STATE v. BRAND
No. 43441
Court of Appeals of Idaho
March 9, 2016
1991) (stating that
However,
State v. Brand, No. 43441, — Idaho —, — P.3d —, 2016 WL 886541, at *2 (Ct.App. Mar. 9, 2016); see also State v. Nall, No. 43442, 2016 WL 1008051, at *2 (Ct.App. Mar. 14, 2016).
In the first case, Brand was served the arrest warrant for his grand theft offense while he was already incarcerated for drug possession. In the second case, Nall was in the custody of the U.S. Marshalls on a “no bond” hold related to charges in a federal case. While in federal custody, Nall was served with a state warrant for conspiracy to commit burglary, promoting gang activity, unlawful possession of a firearm, and supplying a firearm to a criminal gang member. Neither Brand nor Nall was incarcerated for the crime for which they requested credit. Neither party was deprived of any freedom in relation to those charges, rather for other charges. Where a party is already in custody on account of another offense, there is no presentence deprivation of liberty. Accordingly, there is no underlying justification to grant credit for time served.
For these reasons, I respectfully dissent from the opinion of the Court. The orders of the district court should be affirmed.
JONES, Justice, concurs.
IN THE MATTER OF JANE DOE III, A Minor Child Under Eighteen (18) Years of Age. JOHN DOE and JANE DOE II, Husband and Wife, Petitioners-Respondents, v. JOHN DOE I (2016-45), Respondent-Appellant.
No. 44662
Supreme Court of Idaho, Boise, April 2017 Term.
May 31, 2017
395 P.3d 814
Tera Harden, Chief Public Defender, Caldwell, for appellant.
Marcus Christian Hardee & Davies, LLP, Boise, for respondent.
BRODY, Justice
This is a parental rights termination and adoption case. John Doe I (“Father“) is incarcerated. The magistrate court held that it was in the best interest of Jane Doe III (“Child“) that Father‘s rights be terminated so that John Doe II (“Stepfather“) may adopt her. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe II (“Mother“) and Father are the natural parents of Child. Mother and Father began living together in 2007, and Child was born in early 2008. Mother and Child lived with Father until early 2011, when Mother and Father separated due to continuous domestic violence perpetrated by Father. Since her parents separated, Child has been in the primary physical custody of Mother and has had minimal contact with Father.
In June 2011, Father was charged with second degree murder. In November 2011, a jury found him guilty of second degree murder and he was sentenced to a minimum of fifteen years confinement, with a subsequent indeterminate period not to exceed life.
While Father was in jail awaiting trial, Mother and Child visited him frequently. After sentencing, Father was transferred to the Idaho State Correctional Institute in Boise. Mother and Child visited him there once in September 2012. This was the last physical contact Child had with Father. Shortly after this visit, Father was transferred to a prison in Colorado. In early 2016, he returned to the Correctional Institute in Boise. Father made frequent phone calls to Child until 2013 when Mother, out of concern for Child, began restricting calls to Child. Thereafter, Father sent a few letters to Child, but has essentially had no contact with Child since then.
In 2013, Mother began dating Stepfather. In May 2015, Mother and Stepfather were married. Mother and Stepfather have two children together, and they, Child and their two children live as a family in Nampa. Mother and Stepfather operate two daycare centers in Nampa. Stepfather has acted as a father figure to Child since he began dating Mother, and has had the care, custody and control of Child since he married Mother in 2015. Stepfather loves Child and has normal parent-child interactions with her. Although Child is aware that Father is her biological father, she calls Stepfather “Dad.” Stepfather is willing and able to provide financial and emotional support to Child.
In February 2016, Stepfather, with the consent of Mother, filed a pro se Petition for Adoption of Child. Father filed an answer objecting to the petition and seeking dismissal of the action. After obtaining counsel, Mother and Stepfather, as co-petitioners, filed an Amended Petition for Termination of Parent/Child Relationship and Adoption by Stepparent. Thereafter, a trial was held and the magistrate court issued its Memorandum Decision and Order. The court concluded that Mother and Stepfather had proven by clear and convincing evidence that Father would be incarcerated during Child‘s entire minority and that it was in the best interest of Child to terminate Father‘s parental rights under
II. ISSUES PRESENTED ON APPEAL
- Whether substantial and competent evidence supports the magistrate court‘s
determination that the termination of Father‘s parental rights was in the best interest of Child. - Whether Mother‘s consent to the adoption of Child by Stepfather complied with statutory requirements.
III. STANDARD OF REVIEW
The applicable standards of review will be addressed in the appropriate sections below.
IV. ANALYSIS
A. Substantial and competent evidence supports the magistrate court‘s determination that termination is in the best interest of the child.
This is an adoption and termination of parental rights filed under
(a) The parent has abandoned the child.
(b) The parent has neglected or abused the child.
(c) The presumptive parent is not the biological parent of the child.
(d) The 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. [and/or]
(e) The parent has been incarcerated and is likely to remain incarcerated for a substantial period of time during the child‘s minority.
(emphasis added). “Each statutory ground is an independent basis for termination.” In re Doe, 143 Idaho 343, 345, 144 P.3d 597, 599 (2006).
Additionally, it is well established that “the relationship between a parent and child is constitutionally protected,” so principles of due process are implicated. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978). Due process requires that the grounds for terminating a parent-child relationship be proven by clear and convincing evidence. In re Doe, 143 Idaho at 345, 144 P.3d at 599. On review, this Court determines whether the trial court‘s decision was supported by substantial and competent evidence. Id. at 345-46, 144 P.3d at 599-600. “Substantial, competent evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotations omitted). “Obviously, the substantial evidence test requires a greater quantum of evidence in cases where the trial court finding must be supported by clear and convincing evidence, than in cases where a mere preponderance is required.” Id. at 346, 144 P.3d at 600 (quoting In re Bush, 113 Idaho 873, 876, 749 P.2d 492, 495 (1988)).
Father argues that there is an important bond between he and Child and that there was no evidence presented that termination of Father‘s parental rights was necessary to prevent harm to Child. Father also argues that the magistrate court decision to terminate parental rights is improperly made, as between a parent and a stepparent, on the basis of who would be a better parent. On these bases, Father contends that the magistrate court erred in terminating his parental rights.
The appropriate standard to be used in determining whether a parent‘s rights should be terminated is in
Here, the magistrate court applied the appropriate standard and conducted its best interest analysis in accordance with recognized principles. In its decision, the magistrate court made extensive findings of fact detailing the nature of the relationship between Mother and Father prior to their separation, Father‘s conviction and imprisonment, Father‘s attempts to maintain contact with Child and the nature of the relationship between Father and Child, Mother and Stepfather, and Stepfather and Child. Based on these findings, the court concluded that it was in the best interest of Child that Father‘s parental rights be terminated. There is substantial and competent evidence in the record to support this conclusion. The record indicates that Child was three and a half years old when Father was sentenced and thus will be eighteen and a half when Father finishes serving his minimum sentence, a condition which fulfills
B. Mother‘s consent to the adoption of Child did not violate statutory requirements.
Father asserts that Mother‘s consent to the adoption of Child did not conform with the requirements of
This contention is raised for the first time on appeal. Father did not contest the validity of Mother‘s consent to Child‘s adoption in the proceedings below. Thus, it is not properly addressed by this Court. Bradford v. Roche Moving & Storage, Inc., 147 Idaho 733, 736, 215 P.3d 453, 456 (2009) (“We will not address issues raised for the first time on appeal“).
Additionally, although parental rights termination proceedings and adoption proceedings can be heard concurrently per
V. CONCLUSION
For the foregoing reasons, we affirm the order of the magistrate court terminating Father‘s parental rights.
Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON concur.