IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket Nos. 50868 & 50897
In the Matter of: John Doe I, )
A Child Under Eighteen (18) Years of Age. )
---------------------------------------------------- )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, )
)
Petitioner-Respondent, )
)
v. )
)
JANE DOE (2023-24), )
)
Respondent-Appellant. ) Boise, September 2023 Term
______________________________ )
) Opinion Filed: October 27, 2023
In the Matter of: John Doe I, )
A Child Under Eighteen (18) Years of Age. ) Melanie Gagnepain, Clerk
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STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, )
)
Petitioner-Respondent, )
)
v. )
)
JOHN DOE (2023-26), )
)
Respondent-Appellant. )
_______________________________________ )
Appeal from the District Court of the Third Judicial District of the State of Idaho,
Canyon County, Courtnie Tucker, Magistrate Judge.
The adjudicatory decree of the magistrate court is affirmed.
Boyles Law, PLLC, Sandpoint, for Appellant John Doe. D. Colton Boyles
submitted argument on the briefs.
Aaron Bazzoli, Chief Public Defender, Caldwell, for Appellant Jane Doe.
Cassandra Wright submitted argument on the briefs.
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Raúl R. Labrador, Idaho Attorney General, Caldwell, for Respondent State. Teri
Whilden submitted argument on the briefs.
_____________________
BRODY, Justice.
This is a consolidated appeal involving Idaho Code section 16-1603(2), a statute
authorizing the magistrate court to take jurisdiction of a child who lives in the same household as
another child who is subject to an existing petition under the Child Protective Act (“CPA”). In this
appeal, we address a challenge to a magistrate court’s decision to take jurisdiction of an infant
after finding that the infant was “at risk of being a victim of abuse, neglect, or abandonment.”
The Idaho Department of Health and Welfare (“IDHW” or “Department”) filed a CPA
petition pursuant to Idaho Code section 16-1603(2) in March 2023 for an infant (“Infant”) who
was about three months old. The magistrate court had jurisdiction over the infant’s older brother
(“Toddler”), having removed Toddler at age eighteen months after determining Toddler had been
physically abused, neglected, and subjected to an unstable home. Infant was born about four
months after Toddler was placed in foster care. At the adjudicatory hearing pertaining to Infant,
the magistrate court made the following findings of fact: (1) Mother and Father had failed to make
any progress whatsoever on the case plan associated with Toddler; (2) Mother and Father were
unresponsive and uncooperative with the Department; (3) none of the safety issues that were
identified as part of Toddler’s removal had been alleviated; and (4) Mother and Father had
consistently failed to comply with a court order for drug testing (including a urinalysis and hair
follicle testing). Based on these findings, the magistrate court held Infant was “at risk of being a
victim of abuse or neglect” and was subject to the magistrate court’s jurisdiction under Idaho Code
section 16-1603(2). For the reasons discussed below, we affirm the magistrate court’s decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father (collectively, “Parents”) are the parents of two boys, Toddler and Infant.
Toddler was born on February 20, 2021. While in the hospital following Toddler’s birth, Mother
tested positive for methamphetamine and THC, and Toddler tested positive for amphetamine and
methamphetamine. About a month later, the magistrate court issued an adjudicatory decree,
placing Toddler in the protective custody of the Department. Father did not work with the
Department to complete the tasks assigned him as part of the adjudicatory decree, and he continued
to test positive for drugs. However, after Mother completed her tasks in October 2021, Toddler
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returned home, and that case was closed.
On June 6, 2022, when Toddler was about sixteen months old, the Department again
became involved with the family after receiving a report that Toddler was in the emergency room
with a broken femur, which required surgery. Mother left the hospital while Toddler was in surgery
and did not return to visit him at any time. Father never went to the hospital. While Toddler was
still in the hospital, a St. Luke’s Children at Risk Evaluation Services (“CARES”) physician noted
that Toddler not only presented with a fractured femur, but also facial bruising and thigh bruising,
and exhibited a “failure to thrive.” At the adjudicatory hearing held on August 11, 2022, the
physician testified as to the nature of Toddler’s injuries and medical condition, expressly rejecting
Mother’s explanation for the broken femur as caused by her eight-year-old daughter dropping
Toddler. The physician testified that the broken femur was “a severe injury… [which] would
require significant external forces and was inflicted in order to result in the break[.]” The
physician’s testimony, which was not contradicted by any other medical expert, was relied on by
the magistrate court, which found the nature of Toddler’s broken femur “indicated a high force
break…not commonly seen in children, [and] not the result of normal child activity.” Likewise,
the patterned bruising on Toddler’s face and left thigh also could not be explained by normal
childhood activity but was indicative of inflicted injuries. Based on these findings, the magistrate
court concluded that Toddler had been physically abused.
In addition, the magistrate court concluded that Toddler had been neglected and lived in an
unstable home based on Toddler’s failure to thrive and concerns regarding Parents’ capabilities to
protect Toddler from abuse. Specifically, the magistrate court found that Parents had been alerted
to Toddler’s poor diet and lack of weight gain between January 2022 and April 2022 but had failed
to attend a follow-up medical appointment, discontinued treatment with Toddler’s pediatrician due
to their own mistrust, and failed to establish care with a new physician. Additionally, hair follicle
testing on Toddler revealed that he had again been exposed to methamphetamines. The magistrate
court also expressed concern regarding Toddler’s developmental delays, including “limited
mobility and issues with speech and feeding.” Finally, the magistrate court noted that Parents were
uncooperative with the Department, failed to make arrangements to visit Toddler at all since he
was first taken to the hospital, failed to maintain “open communication or cooperation with the
department whatsoever,” and failed to comply with the court order to submit themselves to drug
testing. Consequently, on August 11, 2022, the magistrate court placed Toddler in the protective
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custody of the Department. As of the filing date for this appeal, Toddler’s case is still open, and
he remains in foster care with a goal of termination of parental rights due to Parents’ lack of
progress on the case plan, lack of cooperation with the Department, and refusal to comply with the
court order for drug testing.
Less than four months after Toddler was removed from the home, on December 8, 2022,
Infant was born. The Department did not become aware of this fact until December 28, 2022, after
receiving an anonymous phone call from a family member informing the Department of Infant’s
birth and expressing “concerns for the child’s safety.” Based on the continuing safety concerns the
Department had regarding Parents’ substance abuse and Toddler’s exposure to
methamphetamines, in addition to Parents’ lack of progress on Toddler’s case plan, the Department
became concerned for Infant’s safety as well. The Department called every hospital in the Treasure
Valley to determine at which hospital Infant had been born and to obtain his birth statistics,
including any medical evidence of prenatal drug exposure. Likewise, the Department called
pediatricians to find Infant’s treating physician and to obtain medical and immunization records.
Based on this investigation, the Department learned that Infant was current on both his
immunizations and well-check visits and had tested negative for illicit substances immediately
after birth. The Department also reached out to Parents, but Parents were unresponsive and
uncooperative. Parents refused to allow anyone from the Department to see Infant. Around this
same time, the Department also became aware that Father had an active warrant for his arrest for
possession of drug paraphernalia.
On March 9, 2023, the State filed a CPA petition involving Infant, alleging jurisdiction
under Idaho Code section 16-1603(2). The petition requested that the magistrate court take judicial
notice of Toddler’s open child protection case, as well as Toddler’s previous 2021 case. Sometime
after this, Parents allowed a social worker from the Department to have a “video visit” with Infant.
The State filed an amended petition about a month later, which contained the same request for
judicial notice of the same documents as the original petition.
At the adjudicatory hearing on May 10, 2023, the State requested that the magistrate court
take judicial notice of both of Toddler’s CPA cases. Mother and Father both objected, with Mother
arguing that the magistrate court could not take judicial notice of the entire case file and Father
arguing that it was unclear what facts the magistrate court would be taking judicial notice of. The
State responded that the request for judicial notice was to “acknowledge that the file exists,” and
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clarified that the request for judicial notice was specific to the adjudicatory decrees entered in each
case and the magistrate court’s findings of fact associated with those adjudicatory proceedings.
The magistrate court granted the State’s motion and took judicial notice of the adjudicatory decrees
and the factual findings in Toddler’s 2021 and 2022 cases.
The State then proceeded to question its first and only witness, the Department’s social
worker assigned to both Toddler’s and Infant’s cases. The social worker testified to Parents’ lack
of progress with Toddler’s case plan, general uncooperativeness, and Parents’ refusal to allow
anyone from the Department into the home or to see Infant in person. She also testified that she
had become aware that Father had an arrest warrant “for illicit substances.” She stated that she was
concerned for Infant because she did not know who was taking care of Infant and none of the
safety issues had been addressed with respect to Toddler.
At the conclusion of the State’s case-in-chief, Father moved for a directed verdict under
Idaho Rule of Civil Procedure 50, which Mother joined. Father argued the Department lacked “any
particular articulable facts related to or risks directly to [Infant’s] safety.” He further argued that
“[e]verything is just hinged upon a lack of progress on the previous plan,” and that the State was
“unconstitutionally flip[ping] the presumption” that Parents are fit by asking Parents “to prove
that [Infant] is safe.” The magistrate court summarily denied the motion without explanation.
Mother then presented her defense by testifying and admitting into evidence Infant’s
medical records. Mother testified about Infant’s feeding schedule (noting she bottle feeds) and
diaper changes and testified that she had adequate supplies. She also testified about her stable
employment. On cross-examination, Mother denied ever having a “substance abuse problem” and
claimed “there are false allegations with regards to substance abuse.” She did not deny “hav[ing
a] history with methamphetamine.” Mother also admitted that Father uses marijuana and “drugs
are in and around [the] home.” On redirect, Mother explained that she bottle feeds because she
works in the early morning. Father did not present any evidence and declined to testify. The State
then moved for the magistrate court to take judicial notice of the criminal complaint against Father
for possession of drug paraphernalia. Father objected because he had not reviewed it and was
concerned it contained mere allegations as opposed to substantiated facts. Over Father’s objection,
the magistrate court took judicial notice of the criminal complaint.
At the conclusion of the May 10, 2023, adjudicatory hearing, the magistrate court
concluded that Infant fell within the jurisdiction of the Child Protective Act pursuant to Idaho Code
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section 16-1603(2). This determination was based on the facts that Infant (1) was a child living in
the state and (2) was also living in the same household, with Mother and Father, as did Toddler,
over whom the magistrate court had taken jurisdiction. The magistrate court explained that it had
taken judicial notice of the adjudicatory decree and findings of fact made regarding Toddler,
specifically referencing the fact that Toddler was in the protective custody of the Department due
to neglect, physical abuse, and an unstable home. The magistrate court also found that Toddler had
been removed from his parents’ home twice and had twice been exposed to illegal substances. The
magistrate court noted the case plan for Toddler, which included “that parents would obtain a
substance abuse evaluation and follow the recommendations, mental health evaluations and follow
the recommendations, engage in drug testing or substance abuse testing as requested and ordered
by the [c]ourt and also engage in protective parenting class.” The magistrate court determined that
Parents had not resolved any of the concerns regarding Toddler:
Since that time, neither parent has engaged in any task of the case plan in
[Toddler’s] case. There has been no testing, there have been no assessments, there
have been no classes. There has been no engagement by either parent in that case
to any significant degree or any meaningful degree whatsoever.
Parents have been unresponsive to the Department and uncooperative. None of the
safety issues that were identified through [Toddler’s] removal have been alleviated
through the course of [Toddler’s case].
Acknowledging that Infant was current on his immunizations, had been seeing a doctor on
a regular basis, tested negative for illegal substances at birth, and had adequate supplies, the
magistrate court explained that it still had questions regarding Infant’s safety due to Parents’ lack
of cooperativeness with the Department:
However, very little is known of [Infant’s] home environment due to the
uncooperative nature of both parents. Parents have controlled the access that the
Department has to [Infant]. Department has not been allowed in the home.
The Department has only seen what parents allow them to see. And really, this has
come of late. …What is not known and what can’t be seen is whether parents are
making any progress with sobriety or if they are actively using.…
What the Department does not know is who [Infant] is spending time with in the
home, although it has been stated today that [Father] does care for the child as well
as [Mother’s daughter by another father], who were both—there are many parallel
circumstances with [Toddler’s] case. I think [Mother’s daughter] and [Father] were
both named as caregivers in [Toddler’s] case at the time that he entered foster care.
Most concerning is that the Department cannot ascertain, based on the information
that has been provided or made available, whether or not [Infant] is being exposed
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to substances. [Infant] is extremely vulnerable as he is an infant, a tiny infant. And
there is a concern because of many parallel circumstances as to [Toddler’s] case
when [Toddler] did enter into care.
The magistrate court’s conclusion that Infant is a tiny infant may be related to age but can also be
drawn from the medical records admitted by Mother, demonstrating that Infant was in the thirty-
sixth percentile for weight two months after birth, and at four months, Infant’s weight had declined
to the twenty-third percentile. The magistrate court explained that, while a drug screen had been
conducted at birth, Parents continuously refused to comply with the standing court order in
Toddler’s case for additional drug testing. Finding that safety concerns could potentially be
alleviated with drug testing and cooperativeness with the Department, the magistrate court ordered
protective supervision with the Department, but allowed Infant to remain in the home with Mother
and Father. Mother and Father both appealed, appearing separately. Because each appeal arises
out of the same events, raises the same facts, and presents related issues, they have been
consolidated in this opinion.
II. ANALYSIS
A. The magistrate court did not err in taking judicial notice of the adjudicatory
decrees and findings of facts from two prior CPA cases involving Parents and
Toddler.
Father first contends the magistrate court erred in taking judicial notice of specific
documents and facts arising out of the two prior child protection cases involving Parents and
Toddler. He argues the State’s request for judicial notice was neither timely nor specific, and the
magistrate court’s ruling failed to identify the specific documents or items judicially noticed. He
further argues that the magistrate court abused its discretion by “revealing sua sponte the facts [the
magistrate court judicially noticed] after the presentation of the appellant’s cases in chief[.]” Father
contends that, as a result of the State’s and magistrate court’s lack of specificity, he “was deprived
of any meaningful opportunity to address the facts the court took judicial notice of during cross of
the State’s witness or during his case in chief.”
In response, the State argues that it was specific as to which documents it was requesting
—specifically, the written orders and oral fact findings arising out of the adjudicatory hearings in
Toddler’s child protection cases. The State asserts that Father was on notice as to the facts
judicially noticed because Father was a party in both cases and was also present at both
adjudicatory hearings when the magistrate court made its findings. Thus, the State argues that all
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facts judicially noticed were “generally known” by all parties in the courtroom pursuant to Idaho
Rule of Evidence 201(b).
Whether a court erred in taking judicial notice is an evidentiary question this Court reviews
under an abuse of discretion standard. Rome v. State, 164 Idaho 407, 413, 431 P.3d 242, 248
(2018). Idaho Rule of Evidence 201 provides the types of facts which a court may judicially notice,
as well as the procedure for requesting the court to take judicial notice. Rule 201 pertains only to
“adjudicative facts.” I.R.E. 201(a). “An ‘adjudicative fact’ is a ‘controlling or operative fact, rather
than a background fact; a fact that concerns the parties to a judicial or administrative
proceeding and that helps the court or agency determine how the law applies to those
parties.’” Bass v. Esslinger, 171 Idaho 699, 525 P.3d 737, 742-43 (2023) (alteration omitted)
(quoting State v. Lemmons, 158 Idaho 971, 974, 354 P.3d 1186, 1189 (2015)). Rule 201 states in
part:
(b) Kinds of Facts that may be Judicially Noticed. The court may judicially
notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s jurisdiction;
(2) can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied
with the necessary information.
When a court takes judicial notice of records, exhibits, or transcripts from the
court file in the same or a separate case, the court must identify the specific
documents or items so noticed. When a party requests judicial notice of
records, exhibits, or transcripts from the court file in the same or a separate case,
the party must identify the specific items for which judicial notice is requested
or offer to the court and serve on all parties copies of those items.
I.R.E. 201(b)-(c) (emphasis added).
As an initial matter, Father did not specifically raise a timeliness objection to the State’s
request for judicial notice at any time during the adjudicatory hearing. Father did, however, raise
a general objection to all requests for judicial notice. Setting aside any preservation issue that might
exist because of Father’s failure to specifically argue timeliness, we reject his argument on appeal.
To support his timeliness contention, Father cites to Idaho Rule of Civil Procedure
7(b)(3)(A), which requires that a written motion be filed at least 14 days prior to a designated
hearing date. However, Father fails to consider Idaho Rule of Civil Procedure 7(b)(1)(A), which
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provides that motions may be made during a hearing or trial. This provision is consistent with
Idaho Rule of Evidence 201(d), which provides that a court “may take judicial notice at any stage
of the proceeding.” (Emphasis added).The State made an oral motion for judicial notice during the
adjudicatory hearing on April 27, 2023. Moreover, in the CPA petition filed on March 9, 2023, the
State requested that the magistrate court “take judicial notice of the current open child protection
case with [Infant’s] parents . . . and a previous case with the same sibling[.]” Thus, Father had
more than two weeks’ notice that the State was asking the magistrate court to take judicial notice
of adjudicative facts from Toddler’s two CPA cases.
Father next argues that the State’s request for, and the magistrate court’s ruling on, judicial
notice was improper because it lacked specificity based on this Court’s holding in Rome v. State,
164 Idaho 407, 416, 431 P.3d 242, 251 (2018). Father’s reliance on Rome is misplaced.
Rome involved a petition for post-conviction in relief in which Rome requested the court
take judicial notice of the following:
(1) The “trial transcript” from his underlying criminal case;
(2) The “appellate briefs” from his direct appeal;
(3) “Prior conviction records” from his underlying case;
(4) “[E]xhibits showing past alleged crimes” from his underlying criminal case;
(5) “The Clerk’s Record on Appeal” from his direct appeal;
(6) The court’s complete file from his underlying criminal case;
(7) The “court file” in State v. George.
Id. at 414, 431 P.3d at 249 (alteration in original). This Court held that Rome’s requests lacked
specificity and were overbroad, noting that none of Rome’s requests specified that they pertained
only to adjudicative facts or facts “not subject to reasonable dispute[.]” Id. (citations omitted).
Likewise, this Court distinguished between taking judicial notice of documents from a court file
containing adjudicative facts as opposed to taking judicial notice of the entire court file; the former
is permissible, whereas the latter is overbroad. Id. at 415-16, 431 P.3d at 250-251. Consequently,
this Court held that the district court did not abuse its discretion in denying Rome’s request for
judicial notice. Id. at 416, 431 P.3d at 251.
Here, the State’s initial request for judicial notice suffered from the same lack of specificity
as the requests in Rome. Counsel for Mother and Father objected, and the State narrowed its
requests in response. The State’s request for judicial notice went from a request that the magistrate
court take judicial notice of the existence of a CPA case involving Toddler to a request for judicial
notice of specific documents from the CPA case files pertaining to Toddler—namely, the
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adjudicatory decrees and oral findings of facts made at the respective adjudicatory hearings. The
facts judicially noticed are “not subject to reasonable dispute” because they “can be accurately and
readily be determined from” the same magistrate judge’s adjudicatory decrees and oral fact
findings. I.R.E. 201(b). Likewise, the adjudicatory decrees and hearing transcripts contain
adjudicative facts because those facts are “controlling” and “operative” and “concer[n] the parties
to a judicial or administrative proceeding,” having been specifically determined by the same
magistrate court in prior adjudicatory hearings. Bass, 171 Idaho at _, 525 P.3d at 742-43. As such,
the State’s request for judicial notice complies with Idaho Rules of Evidence 201(b) and (c).
Father’s argument that he “was deprived of any meaningful opportunity to address the
facts the court took judicial notice of during cross of the State’s witness or during his case in chief”
is disingenuous. Father should know all judicially noticed facts contained in the adjudicatory
decrees and the oral findings of facts made in those respective proceedings because he was a party
to and physically present at those proceedings. Father could have cross-examined the State’s
witness about her perception that he is “not responsive” to the Department and his lack of progress
on his case plan with Toddler, but he chose not to do so.
As a final argument on judicial notice, Father contends that the magistrate court erred in
sua sponte identifying the specific facts judicially noticed after the presentation of Mother’s case-
in-chief as opposed to when ruling on the State’s request. This argument also lacks merit. Rule
201(c) does not require the court to identify the specific facts that the court is noticing, but rather
only requires the court to “identify the specific documents so noticed.” The magistrate court did
so when it granted the State’s motion at the beginning of its case-in-chief:
The [c]ourt is comfortable taking judicial notice of … the adjudicatory
decree and the [c]ourt’s findings with regard to [Toddler]. And that is a current case
that is pending before this [c]ourt.
I did preside over the [Toddler’s] adjudicatory hearing, I made the findings,
I signed the decree. And so, the adjudicatory decree and the findings that are
attached to that decree are also part of that decree. I will take judicial notice of those
documents.
With regard to [the 2021 case]…that also is a child protection case that this
[c]ourt presided over regarding [Toddler]. I will take judicial notice of the
adjudicatory decree in that case and the findings the [c]ourt made in that case.
I personally made the findings and issues [sic] and signed the adjudicatory
decree. And so, I’m comfortable taking judicial notice of that as well.
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After the close of Parents’ cases-in-chief, the magistrate court made its findings of facts
pertaining to the May 10, 2023, adjudicatory hearing and restated that it “did take judicial notice
of the adjudicatory decree and findings of fact that this court made with regard to [Toddler].” The
magistrate court then recited a summary of the adjudicatory facts pertaining to Toddler contained
within those documents and relevant to the May 10, 2023, adjudicatory proceeding, including the
following:
[Toddler] was adjudicated into the care of the Department of Health and Welfare
when he was just over one year of age due to neglect, physical abuse and an unstable
home. This was the second time that [Toddler] was taken into the care of the
Department.
The [c]ourt made findings of fact regarding the developmental concerns
[Toddler] was exhibiting at the time that he was removed from his parents’ care.
He also had been exposed to illegal substances, which was proven through a
positive hair follicle test of the child.
And also very concerning was that he did have a significant unexplained
physical injury for a child of his age. And that was a broken femur, amongst some
other injuries.
This colloquy shows how the magistrate court applied the judicially noticed adjudicative facts to
the adjudicatory proceeding involving Infant. It was not a re-adjudication of the State’s request for
judicial notice. The magistrate court did not abuse its discretion by taking judicial notice of the
adjudicatory decrees and findings of fact pertaining to Toddler.
B. The magistrate court’s conclusion that Infant was at risk of neglect, abuse, or
abandonment was supported by substantial and competent evidence.
Mother and Father both contend the magistrate court lacked substantial and competent
evidence to support its conclusion that Infant was at risk of being a victim of neglect, abuse, or
abandonment under Idaho Code section 16-1603(2)(b). Specifically, Mother and Father argue that
the magistrate court: (1) erred in denying the joint motion for a directed verdict; (2) impermissibly
shifted the burden to Parents to show that Infant was not at risk of abuse, neglect, or abandonment;
and (3) relied solely on Parents’ past substance use and alleged criminal history, which was
insufficient to show Infant was at risk. Each argument will be addressed in turn.
1. The magistrate court did not err in denying the joint motion for a directed verdict.
Father contends the magistrate court erred in denying the joint motion for a directed verdict.
At the conclusion of the State’s case-in-chief, Father moved for a directed verdict, arguing there
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were no articulable risks to Infant’s safety: “Everything is just hinged upon lack of progress on a
previous care plan.” Mother joined in the motion. The magistrate court denied the motion.
This Court applies the same standard of review as that applied by the trial court when
reviewing a decision on a motion for directed verdict. Waterman v. Nationwide Mut. Ins. Co., 146
Idaho 667, 672, 201 P.3d 640, 645 (2009) (citing Gunter v. Muphy’s lounge, LLC, 141 Idaho 16,
27, 105 P.3d 676, 687 (2005)).
This Court conducts an independent review of the evidence and does not defer to
the trial court's findings. This Court must determine whether, admitting the truth of
the adverse evidence and drawing every legitimate inference most favorably to the
opposing party, there exists substantial evidence to justify submitting the case to
the jury. The substantial evidence test does not require the evidence be
uncontradicted. It requires only that the evidence be of sufficient quantity and
probative value that reasonable minds could conclude that a verdict in favor of the
party against whom the motion is made is proper.
Id. (internal citations omitted).
At an adjudicatory hearing in a child protection case, the magistrate court must determine,
by a preponderance of the evidence, whether the child comes within the court’s jurisdiction under
the Child Protective Act. I.C. § 16-1619(4). Section 16-1603 sets forth the bases for exercising
jurisdiction:
(1) Except as otherwise provided herein, the court shall have exclusive original
jurisdiction in all proceedings under this chapter concerning any child living or
found within the state:
(a) Who is neglected, abused or abandoned by his parents, guardian or other
legal custodian, or who is homeless;
(b) Whose parents or other legal custodian fails to provide a stable home
environment.
(2) If the court has taken jurisdiction over a child under subsection (1) of this
section, it may take jurisdiction over another child living or having custodial
visitation in the same household without the filing of a separate petition if it
finds all of the following:
(a) The other child is living or is found within the state;
(b) The other child has been exposed to or is at risk of being a victim of
abuse, neglect, or abandonment;
(c) The other child is listed in the petition or amended petition;
(d) The parents or legal guardians of the other child have notice as provided
in section 16-1611 Idaho Code.
Id. (emphasis added).
In this case, the record shows that Toddler had been removed from Parents’ custody and
taken into foster care approximately four months before Infant’s birth. This was the second time,
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in just over a year of life, Toddler had been removed from Parents’ care. At the time of Toddler’s
second removal, he had again been exposed to methamphetamines (demonstrated through hair
follicle testing), suffered a broken femur requiring surgery, and sustained other injuries indicative
of physical abuse. There were also significant concerns regarding Toddler’s lack of development.
Toddler was placed in foster care based on specific findings that he had been abused and neglected
and lacked a stable home environment.
The Department’s social worker testified at the adjudicatory hearing in Infant’s case that
Toddler’s case remains open with a current goal of termination of parental rights. She testified that
the magistrate court had ordered a case plan designed to address the safety concerns that had
resulted in Toddler’s removal from the home. The case plan required Parents to obtain a substance
abuse evaluation, submit to drug testing, address mental health concerns by obtaining a mental
health evaluation, follow any recommendations, and attend protective parenting classes. As of the
date of the social worker’s testimony at Infant’s adjudicatory hearing, neither Mother nor Father
had addressed any of these protective measures in any way, and all safety concerns regarding
Toddler remained.
After Infant was born, a family member became concerned for the child’s safety and
notified the Department about Infant’s birth. The Department also became aware that Father had
an active warrant for his arrest related to a criminal charge for possession of drug paraphernalia.
Although the Department learned that Infant did not test positive for illegal substances at birth, the
Department was still concerned about substance abuse in the home and whether the conditions of
the home were safe. Parents still refused to engage with the case plan associated with Toddler,
refused to respond to the Department’s request for information about Infant, refused to allow the
Department into the home, and refused to allow the Department to personally observe Infant, apart
from a single “video visit” after the CPA petition had been filed. The social worker testified
protective supervision would be in Infant’s best interest:
So that the [the Department] could go into the home on a regular and
consistent basis to assess [Infant’s] safety and monitor that [the child] is safe in
[Parents’] care.
And this is actually a policy of the Department when other children are in
foster care. [The Department] usually see[s] children monthly, even if they are not
in care, to assess their safety.
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Given this evidence, we reject Father’s argument that the record is insufficient to survive
a motion for a directed verdict. The evidence presented satisfies the substantial evidence test
because it contains “sufficient quantity” and “probative value” such that reasonable minds could
indeed conclude that Infant was at risk of abuse, neglect, or abandonment. See Waterman, 146
Idaho at 672, 201 P.3d at 645. The “at risk” standard under Idaho Code section 16-1603(2) is a
lower threshold, not to be confused with actual abuse, neglect, or abandonment required under
section 16-1603(1). Unlike Toddler, there is no evidence indicating Infant sustained broken bones,
bruising, or prenatal exposure to methamphetamine. However, there is substantial and competent
evidence that Infant it at risk of being subjected to a similar unstable home environment and lack
of protection as Toddler, and substantial and competent evidence connecting this unstable home
environment and lack of protection to Toddler’s abuse and neglect. Therefore, there is substantial
and competent evidence that Infant is at risk of suffering similar abuse or neglect.
Toddler’s removal from Parents’ home a second time after sustaining the broken femur is
probative of Infant’s risk of abuse or neglect because of the relatively short passage of time, less
than seven months, between Toddler’s removal and the Department’s filing of a petition for Infant.
Even more probative of the risk of abuse or neglect to Infant was Mother’s and Father’s lack of
cooperation with the Department, non-compliance with court orders for drug testing, Father’s
failure to address an outstanding arrest warrant involving drug paraphernalia, non-compliance with
a court order to obtain mental health evaluations and follow recommendations, non-compliance
with a court order to attend protective parenting classes, and Parents’ failure to engage with
Toddler’s case plan in any meaningful way to avoid the goal of termination of their parental rights.
The law does not require Infant to suffer a broken limb to conclude he is at risk. Parents’ conduct
since Toddler’s second removal is consistent with, and has some tendency to show, continued
instability, continued mental health concerns, continued substance abuse, and undeveloped
protective capabilities. Because these concerns were associated with Toddler’s abuse and neglect,
a reasonable person could conclude that these concerns create a risk that Infant would also be a
victim of abuse or neglect, especially given Parents’ seeming unwillingness to accept the need to
change their behavior. We therefore hold that the magistrate court did not err in denying the joint
motion for directed verdict.
2. The magistrate court did not shift the burden to Parents to show that Infant was not
at risk of being a victim of abuse or neglect.
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Father and Mother both argue the magistrate court impermissibly shifted the burden to
Parents to show that Infant was not at risk of being a victim of abuse or neglect. In support of this
argument, Parents point to the facts that Infant was born without drugs in his system, was current
on his immunizations, and current with his well-check visits. They argue that these facts
demonstrate there is no direct evidence proving Infant is unsafe. Parents contend the State’s
reliance on the facts related to Toddler to create a risk to Infant is tantamount to requiring Parents
to prove Infant is in fact safe. We disagree.
Parents rely on Idaho Dept. of Health and Welfare v. Doe, 151 Idaho 300, 256 P.3d 708
(2011), for the proposition that the magistrate court erred by impermissibly shifting the burden to
Parents to prove that Infant was not at risk. Parents misconstrue our holding in Doe, however, and
we conclude that the magistrate court’s decision is consistent with Doe. Doe established the
standards for analyzing two distinct issues under the Child Protective Act: the first is jurisdiction,
or the magistrate court’s (and the Department’s) exercise of supervisory authority over a child;
and the second is disposition—specifically, the sufficiency of the evidence necessary to remove a
child from a parent’s care or custody.
In Doe, two siblings were removed from the home and placed in the legal custody of the
Department after the father had inflicted serious injuries upon the son. Id. at 302, 256 P.3d at 710.
The father admitted to inflicting the injuries due to anger problems the father experienced when
his son cried. Id. The mother was never present when the father inflicted these injuries, but the
daughter was present at each incident. Id. Despite recognizing that there were no allegations that
the mother abused, neglected, or abandoned her children, the magistrate court ordered both
children removed from their mother’s care and placed them in the legal custody of the Department.
Id. at 302-303, 356 P.3d at 71-11. The magistrate court explained that while the mother had not
abused the children herself, her innocence did not prevent the court from taking immediate strong
measures to protect the children. Id. at 303, 256 P.3d at 711.
On appeal, we affirmed the magistrate court’s decision to take jurisdiction over both
children under the Child Protective Act. Doe, 151 Idaho at 307, 256 P.3d at 715. We explained
that the stated policy of the CPA places the focus on the child: “At all times, the health and safety
of the child shall be the primary concern.” Id. at 306, 256 P.3d at 714 (quoting I.C. § 16-1601).
We further explained that there is a “distinction between a finding of jurisdiction over a child and
other actions the court might take pursuant to the CPA, such as removing a child from his or her
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home and vesting legal custody in the Department.” Id. “Taking jurisdiction over a child is an
initial step under the CPA and does not dictate the disposition of the case.” Id. Consequently,
although there were no allegations of abuse, neglect, or abandonment against the mother, we held
that the magistrate court correctly took jurisdiction over the son under Idaho Code section 16-
1603(1) because he had been abused by his father, a person legally responsible for the care of his
children. Id. at 307, 256 P.3d at 715. We also held that the magistrate court correctly took
jurisdiction over the daughter under section 16-1603(2) because she had been exposed to abuse by
being present when the father had inflicted injuries upon son. Id. at 308, 256 P.3d at 716. We also
affirmed the magistrate court’s determination that the daughter was at risk of being a victim of
abuse because of the father’s uncontrolled anger issues. Id.
Distinguishing the issue of jurisdiction from removal, we next held that the magistrate court
erred in removing the children from the mother’s care by impermissibly shifting the burden to
mother to prove she was a fit parent. Doe, 151 Idaho at 309, 256 P.3d at 717. We explained that
parenting is a fundamental right which creates a presumption of fitness to care for one’s child:
It is incumbent upon him who seeks to invade the home and remove a child from
its protection, and from the custody of its natural guardians to show facts sufficient
to justify his action under the law. Parents are not required in the first instance to
take upon themselves the burden of proving their fitness to have the care of their
children, or that they are properly exercising their parental control.
Id. (emphasis added) (quoting Martin v. Vincent, 34 Idaho 432, 435-36, 201 P. 492, 493 (1921)).
The evidence showed no abuse by mother and the father (the sole abuser) was removed from the
home and in jail on a $100,000 bond. Id. at 308-09, 256 P.3d at 316-17.
We concluded the magistrate court “failed to fully recognize the different standards for
taking jurisdiction over a child pursuant to I.C. § 16–1603 and the standard for vesting custody in
the Department pursuant to I.C. § 16–1619.” Id. at 309, 256 P.3d at 717. We explained that removal
from a parent’s care requires the magistrate court to make “detailed written findings based on facts
in the record, that... continuation of residence in the home would be contrary to the welfare of the
child and that vesting legal custody with the department or other authorized agency would be in
the best interests of the child.” Id. at 308, 256 P.3d at 716 (quoting I.C. § 16–1619(6)). The
evidence in the record was insufficient to conclude that vesting the children’s legal custody with
the Department would be in their best interest. Id. at 309, 256 P.3d at 717. Therefore, we held that
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the magistrate court should have left the children in the mother’s care under the protective
supervision of the Department. Id. at 310, 256 P.3d at 718.
Contrary to Parents’ assertions, Doe supports the magistrate court’s decision in this case to
exercise jurisdiction over Infant under Idaho Code section 16-1603(2). Father confuses the
standard for exercising jurisdiction under the CPA with the standard for removing a child from a
parent’s custody. The impermissible burden shifting that occurred in Doe pertained to the
magistrate court’s misapplication of the standard for removal under section 16–1619(5), not the
standard for taking jurisdiction over the children under section 16–1603. No removal has occurred
in this case. Infant remains in the home under the care of Parents and the Department has protective
supervision. In other words, the magistrate court’s decision in this case is the same as we held
should have been done in Doe.
Mother further argues that this case is distinguishable from Doe because, unlike the
daughter in Doe, Infant was not yet born when Toddler was abused and was therefore not exposed
to such abuse. In addition, Mother argues that this case is distinguishable from Doe because the
father in Doe admitted inflicting injuries upon the son whereas “the cause of [Toddler’s] injuries
are unknown.” These distinctions are irrelevant.
First, we reject Mother’s characterization of the cause of Toddler’s injuries as “unknown.”
The cause of Toddler’s injuries is not unknown. The magistrate court found that the cause of
Toddler’s injuries—facial bruising, thigh bruising, and a fractured femur—was physical abuse.
While it is not known who in the home inflicted Toddler’s injuries, this point is irrelevant for
purposes of determining whether Infant was at risk of abuse or neglect. The CPA does not require
a magistrate court to determine the identity of the first child’s abuser in order to conclude another
child in the same household is at risk of being a victim of abuse or neglect under subsection 16-
1603(2)(b), particularly when the same people in the home have access to both children and the
same parents are obligated to protect both children from such abuse.
Next, we did not uphold the magistrate court’s determination in Doe that the daughter fell
under the jurisdiction of the CPA because the father admitted his abuse; we upheld it because there
was sufficient evidence to support the findings that daughter was exposed to that abuse and that
she was at risk of being a victim of abuse herself. Either one of these findings would be sufficient
to take jurisdiction of a child under the CPA pursuant to subsection 1603(2)(b); a court need not
find both. Thus, it is irrelevant here that Infant was not exposed to the abuse suffered by Toddler.
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The magistrate court was permitted to, and did, take jurisdiction of Infant based solely on the
conclusion that Infant was at risk of being a victim of abuse, neglect, or abandonment. Therefore,
we hold that the magistrate court did not impermissibly shift the burden to Parents to show that
Infant was not at risk.
3. The magistrate court did not rely solely on Parents’ past substance abuse and
alleged criminal history in determining that Infant falls within the court’s
jurisdiction under the Child Protective Act.
As a final argument, Father contends the magistrate court relied solely on Parents’ past
substance use and alleged criminal history in concluding Infant was at risk of being a victim of
abuse or neglect. In support of this argument, Father cites to caselaw from Oregon and California
to argue the State failed to show a nexus between Parents’ prior illegal drug use and a risk of harm
to Infant sufficient for the magistrate court to take jurisdiction under the CPA. Father’s citations
to cases outside the state of Idaho lack applicability to this case, and we decline to discuss them
further. More importantly, Father’s contention demonstrates a fundamental misunderstanding of
the magistrate court’s ruling.
First, the magistrate court did not remove Toddler based solely on Parents’ past illegal drug
use. The magistrate court carefully explained the multitude of reasons supporting its determination:
[T]here were many factors that led the [c]ourt to adjudicate [Toddler] into the Child
Protection Act.
The injury itself, yes. But also parental substance abuse, lack of cooperation
of parents, lack of transparency of parents in dealing with the Department and law
enforcement. Behavior of parents at the hospital and afterward and during the
course of proceedings. And there was a question about the parents’ protectiveness
. . . [I]t wasn’t just one factor.
The magistrate court also did not hold that Infant was at risk of abuse, neglect, or abandonment
based solely on the Parents’ past drug use. Rather, it relied on substantial and competent evidence,
as discussed in the previous section of this opinion, to find that the conditions and conduct which
led to Toddler’s removal were still present.
Next, there is a nexus between Parents’ drug use and actual harm to Toddler because
Toddler tested positive for methamphetamine not only at birth, but again at fifteen months when
he was placed in the care of the Department. The magistrate court had substantial and competent
evidence to conclude that a nexus between parental drug use and a risk to Infant also existed. At
the adjudicatory hearing, Mother admitted a history of methamphetamine use, but denied it was
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ever a problem. Mother’s denial is in direct contradiction of the fact that her own
methamphetamine usage was responsible for Toddler’s initial removal at birth. Moreover, Mother
admitted “drugs are around the home” and Father had an outstanding arrest warrant for an
unspecified drug crime. The record on appeal does not support Father’s assertion that the only drug
around the home was marijuana “use[d] to treat[Father’s] chronic pai[n].” Again, the record shows
Mother had a history of methamphetamine use, Toddler had twice been exposed to
methamphetamines, unspecified drugs remained around the home with Infant, and both Parents
refused to comply with the court order for drug testing. Mother’s statement that her history with
methamphetamines was never “a problem,” combined with her refusal to submit to drug testing,
indicates a cavalier attitude towards methamphetamine use and the dangers such usage have posed
to her children. This supports the magistrate court’s finding that parental substance abuse remains
a valid concern and poses a risk of abuse or neglect to Infant.
Under Idaho Code section 16-1603(2)(b), the magistrate court was required to find, by a
preponderance of the evidence, that Infant was at risk of abuse, neglect, or abandonment. The
magistrate court made this determination based on the facts that (1) Toddler had been removed
from the home due to abuse, neglect, and an unstable home (including Toddler’s
methamphetamine exposure, Toddler’s injuries indicative of physical abuse, Toddler’s failure to
thrive, and Parents’ lack of protective capacities); (2) it remained unsafe for Toddler to return
home; (3) Parents were uncooperative with the Department; (3) Parents refused to comply with
court orders for drug testing; (4) Mother admitted drugs are around the home; (5) Parents failed to
complete any tasks on Toddler’s case plan whatsoever, including mental health evaluations and
attending protective parenting classes; and (6) the circumstances in the home, including who is
caring for Infant, were parallel to the circumstances that were present at the time of Toddler’s
removal. We therefore hold that substantial and competent evidence existed to support the
magistrate court’s conclusion that Infant was at risk of abuse, neglect, or abandonment and affirm
the magistrate court’s decision to take jurisdiction over Infant under Idaho Code section 16-
1603(2) and ordering protective supervision by the Department.
C. Father is not entitled to attorney fees.
Father argues he is entitled to attorney fees pursuant to Idaho Code section 12-117.
However, Father is not the prevailing party and is thus not entitled to attorney fees.
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VI. CONCLUSION
For the foregoing reasons, we affirm the adjudicatory decree entered by the magistrate
court.
Chief Justice BEVAN, and Justices STEGNER, MOELLER and ZAHN CONCUR.
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