IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS OF JOHN (2011-02) DOE. IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent, v. JOHN (2011-02) DOE, Respondent-Appellant.
Docket No. 38491
IN THE SUPREME COURT OF THE STATE OF IDAHO
July 12, 2011
2011 Opinion No. 85
J. JONES, Justice.
Boise, June 2011 Term. Filed: July 12, 2011. Stephen W. Kenyon, Clerk.
The judgment of the magistrate court is affirmed.
Fletcher & West, LLP, Boise, for appellant. Jefferson H. West argued.
Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Marcy J. Spilker argued.
J. JONES, Justice.
John Doe appeals the magistrate court‘s judgment terminating his parental rights to his three minor children. We affirm.
I.
Factual and Procedural History
The magistrate court found that Appellant, John Doe (Father), neglected his children by (1) failing to provide them with proper parental care within the meaning of
Father is the biological father of three minor children: M.V. (approximately 14 years old), D.B. (approximately 13 years old), and A.B. (approximately 12 years old). Father has had primary custody of the children since approximately 2000, when their mother (Mother) took the children to social services in Virginia. Mother continues to reside in Virginia and is not challenging the termination of her parental rights.
Father brought the children to Idaho in approximately 2008. Mother has not seen the children since the summer of 2009 when they visited her in Virginia. Mother returned the children to Father in Idaho “because they were so violent and disruptive in her home. She said that they ‘destroyed’ her house putting holes in the walls, etc.”
Shortly after the children‘s return to Idaho, Father was arrested on domestic violence charges for assaulting his then-girlfriend, Bambi, in the presence of his children. After the arrest, Bambi took the children to the residence of Karrie Lytle (Lytle), the girlfriend of Father‘s nephew, James Dixon. However, Lytle called the Department of Health and Welfare (the Department) on October 22, 2009, because she was unable to further care for the children. Lytle claimed M.V. assaulted her own daughter, giving her a black eye, and claimed “she could no longer care for the children due to their violent outbursts.” The children were declared to be in imminent danger and placed in temporary foster care. On October 26, 2009, the Department filed a Child Protective Act petition, requesting that the children be placed in its custody. A shelter care hearing was held that same day, with Father present, and on November 3 the court entered an order granting the Department temporary custody of the children on grounds of neglect. An adjudicatory hearing was held on November 12, which Father failed to attend, resulting in an Order of Legal Custody as to Father.
The Department created a case plan for Father in December of 2009, which addressed four main areas of concern, including: (1) unstable housing and income; (2) violence while under the influence of alcohol; (3) Father‘s strict disciplinary practices; and (4) failure to address the children‘s health and educational needs. The corresponding tasks regarding these concerns required the following: (1)(a) Father must obtain and maintain a safe and stable home for himself and his children, submit to random home visits conducted by the Department, and not allow unapproved guests to stay the night at the home; (1)(b) Father must maintain employment and a
In February 2010, Father completed a Risk to Child Assessment with Camilla Cafferty (Cafferty) in order to satisfy the Department‘s domestic violence evaluation task. This assessment identified “a history of neglectful and under-involved parenting” by Father and a denial and minimization of domestic violence, substance abuse, and anger management issues. The assessment report indicates that Father moved the children on a regular basis to the homes of his then-girlfriend. However, these relationships would end abruptly due to “an argument fueled with alcohol,” leaving the family without a place to live and disrupting the children‘s living environment. The report also notes that Father‘s incarceration, as well as the placement of the children in Lytle‘s care after his arrest, “suggest neglect and an escalation of neglect resulting in the childrens’ placement in foster care.” The report indicates that Father did not accept responsibility for the children‘s placement in the custody of the State, which “suggests that he is in extreme denial and minimizes his lack of responsibility for protectively parenting his children.” Father also expressed his expectation that M.V. “make meals and care for the younger children.”
During the assessment, Father admitted to a history of drug and alcohol abuse and poor impulse control, particularly with regard to liquor. At the time of the report, Father had not completed the recommended substance abuse evaluation. Father suggested that he could continue to be around alcohol and could quit cold turkey, even though he admitted that his violent tendencies were generally associated with drinking. The report indicates that Father‘s own
The assessment report recommended that Father address his lack of accountability by completing: (1) cognitive self-change programs, (2) parenting programs for behaviorally disordered children, (3) protective parenting classes, (4) a 52-week domestic violence treatment program, (5) a psychological evaluation, and (6) a substance abuse evaluation.
The magistrate court held a permanency hearing on September 30, 2010, and, despite Father‘s objections, issued an order on October 7 approving adoption as the permanent plan for the children. In its findings, the court noted that Father had made little progress on his case plan. The children‘s guardian ad litem, Lynn Mattison (Mattison), recommended in her permanency report to the court that it was not in the best interest of the children to return them to Father because he had not completed a significant portion of his case plan at that time.
In April 2010, Father completed a substance abuse evaluation with Sue Salmon (Salmon), after failing to show up for his first two appointments. Salmon‘s report indicates that Father only felt the need to address his substance abuse issues because of pressure by the State:
[Father‘s] responses indicate minimal motivation for treatment, which suggests that motivational problems are of high clinical significance for treatment planning, and some resistance to treatment. [Father] agrees to treatment because of his CPS case. He does not think he needs treatment for ongoing support for abstinence.
It was recommended that Father attend an outpatient treatment program, complete anger management and parenting classes, and comply with his case plan. Father enrolled in an outpatient treatment program but was discharged for failing to attend a single group meeting over a thirty-day period.
The State filed a petition to terminate Father‘s parental rights in November of 2010. At the subsequent trial, the children‘s guardian ad litem testified that, although Father loves his children very much, and they love him, they continue to live in a “very chaotic existence” requiring repeated moves and stays with Father‘s then-girlfriend, they have inconsistent school attendance, and they have never had dental care. Mattison further testified that, even if the
All three children have documented behavioral problems, which “place them at a higher risk for future neglect and abuse” due to their heightened needs for help and support. Specifically, M.V. exhibits violent tendencies, including destroying property and assaulting other children. M.V. has been involved in the juvenile correction system with charges of fighting and shoplifting, and violated her probation as recently as October of 2010 for threatening staff at her shelter. M.V. was also diagnosed by psychologist Kimberly Parks (Parks) as a sexual abuse child victim,1 and was also diagnosed with disruptive behavior disorder. D.B. “has been diagnosed with adjustment disorder with mixed anxiety and depressed mood . . . .” D.B. has also had two instances of engaging in conduct at school that would constitute sexual harassment. Finally, A.B. exhibits physically and verbally aggressive behavior towards others, and Parks testified that A.B. is diagnosed with “an adjustment disorder with mixed disturbance of emotions and conduct.”
Parks testified that both D.B. and A.B.‘s disorders are impacted by the added stress of foster care. Parks also testified that all the children were struggling with being in foster care, and that all three children have expressed an interest in reuniting with their Father. In fact, M.V. testified that she did not want Father‘s rights to be terminated and that she wants to live with him. She testified that her father is a good person, has quit swearing, and that “everything was just fine when we were all a family.”
However, the children indicated that prior to their custody with the State, they had never been to a dentist or doctor. Since visiting a doctor, M.V. has been identified as suffering from gastroesophageal reflux disease (GERD), and signs of pre-diabetes. M.V. had nine fillings since entering the State‘s custody. Furthermore, all three children are at least one grade level behind in school.
Father‘s probation officer, Rick Lopez (Lopez), testified regarding Father‘s criminal record, which included the following: arrest for domestic battery in April of 2009 and in September of 2009; resisting an officer in 2008; misdemeanor larceny in 1998; contempt of court in 1999; trespassing in 1999; possession of marijuana in 1999; and an assault and battery in 1999
Cafferty, who conducted the risk assessment, testified at trial about the findings in the assessment report. She stated that Father‘s profile “reflected a high risk for continued maltreatment and neglect of his children” because of his history of domestic violence, the reports of neglect and maltreatment, and a lack of accountability and responsibility on Father‘s behalf.
The family‘s case worker, Julie Stadler (Stadler), also testified at trial, recommending that Father not be reunited with his children. Stadler testified that Father did not make meaningful and timely progress on his case plan. She further testified that termination was in the best interest of the children because Father is unable to meet his own basic needs and is incapable of meeting the needs of his children, particularly because the children all have behavioral problems requiring special attention. Stadler‘s biggest concern with reunification was the lack of stability for the children while living with Father.
Stadler testified that Father‘s completion of the Risk to Child Assessment did satisfy the domestic violence evaluation in Task 1(c) of his court-approved case plan. However, she testified that he did not comply with the recommendations of the assessment report, as further required by Task 1(c) of the case plan. Specifically, Father did not complete a cognitive self-change program, or an age-appropriate parenting program for children with behavior disorders. He was enrolled in a parenting program, Love and Logic, at the time of the trial,2 but failed to provide a certification of completion. Father also did not complete a protective parenting class,
Regarding Father‘s task for stable housing, Stadler testified that, upon release, Father lived in a mobile home with four other people and admitted the home was not suitable for children. In December of 2009, Father told Stadler that he would move to a female friend‘s three-bedroom home but never attended the meeting with Stadler following up on that move. Shortly thereafter, Father told Stadler he had an apartment in Boise but would be moving to a house with more property because he had a dog. It appears from the transcript that Father did find another home in June of 2010, but Stadler was never able to view it due to Father‘s unavailability. Father moved to yet another home in Meridian, in July of 2010, and continued to live there at the time of the December 2010 trial. Stadler was unable to schedule a viewing of the home until November of 2010, after the State initiated termination proceedings. Stadler identified the home as a three-bedroom double-wide trailer without any furniture. The yard contained a kennel with four pit bulls. Father was living with a woman who had not submitted to a background investigation. The woman is the mother of the person who is alleged to have sexually abused M.V. Stadler determined that Father had partially completed his housing task because he obtained a suitable residence as of July 2010, but was living with an unapproved female, who is linked to M.V.‘s sexual abuser.
Regarding Father‘s employment task, Stadler testified that Father‘s initial plan was to sell cell phones with a business partner shipping the products from Japan, and that it was unlikely he could produce pay stubs for this income. Father also informed Stadler that he needed to wrap up the termination proceedings in order to move to Virginia where he had an offer to be a producer for his nephew at Def Jam Records for “hundreds of thousands of dollars.” Stadler also testified that Father was unwilling to work an eight to ten dollar an hour job “when he could be making hundreds of thousands of dollars.” Father did not leave the State for this employment and eventually enrolled in flagging school in June of 2010. However, Father informed Stadler in September that he had been hit by a vehicle and was receiving worker‘s compensation. Father
Stadler also testified that Father had not completed the task of his case plan regarding the parenting program required by the Department, nor the protective parenting class. Regarding the fourth task, Stadler testified that Father had not attended any of the children‘s dental or schooling appointments, nor had he attended any of M.V.‘s juvenile corrections matters. Stadler also testified that Father did not complete the amended task in his case plan requiring him to inform the Department of his family contact information. In fact, when another social worker was trying to reach Father to complete this task, Father provided the following response:
“I‘ve done everything you people want me to do. I‘ve done drug and alcohol testing, got a job making 18.50 an hour, got a home, and will take anger management class. Every time I talk to you people you keep upping the anti with something else. Either give me my kids back or I‘m leaving Idaho for Virginia or [I] might need to stay in Idaho, and then I will reunite with them when they are 18. I‘m fed up.” [“]You people quit playing games or give me my kids back. My kids know the situation. My family will not attend any meeting about taking the kids because they say the kids belong with me. I can‘t make them attend, so give me my kids back or I am leaving!”
Maggie Olson (Olson) supervised the visitations between Father and the children while they were under the State‘s control. Olson testified that Father‘s parenting style generally involved long lectures for minor incidents, and she recommended the Love and Logic parenting books and classes to Father. She testified that Father demonstrated no signs of implementing the parenting techniques taught in the materials for a majority of the visits. However, Olson testified that at a July 2010 visit, Father acknowledged his poor parenting habits, and there was a tearful interaction between him and his children. Thereafter, Olson saw a visible improvement in his parenting habits. Olson also testified that Father missed approximately 124 of the 55 supervised visits scheduled with his children, and that he was often late (anywhere from five minutes to an hour late). Further, Olson testified that Father was doing a better job at staying in contact with her during the last few months of the visits. Finally, Olson acknowledged a clear bond between the children and the Father, but identified a lack of trust in his dependability. Father‘s supervised visits were limited to two hours, and he never requested to extend these visits.
II.
Issues on Appeal
- Did the magistrate court err in declining to apply the time requirements of
I.C. § 16-1629 ? - Did the court err in considering Father‘s failure to complete his case plan as a basis for its finding of neglect under
I.C. § 16-2002(3)(a) ? - Is there substantial and competent evidence to support the magistrate court‘s finding that Father neglected his children?
- Is there substantial and competent evidence to support the magistrate court‘s finding that termination is in the best interest of the children?
III.
Discussion
Parental rights are a fundamental liberty interest, constitutionally protected by the Fourteenth Amendment. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). In order for the State to intervene and terminate the parent-child relationship, due process requires the State to prove that termination is in the best interest of the child, and that one of the statutorily approved grounds for terminating the relationship are present. State v. Doe, 143 Idaho 383, 386, 146 P.3d 649, 652 (2006);
(a) Conduct as defined in section 16-1602(25), Idaho Code; or
(b) The parent(s) has failed to comply with the court‘s orders in a child protective act case or the case plan, and reunification of the child with his or her parent(s) has not occurred within the time standards set forth in section 16-1629(9),5 Idaho Code.
“Neglected” means a child:
(a) Who is without proper parental care and control, or subsistence, medical or other care or control necessary for his well-being because of the conduct or omission of his parents . . . or
(b) Whose parents, guardian or other custodian are unable to discharge their responsibilities to and for the child and, as a result of such inability, the child lacks the parental care necessary for his health, safety or well-being . . . .
A. Standard of Review
In order to affirm a magistrate court‘s order terminating parental rights, there must be clear and convincing evidence to support the court‘s finding that the statutory grounds for termination exist. In re Doe 2009-19, 150 Idaho 201, 203, 245 P.3d 953, 955 (2010).
The trial court must find that grounds for terminating parental rights have been proved by clear and convincing evidence. Whether a matter has been proved by clear and convincing evidence is primarily a matter for the trial court. On appeal, we will not disturb the trial court‘s findings of fact if they are supported by substantial and competent evidence.
Id. (internal citations omitted). “Substantial, competent evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.” In re Doe, 143 Idaho at 345-46, 144 P.3d at 599-600 (internal citation omitted).
Father argues that the court erred in considering evidence that he failed to comply with his case plan as a basis for neglect under
[Father] has neglected the children. The children are neglected as they are without proper parental care and control, or subsistence, education, medical or other care and control necessary for their well-being because of the conduct or omission of their parents, guardian, or other custodian or their neglect or refusal to provide them, as follows: The father failed to make meaningful and/or timely progress on the tasks of his court-ordered case plan in a Child Protective Act case.
His contention appears to be that the court cannot consider his failure to comply with the case plan without applying the time requirements set out in
Father‘s argument on this issue is completely irrelevant to the magistrate court‘s holdings in this case because the court did not rely on the statutory grounds provided in
“Neglected” means: (a) conduct as defined in section 16-1602(25), Idaho Code; or (b) The parent(s) has failed to comply with the court‘s orders in a child protective act case or the case plan, and reunification of the child with his or her parent(s) has not occurred within the time standards set forth in section 16-1629(9), Idaho Code.
C. The magistrate court did not err in considering Father‘s failure to complete his case plan tasks as a basis for its finding of neglect under I.C. § 16-2002(3)(a).
Father argues that consideration of his failure to complete the tasks in the case plan cannot serve as evidence of neglect under
[Father] has neglected the children. The children are neglected as they are without proper parental care and control, or subsistence, education, medical or other care and control necessary for their well-being because of the conduct or omission of their parents, guardian, or other custodian or their neglect or refusal to provide them, as follows: The father failed to demonstrate the ability to discharge parental responsibilities necessary for the children‘s health, safety, and/or well-being.
The magistrate court treated Count V of the petition as an allegation of Father‘s inability to discharge his parenting responsibilities under
The Court concludes that [Father‘s] failure and refusal to accomplish the tasks of his case plan is ‘neglect.’ [Father] continues to be unable to discharge his responsibilities to his children, and, as a result, these children lack the parental care necessary for their health, safety and well-being.
I.C. § 16-1602(25)(b) . Further, because of [Father‘s] failure and refusal to address the problems which led to the threshold finding of neglect in the CPA case, these children are ‘without proper parental care and control or subsistence, education, medical or other care or control necessary for their well-being . . . .”I.C. § 16-1602(25)(a) .
Therefore, this Court must address whether a magistrate court is within its discretion to consider a parent‘s failure to comply with a court ordered case plan as evidence of neglect under
It is true that the Legislature specifically identified a parent‘s failure to comply with a case plan as evidence of neglect in
Indeed, this Court has recently affirmed a termination order where a mother‘s failure to comply with a case plan was used as evidence to support the court‘s finding of neglect under
Therefore, it is not error for a magistrate court to make a finding of neglect pursuant to
In this case, the magistrate court clearly connected Father‘s noncompliance with the case plan tasks to its finding of neglect under
D. There is substantial and competent evidence to support the magistrate court‘s finding that Father neglected his children.
Father argues that the magistrate court‘s finding of neglect is not supported by substantial and competent evidence because he was making progress on his case plan, particularly in the area of finding shelter and employment, enrolling in a domestic violence treatment program, and in improving his parenting skills. However, we find that there is substantial and competent evidence supporting the magistrate court‘s finding that Father engaged in conduct constituting neglect as defined by
Father has neglected his children by failing to provide them with proper parental care and control under
Father overlooks the fact that the magistrate court found in the Child Protective Act proceedings that he had neglected the children. The case plan was subsequently adopted in order to give the Father a chance to remedy his past neglectful practices. He simply failed to make the effort to do what was required of him in order to properly care for his children. Although he has completed several of the required evaluations, he has not demonstrated a commitment to completing parenting classes for children with behavior disorders, or to completing substance abuse treatment classes. Father has also failed to demonstrate an ability to provide stable income and employment to provide for his family.
Furthermore, Father‘s progress under the case plan was not made until after the initiation of termination proceeding or when threatened with probation violations. This Court recently affirmed a finding of neglect pursuant to
Unfortunately, Mother did not take this matter seriously until about the time the court instructed Department to proceed with termination. The court found, “Since March, 2009, she has greatly improved showing signs of compliance with her drug court requirements.” However, the court concluded, “She should be given credit for her progress, but it is not in the best interest of her Child to wait for permanency.... [S]he has a long and stubborn addiction to methamphetamines and she is only very early in her recovery.”
In re Doe 2009-19, 150 Idaho at 207, 245 P.3d at 959. See also State, Dep‘t of Health & Welfare v. Doe, 145 Idaho 662, 664-65, 182 P.3d 1196, 1198-99 (2008) (finding substantial and competent evidence to support magistrate court‘s finding of non-compliance with Mother‘s case plan, except in matters required for her probation).
In this case, there is evidence that Father made progress on the case plan tasks to which he was assigned because he obtained housing, enrolled in a domestic violence treatment program, and potentially obtained employment. However, like in In re Doe 2009-19, Father largely failed to make progress on his case plan during the first ten months of its operation, and only entered a domestic violence treatment program after being threatened with a violation of his probation. “The only program in which he enrolled which met the case plan‘s requirements was the domestic violence program which he began only after the Department filed the petition herein to terminate his parental rights on November 17, 2010, and only after his probation officer had run out of patience with him . . . .”
In sum, although there is evidence that Father has recently made improvements in meeting the demands of the Department in order to reunite with his children, there is also substantial and competent evidence supporting the magistrate court‘s finding that he has neglected his children as defined by
E. There is substantial and competent evidence to support the magistrate court‘s finding that termination is in the best interest of the children.
Father argues that termination is not in the best interest of the children because Father and the children are bonded, and because the children desire to be reunited with Father. Additionally, Father argues that termination is not in their best interest because they have not been adjusting well to foster care, and there was never any violence between Father and his children.
It is true that the children have demonstrated some negative tendencies after entering foster care. M.V. has developed a juvenile record, and D.B. has had two serious instances of acting out in school. The children‘s psychologist also identified that the behavior disorders of D.B. and A.B. are likely induced by the added stress of entering the foster care system and enduring the termination proceedings. Father produced one witness that testified to the childrens’ success in school while under the Father‘s care, as well as to their normal behavioral tendencies prior to entering foster care. Perhaps of more importance is the fact that all of the children have recognized a bond with Father, and have expressed a desire to reunite with him. There was no testimony that Father abused the children. Indeed, one witness, in whose home Father and the children resided after first coming to Idaho, testified that the children did well in school while under Father‘s control, that he contributed financially to their subsistence, and that the kids did not exhibit any extreme behaviors while under his control.
However, there is also evidence that the children exhibited violent tendencies prior to entering foster care, and that termination is in their best interest. When visiting their mother in Virginia, the children were reportedly violent and disruptive, putting holes in her walls and acting out. Father has committed assaults in front of his children, and M.V. has demonstrated similar violent tendencies. Father has an admitted dependency on alcohol, which he continues to minimize, and continues to blame his anger management issues on others. Additionally, Father subjected the children to frequent moves, which likely led to their being at least one year behind in school and never addressed their medical or dental needs. Father has not demonstrated an ability to maintain and obtain a legitimate source of income while the children have been in the State‘s custody. While he has obtained housing for them, his decision to live with the mother of M.V.‘s alleged sexual abuser is cause for serious concern regarding Father‘s judgment and ability to protect his children and provide them with a safe living environment.
While this is not one of the worst cases of neglect this Court has reviewed, the Court is limited in its standard of review, which requires that we view the evidence in light of the magistrate court‘s findings and refrain from re-weighing the evidence on appeal. There is substantial and competent evidence supporting the magistrate court‘s finding that termination is in the children‘s best interest because these children need stability in their lives and Father has not demonstrated that he is able or willing to provide that stability. The family‘s case worker, Julie Stadler, made such a recommendation during the termination hearing and stated that Father has yet to demonstrate an ability to care for his own needs, let alone the growing needs of his children. Stadler‘s testimony is particularly important because she observed and worked with Father and the children over the entirety of the proceedings. Additionally, the children‘s guardian ad litem testified that, even if the children were not able to find adoptive families, foster care would be preferable because “there is some structure and consistency and predictability that their lives would have that they wouldn‘t have if they were with their father.” Finally, Cafferty, who conducted the Risk to Child Assessment, testified that Father is at a high risk for continued mistreatment and neglect of his children. The testimony of these individuals supports the additional evidence in the record demonstrating Father‘s lack of commitment to create the environment necessary to reunite with his children. So long as he treats the Department‘s protective measures as games and fails to take responsibility for the situation in which he is in, it is unlikely that these children will live with any kind of stability while under his care. The magistrate court carefully weighed the bond between Father and the children, but found the childrens’ need for stability, in combination with Father‘s lack of meaningful progress on his case plan, demonstrated that termination of his parental rights was in the children‘s best interest. This finding is supported by substantial and competent evidence.
III.
Conclusion
We affirm the judgment of the magistrate court terminating the parental rights of Father to his three minor children.
Chief Justice EISMANN, and Justices BURDICK, W. JONES and Justice Pro Tem TROUT CONCUR.
J. JONES
Justice