IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 32732
IN THE INTEREST OF: JANE DOE, A )
CHILD UNDER EIGHTEEN YEARS OF )
AGE. )
----------------------------------------------------------- ) Boise, May 2007 Term
STATE OF IDAHO, and CASA, )
) 2007 Opinion No. 96
Petitioners-Respondents, )
) Filed: July 2, 2007
v. )
) Stephen W. Kenyon, Clerk
JOHN DOE, )
)
Respondent-Appellant. )
Appeal from the District Court of the First Judicial District of the State of Idaho,
Bonner County. Honorable Steven C. Verby, District Judge. Honorable Barbara
A. Buchanan, Magistrate Judge.
The decision of the district court is vacated and remanded.
Valerie Parr Thornton, Sandpoint, for appellant.
Honorable Lawrence G. Wasden, Attorney General; Cheri L. Bush, Deputy
Attorney General, Boise, for respondents.
SCHROEDER, Chief Justice.
This is an appeal following the termination of the parental rights of John Doe.
I.
FACTUAL AND PROCEDURAL BACKGROUND
John Doe (“Doe”) and the mother of Baby Doe were roommates with separate friends
and activities. The mother discovered she was pregnant in her third trimester. She insisted that
John Doe was not the father. When she had the baby in April 2003, the mother admitted to
doing methamphetamines and marijuana. Child Protective Services let her take the child home,
but two weeks later tests came back positive for marijuana and methamphetamine in the baby’s
system and the state put the child in foster care. The mother worked at being drug free for
several months. She married John Doe and they were attempting to gain custody of the child
with Doe as the putative father. From the notes at this stage, it appears that all efforts were
focused on reuniting the child with the mother.
The mother eventually grew weary of being drug free. She left Doe and gave up her
parental rights to Baby Doe in January 2004. At that point the court ordered DNA testing to
determine whether Doe was the father. After his paternity was established in February 2004,
Doe attempted to gain custody on his own. A case plan was enacted, almost identical to the case
plan that Doe and the mother had signed, that required Doe to: (1) attend some of the baby’s
medical appointments; (2) remain drug free and submit to testing two times a week; (3) obtain
substance abuse evaluation and complete recommended treatment; (4) attend a parenting class
and counseling; (5) find a job to demonstrate that he could support the child; and (6) find
adequate housing. Doe worked toward completing these requirements.
The court held a termination hearing in September of 2004. The court terminated Doe’s
parental rights holding that Doe had abused and neglected his child. Doe appealed the magistrate
court’s decision to the district court. The district court affirmed the magistrate court’s decision
terminating Doe’s parental rights. Doe appeals to this Court. There are a number of issues
raised. However, there is one dispositive issue.
II.
STANDARD OF REVIEW
When reviewing a decision rendered by the district court sitting in its appellate capacity,
this Court considers the record before the magistrate court independently of the district court’s
determination, giving due regard to the district court’s analysis. CASI Found., Inc. v. Doe, 142
Idaho 397, 399, 128 P.3d 934, 936 (2006). In an action to terminate parental rights 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. Id. Substantial competent evidence is “evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Doe, 143 Idaho 343, 345-46, 144 P.3d 597, 599-600
(2006) (quoting Folks v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645
(1997)).
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III.
THE TRIAL COURT DID NOT APPLY THE CORRECT LEGAL STANDARD
Generally the Court will not consider on appeal any issues that are not raised by the
parties. State, Dept. of Health & Welfare v. Housel, 140 Idaho 96, 100, 90 P.3d 321, 325 (2004).
At times the Court has made exceptions for certain issues in certain types of cases. See Roe
Family Servs. v. Doe, 139 Idaho 930, 934-35, 88 P.3d 749, 753-54 (2004) (a magistrate judge
failed to apply the correct law to the facts in a termination case); Housel, 140 Idaho at 100, 90
P.3d at 325 (where magistrate’s modification of a support order raised two issues not addressed
by the Department the Court gave notice of its concerns and afforded the parties an opportunity
to respond); Crane Creek Country Club v. City of Boise, 121 Idaho 485, 487, 826 P.2d 446, 448
(1990) (Bakes, C.J., specially concurring) (an issue not raised in the trial court or on appeal may
be addressed when plain or fundamental error exists). Fundamental error, as defined in criminal
cases, is error which “so profoundly distorts the trial that it produces manifest injustice and
deprives the accused of his constitutional right to due process.” State v. Sheahan, 139 Idaho 267,
281, 77 P.3d 956, 970 (2003). While this is not a criminal case, the magistrate court’s error in
applying the incorrect standard affects Doe’s fundamental right to raise his own child and
violates the due process clause of the Fourteenth Amendment.
According to the magistrate court, Idaho Code § 16-1623(i) (redesignated in 2005 as 16-
1629(9)), creates a rebuttable presumption that termination of the parent-child relationship is in a
child’s best interest where the child has been in the Department’s custody and placed out of the
home for more than fifteen of the past twenty-two months. However, that is not an accurate
characterization of the law. That statute states:
There shall be a rebuttable presumption that if a child is placed in the custody of
the department and was also placed in out of the home care for a period not less
than fifteen (15) out of the last twenty-two (22) months from the date the child
entered shelter care, the department shall initiate a petition for termination of
parental rights. This presumption may be rebutted by a finding of the court that
the filing of a petition for termination of parental rights would not be in the best
interests of the child or reasonable efforts have not been provided to reunite the
child with his family, or the child is placed permanently with a relative.
I.C. § 16-1629(9). This merely creates a presumption in favor of the department initiating a
termination petition when a child has been in the state’s custody and not in the parent’s care for
fifteen out of twenty-two months. It does not create a presumption that it is in the best interests
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of the child to terminate parental rights. The statute should have had no bearing on the court’s
decision in this case, but the magistrate court used its interpretation of this section in making its
findings: “[t]he [magistrate] court begins its analysis with the presumption that termination of
[Doe]’s parental rights is in [the child]’s best interest.”
The presumption applied by the magistrate court does not follow the United States
Supreme Court ruling in Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92
(1982), which held that “[b]efore a State may sever completely and irrevocably the rights of
parents in their natural child, due process requires that the State support its allegations by at least
clear and convincing evidence.” Instead of requiring the Department to prove its case, the
magistrate’s interpretation of I.C. § 16-1629(9) required that Doe rebut a presumption that
termination was in the child’s best interest with evidence that termination was not in the best
interests of the child and reasonable efforts to reunite them had not been made by the
Department. According to Santosky, this is a violation of Doe’s due process rights because the
Department did not have to support its allegations by clear and convincing evidence; instead, the
magistrate placed the burden on Doe to prove that the allegations were not true.
The magistrate’s misinterpretation of I.C. § 16-1629(9) also does not follow Idaho’s
longstanding presumption that a natural parent should have custody of his children. Roe Family
Servs. v. Doe, 139 Idaho at 937, 88 P.3d at 756. The magistrate court’s construction of the
statute reverses that presumption. It looked at the facts with the presumption that termination
was in the child’s best interest. Rather than having a presumption that raising his child was in
the child’s best interests, Doe was required to rebut the opposite presumption. Doe had to prove
that termination was not in the child’s best interests and that reasonable efforts had not been
made rather than the state having the burden to prove that the reverse was true.
Application of the incorrect burden infected the trial and does not constitute harmless
error. A remand for proceedings applying the correct legal standard is necessary.
IV.
CONCLUSION
The order terminating parental rights is vacated and the case remanded for further
proceedings.
Justices TROUT, EISMANN, BURDICK and JONES CONCUR.
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