# Idaho Department of Health & Welfare v. Doe

> Idaho Court of Appeals · March 3, 2011 · 150 Idaho 752

URL: https://www.frixlaw.com/law-library/cases/9776188

## Case

- **Full name:** In the Matter of Jane Doe, John Doe, John Doe I, John Doe II, Children Under Eighteen Years of Age. IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent, v. John DOE III, Appellant-Respondent
- **Court:** Idaho Court of Appeals
- **Decided:** March 3, 2011
- **Citations:** 150 Idaho 752; 250 P.3d 803
- **Precedential status:** Published
- **Opinion:** Dissent by Gratton
- **Judges:** Lansing, Gratton, Gutierrez
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Chief Judge GRATTON,
dissenting.
As I believe that the majority has far exceeded our limited appellate role, I respectfully dissent.
A. Termination.
In the section of the majority opinion entitled “Facts and Procedural History,” the majority quotes from and relies heavily upon information not contained in the termination trial record. None of the Department of Health and Welfare (Department) or guardian ad litem reports referenced, and quoted at length by the majority, were admitted into evidence at the termination trial. The magistrate only took judicial notice of the case plan and its orders. The obvious point of the majority in utilizing this information is to bolster its overall assessment that Doe (Father), in the months leading up to the termination hearing, was doing well and compliant with requirements. With this backdrop from information outside the trial record, the majority turns in the “Analysis” section, largely to the trial record, drawing therefrom testimony favorable to Father’s contention that he was making progress. The majority does, however, dismiss certain trial evidence as being inconsistent with the reports that were not placed in evidence. Interestingly, after relying extensively on the case worker and guardian ad litem reports, the majority, in discussing the disqualification issue, references these pre-termination reports as “containing multiple-level hearsay, innuendo, opinion and conjecture.” I do not believe that the use of this information outside the trial record is proper.
In his appellate brief, Father points to certain evidence from the trial that supports his contention that he was making progress and that the magistrate should have given him more time. Except for three discrete instances, 1 he does not contend, argue or *766 advance that the magistrate’s findings of fact were erroneous. The majority takes it upon itself to attack the magistrate’s findings of fact. In doing so, the majority sets up the findings of fact and attempts to knock them down by pointing to conflicting evidence, minimizing or disregarding supporting evidence and suggesting that certain behaviors were not required of Father. For instance, the majority points to the magistrate’s findings that Father did not complete anger management classes and did not have a driver’s license. The majority does not deny that these statements are true, but dismisses them because they were not specific requirements of the case plan. The magistrate’s determination of “neglect” is not being reviewed, as recognized by the majority, based upon failure to follow the case plan as contemplated in Idaho Code § 16-2002 (3)(b). These things were basic to any evaluation of Father’s ability to provide “proper parental care” and “discharge [parental] responsibilities.” See I.C. § 16-1602(25)(a) and (b). As another example, the majority points to a very brief period of time immediately after adoption of the case plan in mid-November 2008, and suggests that Father was compliant with substance abuse, alcohol treatment and documentation. Thereupon, the majority takes to task a finding by the magistrate that Father did not complete the case plan, visit the children, or pay [child] support, suggesting the first two findings are contrary to the evidence and excusing the payment of child support because Father was indigent. However, the time period referenced in the finding is clearly from the time of the adoption of the case plan to March 2009, when Father was released from jail. As later acknowledged by the majority, Father relapsed shortly after execution of the case plan, in December 2008, was arrested for public intoxication in January 2009 and jailed until March 2009. The magistrate’s finding regarding compliance during that time period was accurate.
Surprisingly, the majority criticizes the findings of the magistrate most supportive of the majority’s conclusion that, after being released from jail, Father was doing the best he could. The magistrate found that:
(f) When he got out of jail he did begin to work parts of the case plan. He began alcohol treatment and has apparently remained sober. His sobriety has been at the top of his priorities, but he has not been faithful at reporting his progress or his attendance at AA meetings to the Department;
(g) By his admission, he had not completed alcohol treatment at the date of the hearing....
The majority states that these findings give “inadequate attention” 2 to Father’s abstention from alcohol and attendance at treatment and testing since March 2009. But, on the contrary, the findings expressly recognize that, as his top priority, Father obtained treatment and remained sober after being released from jail. The majority excuses his lack of reporting as merely a “minor” eleT ment of the case plan. I strongly disagree that progress and attendance reporting by anyone in Father’s situation to the Department is a minor or unimportant element of the case plan. In addition, the majority states on several occasions that after the magistrate directed the Department to cease reunification efforts in May 2009, the case plan no longer existed and that the magistrate could not, therefore, fault Father for not completing plan elements. I do not believe that the plan evaporated. Instead, as the social workers testified, the case plan remained for Father to complete and “do everything to provide documentation and resources to the Court.” The Department was *767 relieved of its obligations, but not Father, if he wanted to demonstrate his ability to parent his children. Finally, the majority states that the magistrate implied that Father had not complied with the case plan because he had not completed alcohol treatment at the date of the hearing, which implication is incorrect because the ease plan did not have a time for completion. The supposed implication aside, the statement made by the magistrate was true — at the time of the hearing, Father had not completed alcohol treatment. Whether he should have been granted more time to do so is the issue advanced by the majority, not the accuracy of the finding by the magistrate.
The magistrate found that Father had not completed parenting training. The majority excuses this fact because of scheduling conflicts. The magistrate found that Father did not have financial stability to raise the children. As the majority notes, Father did have gainful employment after being released from jail. The majority legitimizes his limited financial means by reference to past debts, probation supervision and mandated drag testing costs. More noteworthy is the majority’s statement that “the Department did little or nothing to assist in Father’s efforts to improve his financial capacity but, rather, diminished it by garnishing his wages.” Respectfully, the Department had no obligation to improve Father’s “financial capacity,” and more importantly, garnishment of his wages was not some sort of punishment or Department whim, but for support for his children which he was not paying voluntarily. In regard to housing, the magistrate found that Father was “currently living in his employer’s car wash office and has no home for the children to return to.” Once again, this statement was true. The majority, however, chastises the magistrate for not commenting on the testimony that Father was trying to save money to get a house and his employer was willing to front some money for a house, but only if Father got his children back. In the end, the findings that, at the time of trial, Father did not have financial stability or a home to raise his children are true and, as stated by the majority: “Father acknowledged that at present, he was not financially able to provide a proper home for his children, but believed that in three to four months he could do so.”
In an action to terminate parental rights, due process requires this Court to determine if the magistrate’s decision was supported by substantial and competent evidence. In re Doe, 143 Idaho 343, 345 , 144 P.3d 597, 599 (2006). Substantial and competent evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 345-346 , 144 P.3d at 599-600 . This Court will indulge all reasonable inferences in support of the trial court’s judgment when reviewing an order that parental rights be terminated. Doe v. Doe, 148 Idaho 243, 246-247 , 220 P.3d 1062, 1064-1065 (2009). Reasonable inferences are drawn in favor of the magistrate court’s judgment because the magistrate court has the opportunity to observe witnesses’ demeanor, to assess their credibility, to detect prejudice or motive and to judge the character of the parties. In re Doe, 150 Idaho 36 , 244 P.3d 180 (2010). We conduct an independent review of the record that was before the magistrate. Doe, 143 Idaho at 346 , 144 P.3d at 600 . In an action to terminate parental rights, where a clear and convincing standard has been noted explicitly and applied by the trial court, an appellate court will not disturb the trial court’s findings unless they are not supported by substantial and competent evidence. Only clearly erroneous findings are overturned, which means a reasonable person would not have relied on them in concluding as the fact finder did. Doe v. Roe, 142 Idaho 202, 203 , 127 P.3d 105, 106 (2005).
Our limited role on appeal is to determine if substantial and competent evidence exists in the record to support the magistrate’s findings. We are not to re-weigh the evidence or determine veracity. Yet, the majority notes that both the social worker and the guardian ad litem, in their professional opinions, recommended termination and then states that the testimony does not withstand scrutiny and is “unconvincing.” The guardian testified that termination would be in the children’s best interest, stating that “I believe that it’s too large of a gamble to gamble on the father’s sobriety that conditions in the home wouldn’t revert back to the conditions *768 they had before.” The majority states that were the reasoning of the guardian adopted, no parent with an addiction could ever regain custody of their children. While I agree that every recovering addict is one drink, pill, or injection, to reference but a few of the more recognized addictions, away from return to destructive ways, and one cannot be disqualified from parenting solely on that fact, the “gamble” referenced here was not solely lost sobriety. The “gamble” was this particular individual’s loss of sobriety. He has a long and extensive alcohol history. When not sober, it is not that he forgets to go to work or becomes depressed, no, this particular individual engages in egregious conduct directly, physically, mentally and adversely affecting his children. In regard to the testimony of the social worker, the majority relates only a small portion of the testimony supporting his opinion that termination is in the children’s best interest, but his opinion was not just based on the extended family history, but also, among other things, the fact that Father did not have a home, the fact that Father did not pay child support until court ordered, the fact that Father had not completed all the requirements of the Department and the court, the positive changes in the children since being in foster care, and his opinion that, while recognizing Father had done well since March 2009, he would need an extended period of time to be able to provide a stable home situation for his children when the children need permanency now to mitigate ongoing detrimental effect. Again, our question is whether there exists substantial and competent evidence supporting the magistrate’s findings, indulging all reasonable inferences in favor of the magistrate’s findings, not whether evidence is or is not convincing to us.
The majority minimizes virtually all evidence relating to the circumstances and conduct prior to the date of the case plan, including their lasting effects. In order to identify the significance of those past circumstances and conduct, it is important to review what the magistrate determined, what Father actually places at issue and what the majority purports to do. The magistrate determined that the children were abused and neglected and that termination was in their best interest. Regarding the finding of “abuse,” the majority notes that only neglect was expressed as the ground stated in the petition for termination. However, as also noted, Father does not contend on appeal that the determination of abuse was improper from a pleading standpoint. He also does not contest the finding in any way. Thus, the magistrate’s determination of abuse, under I.C. § 16-2005(l)(b), must be affirmed. Additionally, nowhere in his brief to this Court does Father challenge the magistrate’s finding of neglect or contend that there is not substantial and competent evidence in the record to support the finding. Consequently, the magistrate’s determination of neglect, under I.C. § 16-2005(l)(b), must also be affirmed. Father does not address, in any way, the fact that the petition alleged and the magistrate found that termination would be in the best interest of the parents. Thus, the magistrate’s determination that termination would be in the best interest of Father, under I.C. § 16-2005(3), must be affirmed.
The only finding of the magistrate challenged by Father is whether termination would be in the best interest of the children, under I.C. § 16-2005(l)(b) and (3). The only evidence in the record cited by Father is that which supports his contention that beginning in March or April 2009, he “made drastic changes in his life.” Based upon that evidence he asserts that termination was premature and not in the best interest of his children and that he should have been allowed “additional time to work and complete his family case plan.”
The only information or evidence referenced by the majority relating to facts or circumstances prior to the children being taken into the custody of the Department is:
On September 27, 2008, Father, while under the influence of alcohol, struck one of the twin boys leaving a red mark on the boy’s face. Father was arrested and charged with injury to a child. Upon observing that the family residence was filthy and unsanitary, the officers notified the Idaho Department of Health and Welfare (the Department), and a social worker was sent to the scene. The children told the social worker that their father was an aleo *769 holie whose condition was so severe that he kept a bucket next to his reeliner to throw up in, and that Father sometimes hit them when he was drunk. The family was also facing eviction from their home for nonpayment of rent.
In addition, the majority notes only that “at the termination hearing, Father described his past conduct as ‘despicable’ and said that he was ‘appalled at myself.’ ” In this fashion, the majority is able to minimize the egregiousness of the family situation for years to focus exclusively on Father’s progress in the few months leading up to the termination hearing.
The testimony demonstrates that the children were subjected to a home which was extremely dirty and unsanitary. The toilets were filthy with feces. Used adult diapers were strewn about and trash and debris nearly obscured the carpet. A strong odor of urine pervaded. The children’s clothes did not fit, they were significantly behind in school and anti-social. A social worker testified that the children told her that Father was physically abusive with the children on “multiple occasions,” and that Father would punch them “on a regular basis.” Father had such an extensive history and depth of alcoholism that he kept a red bucket next to his reeliner to vomit into “20 or 25 times a day,” the horrible noise from which caused the children to cover their ears. If the children were not totally silent while Father watched NASCAR, they ate bread and water for the day. On one occasion a child kicked over the bucket and was ordered to drink the vomit, but, fortunately, after putting the bucket to his mouth Father apparently passed out and the child did not drink.
With regard to the daughter, the foster mother testified extensively how the daughter’s own physician did not know that she had a shunt for spina bifida, that there were notably no records of care from the time she was two years old for any condition other than colds and the like, although she was fifteen at the time of the termination trial. Father, however, believed that she did receive treatment after the age of two in Portland, Oregon. She further testified that the daughter’s kidneys have been damaged and her bladder misshapen for lack of bladder training, which could have been less severe with proper care. She may lose a kidney and may need bladder repair surgery. The foster mother had contact with the daughter when she was in the sixth grade and she frequently ran out of diapers and the smell was a problem for her and others. At the time of coming into care, the daughter had never been to a dentist and was in need of new glasses. On an ongoing basis, she needs to see her physicians regularly, she has short-term memory loss and forgets to take her medications and must be reminded to shower each day because of smell. She needs to be eatheterized five times per day and is still bowel training, having occasional bowel movements during school. The foster mother testified that, in this way, the daughter needs attention “24/7” and someone to care for her and who will follow through with all that needs to be done for her. Father testified that while he had not been privy to her most recent care, he could take care of her, although he would not personally provide catheterization and would need to secure someone else to help in that regard. He stated that he believed that he could provide for her needs whenever necessary with time off of work and with the assistance of a babysitter after school. While Father’s desire to care for his daughter appears genuine, the magistrate’s finding that he did not have a “basic understanding of his daughter’s medical needs” is supported by substantial and competent evidence in the record.
The extensive neglectful and abusive family history presented no evidence of “proper parental care” or ability to “discharge [parental] responsibilities.” See I.C. § 16-1602(25)(a), (b). Father’s severe and long-term alcoholism resulted in physical and emotional violence to the children. In regard to the daughter, Father demonstrated little understanding of, or concern for, her significant needs prior to her entering foster care. The primary case worker testified that the historical information was important to the family dynamics and demonstrated that Father had not been a resource for his children. From this starting point, Father had a significant road to traverse to demonstrate an ability to properly care for his children.
*770 The real issue in this ease is not, as the majority has chosen, challenging the findings of fact of the magistrate, all of which are supported by substantial and competent evidence in the record. The real issue in this case is whether it was in the children’s best interest to give Father more time to progress. At the time of trial in November, Father had made, beginning in approximately April, a genuine and obviously heartfelt effort at sobriety for the first time in his life. He attended classes and meetings. He testified that he knew that he had to become sober before he could provide for his children. He had the support of his employer. He had much better relationships with his children. He loves and wants his children. Yet, Father also acknowledged that, at the time of trial, he did not have a stable financial situation or housing for the children. He estimated needing three to four months to reach those goals. He testified that he would have been farther along if he had taken the matter seriously before getting out of jail. He had not completed parenting and anger management classes. He did not have a driver’s license. Importantly, the primary case worker testified that it “would be a long time” to rehabilitate Father to where he could provide a home for the children. He further testified that because of Father’s extensive substance abuse, “the time table for his treatment would have to be quite a while to show that he’s going to be able to maintain sobriety.” He stated that he did not think that Father could provide the care his daughter needs and that she would need to have personal care service. On the other hand, he testified that the children presently needed parents who could provide stability. In addition, he testified that the children would experience a detrimental effect without permanence soon.
The magistrate was aware of all of the facts, including Father’s history, his progress, and his sincere desire for his children. The magistrate did not give “inadequate attention” to any of the facts. The magistrate was aware that Father was asking for more time in the ultimate best interest of the children. The magistrate recognized that Father was making progress but was not in a position to take the children back and chose permanence for the children. While the magistrate could have granted more time, the magistrate’s findings and conclusions are supported by substantial and competent evidence.
B. Disqualification.
I would affirm the magistrate’s denial of the motion to disqualify. The majority concludes that the magistrate, in ruling on the motion, applied the “extrajudicial source” rule, without also applying the “pervasive bias arising from facts and events occurring at trial” rule from Bach v. Bagley, 148 Idaho 784, 791-792 , 229 P.3d 1146, 1153-1154 (2010). I would first note that the magistrate did quote from a treatise which suggested that a judge’s reaction to facts and evidence developed in a case cannot create disqualification for bias or prejudice. However, that language is not very different from the language cited by Bach , at 791-792, 229 P.3d at 1153-1154 , from Liteky v. United States, 510 U.S. 540 , 114 S.Ct. 1147 , 127 L.Ed.2d 474 (1994):
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for his bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to the completion of the judge’s task____“Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.”
Id. at 550-551 , 114 S.Ct. at 1155 , 127 L.Ed.2d at 488 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir.1943)).
It is enough for present purposes to say the following: First, judicial rulings alone almost never constitute valid basis for a bias or partiality motion .... and can only in the rarest circumstances evidence the degree of favoritism or antagonism required .... Almost invariably, they are *771 proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.... A judge’s ordinary efforts at courtroom administration — even a stern and short-tempered judge’s ordinary efforts at courtroom administration— remain immune.
Id. at 555-556, 114 S.Ct. at 1157 , 127 L.Ed.2d at 490-91 .
In ruling on the motion, the magistrate specifically recounted his revulsion to facts and events which he had been made aware of in the proceedings, but stated that he was not biased therefrom. Thus, the magistrate squarely addressed the question of bias arising from facts and events from the proceedings themselves.
In fact, Father claims, contrary to the majority finding, that it was the extrajudicial source issue that the magistrate did not specifically comment on and, therefore, did not directly address. Father had claimed that the magistrate’s prior comment that Doe’s case was “legendary” in protective act circles and the magistrate’s participation in a prior criminal matter involving Doe raised concerns regarding prejudice developed from sources outside the instant matter. Indeed, the magistrate did not directly comment on the extrajudicial source issue, however, it was clearly presented to the magistrate and, in my view, subsumed within the denial of the motion. The asserted extrajudicial sources were wholly inadequate to demonstrate pervasive bias. 3
. Father takes issue only with a finding of fact which states that the children were taken into protective custody in Oregon, a finding of fact which states that his daughter needed care twenty-four hours per day, and that Father admitted needing more time to be able to fully care for his children. As to the protective custody in Oregon statement, it is an incidental detail regarding admitted involvement of the family with Oregon officials. Regarding Father’s daughter needing twenty-four hour per day care, her foster mother testified as such on numerous occasions, although not thereby indicating that the daughter was bed-ridden, but indicating that she has occasions of assistance need throughout the day, including while at school. Father’s real point of argument in his brief is that he was aware of her needs. Lastly, regarding Father’s admission that *766 he needed more time to be able to fully care for his children, Father does not contend he did' not so state. In fact, his theme at trial and on appeal is that, with more time he could care for the children. His argument in the brief is not with the finding, but that the magistrate should have, indeed, granted him more time.
. The majority states that the magistrate gave "inadequate attention” to certain evidence regarding Father's progress. What this seems to mean — that the lower court gave inadequate attention to certain evidence — is that the appellate court is swayed by the evidence and the magistrate should have been as well — not that there is a lack of competent and substantial evidence to support the magistrate's determination. The magistrate considered the evidence of Father's progress.
. I further disagree with the view of the majority expressed in the final footnote of the majority opinion. The majority suggests that there is an inherent bias and risk of prejudgment in parental termination cases when the judge deciding the termination case also presided in the shelter care and child protective proceedings. I think quite the contrary. The judge who presided in the shelter care and/or child protective proceedings is in the best position, due to familiarity with past circumstances, to appreciate the strides, successes and improvements of the parents over the course of the case plan, or the lack thereof. That judge, who may have observed the parents at their worst, should be most able to recognize genuine progress. Moreover, in this case, and I would venture most cases, the judge presiding over the termination proceeding was presented with evidence of the situation, circumstances and conduct that led to the children being placed in the custody of the Department. Thus, even without being privy to such information from past proceedings, the judge deciding the termination case is made aware of those circumstances. If those facts would repulse the judge in the shelter care or child protective proceeding, they would repulse a different judge in the termination proceeding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776188. Public record. Not legal advice.