IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 36664-2009/36665-2009
DEPARTMENT OF HEALTH AND )
WELFARE, ) Boise, May 2010 Term
)
Plaintiff-Respondent, ) 2010 Opinion No. 58
)
v. ) Filed: May 28, 2010
)
JOHN DOE, ) Stephen W. Kenyon, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Second Judicial District of the State of
Idaho, in and for Nez Perce County. The Hon. Jeff M. Brudie, District Judge;
Hon. Kent J. Merica, Magistrate Judge.
The judgment of the district court is affirmed.
Neil P. Cox, Jr., Clarkston, Washington, for appellant.
Hon. Lawrence G. Wasden, Attorney General, Boise, Marcy J. Spilker, Deputy Attorney
General, for respondent.
EISMANN, Chief Justice.
This is an appeal from a judgment terminating the parental rights of a father in three of
his children. We affirm the decision of the district court upholding the judgment of the
magistrate judge.
I. FACTS AND PROCEDURAL HISTORY
While Father and Mother (Parents) were residing in Pierce County, Washington, they had
a daughter (Child One) born on July 6, 2005. The Washington Department of Social and Health
Services (DSHS) removed Child One from Parents’ custody on September 30, 2005. Mother has
epilepsy that causes frequent seizures, ranging from dizziness and difficulty speaking to full
grand mal seizures that cause convulsions and unconsciousness. DSHS removed Child One from
Parents’ custody because they would not follow precautions necessary to protect the baby from
the consequences of those seizures. Mother refused to refrain from carrying and picking up the
baby. She also refused to stop breastfeeding her baby even though her anti-seizure medication
could cause neurological and organ damage to her baby. Mother became pregnant again, and
Parents moved from Washington to Lewiston, Idaho, to avoid having DSHS become involved
with their unborn child.
Child One remained in the custody of DSHS, which ultimately filed a petition in
Washington to terminate Parents’ parental rights. That matter was tried during July 2007, and on
October 22, 2007, the Washington court issued a decision terminating Parents’ parental rights in
Child One.
Prior to the termination, DSHS had provided a variety of services to Parents, as did the
Idaho Department of Health and Welfare (DHW) after Parents had moved to Idaho. The
Washington court found that Parents have complex developmental disabilities, including low
intellectual abilities and a lack of knowledge and skills to survive, to conduct their lives
independently, and to care for their child in a safe manner. Father was diagnosed with
oppositional-defiance disorder, schitzotypal personality disorder, and organic brain syndrome.
His anger outbursts and behavior towards service providers caused three public health nurses to
stop providing services to the family. Mother was diagnosed with depressive disorder and mild
mental retardation. Although Parents completed parenting classes, they had difficulty
implementing the instructed skills. The court concluded that termination of the parental
relationship was in Child One’s best interest and that Parents will not be able to remedy their
parental deficiencies within the near future.
On November 1, 2006, Mother gave birth to a boy and a girl (Twins). The hospital
personnel discussed with Parents numerous times the potential risk of organ and neurological
damage to Twins from Mother’s anti-seizure medication if she breastfed them. Father became
very upset during these discussions, clenching his fists and refusing to listen, and he threatened
to sue anybody who tried to take Twins away. Parents stated that Mother was going to
breastfeed anyway, and she began doing so while still in the hospital. DHW took Twins into
custody, and on November 2, 2006, it commenced proceedings under the Child Protective Act.
The matter was set for a shelter care hearing, and at that hearing the magistrate judge found that
it was contrary to the health, safety, and welfare of Twins to be returned to Parents’ home. The
adjudicatory hearing was held on January 29, 2007. The magistrate found that Parents were
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unable to discharge their parental responsibilities with regard to Twins, and the court vested their
custody in DHW.
After working with Parents for over a year, on February 22, 2008, DHW filed a petition
to terminate Parents’ parental rights in Twins. The evidentiary hearing on that petition was held
during three days in April and June, 2008.
The magistrate found that Father has a low-average to borderline range of intellectual
functioning, and oppositional-defiance disorder, and a schitzotypal disorder. People with these
personality disorders are generally very resistive to direction, have trouble warming up to
personal relationships, tend to be suspicious and paranoid, and suffer from emotional extremes.
The court found that Mother suffers from a depressive disorder, has mild retardation, and
epilepsy. Because of her depressive disorder and mild retardation, she tends to be tearful and
unable to cope with stressful situations. With her epilepsy, she is subject to frequent and severe
seizures.
Parents had case managers in their home about forty hours per week to assist with day-to-
day living skills. Father showed one of the providers a gun and stated that he wanted to kill child
protection workers in Seattle and Lewiston. As a result, DHW terminated in-home visits with
Twins.
A DHW caseworker attempted to teach Parents about infant care, but she found herself
repeating the same things from week to week. Parents were not receptive to instruction or
direction and were unable to retain what they had been taught.
At some point during the Child Protective Act proceedings, Parents moved from
Lewiston to Orofino. They did not give a credible reason for doing so. That move limited their
visits with Twins and removed Parents from a variety of services available to them through
DHW.
The magistrate found that Parents had failed to comply with the case plan, adding, “It is
not envisioned that a parent can methodically and mechanically go through the motions of the
case plan and achieve reunification. The case plan is an integral and important part of the Child
Protective Act.” It also found that Parents were unable to show good judgment when caring for
Twins and would place them in compromising situations. They were also unable to understand
and appreciate their developmental milestones and would focus on the girl, who is developing at
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a normal pace, to the detriment of the boy, who is developmentally delayed. Father would
become easily frustrated with the boy’s activities.
The court determined that based upon Parents’ performance for more than one and one-
half years, their parenting ability will not improve in the foreseeable future sufficiently to have
Twins in their custody. They were unable to provide parental care necessary for the well-being
of Twins and are unable to discharge their parental responsibilities.
The court also found that even with supportive services, Parents will not be able to
discharge their parental responsibilities. It found persuasive the testimony of three DHW
caseworkers who had worked closely with Parents throughout the proceedings. These workers
have been threatened by Father and faced resistance from both Parents. During the course of the
proceedings, Parents would terminate providers if there was any indication that they disagreed
with Parents’ position regarding this case or were cooperative with the DHW caseworkers.
Parents would view providers as “the enemy” or a “spy” if they offered any suggestions, or
corrective measures regarding Parents’ parenting. Based on Parents’ history in working with
their supportive services, the court found that it could not have any assurance that supportive
services would be a constant in Parents’ household. On August 7, 2008, the magistrate court
entered a judgment terminating Parents’ parental rights in Twins.
On February 6, 2008, shortly before DHW filed a petition to terminate Parents’ parental
rights in Twins, Mother gave birth to another daughter (Child Four). On the date of the child’s
birth, DHW filed a petition under the Child Protective Act. After a shelter care hearing, Child
Four was placed in the custody of DHW. On March 7, 2008, at the adjudicatory hearing, Parents
stipulated that sufficient facts existed for Child Four to be found within the purview of the Child
Protective Act.
On May 6, 2008, DHW filed a petition to terminate Parents’ parental rights in Child Four.
On July 8, 2008, the parties stipulated that the magistrate could consider the testimony of all of
the witnesses who had testified at the hearing on the termination proceedings involving Twins.
Parents did not offer any new or additional evidence. The court adopted the findings of fact and
conclusions of law entered in the case involving Twins. On September 22, 2008, the court
entered a judgment terminating Parents’ parental rights in Child Four.
Parents appealed both judgments to the district court. On May 21 and 29, 2009,
respectively, the court entered opinions affirming the judgment in the case involving Child Four
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and the judgment in the case involving Twins. Father then appealed to this Court. The cases
were consolidated on appeal.
II. ISSUES ON APPEAL
1. Did the district court err in upholding the magistrate’s finding that Parents was unable to
discharge parental responsibilities and such inability will continue for a prolonged indeterminate
period and will be injurious to the health, morals or well-being of the children?
2. Did the district court err in upholding the magistrate’s finding that Father neglected the
children?
III. ANALYSIS
A. Did the District Court Err in Upholding the Magistrate’s Finding that Parents Were
Unable to Discharge Parental Responsibilities and Such Inability Will Continue for a
Prolonged Indeterminate Period and Will Be Injurious to the Health, Morals or Well-Being
of the Children?
The trial court must find that grounds for terminating parental rights have been proved by
clear and convincing evidence. Department of Health and Welfare v. Doe, 147 Idaho 353, 356,
209 P.3d 650, 653 (2009); I.C. § 16-2009. Idaho Code § 16-2005(1)(d) provides that a court
may terminate parental rights if it finds “that termination of parental rights is in the best interests
of the child and that . . . [t]he parent is unable to discharge parental responsibilities and such
inability will continue for a prolonged indeterminate period and will be injurious to the health,
morals or well-being of the child.” Subsection (6) of the statute states, “If the parent has a
disability . . . the parent shall have the right to provide evidence to the court regarding the
manner in which the use of adaptive equipment or supportive services will enable the parent to
carry out the responsibilities of parenting the child.”
Father contends that the district court erred in upholding the judgments because there was
not clear and convincing evidence supporting the magistrate’s findings that Parents were unable
to discharge parental responsibilities and such inability will continue for a prolonged
indeterminate period. “When the district court acts in its appellate capacity, we review the
decision of the district court to determine whether it correctly decided the issues presented to it
on appeal.” Idaho Dept. of Health and Welfare v. Doe, 148 Idaho 124, 126, 219 P.3d 448, 450
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(2009). Whether a matter has been proved by clear and convincing evidence is primarily a
matter for the trial court. Hogg v. Wolske, 142 Idaho 549, 554, 130 P.3d 1087, 1092 (2006). On
appeal, the appellate court does not reweigh the evidence to determine if it was clear and
convincing. Rather, “where a trial court has noted explicitly and applied a clear and convincing
standard, an appellate court will not disturb the trial court’s findings unless they are not
supported by substantial and competent evidence.” State v. Doe, 144 Idaho 534, 535, 164 P.3d
814, 815 (2007). “Substantial and competent evidence is relevant evidence that a reasonable
mind might accept to support a conclusion.” Anderson v. Harper’s, Inc., 143 Idaho 193, 195,
141 P.3d 1062, 1064 (2006). “It is the province of the trial court to determine the credibility of
witnesses, the weight to be given their testimony, and the inferences to be drawn from the
evidence.” KMST, LLC v. County of Ada, 138 Idaho 577, 581, 67 P.3d 56, 60 (2003).
The district court considered the arguments made by Father concerning the alleged
insufficiency of the evidence. In a lengthy and well-reasoned opinion, it thoroughly reviewed
the facts and addressed those arguments. Father has not shown that the district court erred in
determining that the magistrate’s findings with respect to this ground for termination were
supported by substantial and competent evidence.
B. Did the District Court Err in Upholding the Magistrate’s Finding that Parents
Neglected the Children?
The magistrate also granted termination on the ground that Parents had neglected the
children pursuant to Idaho Code § 16-2005(1)(b). Having found that there was substantial and
competent evidence to affirm the magistrate court’s termination of Parents’ parental rights
pursuant to Idaho Code § 16-2005(1)(d) due to their inability to discharge parental
responsibilities, the district court declined to address whether there was sufficient evidence to
affirm the magistrate’s finding regarding the alternative ground of neglect. On appeal, Father
contends that there was not sufficient evidence to support the magistrate’s finding on this
ground. He does not contend, however, that the district court erred in not addressing this
alternative ground, and it did not. Kirk v. Ford Motor Co., 141 Idaho 697, 704, 116 P.3d 27, 34
(2005).
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IV. CONCLUSION
We affirm the judgment of the district court. We award costs on appeal to respondent.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
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