Idaho Department of Health & Welfare v. Doe

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37746

IDAHO DEPARTMENT OF HEALTH AND )
WELFARE, ) 2010 Opinion No. 72
)
Petitioner-Respondent, ) Filed: November 4, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
JOHN DOE I AND JANE DOE II, )
)
Respondents-Appellants. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Juneal C. Kerrick, District Judge. Hon. Gregory F. Frates,
Magistrate Judge.

Decree of protective custody, affirmed.

James F. Wickham, Canyon County Public Defender, Caldwell, for appellant.
James F. Wickham argued.

Hon. Lawrence G. Wasden, Attorney General; Brent R. King, Deputy Attorney
General, Caldwell, for respondents. Brent R. King argued.
________________________________________________

GUTIERREZ, Judge
John Doe I and Jane Doe II (Parents) appeal from the decision of the district court
affirming the magistrate’s Decree of Protective Custody placing three of the couple’s children in
the protective custody of the Idaho Department of Health and Welfare. For the reasons set forth
below, we affirm.
I.

FACTS AND PROCEDURE

The district court summarized the background of the case as follows:

At 2:40 P.M. on July 22, 2009, the Canyon County Prosecuting Attorney
filed a Petition Under the Child Protective Act requesting that the court take
jurisdiction over [A.L., B.L., and R.L.], all minor children living within the state

1
of Idaho, pursuant to Idaho Code Section 16-1603. The Petition alleges that the
above-named children:

are physically abused because of conduct or omission resulting in
an injury, and such condition is not justifiably explained or at
variance with the degree or type of injury or may not be the
product of an accidental occurrence, to wit: the father struck
[A.L.] with a wooden dowel on the buttocks, leaving welts and/or
injuries. The father struck [B.L.] with a wooden broom handle,
leaving welts and/or injuries.

The Petition also alleged that the children were in foster care; that they had been
in foster care since July 22, 2009, at approximately 3:00 A.M.; that the children
were placed in foster care based on imminent danger to them; and that it was in
the children’s best interest to remove them from the home.
Also on July 22, 2009, the State filed motions requesting the court to
appoint counsel for [Parents]. On the same date, the court entered orders
appointing the Canyon County Public Defender as counsel for [Parents] and an
order scheduling a shelter care hearing on July 24, 2009, at 10:30 A.M., a pretrial
conference on August 13, 2009, and an adjudicatory hearing on August 20, 2009.
On July 24, 2009, at the time scheduled for the shelter care hearing,
[Parents’] court-appointed counsel failed to appear with [Parents] for the hearing.
After [Parents] indicated they wished to have counsel present for the hearing, the
court continued the hearing to July 27, 2009, and entered an Order of Temporary
Legal Custody Pending Shelter Care, placing the children in the temporary legal
custody of the Idaho Department of Health and Welfare (the Department) pending
the shelter care hearing. . . .
On July 27, 2009, the court held the shelter care hearing. [Parents]
appeared with their court-appointed counsel. . . .
At the conclusion of the shelter care hearing, the court determined that the
children should remain in shelter care pending the adjudicatory hearing, that it
would be contrary to the children’s welfare to leave them in the home pending the
adjudicatory hearing, and that it was in the children’s best interests to remain in
the Department’s custody. The court also entered an order appointing counsel to
represent the children’s guardian ad litem.
On July 29, 2009, the guardian ad litem’s appointed counsel filed a Notice
of Conflict.
On August 11, 2009, [Parents] filed a pro se Motion for Dismissal. . . .
[Parents] requested an order dismissing the proceeding and requested that the
children be released to them on essentially five grounds. . . .
On August 19, 2009, the State filed its Objection and Motion to Strike Re:
[Parents] Motion for Dismissal.
On August 20, 2009, the date scheduled for the adjudicatory hearing, the
court addressed [Parents’] issue with their appointed counsel and the motion for
leave to withdraw on the part of the guardian’s counsel. After granting the

2
 motion to withdraw by the guardian’s counsel and securing substitute counsel for
the guardian, the court continued the hearing to August 25, 2009.
On August 25, 2009, the magistrate judge assigned to hear the
adjudicatory hearing stated that she would need to disqualify herself from the
matter based on the accidental receipt of an ex parte communication from the
State. The court reset the adjudicatory hearing for September 3, 2009. In
response to the court’s inquiry, the State indicated that it had filed the
Department’s report on August 17, 2009, and had e-mailed it to [Parents’]
counsel.
On September 3, 2009, the court commenced the adjudicatory hearing on
the merits. The adjudicatory hearing concluded on September 8, 2009.

On September 17, 2009, the magistrate issued a decree of protective custody, placing the
three children under the protective custody of the Department for an indeterminate period of
time, not to exceed their eighteenth birthdays. Parents appealed the decree to the district court,
contending that the trial court lacked jurisdiction to enter the decree, that the trial court erred in
admitting certain evidence, and that the trial court’s determination that the children fell under the
jurisdiction of the CPA was not supported by a preponderance of the evidence. The district court
affirmed the magistrate’s decree placing the children in the Department’s custody. Parents now
appeal.
II.
ANALYSIS
On appeal, Parents argue that the magistrate did not have jurisdiction to enter the decree
placing the children in the Department’s custody where it failed to hold a shelter care hearing
within forty-eight hours of the children’s removal from the home, where the report of the
investigation was not delivered to Parents prior to the pretrial conference, where the adjudicatory
hearing was not held within thirty days from the date the Department’s petition was filed, where
the state failed to prove by a preponderance of the evidence that the two older children had been
“abused” within the meaning of the statute, and where there was no evidence that the youngest
child fell within the jurisdiction of the court. Parents also raise several evidentiary issues in
regard to the adjudicatory hearing, arguing that the trial court erred in failing to exclude evidence
obtained in violation of Parents’ right to be free of warrantless searches and seizures, in failing to
exclude all evidence and inferences therefrom obtained after Father invoked his Fifth
Amendment right to remain silent, in considering the evidence in the investigation report, and in
admitting copies of photographs which Parents contend did not accurately depict the children’s

3
injuries. Parents also contend their Fourteenth Amendment right to due process, as set forth in
Brady v. Maryland, 373 U.S. 83 (1963), was violated by the Department’s failure to disclose all
material exculpatory and inculpatory evidence prior to the adjudicatory hearing.
Initially, we note that while the appeal is pursued as to all three children, the record on
appeal indicates that the case was dismissed as to R.L., the youngest child, on February 4, 2010,
and B.L., the second youngest child, on June 3, 2010. A subsequent “Order Modifying Case
Plan and Notice of Hearing” issued by the district court on June 3, 2010, references only A.L. in
regard to modification of the case plan. This is significant because normally it would render this
appeal moot as to the two younger children. A case becomes moot, and therefore will not be
considered by the court, when the issues presented are no longer live, the parties lack a legally
cognizable interest in the outcome, or a judicial determination will have no practical effect upon
the outcome. Goodson v. Nez Perce County Bd. of County Comm’rs, 133 Idaho 851, 853, 993
P.2d 614, 616 (2000). There are three recognized exceptions to the mootness doctrine: (1) when
there is the possibility of collateral legal consequences imposed on the person raising the issue;
(2) when the challenged conduct is likely to evade judicial review and thus is capable of
repetition; and (3) when an otherwise moot issue raises concerns of substantial public interest.
Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 851-52, 119 P.3d 624, 626-
27 (2005).
Here, the remedy requested by Parents is reversal of the magistrate’s decree vesting
custody of the three children with the Department. However, the magistrate’s dismissal of the
case as to R.L. and B.L. indicates that the Department has already been divested of custody of
the two younger children--thus, a judicial determination would have no practicable effect on the
outcome as to them. At oral argument, in response to the court’s inquiry, Parents argued for the
first time that the issues pursued on appeal are not moot as to the two younger children, because
they are subject to reoccurrence in general--and in regard to this family in particular. To the
extent that an exception to the mootness doctrine would apply here, it would only be applicable
as to the general legal issues raised that are potentially capable of evading review and thus
capable of repetition and would not be applicable to the magistrate’s specific findings unique to
this particular incident. Thus, assuming without deciding that Parents’ mootness exception
argument applies at least partially, we will address this appeal as to all three children in the
context of the jurisdictional and constitutional evidentiary issues, but will limit our review on

4
appeal to A.L. in regard to admission of the photographic evidence and the court’s determination
that the children fell within the jurisdiction of the court pursuant to the CPA.
On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d
758, 760 (2008). We examine the magistrate record to determine whether there is substantial
and competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. Id. If those findings are so supported and the
conclusions follow therefrom and if the district court affirmed the magistrate’s decision, we
affirm the district court’s decision as a matter of procedure. Id.
A. Jurisdiction to Enter Decree of Protective Custody
Parents point to three errors by the magistrate which they argue operated to deprive the
court of jurisdiction to continue to order that custody of the three children be placed in the
Department. Specifically, they contend that: (1) the magistrate was not authorized to order the
continued shelter care of the children because the shelter care hearing was not held within forty-
eight hours of the child’s removal from the home as required by statute; 1 (2) the children should
have been returned to Parents’ custody when the report of the investigation was not delivered to
them prior to the pretrial conference as required by statute;2 and (3) the magistrate lost
jurisdiction--and therefore was without authority to enter the decree vesting custody in the

1
The Child Protective Act (CPA) provides that:

[w]hen a child is taken into shelter care . . . he may be held for a maximum of
forty-eight (48) hours, excluding Saturdays, Sundays and holidays, unless a
shelter care hearing has been held pursuant to section 16-1615, Idaho Code, and
the court orders an adjudicatory hearing.

Idaho Code § 16-1608(2). It is undisputed that the first shelter care hearing did not commence in
this case until July 24, 2009, at 10:30 a.m.--approximately seven and a half hours past the forty-
eight-hour statutory deadline.
2
CPA requires that the Department investigate “the circumstances of the child and his
family and prepare a written report to the court” and that it “shall be delivered to the court with
copies to each of the parties prior to the pretrial conference for the adjudicatory hearing.” I.C.
§ 16-1616(1), (2) (emphasis added). It is undisputed that the Department did not deliver the
Report of Investigation prior to the pretrial conference, as it was filed five days later on
August 17, 2009.

5
Department--because it failed to conduct an adjudicatory hearing within thirty days after the
petition was filed as required by statute.3
As the state points out, however, Parents did not object to these errors at the time they
occurred, nor have they cited any authority for their contention that any of these three errors, if
they occurred, are jurisdictional in nature such that they deprived the district court of subject
matter jurisdiction in the case. And where none of the statutes implicated prescribe
consequences for timeliness deviations--jurisdictional or otherwise--this is an issue of statutory
interpretation as well as an issue of first impression in Idaho.
The interpretation of a statute is an issue of law over which we exercise free review.
Corder v. Idaho Farmway, Inc., 133 Idaho 353, 358, 986 P.2d 1019, 1024 (Ct. App. 1999).
When interpreting a statute, we will construe the statute as a whole to give effect to the
legislative intent. George W. Watkins Family v. Messenger, 118 Idaho 537, 539-40, 797 P.2d
1385, 1387-88 (1990); Corder, 133 Idaho at 358, 986 P.2d at 1024. The plain meaning of a
statute will prevail unless clearly expressed legislative intent is contrary or unless plain meaning
leads to absurd results. Messenger, 118 Idaho at 540, 797 P.2d at 1388; Corder, 133 Idaho at
358, 986 P.2d at 1024.
Here, none of the three statutes at issue indicate the appropriate remedy for failing to
follow the statutory deadline. Thus, we turn to an examination of whether a loss of jurisdiction
is contemplated by the prescriptions in the CPA.
In State v. Armstrong, 146 Idaho 372, 195 P.3d 731 (Ct. App. 2008), this Court engaged
in an extensive analysis of subject matter jurisdiction, including identifying the type of errors
that can be considered jurisdictional. We first noted that a determination that a court lacked
subject matter jurisdiction to issue an order or judgment carries far-reaching consequences--
including that the defense of lack of jurisdiction over subject matter is never waived and that

3
CPA provides that:

When a petition has been filed, the court shall set an adjudicatory hearing to be
held no later than thirty (30) days after the filing of the petition.

I.C. § 16-1619(1). Here, the Department filed the petition on July 22, 2009, and on the same
day, the court set the date for the adjudicatory hearing on August 20, 2009. However, on
August 20, the hearing was continued until August 25, at which point it was again continued
until September 3.
6
purported judgments entered without jurisdiction are void and subject to collateral attack and are
not entitled to recognition in other states. For this reason, we noted that our Supreme Court has
recognized the importance of keeping the concept of subject matter jurisdiction “clearly defined”
and that “it may work considerable mischief to confuse lack of jurisdiction over the subject
matter with questions of venue, other aspects of jurisdiction, or defenses which may bar relief or
render it improper or inappropriate for a court to proceed with a case even though it has
jurisdiction over the subject matter.” Id. at 733, 195 P.3d at 374 (quoting Sierra Life Ins. Co. v.
Granata, 99 Idaho 624, 627, 586 P.2d 1068, 1071 (1978)).
We then noted that our Supreme Court has, at times, employed a narrow definition of
subject matter jurisdiction. For example, in Boughton v. Price, 70 Idaho 243, 249, 215 P.2d 286,
289 (1950), the court explained the definition as follows:
Such jurisdiction the court acquires by the act of its creation, and possesses
inherently by its constitution; and it is not dependent upon the sufficiency of the
bill or complaint, the validity of the demand set forth in the complaint, or
plaintiff’s right to the relief demand, the regularity of the proceedings, or the
correctness of the decision rendered.

Similarly, in State v. Rogers, 140 Idaho 223, 227-28, 91 P.3d 1127, 1131-32 (2004), the Supreme
Court noted that “subject matter jurisdiction does not depend on the particular parties in the case
or on the manner in which they have stated their claims, nor does it depend on the correctness of
any decision made by the court. . . .” However, in Armstrong, we also noted that the term
“jurisdiction” had also been used in Idaho “more loosely to refer simply to a court’s authority to
take a certain action or grant a certain type of relief. That is, courts and lawyers sometimes say
that a court lacked jurisdiction when they really mean simply that the court committed error
because the action that was taken did not comply with governing law.” We noted that the
“overuse” of the term in this manner has been recognized even by the United States Supreme
Court, that commented:
“Jurisdiction,” this Court has observed, “is a word of many, too many,
meanings.” . . . . This Court, no less than other courts, has sometimes been
profligate in its use of the term. For example, this Court and others have
occasionally described a nonextendable time limit as “mandatory and
jurisdictional.” . . . But in recent decisions, we have clarified that time
prescriptions, however emphatic, “are not properly typed ‘jurisdictional.’”

7
Armstrong, 146 Idaho at 376, 195 P.3d at 735 (quoting Arbaugh v. Y & H Corp., 546 U.S. 500,
510 (2006)) (emphasis added).
Here, Parents do not assert that the trial court did not have jurisdiction over the type of
case presented--only that the court lost jurisdiction by not following the time prescriptions in the
CPA. However, under the contours of jurisdiction as espoused by the United States Supreme
Court--and by this Court in Armstrong--such deviations from the statute would not result in the
court’s loss of jurisdiction over the case absent express legislative direction to the contrary.
Accord People in Interest of A.M., 786 P.2d 476, 478 (Colo. Ct. App. 1989) (holding that
violation of timeliness requirement of statute which required that if neglect petition is not filed
within seven working days after a child is taken into custody, the child should be released upon
order of the court, did not deprive court of subject matter jurisdiction where the father did not
object to continued placement of the children); In re Nashiah C., 866 A.2d 669, 676 (Conn. App.
Ct. 2005) (holding that provision of statute requiring hearing on child neglect petition within ten
days of a preliminary hearing on order of temporary custody was directory, rather than
mandatory, and thus, the judge had jurisdiction to act on the temporary custody order even
though the mother did not receive a hearing on the petition within ten days of the preliminary
hearing); In re John Paul J., 799 N.E.2d 769, 776 (Ill. App. Ct. 2003) (holding that in Illinois,
violation of the forty-eight-hour shelter care hearing requirement is not jurisdictional); In re
Prater, 471 N.W.2d 658, 659 (Mich. Ct. App. 1991) (holding, in a termination of parental rights
case, that failure to comply with the statutory rule requiring that an adjudicative hearing take
place within forty-two days after the preliminary hearing does not affect the jurisdiction of the
court); In re Dj.L., 646 S.E.2d 134, 139-40 (N.C. Ct. App. 2007) (recognizing that in North
Carolina, time limits in the juvenile code are not considered jurisdictional and violations are only
reversible if prejudice arose from the time delay); In re Davis, 705 N.E.2d 1219, 1221-22 (Ohio
1999) (holding that the seven-day time limit for entering judgment after the conclusion of a
disposition hearing for children adjudicated abused, neglected, or dependent is directory, not
mandatory, and failure to comply with the timeframe did not deprive the court of jurisdiction
where, as a general rule, a statute which provides a timeframe for the performance of an official
duty will be construed as directory rather than mandatory so far as time for performance is
concerned, especially where the statute fixes the time simply for convenience or orderly
procedure, unless the nature of the act to be performed or phraseology of the statute is such that

8
the designation of time must be considered a limitation upon the power of the officer); In re
E.D.L., 105 S.W.3d 679, 687 (Tex. App. 2003) (holding that trial court did not lose jurisdiction
over mother’s termination of parental rights case due to its failure to conduct a full adversarial
hearing within fourteen days after the state had taken possession of the child as was required by
statute because the statutory requirement was procedural, not jurisdictional); In re DSB, 176 P.3d
633, 638 (Wyo. 2008) (holding that a juvenile court’s failure to hold an adjudicatory hearing in a
child neglect action within ninety days of the petition, as required by the Child Protection Act,
did not deprive the court of jurisdiction over the entire matter absent unequivocal statutory
language requiring such loss of jurisdiction for violation of a deadline). But see In re Doe, 495
A.2d 1293, 1298 (N.H. 1985) (explaining that court’s previous ruling that the statutory mandate
to hold adjudicatory hearings within certain time limits was jurisdictional was in reference to
“personal jurisdiction” grounded in the court’s holding that the juvenile had a personal liberty
interest in a “speedy trial”); In re Termination of Parental Rights to Moriah K., 706 N.W.2d 257,
261 (Wis. 2005) (recognizing that failure to comply with the statutory time period in setting a
fact-finding hearing within forty-five days of petition to terminate parental rights may result in
the court losing “competency” [a form of subject matter jurisdiction] to proceed).
On this basis, we conclude that the alleged failures to hold the shelter care hearing and
adjudicatory hearing within the statutory timeline, as well as to deliver the investigation report to
Parents in a timely manner, are not jurisdictional issues that may be raised for the first time on
appeal and which require reversal of the magistrate’s subsequent actions.4
B. Evidentiary Issues
1. Evidence obtained in violation of constitutional rights
Parents assert that the magistrate erred by failing to exclude all evidence gathered after
the officers entered the residence because it was allegedly obtained in violation of their rights

4
Also in regard to the investigation report, on appeal to the district court Parents
apparently argued that the magistrate court erred in admitting and considering the evidence
contained in the investigation report in determining whether it had jurisdiction over A.L. On
appeal to this Court, Parents seem to reassert the issue in a heading, stating that it was “improper
to consider the evidence contained [in the report],” however this assertion is not accompanied by
any argument or authority and is thus waived. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d
434, 440 (Ct. App. 1997) (holding that a party waives an issue on appeal if either argument or
authority is lacking).

9
under the Fourth Amendment protection against unreasonable searches and seizures where
officers entered their home without a search warrant and under the Fifth Amendment, because
evidence5 was allegedly obtained in violation of Father’s Miranda rights. We examine each in
turn.
a. Fourth Amendment
The magistrate denied Parents’ motion to exclude the evidence6 in regard to their Fourth
Amendment claim, determining that Parents had not established that exclusion of the evidence
was the appropriate remedy for an alleged Fourth Amendment violation in the context of a child
protection proceeding. In the alternative, the magistrate determined that the search had not been
unconstitutional, because officers had been given consent to enter Parents’ home and exigent
circumstances had justified their remaining in the home after entry.
The Fourth Amendment to the United States Constitution, as well as Article I, Section 17
of the Idaho Constitution, protect the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures. Evidence obtained in violation
of the amendment generally may not be used as evidence against the victim of the illegal
government action--a concept known as the exclusionary rule. State v. Bishop, 146 Idaho 804,
810-11, 203 P.3d 1203, 1209-10 (2009); State v. Page, 140 Idaho 841, 846, 103 P.3d 454, 459
(2004). See also Wong Sun v. United States, 371 U.S. 471, 485 (1963).
CPA proceedings, however, are civil in nature, Matter of X, 110 Idaho 44, 50, 714 P.2d
13, 19 (1986), while the exclusionary rule is grounded in criminal law, Idaho Dep’t of Law
Enforcement by & Through Richardson v. $34,000 U.S. Currency, 121 Idaho 211, 214, 824 P.2d
142, 145 (Ct. App. 1991). Thus, it is not apparent that the exclusionary rule applies here--and
the question of whether it does is an issue of first impression in Idaho.7

5
Parents also do not specifically identify the evidence they contend should be suppressed
under the Fifth Amendment, making reference only to an allegation that the Department used
Father’s silence as evidence of guilt.
6
In identifying the evidence they contend should have been suppressed, Parents reference
only “physical evidence” that was found after the officers entered the residence.
7
Although Parents have asserted that the exclusionary rule applies under both the state and
federal constitutions, on appeal they have not asserted why the analysis should be different under
10
 We have found no cases, and Parents do not cite to any, in which any other jurisdiction
has applied the exclusionary rule in the context of child abuse and neglect proceedings. In fact,
other jurisdictions that have addressed the issue have consistently held that the Fourth
Amendment exclusionary rule (or its state constitutional equivalent) is inapplicable in
proceedings for the purpose of determining whether the transfer of custody or some other steps
should be taken for the purpose of ensuring the protection of a juvenile. 1 WAYNE R. LAFAVE,
SEARCH AND SEIZURE § 1.7(e) (4th ed. 2004). The reasoning behind these jurisdictions’ refusal
to apply the exclusionary rule is based first on a recognition that the rule is a judicially created
remedy that is not a universally applicable evidentiary mandate and second, that application of
the rule may thwart the state’s interest in protection of children. See, e.g., State ex rel. Children,
Youth & Families Dep’t v. Michael T., 172 P.3d 1287, 1290 (N.M. Ct. App. 2007) (concluding
that the exclusionary rule did not apply in child abuse and neglect proceedings because the
purpose of the exclusionary rule is not served in such proceedings where the focus is on the
health and safety of innocent children); In re Corey P., 697 N.W.2d 647, 655 (2005) (holding
that the exclusionary rule is inapplicable in juvenile protection proceedings because such
application “may lead to an erroneous conclusion that there has been no abuse or neglect, leaving
innocent children to remain in unhealthy or compromising circumstances”).
In State ex rel. A.R. v. C.R., 982 P.2d 73 (Utah 1999), the Utah Supreme Court addressed
the issue where the parent argued that the case was quasi-criminal in nature and thus, the
exclusionary rule should apply. The court reasoned that the exclusionary rule was inapplicable
in such a case because the purposes of the rule were not served, stating:
The primary focus of and sole statutory definition for child protection proceedings
is to protect the interests of children who are neglected or abused. . . . Although
parents may suffer a severe detriment in losing temporary or permanent custody
of their children, punishment of the parents is not the purpose of the proceeding.

Id. at 78. Accord In re Christopher B., 82 Cal. App. 3d 608, 615 (1978) (holding that the
exclusionary rule does not apply to child protection proceedings, concluding the potential harm
to children in remaining in an unhealthy environment outweighs any deterrent effect that would

the state and federal constitutions. Thus, we will address only the federal Fourth Amendment
claim. See State v. Gomez, 136 Idaho 480, 483 n.1, 36 P.3d 832, 835 n.1 (Ct. App. 2001).
11
result from suppressing evidence); People ex rel. A.E.L., 181 P.3d 1186, 1192 (Colo. Ct. App.
2008) (holding that the exclusionary rule was not applicable to child protection proceedings
where the societal costs of applying the rule would exceed any deterrent effect that exclusion
would have on the department or the police in investigating a child welfare issue); In re Nicholas
R., 884 A.2d 1059, 1061 (Conn. App. Ct. 2005) (holding that the exclusionary rule did not apply
to child neglect proceedings which are civil, not quasi-criminal, in nature); Corey P., 697
N.W.2d at 655 (holding that any possible benefits of the exclusionary rule do not justify the
costly result in a juvenile proceeding of a possible erroneous conclusion that there has been no
abuse or neglect, leaving innocent children in unhealthy or compromising circumstances); In re
Diane P., 494 N.Y.S.2d 881, 884 (1985) (concluding that the state’s interest in protecting and
promoting the best interests and safety of children far outweighs the exclusionary rule’s deterrent
value); State ex rel. Dep’t of Human Services v. W.L.P., 202 P.3d 167, 173 (Or. 2009) (holding
that neither the Oregon Constitution nor the federal constitutional required the exclusionary rule
to be applied to juvenile dependency proceedings).
We agree with the reasoning of these cases. The interests at stake in child protective
proceedings are simply not the same as the liberty interest at stake in criminal prosecutions, and
the purpose of the exclusionary rule is not served in abuse and neglect proceedings where the
state has an overwhelming interest in the protection of children. As such, we conclude that the
exclusionary rule does not apply to CPA proceedings.
b. Fifth Amendment
Parents also argue that the magistrate erred in failing to exclude evidence obtained after
Father indicated that he no longer wished to respond to police questioning while the officers
were in his residence. Parents assert that such evidence was obtained in violation of Father’s
Miranda8 rights under the Fifth Amendment.
In rejecting Parents’ Fifth Amendment claim, the magistrate determined that the
exclusionary rule was inapplicable to child protection cases, and in any case, no evidence with
regard to the alleged statements made by Father after his invocation of his right to remain silent
was presented--thus, there was no evidence to exclude, even if the court had determined that

8
See Miranda v. Arizona, 384 U.S. 436 (1966).

12
such action was appropriate. On intermediate appeal, the district court affirmed the magistrate,
concluding that Parents had not identified any authority for their claim that the alleged Miranda
violation required exclusion of evidence in a CPA proceeding. In addition, the district court
concluded that Parents had not identified any statements elicited from Father in violation of his
Fifth Amendment rights and did not establish that Father was “in custody” at the time he made
such statements, as is required to invoke Miranda protections.
We need not reach the merits of this argument, because Parents fail to identify the
evidence they assert was allegedly elicited from Father in violation of his Fifth Amendment
rights and should have been excluded at the adjudicatory hearing. A general attack on the
findings and conclusions of a trial court, without specific reference to evidentiary or legal errors,
is insufficient to preserve an issue. Dawson v. Cheyovich Family Trust, 149 Idaho 375, 383, 234
P.3d 699, 707 (2010). This Court will not search the record on appeal for error. Id.; Suits v.
Idaho Bd. of Prof'l Discipline, 138 Idaho 397, 400, 64 P.3d 323, 326 (2003). Consequently, to
the extent that an assignment of error is not argued and supported in compliance with the Idaho
Appellate Rules, it is deemed to be waived. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122
(2005).
2. Brady violation
Parents contend that the Department violated their Fourteenth Amendment right to due
process, as set forth in Brady, 373 U.S. 83, by failing to disclose all material exculpatory and
inculpatory evidence prior to the adjudicatory hearing.
Under Brady, the prosecution is bound to disclose to the defense all exculpatory evidence
known to the state or in its possession. The duty to disclose encompasses impeachment evidence
as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985); Grube v.
State, 134 Idaho 24, 27, 995 P.2d 794, 797 (2000). To prove a Brady violation, three
components must be shown: the evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed
by the state, either willfully or inadvertently; and prejudice must have ensued. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999); State v. Shackelford, ___ Idaho ___, ___, ___ P.3d ___,
___ (June 1, 2010). Thus, a new trial is not automatically required whenever a combing of the
prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not
likely to have changed the verdict. Giglio v. United States, 405 U.S. 150, 154 (1972);

13
Shackelford, ___ Idaho at ___, ___ P.3d at ___. Instead, the U.S. Supreme Court has held that
regardless of whether requested, favorable evidence is material, and constitutional error results
from its suppression by the government, “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceedings would have been different.”
Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting Bagley, 473 U.S. at 682). A “reasonable
probability” of a different result is accordingly shown when the government’s evidentiary
suppression “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434
(quoting Bagley, 473 U.S. at 678).
While this issue does not appear to have been raised before the magistrate, the district
court addressed the issue on appeal, denying Parents’ claim in this regard upon concluding that
Parents had not identified any evidence that was either favorable to them or material to their case
that the state had failed to disclose. Thus, the court concluded, even if it were to decide that the
Brady rule applied to the proceeding (a proposition for which Parents had not cited any
authority) they had not “provided any basis for the court to accord them relief on appeal.”
Whether Brady applies to CPA proceedings is an issue of first impression in Idaho. In
looking to other jurisdictions, we perceive the case law is unsettled--we were unable to locate
any cases which analyzed whether Brady applies (and Parents do not cite to any), although we
located some cases where courts assumed that it applied. See, e.g., In re MM, 202 P.3d 409, 415
(Wyo. 2009). However, we need not decide the issue either, because even assuming that the
Brady requirements apply to CPA proceedings, Parents have not presented evidence such that
any relief is required.
On appeal, Parents list several forms of evidence which they allege were not disclosed to
them--the photographs taken but not admitted at trial, audio recordings of the investigation, the
report of Officer Eller which was not given to Parents until the middle of the first day of the
adjudicatory hearing, and the written report of Officer Bromley. However, in regard to all of this
evidence, Parents merely speculate that the evidence “may” have been “exculpatory” or “useful.”
However, as we indicated above, to prevail on a Brady claim, a party must demonstrate that the
evidence was favorable, that it was suppressed by the state, and that prejudice resulted. Parents
have proven none of these here, and we will not assume error on the part of the trial court. Fritts
v. Liddle & Moeller Constr., Inc., 144 Idaho 171, 173, 158 P.3d 947, 949 (2007) (holding that

14
the Court would not assume error on appeal, rather the party assigning error must affirmatively
show it). Thus, we conclude that Parents’ assertion of a Brady violation is without merit.
3. Admission of photographs
Parents claim the magistrate erred in admitting certain photographs of the older children’s
injuries that were offered by the Department during the jurisdictional phase of the adjudicatory
hearing. Specifically, Parents claim that the photos are not “originals” pursuant to Idaho Rules
of Evidence 1001(3) and 1002, are not admissible as duplicates under I.R.E. 1003, and should
have been excluded under I.R.E. 403 because their prejudicial effect outweighs their probative
value.
This Court reviews challenges to a trial court’s evidentiary rulings under the abuse of
discretion standard. Vreeken v. Lockwood Eng’g, B.V., 148 Idaho 89, 106, 218 P.3d 1150, 1167
(2009); Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 50, 995 P.2d 816, 820 (2000).
These include challenges to a trial court’s decision to admit or exclude documentary and/or
testimonial evidence. Error is disregarded unless the ruling is a manifest abuse of the trial
court’s discretion and affects a substantial right of the party. Vreeken, 148 Idaho at 106, 218
P.3d at 1167; Perry, 134 Idaho at 51, 995 P.2d at 821. To determine if there has been an abuse
of discretion, this Court applies the following three factors: (1) whether the trial court correctly
perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of
this discretion and consistent with the legal standards applicable to the specific choices available
to it; and (3) whether the trial court reached its decision by an exercise of reason. City of McCall
v. Seubert, 142 Idaho 580, 586, 130 P.3d 1118, 1124 (2006).
Pursuant to I.R.E. 1002, an original photograph is required to prove the content of a
photograph, unless the rules or statute provide otherwise. Under I.R.E. 1001(3), prints of digital
images are admissible as “originals,” if they are shown to reflect the data “accurately.” I.R.E.
403 provides that relevant evidence may be excluded if its probative value is substantially
outweighed by, among other things, the danger of unfair prejudice.
At the adjudicatory hearing, the magistrate admitted into evidence several photographs
produced from data downloaded from a camera to a computer system and printed out at the
police station. In seeking to have them admitted, the state and the guardian ad litem introduced
foundational testimony by the officers who took the pictures, who testified that the prints
accurately depicted the injuries to the children at the time the pictures were taken. Parents

15
objected to admission of the prints, asserting that they did not reflect the data in an accurate
manner and that their prejudicial effect outweighed their probative value. In aid of their
objection, Parents presented testimony from an expert witness who testified that the colors of the
prints were not “neutrally balanced” and reflected color biases toward red and yellow hues.
Parents argued that such color abnormalities made the pictures inaccurate representations of the
injuries--specifically that they made the injuries appear worse than they were.
In deciding to admit the prints, the magistrate stated:
. . . the expert today has testified that the color saturation in these photos
may have made the red colorings in these photos more intense than they may have
appeared to be naturally. And frankly, through [other] testimony, I can tell that
the printer’s left lines within various areas of the photos that they wouldn’t be.
What the photos do depict are the injuries that the officers observed. We
used to in trials always have black and white photos because you might inflame
the prejudice of the jury and at the time when that was going on, we also had
rulings right and left that, however, if it was in front of a judge, it wouldn’t matter
because they could somehow keep themselves from being overly impressed by
the imagery of color photography.
These photos are admitted and demonstrated to depict the wounds that
have been adequately described [by] the witnesses as being accurate the night
they were taken and the Court would note that regarding the red tone in the photos
that goes to the weight of the exhibit.
....
The witnesses have clearly testified about the raised welts that they saw
and I’m satisfied that their probative value does not outweigh their prejudicial
effect. It’s being tried by a judge; not by a jury.

In affirming the magistrate on intermediate appeal, the district court found that the
magistrate had not abused its discretion in admitting the prints as original photographs where it
found by exercise of reason and application of the correct standards that the prints accurately
reflected the injuries and that their probative value was not outweighed by unfair prejudice.
We conclude that the magistrate did not err in admitting the photographs into evidence as
“originals.” The court recognized that while the photos may have been somewhat discolored,
such distortion went to the weight of the evidence and did not automatically render the photos
inaccurate. This Court took a similar approach in State v. Curry, 103 Idaho 332, 339, 647 P.2d
788, 795 (Ct. App. 1982), where an expert admitted on cross-examination that the color or shade
of an object in a photograph the state wished to admit may have been inaccurately depicted
depending on how the development process was carried out. We concluded that testimony in

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this regard went to the weight of the evidence--thus inferring that its admissibility was not
affected. Id. 9 We also conclude that the magistrate did not err in rejecting Parents’ position that
the prejudicial effect of the photographs outweighed their probative value under I.R.E. 403. The
trial court considered both relevance and potential prejudice before admitting the evidence. We
see no abuse of discretion in the court’s determination.
C. Evidence Establishing Jurisdiction Over A.L.
Parents also assert that the magistrate’s determination that the children were within the
court’s jurisdiction under the CPA pursuant to I.C. § 16-1603(1)(a) was not supported by a
preponderance of the evidence. As we indicated above, however, the issue is moot as to the two
younger children and thus we address the correctness of the district court’s decision only as to
A.L.
As previously noted above, we examine the magistrate record to determine whether there
is substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. Losser, 145 Idaho at 672, 183 P.3d
at 760. If those findings are so supported and the conclusions follow therefrom and if the district
court affirmed the magistrate’s decision, we affirm the district court’s decision as a matter of
procedure. Id.
Idaho Code § 16-1603(1)(a) provides that the court shall have exclusive original
jurisdiction in all proceedings under the CPA concerning any child living or found within the
state who is neglected, abandoned, or abused by his parents. For the purposes of this section, a
child is considered “abused” where he or she has been the victim of:
Conduct or omission resulting in skin bruising, bleeding, malnutrition,
burns, fracture of any bone, subdural hematoma, soft tissue swelling, failure to
thrive or death, and such condition or death is not justifiably explained, or where
the history given concerning such condition or death is at variance with the degree
or type of such condition or death, or the circumstances indicate that such
condition or death may not be the product of an accidental occurrence.

I.C. § 16-1602(1)(a). Pursuant to I.C. § 16-1619(4), such a finding must be supported by a
preponderance of the evidence.

9
Since we affirm the district court’s decision affirming the magistrate court’s admission of
the photographs as “originals,” we need not address Parents’ contention that the photos were also
inadmissible as “copies” under I.R.E. 1003.
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 In concluding that the two older children fell within the purview of the CPA, the
magistrate found:
They suffered abuse at the hands of [Father] and that is in the nature of spanking
with a broom and a dowel which left welts described by the witnesses in this case
which are beyond what the Court would consider to be reasonable spanking,
especially due to the age of the children.
What I’m not saying is that it’s illegal to spank a child. What I am saying
is that it is--that it is within purview of a child protection case when the extent of
the injuries occur here and I find that by preponderance of the evidence.

On appeal, Parents argue that the evidence did not demonstrate that A.L.’s injuries were
not “justifiably explained.” Specially, they argue that the Department had not “disprove[ed]”
Parents’ “proffered explanation justifying the marks”--namely that the children had been
spanked for “speaking inappropriately about [their] mother” as well as ongoing issues
“throughout the day” including “insubordination” and “refusing to comply with simple
instructions.”
Parents’ contention in this regard is without merit to the extent that they interpret the
statute as automatically excluding physical injuries from the definition of “abuse” if the
perpetrator simply provides an explanation--any explanation--for the injuries. Such an
interpretation ignores the inclusion of the word “justifiably” in the statute. See Wheeler v. Idaho
Dep’t of Health & Welfare, 147 Idaho 257, 263, 207 P.3d 988, 994 (2009) (noting that when
interpreting a statute, a court must begin with the literal words of the statute and those words
must be given their plain, usual, and ordinary meaning and the statute must be construed as a
whole). As defined in Black’s Law Dictionary, “justifiable” means “[c]apable of being legally or
morally justified; excusable; defensible.” BLACK’S LAW DICTIONARY 870 (7th ed. 1999). Thus,
the plain meaning of the statute is that not only must there be an explanation for the injury, but
that explanation must essentially excuse the imposition of such injuries. Simply providing an
explanation is not sufficient. Thus, we reject Parents’ contention that because they provided an
explanation for the injuries, there was insufficient evidence for the magistrate to determine that
A.L. was “abused.” The magistrate was free to determine that Parents’ explanation did not
“justifiably” explain A.L.’s injuries in light of the testimony regarding her injuries and the
photographic evidence depicting them. Accordingly, there was sufficient evidence presented
allowing the magistrate to find that A.L. was within the court’s jurisdiction under the CPA.

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 III.
CONCLUSION
The magistrate’s failure to hold a timely shelter care hearing and adjudicatory hearing, as
well as the Department’s failure to timely disclose the investigation report, did not operate to
divest the magistrate of jurisdiction under the CPA. In addition, we do not find merit in any of
Parents’ evidentiary contentions--specifically, we conclude that the Fourth Amendment’s
exclusionary rule does not apply to child protection proceedings; that Parents failed to show a
violation of Father’s Fifth Amendment Miranda rights; that even if we were to apply Brady to
CPA proceedings, Parents have not demonstrated that the undisclosed evidence was favorable,
suppressed by the Department, and prejudice resulted; and that the magistrate did not err in
admitting photographs of the older children’s injuries. Finally, we conclude that that magistrate
did not err in concluding that based on the circumstances, there was evidence of abuse to
establish the court’s jurisdiction over A.L. under the CPA.
Judge GRATTON and Judge MELANSON CONCUR.

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