Idaho Dep't of Health & Welfare v. John Doe, 37746.

• Court: Court of Appeals of Idaho
• Writing for the Court: GUTIERREZ, Judge.
• Citation: 150 Idaho 103,244 P.3d 247
• Parties: IDAHO DEPARTMENT OF HEALTH AND WELFARE, Petitioner–Respondent, v. John DOE I and Jane Doe II, Respondents–Appellants.
• Docket Number: No. 37746.,37746.
• Decision Date: 04 November 2010

150 Idaho 103
244 P.3d 247

IDAHO DEPARTMENT OF HEALTH AND WELFARE, Petitioner–Respondent,
v.
John DOE I and Jane Doe II, Respondents–Appellants.

No. 37746.

Court of Appeals of Idaho.

Nov. 4, 2010.
Review Denied Dec. 27, 2010.

244 P.3d 250

James F. Wickham, Canyon County Public Defender, Caldwell, for appellant. James F. Wickham argued.

Hon. Lawrence G. Wasden, Attorney General; Brent R. King, Deputy Attorney General, Caldwell, for respondents. Brent R. King argued.

GUTIERREZ, Judge.

150 Idaho 106

John Doe I and Jane Doe II (Parents) appeal from the decision of the district court affirming the magistrate's Decree of Protective Custody placing three of the couple's children in the protective custody of the Idaho Department of Health and Welfare. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

The district court summarized the background of the case as follows:

At 2:40 P.M. on July 22, 2009, the Canyon County Prosecuting Attorney filed a Petition Under the Child Protective Act requesting that the court take jurisdiction over [A.L., B.L., and R.L.], all minor children living within the state of Idaho, pursuant to Idaho Code Section 16–1603. The Petition alleges that the above-named children:

are physically abused because of conduct or omission resulting in an injury, and such condition is not justifiably explained or at variance with the degree or type of injury or may not be the product of an accidental occurrence, to wit: the father struck [A.L.] with a wooden dowel on the buttocks, leaving welts and/or injuries. The father struck [B.L.] with a wooden broom handle, leaving welts and/or injuries.

The Petition also alleged that the children were in foster care; that they had been in foster care since July 22, 2009, at approximately 3:00 A.M.; that the children were placed in foster care based on imminent danger to them; and that it was in the children's best interest to remove them from the home.

Also on July 22, 2009, the State filed motions requesting the court to appoint counsel for [Parents]. On the same date, the court entered orders appointing the Canyon County Public Defender as counsel for [Parents] and an order scheduling a shelter care hearing on July 24, 2009, at 10:30 A.M., a pretrial conference on August 13, 2009, and an adjudicatory hearing on August 20, 2009.

On July 24, 2009, at the time scheduled for the shelter care hearing, [Parents'] court-appointed counsel failed to appear with [Parents] for the hearing. After [Parents] indicated they wished to have counsel present for the hearing, the court continued the hearing to July 27, 2009, and entered an Order of Temporary Legal Custody Pending Shelter Care, placing the children in the temporary legal custody of the Idaho Department of Health and Welfare (the Department) pending the shelter care hearing....

On July 27, 2009, the court held the shelter care hearing. [Parents] appeared with their court-appointed counsel....

At the conclusion of the shelter care hearing, the court determined that the children should remain in shelter care pending the adjudicatory hearing, that it would be contrary to the children's welfare to leave them in the home pending the adjudicatory hearing, and that it was in the children's best interests to remain in the Department's custody. The court also entered an order appointing counsel to represent the children's guardian ad litem.

On July 29, 2009, the guardian ad litem's appointed counsel filed a Notice of Conflict.

244 P.3d 251

150 Idaho 107

On August 11, 2009, [Parents] filed a pro se Motion for Dismissal.... [Parents] requested an order dismissing the proceeding and requested that the children be released to them on essentially five grounds....

On August 19, 2009, the State filed its Objection and Motion to Strike Re: [Parents] Motion for Dismissal.

On August 20, 2009, the date scheduled for the adjudicatory hearing, the court addressed [Parents'] issue with their appointed counsel and the motion for leave to withdraw on the part of the guardian's counsel. After granting the motion to withdraw by the guardian's counsel and securing substitute counsel for the guardian, the court continued the hearing to August 25, 2009.

On August 25, 2009, the magistrate judge assigned to hear the adjudicatory hearing stated that she would need to disqualify herself from the matter based on the accidental receipt of an ex parte communication from the State. The court reset the adjudicatory hearing for September 3, 2009. In response to the court's inquiry, the State indicated that it had filed the Department's report on August 17, 2009, and had e-mailed it to [Parents'] counsel.

On September 3, 2009, the court commenced the adjudicatory hearing on the merits. The adjudicatory hearing concluded on September 8, 2009.

On September 17, 2009, the magistrate issued a decree of protective custody, placing the three children under the protective custody of the Department for an indeterminate period of time, not to exceed their eighteenth birthdays. Parents appealed the decree to the district court, contending that the trial court lacked jurisdiction to enter the decree, that the trial court erred in admitting certain evidence, and that the trial court's determination that the children fell under the jurisdiction of the CPA was not supported by a preponderance of the evidence. The district court affirmed the magistrate's decree placing the children in the Department's custody. Parents now appeal.

II.

ANALYSIS

On appeal, Parents argue that the magistrate did not have jurisdiction to enter the decree placing the children in the Department's custody where it failed to hold a shelter care hearing within forty-eight hours of the children's removal from the home, where the report of the investigation was not delivered to Parents prior to the pretrial conference, where the adjudicatory hearing was not held within thirty days from the date the Department's petition was filed, where the state failed to prove by a preponderance of the evidence that the two older children had been "abused" within the meaning of the statute, and where there was no evidence that the youngest child fell within the jurisdiction of the court. Parents also raise several evidentiary issues in regard to the adjudicatory hearing, arguing that the trial court erred in failing to exclude evidence obtained in violation of Parents' right to be free of warrantless searches and seizures, in failing to exclude all evidence and inferences therefrom obtained after Father invoked his Fifth Amendment right to remain silent, in considering the evidence in the investigation report, and in admitting copies of photographs which Parents contend did not accurately depict the children's injuries. Parents also contend their Fourteenth Amendment right to due process, as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was violated by the Department's failure to disclose all material exculpatory and inculpatory evidence prior to the adjudicatory hearing.

Initially, we note that while the appeal is pursued as to all three children, the record on appeal indicates that the case was dismissed as to R.L., the youngest child, on February 4, 2010, and B.L., the second youngest child, on June 3, 2010. A subsequent "Order Modifying Case Plan and Notice of Hearing" issued by the district court on June 3, 2010, references only A.L. in regard to modification of the case plan. This is significant because normally it would render this appeal moot as to the two younger children. A case becomes moot, and therefore

244 P.3d 252

150 Idaho 108

will not be considered by the court, when the issues presented are no longer live, the parties lack a legally cognizable interest in the outcome, or a judicial determination will have no practical effect upon the outcome. Goodson v. Nez Perce County Bd. of County Comm'rs, 133 Idaho 851, 853, 993 P.2d 614, 616 (2000). There are three recognized exceptions to the mootness doctrine: (1) when there is the possibility of collateral legal consequences imposed on the person raising the issue; (2) when the challenged conduct is likely to evade judicial review and thus is capable of repetition; and (3) when an otherwise moot issue raises concerns of substantial public interest. Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 851–52, 119 P.3d 624, 626–27 (2005).

Here, the remedy requested by Parents is reversal of the magistrate's decree vesting custody of the three children with the Department. However, the magistrate's dismissal of the case as to R.L. and B.L. indicates that the Department has already been divested of custody of the two younger children—thus, a judicial determination would have no practicable effect on the outcome as to them. At oral argument, in response to the court's inquiry, Parents argued for the first time that the issues pursued on appeal are not moot as to the two younger children, because they are subject to reoccurrence in general—and in regard to this family...