Idaho Dep't of Health & Welfare v. John Doe (In re Jane Doe)

• Court: Idaho Court of Appeals
• Writing for the Court: LANSING, Judge.
• Citation: Idaho Dep't of Health & Welfare v. John Doe (In re Jane Doe), 150 Idaho 752, 250 P.3d 803 (Idaho App. 2011)
• Decision Date: 03 March 2011
• Docket Number: No. 37246.,37246.
• Parties: In the Matter of Jane Doe, John Doe, John Doe I, John Doe II, Children Under Eighteen Years of Age. IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner–Respondent, v. John DOE III, Appellant–Respondent.

150 Idaho 752

250 P.3d 803

In the Matter of Jane Doe, John Doe, John Doe I, John Doe II, Children Under Eighteen Years of Age.

IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner–Respondent,

v.John DOE III, Appellant–Respondent.

No. 37246.

Court of Appeals of Idaho.

March 3, 2011.

Robinson Anthon & Tribe, Rupert, Michael P. Tribe, for appellant.

Hon. Lawrence G. Wasden, Attorney General; James T. Baird, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

Appellant John Doe III appeals to this Court from the magistrate's order terminating his parental rights to his four children. We reverse and remand.

I.FACTS AND PROCEDURAL HISTORY

Appellant John Doe ("Father") and his former wife ("Mother") are parents to four children, a girl and three boys. At the time of the hearing on the petition to terminate Father's parental rights, the girl, who suffered from spina bifida, was fifteen years of age, the twin boys were eleven years old, and the youngest boy was nine.

On September 27, 2008, Father, while under the influence of alcohol, struck one of the twin boys leaving a red mark on the boy's face. Father was arrested and charged with injury to a child. Upon observing that the family residence was filthy and unsanitary, the officers notified the Idaho Department of Health and Welfare (the Department), and a social worker was sent to the scene. The children told the social worker that their father was an alcoholic whose condition was so severe that he kept a bucket next to his recliner to throw up in, and that Father sometimes hit them when he was drunk. The family was also facing eviction from their home for nonpayment of rent.

The children were deemed to be in imminent danger and were taken into the temporary custody of the Department. Father and Mother, who were then contemplating divorce, stipulated that the children had been subject to abuse and neglect, and should remain in shelter care pending an adjudicatory hearing. On further stipulation, the magistrate court ordered that the children remain in the Department's custody for an indefinite period. The order also directed that a case plan be prepared with the primary goal of reunification of the family.

On November 10, 2008, the Department filed a case plan, later approved by the court, with the stated goal of reunifying the family. The case plan recognized Father's abuse of alcohol and assigned to him tasks focused on his achieving and maintaining sobriety. It required that he be evaluated for substance abuse and "follow all recommendations for treatment," attend two Alcoholics Anonymous (AA) meetings per week, and provide documentation of alcohol treatment and AA attendance to the Department twice per month. The plan also focused on rebuilding the parents' relationship with their children and improving their parenting abilities. To this end, the case plan called for the parents to attend parenting training and to provide a certificate of completion to the Department, attend weekly supervised visits with the children and demonstrate appropriate parenting skills during the visits, and determine whether they qualified for certain psychological and skill-building services. In addition, the case plan addressed the need for financial stability, requiring the parents to work full-time and prepare and submit bi-weekly budgets to the Department. The parents further agreed to provide adequate housing with sufficient bedrooms for the children "if and when the children are returned."

By the time the case plan was adopted, Father had bonded out of jail following his arrest on the charge of injury to children. Soon thereafter, he completed a substance abuse evaluation and was diagnosed as alcohol dependant. The evaluation recommended intensive outpatient treatment services. Father immediately began alcohol treatment and AA, providing documentation of attendance to the Department. He also attended three weekly visits with his children. However, in early December, Father began drinking alcohol again and, shortly thereafter, ceased contact with the Department. He was also fired from his job. Father surfaced again when he was arrested for public intoxication on January 17, 2009. He ultimately pleaded guilty to both the public intoxication charge and the injury to children charge. The same judge presiding in this case imposed sixty days in jail for the public intoxication offense, followed by probation. Father was released on probation on March 19, 2009, with sentencing on the injury to children charge still pending.¹

Two months later, on May 22, 2009, the Department filed a report stating that Father was "working his program," was in compliance with his probation terms, and had submitted to four alcohol tests in the preceding two months, which disclosed no alcohol use. The Department also reported that Father had been rehired by his former employer and was living at his place of employment rent-free, had completed a mental health evaluation that found no mental illness, had been attending his alcohol treatment sessions and completing his outside written assignments, and was making progress through the various programs. However, the report also said that Father had not complied with certain of his case plan provisions in that he had not yet paid any child support and had not turned in a budget or any AA attendance slips. The Department also noted that Father "was not in a position to provide a safe and stable environment for the children to reside." The Department recommended that the children remain in the Department's custody and opined that because the children had been in shelter care since September 27, 2008, "[p]ermanency needs to be decided now."

The children's guardian ad litem also filed a report in May that detailed strides made by Father in regaining employment and complying with alcohol treatment. The guardian commended Father's parenting at his weekly visitations with his children during which he helped with the children's homework, engaged them in activities, and on their birthdays brought birthday gifts and cake. The guardian concluded that Father:

since being released from jail, has made every effort to work his case plan, maintain employment, and re-establish a loving bond with his children. It is evident that when he is not using alcohol, he is a vastly different person. He appears to be earnest and anxious to comply with all that is asked of him. He frequently expresses gratitude and a willingness to do whatever is in the best interest of his children. The fear that he would relapse is ever present as well as the uncertainty that he would be available to be a resource with the possibility of further incarceration.

Based on the Department's report and arguments at a May 27, 2009, hearing, the magistrate court ordered that "the Department shall cease reunification efforts because of the failure of the parents to comply with the case plan and the parents are not in a position to provide a safe and stable environment for the children to reside." The order also directed the Department to file a petition to terminate the parents' parental rights.

The assigned social worker thereupon told Father that because reunification efforts had ceased, Father was no longer required to comply with the case plan. However, the social worker also said that Father could continue his efforts to complete the case plan and explain those efforts at the anticipated parental termination hearing. About the same time, the Department garnished Father's wages for child support owed while the children were in foster care. Father sought, and was granted, the Department's permission to continue his weekly visits with his children.

In compliance with the magistrate court's order, the Department filed a petition to terminate the parents' parental rights on July 31, 2009. As against Father, the grounds for termination were that he "did neglect the children" before they were taken into custody on September 27, 2008, and that:

the neglect has continued by his failure to perform [the] case plan. Specifically, he has continued to participate in criminal activity and has been in and out of jail. He has not completed drug and alcohol treatment. He has failed to provide financial support for the children and has failed to establish adequate housing or financial security.

The termination hearing was scheduled for November 19, 2009. In August 2009, the parents divorced.

In September 2009, the Department and the guardian filed case review reports. The Department said that Father was still employed but had not yet obtained housing for the children, that he visited his children and had been appropriate with them, and that the issue to be determined at the pending termination hearing was whether "parental rights are terminated or parents are given more time to complete a case plan." The guardian's report again commended Father for his case plan progress since the last report in May, stating:

Doe continues employment.... His employer also allows him to live at their office to help him become financially stable.... [Father] is participating in substance abuse treatment, attends several AA meetings weekly and participates in visits with his children. He has maintained employment and in fact, his employer provides him boarding in their office and has been very supportive of him. His healthy countenance and participation in the activities listed above, all suggest [Father] is remaining sober. During the visits, he is appropriate and loving with the children. He has spoken openly with them about his need for alcohol treatment and speaks positively of the children's foster parents. He has not been able to find suitable housing but has made efforts, asking the GAL to visit a prospective home to determine its suitability. He intends to contest the termination of his parental rights and still hopes desperately to be re-unified with his children. Notably, [Father] has always remained in contact and spoken willingly and

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