In re Doe, 122320 IDCCA, 48269

Docket Nº48269
Opinion JudgeBRAILSFORD, JUDGE.
Party NameIn the Interest of: John Doe I, Jane Doe I, John Doe II, and Jane Doe II, Children Under Eighteen (18) Years of Age. v. JANE DOE (2020-33), Respondent-Appellant. STATE OF IDAHO, DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent,
AttorneyAnthony R. Geddes, Ada County Public Defender; Karen L. Jennings, Deputy Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; John R. Shackelford, Deputy Attorney General, Boise, for respondent.
Judge PanelJudge GRATTON and Judge LORELLO CONCUR.
Case DateDecember 23, 2020
CourtCourt of Appeals of Idaho

In the Interest of: John Doe I, Jane Doe I, John Doe II, and Jane Doe II, Children Under Eighteen (18) Years of Age.

STATE OF IDAHO, DEPARTMENT OF HEALTH AND WELFARE, Petitioner-Respondent,

v.

JANE DOE (2020-33), Respondent-Appellant.

No. 48269

Court of Appeals of Idaho

December 23, 2020

Appeal from the Magistrate Division of the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Laurie A. Fortier, Magistrate.

Judgment terminating parental rights, affirmed.

Anthony R. Geddes, Ada County Public Defender; Karen L. Jennings, Deputy Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; John R. Shackelford, Deputy Attorney General, Boise, for respondent.

BRAILSFORD, JUDGE.

Jane Doe (Mother) appeals from the judgment terminating her parental rights to her four minor children: John Doe I (born September 2009), Jane Doe I (born May 2011), John Doe II (born November 2015), and Jane Doe II (born September 2018). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Idaho Department of Health and Welfare received repeated referrals about Mother's children including that Mother left the children unattended, was aggressive towards them, used drugs, and that domestic violence was occurring in the home. Then, in September 2018, the Department received a referral that Mother had tested positive for THC during childbirth and that the newborn, Jane Doe II, had also tested positive for drugs, including methamphetamine. A Boise police officer went to Mother's home to investigate, found drug paraphernalia in the home and found that the home was in poor condition. As a result, Mother's five minor children1 were declared in imminent danger and placed in foster care.

Mother stipulated to the magistrate court's jurisdiction under the Idaho Child Protective Act, Idaho Code §§ 16-1601-1647, and in November 2018, the court granted the Department custody of the children and ordered a case plan for Mother to perform. This plan required Mother to maintain stable housing free from safety hazards, to demonstrate her ability to meet the children's basic needs, to complete substance abuse screening, to submit to random drug testing, and to maintain regular contact with the children's service providers, among other tasks.

Beginning in December 2018, Mother was allowed an extended home visit with all of the children until March 2019 when Mother tested positive for drugs. Then again in August 2019, Mother was allowed a second extended home visit with the three older children until November 2019 when she tested positive for drugs and also missed drug tests. In March 2020, Mother went to Georgia for a funeral.2 Mother did not return to Idaho but instead remained in Georgia where she lived with the father of some of the children in his two-bedroom apartment. Mother explained she remained in Georgia because of the COVID-19 pandemic.3

In June 2020, the Department served on Mother in Georgia its petition to terminate her parental rights to the four youngest children, and the magistrate court scheduled a termination hearing for August 5. On July 31, Mother moved to continue the hearing or alternatively to be allowed to appear and to testify by video teleconference (video) because she was incarcerated in Georgia and did not know whether she would be able to post bond and travel to Idaho for the hearing. With this motion, Mother's counsel filed a statement representing that the Georgia jail in which Mother was incarcerated had "webex capability." On the same day that Mother filed her motion, the Department filed a notice stating the hearing had been rescheduled from August 5 until August 10.4

On August 4, the magistrate court denied Mother's motion to continue the termination hearing. The court, however, indicated that if the parties stipulated to Mother testifying by video, the court would allow such testimony pursuant to Idaho Rule of Civil Procedure 7.2(a)(2). On August 6, the parties stipulated to allow Mother to testify by video, and the following day, the court ordered that Mother could testify by video and otherwise be present by telephone to listen to the hearing.

The magistrate court held the termination hearing on August 10. Mother's counsel appeared in person, and Mother was present on the telephone and testified by video. The other witnesses who testified at the hearing were present in person including two Department caseworkers, the children's foster parents, the guardian ad litem, the girlfriend of Mother's adult son, and Mother's probation officer. Following the hearing, the court entered written findings of fact and conclusions of law and a decree terminating Mother's parental rights.5 The court concluded that Mother had neglected the children under I.C. § 16-2002(3)(a) by failing to provide the care and control necessary for the children's well-being and, alternatively, under I.C. § 16-2002(3)(b) by failing to complete her case plan and that termination of Mother's parental rights is in the children's best interests. Mother timely appeals.

II. ANALYSIS

A.

Motion for Continuance

On appeal, Mother argues the magistrate court erred by not granting her request for a continuance of the termination hearing. Whether to grant a motion for a continuance is within the trial court's sound discretion. State, Dep't of Health & Welfare v. Doe (2019-39), 166 Idaho 546, 557, 462 P.3d 74, 85 (2020). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process." Doe (2019-39), 166 Idaho at 557, 462 P.3d at 85 (quotations omitted). Rather, "the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Id.

In support of Mother's motion for a continuance, Mother simply stated a continuance was necessary "because [Mother] is incarcerated in Georgia [and she does not know] if she will be able to post bail and travel to Idaho for her trial." On appeal, Mother's argument clarifies she sought an indefinite continuance, arguing "the trial should have been continued until Mother could return to Idaho." The entirety of Mother's argument on appeal is that: Mother should have been allowed the time to hopefully get back to Idaho to be here in person. [The] COVID[-]19 pandemic combined with Mother's incarceration in Georgia hampered her ability to return to Idaho to be here in person during the child protection case. Mother should not be at the whim of the fallout of a pandemic.

In response, the Department asserts Mother failed to explain how the magistrate court abused its discretion or how the court's denial of her motion for a continuance "affected her substantial rights." We agree.

Mother has failed to assert any cogent argument challenging the denial of her motion for a continuance of the termination hearing. For example, Mother does not articulate any abuse of discretion, does not identify any factors weighing in favor of continuing the termination hearing indefinitely or otherwise, does not assert any due process violation, and does not identify any prejudice resulting from the denial of her motion. Further, Mother does not cite any supporting authority. This Court will not consider an issue not supported by cogent argument or by citation to legal authority--even in an appeal from the termination of parental rights. See Idaho Dep't of Health & Welfare v. Doe (2018-24), 164 Idaho 143, 147, 426 P.3d 1243, 1247 (2018) (declining to consider whether court erred by denying parent's request to continue termination hearing because issue was not supported by cogent argument and authority).

Moreover, the magistrate court did not abuse its discretion by denying Mother's motion for a continuance. Although the Idaho Supreme Court's emergency orders for public safety and to mitigate the spread of COVID-19 provide that termination...

To continue reading

FREE SIGN UP