-1601 to
16-1637, requesting that the children be placed in shelter care. On May 11, the magistrate
ordered that the children be placed in shelter care. At the ensuing shelter care hearing, the
magistrate court placed the children in the legal custody of the Department. A guardian ad litem
was appointed on May 13.
After an adjudicatory hearing on June 10, the magistrate found that the children were
Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C.A.
§§ 1901 to 1923, and that appropriate notice had been given to the Indian custodian, Indian
Tribe, or Secretary of the Interior as required by the Act. The magistrate determined that the
children came within the jurisdiction of the court under the CPA due to abandonment, neglect, or
lacking a stable home environment. Determining it was in the best interest of the children, the
magistrate vested legal custody in the Department. The magistrate concluded that the
Department had made reasonable efforts prior to placement of the children in shelter care to
prevent the need for such placement. Finally, the magistrate ordered the Department to prepare a
2
written case plan with involvement of Doe, Mother, and the appointed guardian ad litem and
scheduled a planning hearing.
After the planning hearing on July 7, the magistrate approved the case plan and ordered
Doe and Mother to comply. It was agreed that the children would be placed in foster care with
their maternal grandfather. 1 The case plan required Doe to attend all visits and doctor
appointments with the children when appropriate, maintain stable employment for six months,
and maintain a stable residence for more than six months in an environment safe to raise the
children. Doe was also required to participate in a substance abuse assessment, receive a mental
health evaluation, follow all treatment recommendations, remain free of all substances, deal with
his current legal issues, refrain from further criminal activity, submit to random urinalysis tests,
and participate in all available classes while incarcerated. Doe was appointed counsel on
July 13. After a review hearing on November 9, the magistrate found that it was in the best
interest of the children to remain in the legal custody of the Department and scheduled a
permanency hearing.
A petition to terminate the parental rights of Doe and Mother was filed by the
Department in April 2011. The petition requested termination on several grounds, including
abandonment and neglect. After a hearing on May 9, the magistrate approved the Department’s
permanency plan consisting of termination of the parental rights of Doe and Mother. The
magistrate also authorized the Department to suspend further efforts to reunify the children with
Doe and Mother given the approved permanency plan, the length of the case, the failure of the
parents to comply with their case plans, the pending hearing on the petition to terminate parental
rights, and the criminal history and incarceration of Doe and Mother. Mother voluntarily
consented to terminate her parental rights on August 15 prior to the hearing on the petition to
terminate parental rights. The magistrate terminated Doe’s parental rights on November 7. Doe
appeals.
II.
STANDARD OF REVIEW
The United States Supreme Court has held that a parent’s interest in maintaining a
relationship with his or her child is a fundamental liberty interest protected by the Fourteenth
1
The maternal grandfather is also the prospective adoptive parent of the children.
3
Amendment of the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982);
Quilloin v. Walcott, 434 U.S. 246, 255-56 (1978). See also In re Doe, 146 Idaho 759, 761, 203
P.3d 689, 691 (2009). Concordantly, the Idaho Legislature directed “that the state of Idaho shall,
to the fullest extent possible, seek to preserve, protect, enhance and reunite the family
relationship.” I.C. § 16-1601. Likewise, the Termination of Parent and Child Relationship Act
states that “implicit in this chapter is the philosophy that wherever possible family life should be
strengthened and preserved.” I.C. § 16-2001(2). Additionally, in 1978 Congress passed the
ICWA to address concerns surrounding the high incidence of removal of Indian children from
their Indian families and tribes and the placement of Indian children in adoptive or foster homes
outside of their extended families, tribes, and cultures. 25 U.S.C.A. §§ 1901, 1902.
Both the CPA and ICWA contain formalities required for the termination of parental
rights. Idaho Code Section 16-2005 permits the Department to petition the court for termination
of the parent-child relationship when it is in the child’s best interest and any one of the following
five factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship
between the child and a presumptive parent; (d) the parent is unable to discharge parental
responsibilities for a prolonged period that will be injurious to the health, morals, or well-being
of the child; or (e) the parent is incarcerated and will remain incarcerated for a substantial period
of time. Each statutory ground is an independent basis for termination. State v. Doe, 144 Idaho
839, 842, 172 P.3d 1114, 1117 (2007).
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, 455 U.S. at 746. See also I.C. § 16-
2009; Doe, 146 Idaho at 761-62, 203 P.3d at 691-92; State v. Doe, 143 Idaho 383, 386, 146 P.3d
649, 652 (2006). As such, on appeal from a decision terminating parental rights pursuant to the
CPA, due process requires this Court to determine whether the trial court’s decision to terminate
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, however, 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
4
convincing evidence than in cases where a mere preponderance is required. Doe 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. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s
decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d
at 600. We conduct an independent review of the record that was before the magistrate. Id.
In order to invoke the requirements of the ICWA, state courts must first determine
whether the proceedings are “child custody proceedings” as defined by 25 U.S.C.A. § 1903(1)
and whether the child involved is an “Indian child” as defined by 25 U.S.C.A. § 1903(4). If
these prerequisites are met, the ICWA supplies procedural requirements and substantive
standards that must be used by the state court. The ICWA requires that notice of the proceeding
be given to the Indian parent and the Indian tribe and that the tribe be given the opportunity to
intervene in the proceedings. 25 U.S.C.A. §§ 1911(c), 1912(a). 2 Additionally, subsection
1912(d) provides:
Any party seeking to effect a . . . termination of parental rights to[ ] an
Indian child under State law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.
The trial court’s finding of active remedial efforts must be supported by substantial and
competent evidence to endure on appeal. In re Doe, 127 Idaho 452, 458, 902 P.2d 477, 483
(1995). Further, subsection 1912(f) states:
No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.
Where the burden of proof at trial was beyond a reasonable doubt, as in subsection 1912(f), we
will uphold such a finding on appeal if there was substantial evidence from which a rational trier
of fact could have reached its conclusion beyond a reasonable doubt. State v. Filson, 101 Idaho
2
The magistrate found that notice of the pending proceedings regarding the children and
right to intervention was sent to the appropriate Indian tribe.
5
381, 386, 613 P.2d 938, 943 (1980). Whether the trial court correctly applied the ICWA to the
facts of this case is a question of law and is subject to free review by this Court. Doe, 127 Idaho
at 456, 902 P.2d at 481. 3
III.
ANALYSIS
The magistrate found statutory grounds for termination of Doe’s parental rights based on
neglect, I.C. § 16-2005(1)(b), and the inability to discharge his parental responsibilities for a
prolonged period that would be injurious to the health, morals, or well-being of the children, I.C.
§ 16-2005(1)(d). The magistrate also found that Doe abandoned the children because he
willfully failed to maintain a normal parental relationship with them, both before and during his
incarceration, by failing to provide reasonable support and failing to have regular personal
contact with the children. See I.C. § 16-2002(5). The magistrate further found that Doe’s
incarceration provided a clear basis for termination of his parental rights under I.C. § 16-
2005(1)(e). The magistrate also determined that it was in the best interest of the children that
Doe’s parental rights be terminated. See I.C. § 16-2005(1).
The magistrate found that the children are Indian children within the meaning of
25 U.S.C.A. § 1903(4) because they were the biological children of Doe, a member of an Indian
tribe. It is undisputed that the ICWA applies in this case. The magistrate determined that the
Department had made active efforts, as required by the Act, to prevent the breakup of Doe’s
family by trying to resolve issues related to reunification, but those efforts were unsuccessful.
See 25 U.S.C.A. § 1912(d). Finally, the magistrate found beyond a reasonable doubt that
continued custody of the children by Doe would likely result in serious emotional or physical
damage to the children. See 25 U.S.C.A. § 1912(f).
3
We also note that 25 U.S.C.A. § 1915(b) requires, in the absence of good cause to the
contrary, that any foster care or preadoptive placement be made preferentially with a member of
the Indian child’s extended family; a foster home licensed, approved, or specified by the Indian
child’s tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing
authority; or an institution for children approved by an Indian tribe or operated by and Indian
organization that has a program suitable to meet the Indian child’s needs. Here, placement of the
children with their maternal grandfather meets this requirement.
6
A. Best Interest of the Children
Doe argues that the magistrate’s determination that termination of his parental rights was
in the best interest of the children was not supported by any evidence. 4 Accordingly, we must
consider whether there was substantial and competent evidence supporting the magistrate’s
conclusion that termination would be in the best interest of the children. See I.C. § 16-2005(1).
Courts consider a number of factors in determining whether termination of parental rights
is in the best interest of the child, including whether the parent has the ability to change his or her
conduct to assume parental responsibilities, the parent’s employment status and history, the
parent’s history of substance abuse, whether the parent has provided financial support, whether
there is a good relationship between the child and foster parent, whether the child has improved
while in foster care, whether the child’s needs are being met, and the child’s need for stability
and certainty. See Doe v. Dep’t of Health & Welfare, Human Serv. Div., 141 Idaho 511, 516-17,
112 P.3d 799, 804-05 (2005); Doe v. Roe, 133 Idaho 805, 809-10, 992 P.2d 1205, 1209-10
(1999); Idaho Dep’t of Health & Welfare v. Doe, 149 Idaho 59, 64-66, 232 P.3d 837, 842-44 (Ct.
App. 2010). This Court will also consider a parent’s incarceration as a factor which is relevant
in determining whether termination is in the child’s best interest. Idaho Dep’t of Health &
Welfare v. Doe, 148 Idaho 832, 840, 230 P.3d 442, 450 (Ct. App. 2010). In cases where the
parent is incarcerated, we will consider several factors in determining whether termination is in a
child’s best interest including, among other things, the nature and circumstances of the offense
that led to incarceration, prior charged or uncharged criminal behavior while in the home,
previous incarcerations and rehabilitations, the impact incarceration has had on the child’s well-
being, and the quality of contacts or efforts made by the parent to keep a meaningful relationship
with the child. Idaho Dep’t of Health & Welfare v. Doe, 151 Idaho 605, 611, 261 P.3d 882, 888
(Ct. App. 2011).
In finding that termination of Doe’s parental rights was in the best interest of the children,
the magistrate considered that the children were thriving in a stable and safe home environment
with their maternal grandfather. The case manager testified that the children were thriving,
healthy, happy, having their medical needs met, developmentally on track, and doing well with
their maternal grandfather. The guardian ad litem also testified that the maternal grandfather
4
Doe does not challenge the magistrate’s findings regarding the statutory grounds for
termination.
7
provided a great home environment, met the children’s daily and medical needs, and parented
them.
The magistrate also noted that, if Doe’s parental rights were not terminated, the children
would continue to have significant instability in their lives because they would be without a
father present to help direct their daily lives, the living situation would be continuously
temporary, and the date on which they would be reunified with their father would be uncertain
and cause anxiety for the children. As mentioned above, Doe’s earliest parole eligibility date for
his latest conviction is March 21, 2016, at which time his children would be seven and eight
years old. However, if required to serve his entire sentence, Doe would not be released until
March 20, 2025, at which time both children would be in their late teens. During his time in
prison, Doe violated prison rules, which the magistrate noted may impact Doe’s parole status and
may affect his release at the early parole date. Both the case manager and guardian ad litem
testified that the uncertainty of Doe’s release date would cause instability. The magistrate also
determined that it would likely take Doe some time to be able to support his children financially
once released and this would cause further instability. Indeed, while in jail and prison since
March 4, 2010, Doe has not provided any financial support for the benefit of his children and
Doe would need time to demonstrate upon release that he is fully capable of doing so.
Additionally, as the magistrate noted, there is uncertainty that Doe could or would
comply with a case plan upon his release or whether he would relapse and fall back into his
former behavior. While Doe has been unable to complete many of the tasks outlined by the case
plan in this matter because of his incarceration, Doe’s behavior caused him to be unable to
complete tasks that could otherwise have been completed while incarcerated, such as attending
all visits with the children. Indeed, during his time in jail and prison, Doe’s misconduct caused
his visitation privileges to be suspended and prevented him from having contact with his children
for periods of time. Also, as noted above, Doe absconded from the supervision of a therapeutic
court in November 2009, relapsed into his former behavior of drug use and criminal activity, and
did not see his children until after his arrest and incarceration in March 2010.
The magistrate found that termination of Doe’s parental rights gives the children stability
and certainty because they were in a home where they are loved, nurtured, cared for, and having
their needs met and know who their caregiver and parent would be. The magistrate determined
that allowing further reunification efforts or some other long-term option would add uncertainty
8
and instability to the children’s lives and noted that this determination was verified by the
testimony of the guardian ad litem and case manager. The magistrate recognized that Doe loves
the children, but emphasized that the children need stability, moral direction, discipline, and
physical and emotional care that Doe’s behavior and attitudes show he is unable to provide. As
such, the magistrate concluded that clear and convincing evidence supported a finding that
termination of Doe’s parental rights was in the best interest of the children.
According to the record, Doe has a long history of criminal charges, gang association,
and controlled substance use. Doe was convicted of petit theft and battery in 2004; frequenting a
place of controlled substance use and malicious injury to property in 2005; disturbing the peace
and driving under the influence in 2007; disturbing the peace, driving under the influence,
damaging property by graffiti, malicious injury to property, and battery in 2008; probation
violation in 2009; and, the charge for which he is currently incarcerated, aggravated assault with
an enhancement for use of a deadly weapon in the commission of a felony in 2010. During this
latest incident that resulted in his imprisonment, Doe was high on methamphetamine and alcohol
and tested positive for marijuana. Doe continued to incur new criminal charges and use
methamphetamine after the birth of the children. While the record also demonstrates that Doe
had attempted to maintain some contact while incarcerated with his children by way of telephone
and letters, Doe had not provided the children with the type of day-to-day support normally
associated with parenting and it is likely it will be a long time, once he is released from prison,
before Doe will be prepared to parent them. It is of great importance that, as very young
children, the children are offered permanency and stability. This, Doe cannot provide. Thus,
there was substantial and competent evidence supporting the magistrate’s determination that
termination of Doe’s parental rights would be in the best interest of the children.
B. Indian Child Welfare Act
Doe argues that the magistrate erred because the Department did not make active efforts
to prevent the breakup of his family. Doe further asserts that the magistrate erred in terminating
his parental rights because there was no substantial evidence from which a rational trier of fact
could have reached its conclusion beyond a reasonable doubt that continued custody of the
children by Doe would likely result in serious emotional or physical damage to the children. As
noted above, the magistrate found that the Department made active efforts to prevent the breakup
of Doe’s family by trying to resolve issues related to reunification, but those efforts were
9
unsuccessful because Doe frustrated those efforts. The magistrate also found that continued
custody of the children by Doe would be likely to result in serious emotional or physical damage
to the children.
We reiterate that, whether the trial court correctly applied the ICWA to the facts of this
case is a question of law and is subject to free review by this Court. Doe, 127 Idaho at 456, 902
P.2d at 481. The trial court’s finding of active remedial efforts must be supported by substantial
and competent evidence to endure on appeal. Id. at 458, 902 P.2d at 483. However, where the
burden of proof at trial was beyond a reasonable doubt, as in 25 U.S.C.A. § 1912(f), we will
uphold such a finding on appeal if there was substantial evidence from which a rational trier of
fact could have reached its conclusion beyond a reasonable doubt. See Filson, 101 Idaho at 386,
613 P.2d at 943.
Accordingly, we must first determine whether the magistrate’s finding--that the
Department made active efforts to prevent the breakup of Doe’s family by trying to resolve
issues related to reunification, but those efforts were unsuccessful because Doe frustrated those
efforts by his actions and behavior--was supported by substantial and competent evidence.
While the ICWA does not define the term “active efforts,” in Doe, 127 Idaho at 459, 902 P.2d at
484, the Idaho Supreme Court determined that the types of remedial and rehabilitative services to
be required under subsection 1912(d) depend on the facts of each case. In that case, which is the
only Idaho case to consider the adequacy of active efforts, the Court upheld the trial court’s
determination that active efforts were made to prevent the breakup of the Indian family, but had
been unavailing. First, the adoptive parents gave the father notice regarding his right to file a
paternity claim for the child and an opportunity to indicate willingness to support the child. The
tribe filed a paternity claim on the father’s behalf, but the father never took any action to support
or initiate contact with the child. Second, the mother asked the father to attend counseling with a
church social worker before the child’s birth, but the father refused. Third, the state attempted to
help the father support his children by initiating a wage withholding for child support, and the
father continued to refuse to pay support. Fourth, and most compelling to the Court, an attorney
was appointed to represent the father but, for four years, the father failed to cooperate in any way
with his attorney or participate in the proceedings. The Court noted that “it seems there could be
no better services than appointment of an attorney at public expense, and the many hours of
attorney time spent by representing the tribe in defending the father’s interest. Yet, the father has
10
consistently exhibited indifference.” Id. at 459, 902 P.2d at 484. The Court held that, under the
circumstances of that case, the trial court’s finding of adequate remedial services was supported
by substantial competent evidence. Id.
However, that case provides little guidance because the facts of this case are readily
distinguishable. Here, Doe was incarcerated from the beginning of proceedings regarding the
children, made efforts to contact his children by phone and letters, and did not fail to participate
in the proceedings after appointment of a public defender. Given the lack of other Idaho case
law on what constitutes adequate active efforts under the ICWA, we turn to other jurisdictions
for guidance.
Similar to the Idaho Supreme Court’s determination in Doe, 127 Idaho at 459, 902 P.2d
at 484, that the types of remedial and rehabilitative services to be required under subsection
1912(d) depend on the facts of each case, in A.A. v. State, Dep’t of Family & Youth Services, 982
P.2d 256, 261 (Alaska 1999), the Alaska Supreme Court noted that a case-by-case approach must
be taken to distinguish between active and passive efforts. In Dashiell R. v. State, Dep’t of
Health & Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 849 (Alaska 2009), the court
stated that, “as opposed to passive efforts such as simply developing a plan for the parent to
follow, active efforts require that the state actually help the parent develop the skills required to
keep custody of the children.” The Alaska Supreme Court has also noted that a parent’s
incarceration significantly affects the scope of the active efforts that the state must make to
satisfy the statutory requirement. A.A., 982 P.2d at 261. Further, the court determined:
While “[n]either incarceration nor doubtful prospects for rehabilitation
will relieve the State of its duty under ICWA to make active remedial efforts,” the
practical circumstances surrounding a parent’s incarceration--the difficulty of
providing resources to inmates generally, the unavailability of specific resources,
and the length of incarceration--may have a direct bearing on what active
remedial efforts are possible.
Id. (footnote omitted).
Here, with respect to Doe, 5 the Department attempted to arrange visitation with Doe and
the children while he was incarcerated. However, as mentioned above, Doe lost visitation
5
We note that in Dashiell R., 222 P.3d at 850, the court viewed the state’s efforts
regarding the mother as an important aspect of the state’s active efforts to keep the family
together. The court emphasized that, “had the children been able to stay with the mother, who
11
privileges during periods of time due to poor behavior. 6 The Department also had a family
group decision-making meeting with Doe while he was in jail. Doe testified that his
understanding was that the case plan was prepared partly on what was discussed at that meeting,
and the Department’s case manager testified that she had contact with Doe in preparation of the
case plan. The case manager additionally testified that she met with Doe in jail on two
occasions, once to discuss the battery incident and again to discuss voluntary termination of
Doe’s parental rights. Further, while a Department intern was supervising a visit of Mother with
the children, Mother was allowed to call Doe in prison and facilitate conversation with the
children. Additionally, the Department placed the children with the maternal grandfather, who
both Mother and Doe preferred. The ICWA expert also testified that the Department kept Doe
involved and informed with monthly notices of the children’s ongoing improvement or needs.
However, there is no evidence that the Department provided assistance to Doe regarding
the requirements of his case plan to complete a substance abuse assessment or mental health
evaluation. Indeed, Doe testified that he had not been given either the substance abuse
was not incarcerated, there is no indication Dashiell’s parental rights would have been
terminated, because there would have been no need for the children to be placed elsewhere.”
However, we also note that Utah does not follow this same line of thought. Specifically, in State
ex rel. C.D. v. State, 200 P.3d 194, 205 (Utah Ct. App. 2008), the court held that “the State must
demonstrate that active efforts have been made with respect to the specific parent or Indian
custodian from whom the Indian children are being removed or provide evidence that such
efforts would be futile.” We further note that the Department made very active efforts with
respect to Mother in this case. The Department attempted to locate and contact the Mother on
several occasions, referred her for a mental health assessment, assisted her in looking into
housing and other services at a transitional shelter, held a group meeting with her while
incarcerated to discuss development of the case plan, scheduled meetings with her to discuss her
progress on case plan tasks, arranged visitations with the children, worked with Mother to have a
substance abuse assessment done, and worked to establish contact with her pre-trial coordinator
to work out a drug-testing plan. However, because we conclude that the Department made
sufficient active efforts with respect to Doe given his lengthy incarceration, we need not consider
the active efforts the Department made with respect to Mother nor must we decide whether such
efforts alone would be sufficient.
6
While in jail, Doe was accused of choking another inmate on at least two occasions and
was charged with battery, which was later dismissed. After Doe was transported to prison, Doe
was cited for violations of prison rules, including tattooing.
12
assessment or mental health evaluation and did not know he was required to get the latter. The
case manager testified that Doe never asked for assistance in any item of his case plan, did not
provide information to her as to any kind of substance abuse assessment, and never asked for
coordination on a mental health evaluation. 7 The case manager further testified that Doe had
sent her one letter during his incarceration in which he reported that he was trying to get enrolled
in a parenting class, but indicated the class would not be available until a year before his release
date. The case manager also testified that, in this letter, Doe had questions about his parental
rights, but there is no evidence that the case manager responded to Doe’s letter.
Absent Doe’s lengthy incarceration, we would conclude that, by not providing Doe with
any information about how to complete a substance abuse assessment or mental health
evaluation and failing to respond to Doe’s correspondence, the Department failed to make active
efforts with respect to Doe to meet the requirement of 25 U.S.C.A. § 1912(d). However, we are
persuaded by the reasoning of the Alaska Supreme Court that a parent’s incarceration
significantly affects the scope of the active efforts that the state must make to satisfy the statutory
requirement. See A.A., 982 P.2d at 261. Further, we agree that the length of incarceration is an
appropriate factor to consider in evaluating the state’s efforts. See id.
As mentioned above, the magistrate found that Doe’s incarceration provided a clear basis
for termination of his parental rights because Doe is likely to remain incarcerated for a
substantial period of time during the children’s minority. See I.C. § 16-2005(1)(e). Again,
Doe’s earliest parole eligibility is March 21, 2016, at which time his children will be seven and
eight years old. However, if required to serve his entire sentence, Doe will not be released until
March 20, 2025, at which time both children will be in their late teens. As such, we agree that
Doe is likely to remain incarcerated for a substantial (important or meaningful) period of the
children’s minorities. See Doe, 151 Idaho at 611-12, 261 P.3d at 887-88. Therefore, we
conclude that, given the difficulty of providing resources to Doe while incarcerated and the
length of Doe’s sentence, the Department’s efforts were within the scope of the active efforts that
7
The case manager did note in a report to the court that Doe was not in the community in
order to receive or be referred to a mental health assessment.
13
the state must make to satisfy the statutory requirement. 8 Therefore, the magistrate’s finding--
that the Department made active efforts to prevent the breakup of Doe’s family by trying to
resolve issues related to reunification, but those efforts were unsuccessful because Doe frustrated
any of those efforts by his actions and behavior--was supported by substantial and competent
evidence.
We must now determine whether there was substantial evidence from which a rational
trier of fact could have reached its conclusion beyond a reasonable doubt that continued custody
of the children by Doe would likely result in serious emotional or physical damage to the
children. The magistrate found:
After reviewing all of the evidence and testimony in this matter, the Court can
find beyond a reasonable doubt that continued custody of [the children] with
[Doe] would be likely to result in serious emotional or physical damage to them.
[Doe] is incarcerated and unable to provide a home for the children. As set forth
above, the lack of stability and permanence, would clearly cause emotional
damage. Because of [Doe’s] prior behavior and the likelihood of continued
participation in criminal behavior and the escalation of this behavior, the children
would be subject to harm, either emotional or physical.
Accordingly, as required under 25 U.S.C.A. § 1912(f), the magistrate considered whether
continued custody of the children by Doe was likely to result in serious emotional or physical
damage to the children. Further, the ICWA requires this finding to be supported by evidence,
including testimony of qualified expert witnesses. 25 U.S.C.A. § 1912(f). As noted above, an
ICWA expert testified during Doe’s trial. The ICWA expert testified that she was a qualified
ICWA expert, had spoken in five different counties, and testified as an ICWA expert about forty-
five times. She testified that she first became qualified as an ICWA expert in April of 2006 and
then again in March 2011. Indeed, her curriculum vitae indicates that she attended qualified
8
In Dashiell, the court held that an analysis of the active efforts undertaken is not limited
to those of the Department when the parent is incarcerated, but includes remedial and
rehabilitative services offered by the Department of Corrections. Dashiell, 222 P.3d at 849-50.
To the extent such services are applicable to the active efforts determination, we note that, in this
case, Doe testified he took the one parenting class available to him in the prison and was working
on his general education degree. Other programs, such as relapse prevention and anger
management, would be available in the year or two preceding his release date.
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expert witness training for ICWA cases in April 2006 and March 2011. The ICWA expert’s
curriculum vitate further indicates that she holds bachelor’s and master’s degrees in social work.
Based upon her review of Doe’s case, the ICWA expert testified that she believed
continued custody of the children by Doe was likely to result in serious physical or emotional
damage to them because Doe’s incarceration and inability to be with or provide for them for
many years would cause instability and lack of permanency. Further, the ICWA expert indicated
that termination of Doe’s parental rights would facilitate such permanency and stability.
Accordingly, we hold that the magistrate’s finding that continued custody of the children by Doe
would be likely to result in serious emotional or physical damage to the children was supported
by qualified expert witness testimony as required by the ICWA.
In addition to the expert witness testimony, the case manager testified that having worked
with Doe throughout this case, as well as having watched the children improve in the care of
their maternal grandfather, termination of Doe’s parental rights would be in the best interest of
the children. The case manager based this opinion on Doe’s incarceration and inability to care
for the children, inability to provide financial support or housing, and inability to meet parenting
responsibilities for a significant amount of time. The case manager also testified that continued
custody of the children by Doe was likely to be injurious to the health of the children because
Doe was likely to remain incarcerated for a substantial period of time during their minority and
the children needed permanency and stability quickly, needed to know where they were going to
live and who their caretaker was, and could not wait for Doe to be ready to parent. The guardian
ad litem also testified that termination of Doe’s parental rights was in the best interest of the
children because of Doe’s lifestyle before he was incarcerated involving drug use and violent
crime, his incarceration for a significant period of time, and the need for the children to have a
safe and stable home environment without uncertainty about where they were going to live and
what would happen upon Doe’s release from prison. Based on the record before us, we conclude
that there was substantial evidence from which the magistrate could find beyond a reasonable
doubt that continued custody by Doe was likely to cause serious emotional or physical damage to
the children.
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IV.
CONCLUSION
There was substantial and competent evidence supporting the magistrate’s finding that
termination of Doe’s parental rights would be in the best interest of the children. Additionally,
the magistrate’s finding that the Department made active efforts to prevent the breakup of Doe’s
family by trying to resolve issues related to reunification, but those efforts were unsuccessful,
was supported by substantial and competent evidence. Finally, there was substantial evidence
from which the magistrate could find beyond a reasonable doubt that continued custody by Doe
was likely to cause serious emotional or physical damage to the children. Therefore, the
magistrate’s decree terminating Doe’s parental rights to the children is affirmed. No costs or
attorney fees are awarded on appeal.
Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.
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