Bush, In Interest of

• Decision Date: 06 September 1983
• Citation: 113 Idaho 873,749 P.2d 492
• Parties: In the Interest of Melissa Carrie Ann BUSH DOB:
• Court: Idaho Supreme Court

Page 492

749 P.2d 492

113 Idaho 873

In the Interest of Melissa Carrie Ann BUSH DOB: 9/6/83 A Child Under Eighteen Years of Age Vernon "Bud" BUSH, and Cherise Bush, Respondents/Appellants, v. Miriam PHILLIPS and Bill Phillips, her husband, Petitioners/Respondents and Robert L. Crowley, Jr., Guardian ad litem for Melissa Carrie Ann Bush, Respondent.

No. 16645.

Supreme Court of Idaho.

Jan. 28, 1988.

Randall K. Smith, Rexburg, for respondents/appellants.

Grover and Walker, Rigby, for petitioners/respondents. Keith M. Walker argued.

Robert L. Crowley, Rigby, guardian ad litem for Melissa Carrie Ann Bush, respondent.

BISTLINE, Justice.

The district court affirmed a magistrate's decision terminating the parent-child relationship of Bud and Cherise Bush, parents, and their three year old daughter. The petition was filed by the paternal grandparents. The parents argue (1) the termination violated their due process rights; (2) the evidence is insufficient to sustain the magistrate's finding of neglect of the minor child; and (3) the magistrate erred in refusing to determine if rehabilitation of the parents was possible prior to the termination of their parental rights.

Initially, Miriam Phillips, the minor child's paternal grandmother, filed a Petition for Termination of Parental Rights and Award of Permanent Custody.

PART I. THE FIRST EVIDENTIARY HEARING

The evidence adduced at the first hearing showed that the parents abused drugs and alcohol, encountered employment instability and were lacking in financial responsibility. For example, they were evicted from their apartment, Cherise Bush wrote bad checks, and according to the grandmother and her minor son, both Bud and Cherise abused alcohol and used drugs, including the injection of "crank," a form of amphetamine. They also used cocaine and marijuana. On a grandmother's visit to the marital home, the parents admitted they were using drugs. At that time the child was in her bedroom crying; she had hives and white blisters on her buttocks. The grandmother took her to a local doctor, who reported that her throat was stressed from prolonged screaming. Two weeks later Bud Bush brought the child to the grandmother and relinquished possession to her. He stated: "Mama, take custody. We will destroy her." The grandmother further testified that she told Bud Bush that the court would not award custody merely because the house was dirty and the child's diapers were not changed. He replied: "My God, Mama, are you blind? Look at my arms. I have needle tracks up and down my arms. Look at Cherise. She has them too." Other testimony was that Bud Bush, while driving threw the child against the dashboard, bruising her.

A social worker from the Department of Health & Welfare (DHW) submitted a report which concluded, based on interviews with the parents, grandparents, and collateral contacts, that Bud and Cherise Bush failed to afford their daughter a stable home environment and that the circumstances offered no promise of change. The worker further stated that due to the parents' financial instability, adequate food or needed medical care was not available.

In February 1985, the magistrate filed his decision, concluding that the parents had neglected their daughter within the meaning of the Idaho Termination of Parental Rights Act. The magistrate found that termination was not in the best interest of the child only if: a) the parents submit to urinalysis, breath or blood tests on a spot check basis; b) the parents abstain completely from alcohol consumption and use of illegal drugs; c) the parents submit to reasonable supervision, direction, and training from DHW to improve their parenting skills. The parents signed an acceptance of the court order, agreeing to abide by the conditions. ¹

PART II. THE SECOND EVIDENTIARY HEARING

About three months later, on May 16, 1985, the grandmother moved again for termination of parental rights, incorporating the original petition. Another hearing was held. Cherise Bush admitted to using amphetamines. She had been arrested and subsequently pled guilty to the felony offense of delivery of a controlled substance. Bud Bush conceded that he had consumed alcohol and that he had been arrested for the misdemeanor offense of frequenting a place where controlled substances are known to be located. Neither parent followed through with parenting classes which were available and offered by DHW. The second hearing was continued for one month in order to give the parents a further opportunity to prepare rebuttal. The parents did not appear in court at the appointed time and their attorney proceeded as best he could without them.

On September 20, 1985, the magistrate entered an order terminating appellant's parental rights. The magistrate concluded that by a showing of clear and convincing evidence the parents had neglected their minor child. On appeal to the district court the decision was affirmed. This appeal followed.

The district court reviewed the magistrate's decision as an appellate court, rather than allowing a trial de novo. Consequently, "[o]n appeal to this Court we therefore review the record before the magistrate independently of the decision of the district court." Allen v. Shea, 105 Idaho 31, 32, 665 P.2d 1041, 1042 (1983); Nicholls v. Blaser, 102 Idaho 559, 562, 633 P.2d 1137, 1140 (1981).

The parents contend that the procedures followed in conducting the second hearing in this case violated due process in not complying with the Idaho Termination of Parental Rights Act, I.C., Title 16, Ch. 20, and the Child Protective Act, I.C., Title 16, Ch. 16. Specifically, the parents argue that the second hearing was brought about by motion, rather than a petition; that they were not personally served with notice of the second hearing; and finally, there was no court-ordered investigation by DHW in accordance with I.C. § 16-2008 (1979). ²

A parent's right to custody, care and control of his or her child is a fundamental liberty right protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 599, 606 (1982); Matter of GP, 679 P.2d 976, 991 (Wyo.1984) (due process considerations paramount in termination of parental rights proceeding); Matter of Baby Boy Myers, 58 Or.App. 622, 650 P.2d 113, 116 (1982) (termination of parental rights one of the state's most drastic actions, sustained only where due process requirements met); Matter of Adoption of Darren Todd H., 615 P.2d 287, 290 (Okla.1980) (before parental right terminated, full panoply of procedural safeguards must be applied).

A review of the record in this case persuades us that due process has not been violated. The magistrate's first order of February 28, 1985, vesting legal custody with DHW, clearly contemplated further action by the magistrate. The parents signed an agreement acknowledging and accepting the conditions imposed by the court. Thus, the parents were unequivocally on notice that violation of conditions would jeopardize their parental rights.

The motion for termination of parental rights, filed by the grandparents just three months after the magistrate's order, by its own terms was a continuation of the original action and specifically incorporated the initial petition. The motion only alleged that the parents had violated the conditions imposed by the court. Where, as here, the trial court's order contemplated further action, the filing of a second petition was not required. The jurisdiction which had vested remained vested. A second investigation by DHW would have been superfluous. Nor can it be said that the notice by mail, rather than personal service, violated due process where the parents were made fully aware of the second hearing and attended with counsel who presented evidence and cross-examined witnesses.

The basic issue presented is whether the evidence sufficiently supports the termination decree. In Santosky, supra, the Supreme Court, recognizing the liberty interests at stake in a parent-child termination proceeding, held that a decision terminating must be supported by clear and convincing evidence. 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed. 599 (1982). The Idaho legislature, in apparent response to Santosky, amended I.C. § 16-2009 in 1983 to require clear and convincing evidence to support the termination of parental rights. ³ Prior to amendment the standard had simply been a preponderance of the evidence. See I.C. § 16-2009 (1979).

Where the trial court has granted a petition terminating parental rights, that conclusion will not be disturbed on appeal so long as the findings support it, and there is substantial competent evidence in the record to support the findings. Rhodes v. State of Idaho, 107 Idaho 1120, 695 P.2d 1259 (1985); Thompson v. Thompson, 110 Idaho 93, 96, 714 P.2d 62, 65 (Ct.App.1986). Appellants ask us to abandon the substantial competent evidence test for a more stringent standard of appellate review. This very argument was rejected by the Court of Appeals in Thompson, supra. See 110 Idaho at 95-96, 714 P.2d at 64-65, and the comprehensive list of case cited therein. We agree with the Court of Appeals and "adhere to the 'clearly erroneous' standard of review in child termination cases." Id. at 96, 714 P.2d at 65.

The substantial evidence or clearly erroneous standard of appellate review, however, is not applied identically in all instances: the appellate standard of review parallels the trial court burden of proof. 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. Thus, in termination proceedings, if there is evidence in the record from which the trial court may properly conclude that the issue has been resolved by clear and convincing evidence, the appellate court will not set that resolution...