Baby Doe, In Interest of
| Decision Date | 28 March 1997 |
| Docket Number | No. 22976,22976 |
| Citation | 936 P.2d 690,130 Idaho 47 |
| Court | Idaho Court of Appeals |
| Parties | In the Interest of BABY DOE, a child under eighteen years of age. STATE of Idaho, DEPARTMENT of HEALTH & WELFARE, and Jane Doe I, Guardian Ad Litem, Petitioners-Respondents, v. John DOE, Respondent-Appellant. |
Ellsworth, Kallas, P.L.L.C., Boise, for respondent-appellant.
Alan G. Lance, Attorney General; Mary Jo Beig, Deputy Attorney General, Boise, for petitioner-respondent Department of Health & Welfare.
Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for petitioner-respondent Guardian Ad Litem.
Upon a petition filed by the Idaho Department of Health and Welfare pursuant to Chapter 20, Title 16, Idaho Code, the parent-child relationship was terminated between the appellant in this case and his minor son. A magistrate entered the order terminating the relationship after an evidentiary hearing, and the magistrate's order was upheld by the district court on an intermediate appeal. As the appellant, the father presents two issues for consideration. First, he contends that he was deprived of substantial procedural due process protection when the magistrate denied his request that he be transported at state expense from a federal penitentiary in Texas, where he is incarcerated, to the termination hearing in Boise so he could be present and testify in person at the hearing. The second issue is whether the magistrate's termination order was supported by clear and convincing evidence. We hold that no error occurred and we affirm the order.
The child was born October 1, 1990. In February, 1991, the mother and father of the child, who were homeless, signed a stipulation in Boise placing the child in the legal custody of the Idaho Department of Health and Welfare, with the agreement that the parents would attend and successfully complete a parenting program. Subsequently, neither parent completed the program but instead, in August 1991, notified the Department that they had decided to move to California. On August 21, 1991, the parents were arrested in Mexico on two homicide charges. The charges against the mother were dismissed after further investigation and she returned to the Boise area in October 1991. The father was convicted of the two homicides and was sentenced in May, 1992, to serve 21 years in prison. Pursuant to a treaty with the Government of Mexico, the father's custody was transferred to the United States Department of Justice, and he is incarcerated in a federal penitentiary in In January, 1993, the Department filed a petition with the magistrate division of the district court to terminate the parent-child relationship between the mother, the father and the child. The petition alleged that the child had been neglected and deprived of parental care necessary for his health, morals and well-being due to the lack of parenting skills and because of the unstable life-styles of his parents. A magistrate appointed a guardian ad litem for the child. Another guardian ad litem and also an attorney were appointed for the mother, and the matter proceeded first with regard to the termination of the relationship between the mother and the child. After an evidentiary hearing in July, 1994, the magistrate entered a decree on October 5, 1994, terminating the parent-child relationship between the mother and the child.
Texas under the control and supervision of the Bureau of Prisons. His sentences will expire in the year 2013; however, he can be released from confinement either in the year 2003 or 2005, depending upon the allowance of good time credit against his sentences.
A status conference was held by the magistrate on October 11, 1994, concerning the petition to terminate the father's relationship. This conference was attended by the attorney for the Department and by the child's guardian ad litem. It was determined at this conference that counsel should be appointed to represent the father, and that the petition should be scheduled for hearing on the question of the termination of the relationship between the father and the child. On October 26, the magistrate entered an order appointing an attorney for the father. The proceeding then came on for a hearing on December 12. At this hearing, the Department's attorney advised the magistrate that the Department was not ready to proceed because the father was not present and that all possibilities to have the father present had not been exhausted. The magistrate rescheduled the termination hearing for January 23, 1995.
On January 17, the attorney for the father filed a motion for a writ of habeas corpus ad testificandum requiring the state to transport the father to Boise for the termination hearing. As an alternative, he asked for a continuance of the termination hearing in order to afford the father the opportunity to testify by way of telephone deposition.
At the scheduled hearing on January 23, the parties addressed as a preliminary matter the question raised by the father's motion for a writ of habeas corpus. His counsel argued that the importance of the action required the personal presence of the father and that the state should bear the expense of arranging for the father's attendance inasmuch as he was in custody. The parties represented that they had been unsuccessful in obtaining a federal warrant from the United States Attorney's office to transport the father at the expense of the federal government, due to the fact that the litigation did not involve a matter of federal interest.
The Department presented a letter from the local sheriff's office respectfully declining to transport the father from Texas to Idaho "due to the fact that this transportation would involve a non-criminal case, the high cost of transporting this individual (estimated at $7000) and the obvious security problems that could arise in the transporting of an inmate that is sentenced for two homicides that were committed in the country of Mexico." Further, the Department pointed out that under the code of federal regulations the ultimate decision of whether to release the father, who was an inmate with a criminal history of dangerousness demonstrated by two homicides, rested with the warden of the federal institution where the father was incarcerated, not with a state court. 1 The attorney for the Department suggested that the magistrate allow the father to testify by After considering the respective positions of the parties, the magistrate denied the motion for a writ of habeas corpus. The magistrate gave a detailed explanation, engaging in a balancing of the competing interests involved. The magistrate alluded to the presence of able counsel appointed to represent the father; the unlikelihood of release of the inmate by the warden of the federal penitentiary; and whether the court could obligate the funds of the state to secure the attendance of a person incarcerated in another jurisdiction. The magistrate also expressed an unwillingness to delay determination of the matter until the father was released after serving his sentences, due to the needs and interest of the child to receive the care necessary "to go on with his life." The magistrate decided to proceed with the evidentiary hearing but to permit the father to present his testimony through a deposition conducted by telephone. The magistrate also decided to allow the father's attorney to call additional witnesses at a later time depending on information developed during the deposition.
telephone or by deposition as an alternative to issuance of a writ for personal attendance.
Following the evidentiary hearing and the submission of the father's subsequent testimony by deposition, the magistrate entered findings of fact, conclusions of law and a decree terminating the parent-child relationship between the father and the child. As grounds for the decree, the magistrate found that the child had been neglected by the father and did not receive the parental care necessary for his health, morals, and well-being due to the lack of parenting skills and unstable life-style of the father. The father appealed to the district court pursuant to I.C. § 16-2014. The district court affirmed the decree. The father then brought this appeal.
Our standard of review in parent-child termination cases is well settled. We will give due regard to the appellate decision of the district court, but we will review the trial record independently from the district court's decision. Doe v. State, Dept. of Health and Welfare, 123 Idaho 502, 849 P.2d 963 (Ct.App.1993). We will conduct free review of questions of law decided by the magistrate, upon which error is assigned on appeal, and we will determine whether the magistrate's findings of fact are supported by substantial, competent evidence, where the appellant asserts otherwise. In the Matter of Aragon, 120 Idaho 606, 818 P.2d 310 (1991).
The first issue raised by the father concerns a question of law relating to due process. However, it also involves a review of the exercise of discretion by the magistrate in denying the father's motion for a writ of habeas corpus and in reaching the decision that due process would be satisfied through the use of deposition testimony as an alternative means. Because the issue ultimately is whether the magistrate deprived the father of substantial due process protection, it is a question of law over which we conduct free review. The question of due process presented in the circumstances of the instant case is one of first impression with the Idaho appellate courts.
It is axiomatic that preservation of the family unit is a right protected by the due process clause of the Fourteenth Amendment to the United States Constitution, and that a parent has a fundamental liberty interest in maintaining a familial relationship with his or her child....
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