Tanner v. State, Department of Health & Welfare

BISTLINE, Justice,

specially concurring.

The Court notes that Poppe “raises additional issues on appeal,” but then summarily dismisses them as “without merit.” Such a disposition is inappropriate in cases which affect what has been called by one court “the natural and sacred right of a parent to the custody of his or her child.” In re Hudson, 13 Wash.2d 673, 126 P.2d 765, 768 (1942). Given the gravity of our decision today, which irrevocably takes his children from his care and custody, this Court should give Poppe the consideration of a discussion of all the issues raised by him.

0 The issues not discussed by the majority are as follows:

I.Whether the due process clause of the federal constitution requires that the state in an action seeking to terminate parental rights make a showing either of (a) permanency in the condition complained of, (b) grievous conduct of neglect, or abuse, or (c) reasonable but unsuccessful government efforts to reunite family members.
II. Whether the Adoption Assistance and Child Welfare Act of 1980 requires that a State in an action seeking to terminate parental rights make a showing of reasonable but unsuccessful governmental efforts to reunite family members.
III. Whether the Child Protective or Termination of Parent and Child Relationship Acts of the state of Idaho requires that a state in an action to terminate parental rights make a showing of reasonable but unsuccessful government efforts to reunite family members.
IY. Whether the State has shown by clear and convincing evidence reasonable but unsuccessful government efforts to reunite Merlin Poppe with his minor children.

Appellant’s Brief at 9.

DUE PROCESS AND STATUTORY REQUIREMENTS

Poppe argues that the due process clauses of the Idaho and U.S. Constitutions require that the State must show, by clear and convincing evidence, one of the following before termination may be ordered: 1) that there is a permanent condition presenting an unreasonable risk of harm to the children, 2) there was grievous misconduct with respect to the children, or 3) there has been a reasonable but unsuccessful State effort to reunite the family. He also argues that I.C. § 16-1601 and 42 U.S.C. § 671(a)(15) require the State to make reasonable efforts to reunite the family before termination may be ordered.

The State concedes it is “required, in order to receive federal funds for its program, to implement a plan that insures reasonable efforts to prevent family breakup before children are removed from their parent or guardian’s home.” Respondent’s Brief at 11. But, it goes on to argue, such efforts were made in this case. Given the State’s position that it was obligated to make reasonable efforts to reunite Poppe with his children, the Court need not decide the constitutional or statutory questions, but that does not justify its summary con*613elusion that Poppe’s claims are without merit. To the contrary, the State must have thought the claims had some merit since it conceded one of the points.5

SUFFICIENCY OF EVIDENCE

Assuming then, but without deciding, that the State was obligated to make reasonable efforts to reunite Poppe with his children, the Court should answer the question of whether the district court’s finding that “all reasonable efforts were taken to make it possible for the children to return to their home, but these efforts were not successful,” is supported by sufficient evidence in the record.

Before that question is addressed, however, a comment needs to be made about the majority’s discussion of the proper standard of review. In their discussion of the sufficiency of the evidence as to the findings of neglect and abuse, the majority cites to Interest of Bush, 113 Idaho 873, 749 P.2d 492 (1988), for the proposition that, in a review of factual findings in parental termination cases, we will not disturb the findings of the trial court “so long as there is substantial evidence in the record to support its findings.” 113 Idaho at 876, 749 P.2d at 495. That statement is correct as far as it goes, but it does not go far enough.

We made clear in Bush that we apply a de facto stricter standard of review in parental termination cases because there is a stricter burden of proof at trial.

The substantial evidence or clearly erroneous standard of appellate review, however, is not applied identically in all instances: the appellate standard of review parallels the trial court’s burden of proof. Obviously, the substantial evidence test requires a greater quantum of evidence in cases where the trial court finding must be supported by clear and convincing evidence. Thus, in termination proceedings, if there is evidence in the record from which the trial court may properly conclude that the issue has been resolved by clear and convincing evidence, the appellate court will not set that resolution aside.

Bush, 113 Idaho at 876, 749 P.2d at 495.6

Turning to the sufficiency of the evidence regarding the services offered to Poppe, a review of the record shows the trial court’s conclusion is supported by the evidence. Poppe was asked to have a drug and alcohol assessment, but failed to do so. He was asked a second time, but again failed to comply. There is no indication in the record Poppe was not able to get an assessment for reasons outside his control. In light of his failure to complete the assessment, it would not be reasonable for the State to be required to offer any further services related to substance abuse. Poppe was offered an anger management program, but the court found Poppe’s physical abuse of the children continued even after he completed the program. He was offered parenting classes, which he did not attend.

Given Poppe’s refusal to address the possibility that his abusive behavior might stem from substance abuse, his failure to attend parenting classes, and his unsuccessful experience in the anger management classes, the trial court did not err in finding that the State had made reasonable but unsuccessful efforts to reunite Poppe with his children.

In sum, although the ultimate conclusion reached by the majority is sound, the method of reaching it leaves much to be desired. First, we should have accurately set out the Bush standard of review. Next, we should have addressed all the issues prop*614erly raised by Poppe because of the gravity of the decision we are entrusted to make.

JOHNSON, J. concurs.

. The State may admit too much in regard to its concession that it has an obligation under federal law to make reasonable efforts to reunite the family. See Interest of Brown, 112 Idaho 901, 904, 736 P.2d 1355, 1358 (Ct.App.1987) (wherein the Court of Appeals rejects the argument made here that 42 U.S.C. § 671(a)(15) requires the State to make reasonable efforts to reunite the family before termination may be ordered).

. That being said, there is substantial evidence in the record to support the trial court’s finding by clear and convincing evidence that Poppe neglected and abused his children and that termination would be in the best interests of the children.