dissenting.
In twenty-five years of experience in Idaho’s judiciary, I have never seen a parent’s rights terminated on evidence this thin. In his lengthy decision the trial judge had only three sentences in the findings of fact about Doe. If the trial judge had written Justice Trout’s opinion with all the inferences from *349the trial evidence there would be no dissent. That did not happen.
The Department of Health and Welfare’s witnesses furnished no help for the trial judge. They lacked any foundation in the record for their opinion of Doe’s abandonment, neglect or fitness as a parent. The Department offered no evidence supporting that Doe neglected Jane; the evidence provided by the Department did not list as to Jane and Doe any areas where education, subsistence, medical care or parental control was lacking. Instead, the Department justified its conclusion that termination was in the children’s best interest because “[Mother] has been given plenty of opportunity and time to change her behaviors and be a more appropriate parent.” Likewise, the only evidence of abandonment presented was the fact Doe was incarcerated, but the father’s incarceration alone cannot serve as substantial and competent evidence supporting termination. See State v. Roe, 142 Idaho 594, 597, 130 P.3d 1132, 1135 (2006).
The magistrate court in this case stated that “the best” Doe could do to maintain a relationship with Jane during his incarceration was “write letters, send photos and arts and crafts to his child.” However, we have explicitly stated that when dealing with incarcerated parents, reality “must play a part on two levels.” Doe v. State, 137 Idaho 758, 762, 53 P.3d 341, 345 (2002). First, courts must recognize the context in which incarcerated parents attempt to establish or maintain a relationship; incarcerated parents are “severely restricted” in what they can do. Id. Second, courts must assess the Department’s efforts to assist the parent in establishing or maintaining that relationship. Id.
The parent-child relationship does not cease to exist because of incarceration or long absence. When presented with an incarcerated parent, a court should be given evidence upon which it can rule on the best interest of the child as concerns that parent. Courts should consider evidence establishing the quality and extent of time spent with the child prior to incarceration, the nature and circumstances of the offense that led to incarceration, as well as prior charged or uncharged criminal behavior while in the home that might impact the child’s well being. Previous incarcerations or rehabilitations can also be relevant to future ability to properly care for children. Courts must also examine specific evidence establishing the impact incarceration has had on the child’s mental, physical or social well-being, and the quality of contacts or efforts made by the incarcerated parent to keep a meaningful relationship with the child while incarcerated. There are a myriad of factual circumstances which come into play in the complicated relationship of parent and child. Not all of them have been listed here, nor do all the possible factors apply in every case. However, a trial judge must be given a context to measure the absence and its impact on the child. Id. That simply did not happen here; the Department failed to provide the magistrate court with the kind of detailed evidence necessary to terminate a fundamental right.
Additionally, I am troubled by the trial court’s conclusion that “when [Doe] chose [Mother] as the mother of his child he clearly chose someone who could not compensate for him when he was absent in prison.” First, there is no evidence of what the circumstances were when these individuals married and no indication that Doe somehow made such a poor choice by marrying Mother that his right to have a relationship with Jane must be terminated. Such a conclusion is simply inappropriate. Second, this conclusion implies that Doe had a choice other than leaving Jane with her other custodial parent when he left for prison. At that time, Mother still had the right to parent her children as she saw fit, and any choice Doe might have made in regard to Jane would at least have needed Mother’s consent and at most could have been overridden by Mother. Doe might have chosen to leave Jane with a “surrogate” father in his absence, but Mother still had the right to parent Jane when Doe began his incarceration.
Moreover, once it became clear that Mother could not adequately parent Jane and her other children, the Department ignored the statutory purpose of our act — to strengthen and preserve family life whenever possible. It is unconscionable that the Department failed to notify Doe, pursuant to I.C. § 16-*3501606, that it had removed Jane from Mother’s custody. Although Doe had some relationship with Jane, he was never provided proper notice of the child protective hearings, the Department never investigated him and failed to have any contact whatsoever with him although aware of his location. The Department only contacted Doe after the termination notice was served. Doe was never afforded a meaningful opportunity to choose someone who could “compensate for him while he was in prison.” However, the trial judge found, based upon no evidence whatsoever, that the father could have done nothing to change this situation. Therefore, the trial judge’s conclusion that Doe had failed in his duty to ensure his daughter was “properly supported, maintained and cared for in [his] absence” is inappropriate and simply not supported by the facts.
The evidence given the trial judge by the Department was abysmally small and even with the stretched findings of fact hidden in the conclusions of law, the trial judge cannot support his decision to terminate Doe’s rights to Jane. Rather the trial judge used termination to punish Doe for a situation he knew nothing about, could not have predicted, and was not permitted to attempt to change. So, I ask — is this the way we treat a fundamental right in Idaho?