Dayley, In Interest of, 16374

• Decision Date: 27 February 1987
• Docket Number: No. 16374,16374
• Citation: 112 Idaho 522,733 P.2d 743
• Parties: In the Interest of Alena Kathyrine DAYLEY, A Minor. John Stanley DAYLEY, Petitioner-Appellant, v. The STATE of Idaho, DEPARTMENT OF HEALTH AND WELFARE, Defendant-Respondent.
• Court: Idaho Supreme Court

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733 P.2d 743 112 Idaho 522 In the Interest of Alena Kathyrine DAYLEY, A Minor.
John Stanley DAYLEY, Petitioner-Appellant,
v.
The STATE of Idaho, DEPARTMENT OF HEALTH AND WELFARE, Defendant-Respondent. No. 16374. Supreme Court of Idaho.
Feb. 27, 1987.

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[112 Idaho 523] Donald J. Chisholm, Esq., and John A. Bradley, Esq., of Chisholm & Bradley, Chtd., Burley, for petitioner-appellant.

Jim Jones, Atty. Gen., and Laura B. Arment, Deputy Atty. Gen., Boise, for defendant-respondent.

DONALDSON, Justice.

This appeal involves the termination of a parent-child relationship. Appellant's main contentions are that: (1) his due process rights were violated because the termination petition failed to specifically state the statutory grounds upon which termination was sought; (2) the decision to terminate his parental rights was not supported by legally sufficient evidence, and (3) the magistrate erred by not addressing the question of appointing counsel and a guardian ad litem on behalf of the child Alena. For the reasons set forth below, we affirm the magistrate's decision.

Alena Dayley was born to the appellant and his common-law wife, Anna Dayley, on July 1, 1983. Thereafter the Dayleys experienced difficulties in their marriage, culminating in Anna Dayley's taking the child and leaving appellant. When appellant located his wife and child, the child had pneumonia, diarrhea and was suffering from various yeast sores. Appellant removed the child from his wife's physical custody and delivered the child to the family of his cousin. Appellant then contacted the Department of Health and Welfare. After a petition was filed under the Child Protective Act, the parents stipulated to the Department of Health and Welfare acquiring custody of the child for three months. The stipulation specified that at the end of the three-month period the child would be returned to her parents and that the parents would comply with certain requirements.

Although appellant maintained regular contact with Alena, and made some payments toward the child's support, he otherwise did not comply with the stipulation. In February or March, 1984, appellant was arrested and subsequently imprisoned for a felony conviction. While incarcerated, appellant did what he could to maintain contact with the child and to provide some minimal financial support. In the meantime, a petition for renewal of custody was filed and after a hearing, the court renewed the custody in the Department of Health and Welfare for a period not to exceed one year.

Thereafter, and prior to the expiration of one year, the Department of Health and Welfare petitioned the court for termination of the parental rights. The mother, Anna Dayley, voluntarily terminated her parental rights, but the appellant, resisted the petition.

The matter was brought before the court pursuant to Title 16, ch. 20 of the Idaho

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[112 Idaho 524] Code which provides for the termination of parent-child relationships on both voluntary and involuntary basis. I.C. § 16-2005 ¹ provides for six circumstances under which termination may be granted. The petition filed by the Department of Health and Welfare failed to allege which of those conditions it relied upon in seeking termination. At the hearing, however, counsel for the department argued only that the first of those conditions existed--abandonment of the child by the appellant. The court concluded that the state had failed to show by clear and convincing evidence that the child had been abandoned. However, it did find that, although not specifically argued by the state nor specifically alleged in the petition, evidence was presented concerning the second condition under which termination is permitted--neglect or abuse of a child by the parent. Although the court concluded that there was clear and convincing evidence to establish that the appellant did neglect the child and, therefore, grounds existed for the termination of the parent-child relationship, it nonetheless determined that the finding of neglect, in and of itself, was not sufficient to justify the termination. Noting the legislative intent that termination be granted only where it is impossible to preserve the family, the court found that appellant had continuously been involved in criminal activity; he had failed to maintain steady employment; and he had failed to maintain a stable and continuous residence; and he abdicated his role as a parent with his child and failed to comply with his agreements with the department which would have returned the child to his custody. Based on that evidence the court found that the probability of the appellant reversing a decade of irresponsible behavior to be extremely remote. Thus, based on the evidence of neglect and the unlikelihood of re-uniting the family, the court concluded that the evidence justified a termination of appellant's parental rights.

The appellant argues that the state's petition seeking termination constitutes an insufficient pleading because the state failed to specify which of the six grounds for termination of parental rights set forth in I.C. § 16-2005 (1979), the state was alleging. For this reason, appellant asserts he was not provided with adequate notice and, therefore, his due process rights were violated.

A pleading which sets forth a claim for relief, however, need only contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends; (2) a short and plain statement of the claims showing the pleader is entitled to relief; and (3) a demand for judgment. I.R.C.P. 8(a)(1). A review of the record shows that the state's petition states in part:

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[112 Idaho 525] "8. The natural father of Alena Kathyrine Dayley, John Stanley Dayley, is currently incarcerated in the Idaho State Penitentiary in Boise, Ada County, Idaho. The records in this case show that the natural father of the child has failed to comply with his agreement with the Department of Health and Welfare for reuniting the family and that he has failed to cooperate with the Department of Health and Welfare in attempts to provide adequate care and a stable home environment for the child.

"9. The above-named child has no assets.

"10. That it is in the best interests of the above-named child to terminate the parental rights of the natural mother and father of Alena Kathyrine Dayley.

"WHEREFORE, your Petitioner prays that the parental rights of Anna Kathyrine Dayley and John Stanley Dayley be terminated as to the above-named child, and that an Order of this court issue terminating said rights and vesting legal custody of the above-named child in the Department of Health and Welfare for placement and adoption."

The above language makes reference to appellant's failure to comply with the agreement for reuniting the family, appellant's failure to cooperate in providing care and a stable home environment for the child, and the state's belief that the best interests of the child would be served by terminating the appellant's parental rights. We conclude appellant was provided adequate notice that the state was seeking to terminate his parental rights. It was not necessary that the state allege precisely which of the six subsections of I.C. § 16-2005 under which it was proceeding. A simple and concise statement of facts is all that is necessary. Collard v. Cooley, 92 Idaho 789, 793, 451 P.2d 535, 539 (1961).

Appellant next raises several arguments concerning the legality and sufficiency of the evidence. First, we note that a parent-child relationship may be terminated by the court when it finds that the parent has neglected or abused the child, or that termination is found to be in the best interests of the parent and child. I.C. § 16-2005. The trial court must base such findings on clear and convincing evidence. I.C. § 16-2009. However, on appeal we will not disturb those findings, if they are supported by substantial and competent evidence. Rhodes v. State Department of Health and Welfare, 107 Idaho 1120, 695 P.2d 1259 (1985).

Appellant argues the trial court erred when it based termination in part upon his past character evidence. He contends such evidence is irrelevant since it is only the parent's present parental fitness that is in issue. We disagree. A reading of the trial court's opinion demonstrates that the evidence of appellant's past was considered in determining whether he would be a neglectful parent at the present time and in the future. The use of that evidence is supported by the case of State ex rel Child v. Clouse, 93 Idaho 893, 477 P.2d 834 (1970). In Clouse, the Court considered evidence showing the father had been unable to hold steady employment which resulted in numerous convictions for public intoxication, as well as burglary. This, when coupled with the mother's actions, sufficed as evidence for termination. Remoteness concerns the weight of evidence, not its admissibility. Blankenship v. Brookshier, 91 Idaho 317, 322, 420 P.2d 800, 805 (1966). Additionally, the trial court has broad discretion in determining whether evidence is or is not too remote. Id. We conclude the trial court did not abuse its discretion in considering appellant's past along with other relevant evidence, and the record indicates there is substantial and competent evidence supporting the decision to terminate appellant's parental rights.

Appellant argues further that the trial court erred by finding the neglect an insufficient reason to terminate, but terminating his rights any way because the trial court could not foresee the preservation of the family. Appellant asserts that the improbability of reuniting the family is not a ground within I.C. § 16-2005 upon which

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[112 Idaho 526] termination may occur. We find this argument unpersuasive.

I.C. § 16-2005 states that the court "may" terminate parental rights upon a showing of any of the enumerated conditions. The trial court concluded that there was clear...