Department of Health & Welfare v. Doe

• Decision Date: 29 May 2009
• Docket Number: No. 35790.,35790.
• Citation: 209 P.3d 654,147 Idaho 357
• Court: Idaho Supreme Court
• Parties: DEPARTMENT OF HEALTH & WELFARE, Plaintiff/Respondent, v. Jane DOE III, Defendant/Appellant.

209 P.3d 654

147 Idaho 357

DEPARTMENT OF HEALTH & WELFARE, Plaintiff/Respondent, v. Jane DOE III, Defendant/Appellant.

No. 35790.

Supreme Court of Idaho, Boise, May 2009, Term.

May 29, 2009.

Keith Barton & Associates, Blackfoot, for appellant. Randy Smith argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. James Price argued.

W. JONES, Justice.

I. NATURE OF CASE

Magistrate Judge Murray of the Third Judicial District terminated Jane Doe III's (Appellant) parental rights to her children based on neglect, abandonment and the best interest of the children. Because we do not have jurisdiction to hear this case, we dismiss the appeal.

II. FACTUAL AND PROCEDURAL BACKGROUND

After conducting a hearing on the matter, the magistrate court terminated Appellant's parental rights on October 3, 2008. Appellant filed a motion for permissive appeal to this Court on October 17, 2008. On the same day, Appellant filed with the magistrate court a notice of appeal to this Court. On October 27, 2008, the magistrate court entered an order recommending a direct permissive appeal to this Court pursuant to I.A.R. 12.1. This Court granted leave to Appellant to file a notice of appeal on November 10, 2008. No new notice of appeal was filed.

III. ISSUE ON APPEAL

Whether Appellant's premature filing of the notice of appeal precludes this Court from having jurisdiction to hear this case?

IV. STANDARD OF REVIEW

"[T]he question of subject matter jurisdiction may be raised by the Court at any time sua sponte.'" Erickson v. Idaho Bd. of Registration of Professional Engineers and Professional Land Surveyors, 146 Idaho 852, 854, 203 P.3d 1251, 1253 (2009) (quoting In re Quesnell Dairy, 143 Idaho 691, 693, 152 P.3d 562, 564 (2007)).

V. ANALYSIS

Appellant failed to comply with the procedural rules in I.A.R. 12.1(d), thus preventing this Court from having jurisdiction to consider the merits of this case. After this Court enters an order permitting a party in a case regarding termination of parental rights to appeal directly to the Supreme Court, the party requesting permission to appeal is required to file a notice of appeal with the lower court. See In re Doe, 147 Idaho 314, ___, 208 P.3d 296 (2009). I.A.R. 12.1(d) states in relevant part:

Any appeal by permission of a judgment or order of a magistrate under this rule shall not be valid and effective unless and until the Supreme Court shall enter an order accepting such judgment or order of a magistrate, as appealable and granting leave to a party to file a notice of appeal within a time certain.

I.A.R. 12.1(d) clearly contemplates that the party requesting permission to appeal must file a notice of appeal with the lower court after this Court accepts review of a motion for a direct permissive appeal. Numerous civil cases in Idaho hold that a premature notice of appeal is ineffective to vest jurisdiction on appeal.¹ State v. Gissel, 105 Idaho 287, 290, 668 P.2d 1018, 1021 (Ct.App.1983); see also Kraft v. State, 99 Idaho 214, 579 P.2d 1197 (1978) (notice of appeal filed before written findings of fact, conclusions of law or judgment was entered; appeal dismissed as premature); Hamblen v. Goff, 90 Idaho 180, 409 P.2d 429 (1965) (written judgment filed subsequent to notice of appeal; appeal dismissed for lack of appellate jurisdiction); Martin v. Soden, 80 Idaho 416, 419, 332 P.2d 482, 483 (1958) ("The filing of the notice of appeal ... [is] jurisdictional. In the absence of compliance with the provisions of the code, this Court has no jurisdiction to entertain the appeal."); Goade v. Gossett, 35 Idaho 84, 204 P. 670 (1922) (appeal from order denying new trial dismissed where notice of appeal was filed prior to entry of the written order denying motion for new trial). In this case, on October 17, 2008, Appellant filed a notice of appeal with the district court that she was appealing to this Court, which was nearly a month before this Court granted leave to Appellant to file such notice of appeal. Appellant's notice of appeal is invalid because it was filed prematurely. Because a notice of appeal was not timely filed in this case, we do not have jurisdiction to consider Appellant's arguments on the merits.

VI. CONCLUSION

Appellant's failure to timely file a notice of appeal to this Court precludes us from having jurisdiction to review this case on the merits. The appeal is dismissed.

HORTON, J., specially concurring.

I join in the majority's conclusion that Appellant's premature filing of the notice of appeal to this Court deprives us of jurisdiction to entertain the instant appeal. However, given the fundamental liberty interest associated with the parent-child relationship, I believe that a discussion of this Court's shared responsibility for Appellant's failure to file a timely notice of appeal and discussion of the merits of this appeal is warranted. Appellant claims that there is insufficient evidence supporting the magistrate court's order terminating her parental rights. I disagree.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant has had a long and tragic history as a parent and has repeatedly been a victim of violent acts by men. She was approximately 15 years old when a man raped her and, as a result, she gave birth to her first child in 1996. In 2005, Appellant consented to the termination of her parental rights to the child.

Appellant gave birth to her second child in 1998; the child died approximately one month later. Appellant's third child was born in 2001. Three months later, Appellant was cited for injury to a child, and her parental rights were eventually terminated. Appellant gave birth to a fourth child in 2002 and the State immediately placed the child in foster care. Appellant consented to termination of her parental rights as to this child in 2003.

Appellant's parental rights to her fifth and sixth children are at issue in this case. Her fifth child was born in January 2005. The biological father is unknown, but John Doe (Doe) is the legal father of the child. Appellant's sixth child was born in February 2006, and Doe is the biological and legal father of the child.

The State filed a child protection case on behalf of the children on February 1, 2006. Appellant and Doe stipulated to the court's jurisdiction and a case plan of protective supervision on March 1, 2006. The children remained in the care of Appellant and Doe.

In late July 2006, Doe was arrested for domestic battery and resisting and obstructing officers. Appellant was too intoxicated to care for the children. Accordingly, the court entered an ex parte order removing the children from the custody of the parents and placing them in shelter care. The court amended the case plan after it found that it was in the best interest of the children not to be in the custody of their parents, and the Department of Health and Welfare (the Department) took custody of the children.

In August 2006, two review hearings were conducted. The children were placed in the custody of the Department. The case plan was amended, requiring Appellant to obtain a drug and alcohol evaluation and complete anger management and domestic violence programs. The court also ordered Doe to complete similar programs, which he did while he was in jail. The plan required Appellant and Doe to keep illegal drugs and alcohol out of the home.

At another review hearing in January 2007, the court indicated it was still concerned about Appellant's care of the children and her parenting skills during their visits with her. During the hearing the court noted that Appellant and Doe had tested positive for alcohol and had not yet started their substance abuse treatment. The court acknowledged Appellant's progress in obtaining mental health and anger management treatment; however, it also noted that neither Appellant nor Doe had completed their non-violence programs.

During the July 2007 hearing the court received a mixed report regarding Appellant and Doe's progress. Although visitation was improving and the two were completing treatment, they had not accomplished reunification with the children. The court warned Appellant and Doe that the case had been in progress for twelve months and if reunification did not occur by fifteen months, then the Department would be required to seek termination of their parental rights.

The court approved expanded visitation and an extended home visit during a hearing in late September 2007. The visit only lasted eight days. Appellant and Doe admitted that they drank alcohol at least twice during the visit. Appellant and Doe expressed their desire to have the children home by Christmas, but the court denied their request. On December 21, 2007, Doe, inebriated, moved out of the family's home.

Appellant then asked the court to find compelling reasons not to require the Department to pursue termination of her parental rights. The court denied her request. The Department agreed to continue working on reunification with Appellant on the condition that Doe would not be in the home or around the children without approval by the Department, and that Appellant obtain a custody order giving her sole physical custody. Appellant never filed a custody action. Although she and Doe were separated, they continued to have regular contact with each other. Doe has since admitted that the children should not be placed with him due to his alcoholism and regular drug use, among other poor choices he continues to make.

Before an extended home visit beginning on April 21, 2008, the Department specifically told Appellant that she was not to allow the children to have contact with Doe, except as approved by the Department. Appellant repeatedly violated the condition, allowing the children to have lunch at a park with Doe, help Doe move over a period of three days, and attend church and shop with him. Appellant knew that Doe was drinking and possibly using marijuana during that time. She also knew that Doe...