Idaho Dep't of Health & Welfare v. John (2013-17) Doe (In re Termination of the Parental Rights of John (2013-17) Doe)

• Decision Date: 07 February 2014
• Docket Number: No. 41233.,41233.
• Parties: In the Matter of the TERMINATION OF the PARENTAL RIGHTS OF John (2013–17) DOE. Idaho Department of Health & Welfare, Petitioner–Respondent, v. John (2013–17) Doe, Respondent–Appellant.
• Court: Idaho Supreme Court

155 Idaho 896

318 P.3d 886

In the Matter of the TERMINATION OF the PARENTAL RIGHTS OF John (2013–17) DOE.

Idaho Department of Health & Welfare, Petitioner–Respondent,

v.John (2013–17) Doe, Respondent–Appellant.

No. 41233.

Supreme Court of Idaho, Twin Falls, November 2013 Term.

Feb. 7, 2014.

Bonneville County Public Defender's Office, Idaho Falls, for appellant.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.

ON THE BRIEFS

HORTON, Justice.

This appeal arises from a termination of parental rights based on a Consent in Abeyance (Consent). The Idaho Department of Health and Welfare (IDHW) filed a Petition for the Termination of Parental Rights after a prolonged child protection proceeding involving John Doe and his two children, S.M. and C.M. In the Consent, Doe agreed to the conditional termination of his parental rights in exchange for the magistrate court vacating the hearing set on the termination petition and having his children returned to his care on an extended home visit. Doe was subsequently arrested and the magistrate court entered a judgment terminating Doe's parental rights to both children on the grounds that Doe had signed the Consent and failed to substantially comply with its terms. Doe timely appealed. We vacate the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Doe is the father of two children, S.M., born in 2008, whose mother is Jane Doe I, and C.M., born in 2011, whose mother is Jane Doe II. The termination action arises from a child protection case that began in regard to S.M. in May 2010, at which time S.M. was placed under the protective supervision of IDHW. S.M. lived in and out of foster care until July 2011, at which time the court authorized an extended home visit for S.M. in the home of Doe and Jane Doe II. In April 2012, Doe and Jane Doe II were arrested for probation violations. Both S.M. and C.M. were removed from the home and both children alternated between living with Doe and Jane Doe II and foster care placements through January of 2013.

IDHW filed a Petition to Terminate the Parental Rights of Doe as to both S.M. and C.M. on January 9, 2013, alleging abandonment, neglect, and abuse. Petitions to terminate parental rights were also filed against Jane Doe I and II, however, neither is a party to this appeal.

The magistrate court directed the parties to engage in a settlement conference. As a result of negotiations, on March 18, 2013, Doe appeared before the magistrate judge and executed the Consent. The Consent provided, in pertinent part, as follows:

I understand that, upon my signing this consent, IDHW will (1) request that the termination trial set for April 22–24, 2013, be vacated, (2) withdraw its motion to suspend reunification efforts pursuant to Rule 41(j) of the Idaho Juvenile Rules (IJR) and request that the resulting order suspending reunification efforts be rescinded, and (3) request authorization to immediately commence an extended home visit, in accordance with IJR 42.

* * *

I agree to sign this consent with the understanding that it will be held in abeyance until the child protection case is dismissed, at which time the consent will also be dismissed, or until the court finds that I have failed to substantially comply with the tasks pertaining to me in the court orders and case plans listed above, at which time the consent shall be implemented by the court, or until a hearing is held on the petition to terminate my parental rights.

I agree that this consent will only be implemented if the court finds that I have not substantially complied with the requirements set forth in the case plans and court orders of the child protection case. To the extent noncompliance is alleged, the court may sua sponte make its determination, following a hearing, that I have failed to comply, or in the alternative, IDHW and/or the guardian ad litem may bring a motion in which allegations of noncompliance are raised. I understand that the determination of whether this consent is implemented shall rest with the court, and that such determination shall not be made until a hearing on the allegations of noncompliance has occurred. I agree that IDHW and/or the guardian ad litem will need to prove by a preponderance of the evidence or the court will need to find by a preponderance of the evidence that I have failed to substantially comply with all of the tasks in the case plans and the requirements set forth in the court orders from the period of time commencing on the date I sign this consent.

If the court determines, following a hearing, that I have failed to substantially comply with the tasks in the case plans and the requirements in the court orders, I agree that termination of my parental rights will be in the best interest of my children. I agree that being arrested and incarcerated would may be a substantial violation of the requirements pertaining to this agreement. I also agree that positive urinalysis results would be a substantial violation.

In exchange for the benefits set forth herein, by signing this consent I hereby agree that IDHW has exercised reasonable efforts to reunify me with my children throughout the life of this child protection case, and I waive any requirement that may have existed that would have required IDHW to prove that such reasonable efforts were satisfied.

I understand that, absent allegations of noncompliance, this consent shall be vacated when the child protection case is dismissed.

I also agree and understand that if the court determines, following a hearing, that I have not been in substantial compliance with the tasks and requirements of the case plans and court orders from now until a hearing on the allegations, that the court will accept this consent and issue a termination decree and judgment.

I also understand that if I fail to comply in minor respects with the tasks and requirements of the court orders and case plans to such an extent that dismissal of the child protection case does not occur but such noncompliance is found by the court or deemed by IDHW to be insufficient for the court to implement this consent, a hearing on the petition to terminate my parental rights nevertheless is not barred by this agreement.

Subject to the aforementioned conditions of this abeyance, i.e. if the court determines upon motion or sua sponte, following a hearing, that I have failed to substantially comply with all of the tasks and requirements of the case plans and court orders in this child protection case, I do hereby give my full and free consent to the complete and absolute termination of my parental rights to the said children, hereby relinquishing completely and forever, all legal rights, privileges, duties and obligations, including all rights of inheritance to and from the said children, and I do hereby expressly waive my right to hearing on the petition to terminate my parental relationship with respect to the said children, and respectfully request the petition be granted.

I do hereby state that I have had explained to me the meaning of termination proceedings and that all of my legal rights to the said children of whatsoever kind and nature, and specifically including the right to the care, custody, and control of said children or any rights of inheritance, are hereby relinquished and waived. Subject to the aforementioned abeyance, I do further waive all notice of hearing for filing of said termination or any further proceedings in this matter, and I do waive my right to appeal the court's determination regarding my noncompliance and my right to appeal the resulting decree and judgment stemming from said termination.

Subject to the consent in abeyance contained herein, I do, therefore, petition the above-entitled court to terminate my parental rights to [S.M.] and [C.M.], and do state that it is my belief that such action is in the best interest of my children.

(Emphasis added).

Based upon Doe's execution of the Consent, the court vacated the scheduled termination trial and granted Doe and Jane Doe II a 90 day home visit with S.M. and C.M. Approximately three weeks later, Doe was arrested for alleged violations of his probation. The children were removed from the home on April 10, 2013. IDHW filed its Motion to Implement Consents in Abeyance on April 16, 2013. A hearing on IDHW's motion began on May 13, 2013, but was not completed.

Following the hearing, Doe's attorney sought to withdraw from the case. On June 12, 2013, the court granted Doe's attorney's Motion to Withdraw.¹ On July 3, 2013, twenty-one days after the order permitting Doe's attorney to withdraw, the magistrate court entered a final judgment in favor of IDHW, terminating Doe's parental right to his children. In a companion order, the court simply stated that the termination of Doe's parental rights was "justified on the grounds that said father did sign a consent in abeyance, and due to his failure to substantially comply with the requirements set forth therein, and due to his failure to comply with Rule 11(b)(3) of the Idaho Rules of Civil Procedure, the consent was implemented...."

II. STANDARD OF REVIEW

In general, this Court reviews a termination of parental rights "to determine whether there is substantial and competent evidence" to support the termination. Doe v. Doe, 149 Idaho 392, 395, 234 P.3d 716, 719 (2010) (quoting Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002) ). However, whether a magistrate court correctly applied the law to the facts "is a question of law and is subject to free review by this Court." In re Baby Boy Doe, 127 Idaho 452, 456, 902 P.2d 477, 481 (1995).

III. ANALYSIS

Doe argues termination of parental rights based on the Consent was improper as I.C. § 16–2005 does not authorize conditional consents to the termination of parental rights or consents that are held in abeyance. IDHW argues that although the Consent Doe signed was not identical to the form provided in I.C. § 16–2005(4), the additional language added by the parties was valid and the...