author: BURDICK, Chief Justice.

text:
    In the MATTER OF: Jane DOE and John Doe I, Children Under Eighteen (18) Years of Age.
    Idaho Department of Health and Welfare, Petitioner-Respondent, v. John Doe, Respondent-Appellant, and Guardian ad Litem, Intervenor-Respondent.
    Docket No. 46482
    Supreme Court of Idaho, Boise, February 2019 Term.
    Opinion Filed: March 14, 2019
    Brown Law Office, PLLC, Gooding, for appellant.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
   BURDICK, Chief Justice.

John Doe ("Father") appeals from a Lincoln County magistrate court's judgment terminating his parental rights to his minor children. The judgment also terminated the parental rights of the children's mother ("Mother"). She appeals in a separate action.

The children were placed in the custody of the Department of Health and Welfare (the "Department") following a March 2016 petition under the Child Protection Act ("CPA"). In June 2016, the court ordered the parents to follow case plans provided by the Department. Eight months later, the State filed a motion to terminate the parental rights of both parents based on failure to comply with the case plan and on prior neglect. After holding a trial, the court terminated both parents' parental rights.

Father timely appeals arguing that the magistrate court's finding of neglect is not supported by substantial, competent evidence and that the court erred by not considering how Father's periods of incarceration affected his ability to comply with the case plan. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal concerns the termination of Father's parental rights to his two minor children. Father and Mother are the biological parents of the minor children. Prior to the termination, the children and parents were the subject of a CPA proceeding for over two years. When the prosecutors first filed a petition under the CPA, the parents were listed with separate addresses, but were living together. However, the parents ended and rekindled their relationship at various times prior to and during the CPA proceeding. By the time of trial, Father and Mother were permanently separated.

The Department became involved in early March 2016 after receiving reports of drug use and neglect involving the children. Prior to this, the Department had received referrals for the family on two occasions in 2013 and 2014. The Department's investigation revealed that both children had been born premature, exposed to drugs in-utero, and tested positive for methamphetamine at birth. Based on these concerns, the Lincoln County Prosecutor's Office filed a petition under the CPA in March 2016.

In April 2016, the Lincoln County magistrate court opened a CPA proceeding and placed the children in the legal custody of the Department. However, the court ordered the children to remain with the parents for the time being. A week later, the Department and a Lincoln County law-enforcement officer conducted an unannounced home visit. The officer declared that the children were in imminent danger based on the condition of the home and Mother's statements about the parents' drug use and domestic disputes around the children. The officer removed the children from the parents' custody and placed them in foster care. At the subsequent shelter-care hearing, the court ordered the children to remain in the Department's custody. At the adjudicatory hearing in May 2016, both parents stipulated to an unstable home environment as the basis for the CPA proceedings and the children remained in the Department's custody.

About a month later, Father agreed to participate in and accomplish a case plan provided by the Department. The case plan contained 14 tasks for Father to complete which would demonstrate his "ability to obtain and maintain sobriety" and provide the children with "a safe and drug-free home environment." The tasks were aimed at addressing "all original areas of concern that brought the family to the attention of the Department" and ensuring "the children will have a safe, stable, sanitary and drug-free home environment." Paraphrased, some of the tasks were: coordinating with the Department to complete a GAIN assessment; completing the GAIN assessment and abiding by the resulting recommendations; participating in drug testing; providing for the children financially; obtaining and maintaining safe and satisfactory housing for the children; allowing the Department to conduct unscheduled home visits; coordinating with the Department and housing-assistance services; caring for the children's health and educational needs; and completing a parenting class and demonstrating the ability to apply those skills. The Department placed a social worker, D.W., on the CPA case to assist and monitor the parents' progress.

Beginning in March 2017, almost a year after the children were first placed in the Department's custody, a few events took place. First, the court held a permanency hearing in late March 2017. The court extended the disposition of the permanency hearing for 30 days to allow the parents time to show improvement. Second, K.S., the owner of a private company which contracts with the Department to provide services, began coordinating supervised visitations between Father and the children. Third, in early April 2017, a few days after the court extended the permanency hearing, the Department moved to terminate parental rights. The original 30-day extension was lengthened to almost 90 days after the permanency review hearing was moved to June 2017. Lastly, in May 2017, a new social worker, E.D., took over for D.W. on the case.

It is difficult to establish a concrete timeline for Father's activities during the year following the children's placement with the Department, but a few things can be gleaned from the record. In that year, Father missed various scheduled drug tests, tested positive for methamphetamine and benzodiazepine in others, and tested clean a small amount of the time. He was employed for a few months in Pocatello. The only proof of stable housing he provided to the Department was a motel in Gooding where he stayed for a brief period, but he also lived with his mother, and in a tent. He was incarcerated at various intervals for an estimated total of three months because of probation violations stemming from misdemeanor crimes. In May 2017, Father reported that he attended parenting classes, but when D.W. followed up on his report, the clinic had no record of his attendance. After rescheduling and postponing appointments during the year, Father participated in a mental-health assessment for the first time in May 2017 but did not continue with treatment following the assessment. He attended some supervised visits with the children, but missed more than half of those scheduled.

In June 2017, the court accepted the Department's recommendation for adoption as the permanent placement plan. The court directed the parties to begin preparing for trial. However, the trial was delayed until October because of Father's lack of communication with his attorney. The October trial date was then continued because there was no proof that the parents had been served process at the time it was scheduled to begin.

Commencing in January 2018, the termination trial was split over three days in January and March. Father testified, as well as D.W., E.D., K.S., the children's foster parent, Mother's parents, and Mother's physician. The parties submitted written closing arguments in July 2018 and the court issued its memorandum decision and a final judgment in October 2018. The court terminated both parents' parental rights. The court found, by clear and convincing evidence, that Father neglected his minor children by failing to complete his case plan and termination was in the children's best interests. Father timely appeals.

II. ISSUES ON APPEAL

1. Does substantial, competent evidence support the magistrate court's finding that Father neglected the minor children by failing to comply with his case plan under Idaho Code section 16-2002(3)(b) ?
2. Did the magistrate court properly consider Father's periods of incarceration when it determined that Father neglected the children by failing to comply with his case plan?

III. STANDARD OF REVIEW

Under Idaho Code section 16-2005(1), a court may terminate parental rights if it finds that at least one of the grounds for termination is present and termination is in the best interest of the child. In re Doe (2014-23) , 157 Idaho 920, 923, 342 P.3d 632, 635 (2015). The grounds for termination of parental rights must be proved by clear and convincing evidence. Idaho Dep't of Health & Welfare v. Doe (2016-14) , 161 Idaho 596, 598, 389 P.3d 141, 143 (2016). Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain." Doe I v. Doe II , 150 Idaho 46, 49, 244 P.3d 190, 193 (2010) (quoting In re Adoption of Doe , 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006) ).

However, on appeal, "this Court will not disturb the magistrate court's decision to terminate parental rights if there is substantial, competent evidence in the record to support the decision." Doe I. , 150 Idaho at 49, 244 P.3d at 193 (citing State v. Doe , 143 Idaho 343, 345, 144 P.3d 597, 599 (2006) ). As such, "[f]indings are competent, so long as they are supported by substantial, albeit possibly, conflicting, evidence." Doe v. Doe , 148 Idaho 243, 246, 220 P.3d 1062, 1065 (2009) (quoting Roe v. Doe , 142 Idaho 174, 177, 125 P.3d 530, 533 (2005) ) "Substantial, competent evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' " Doe, 150 Idaho at 49, 244 P.3d at 193 (quoting Doe , 143 Idaho at 345-46, 144 P.3d at 599-600 ). This Court "must conduct an independent review of the record, 'but must draw all reasonable inferences in favor of the magistrate court's judgment, as the magistrate court has the opportunity to observe witnesses' demeanor, to assess their credibility, to detect prejudice or motive and to judge the character of the parties.' " In Interest of Doe I , 163 Idaho 274, 277, 411 P.3d 1175, 1178 (2018) (quoting In re Doe (2014-23) , 157 Idaho at 923, 342 P.3d at 635 ).

IV. ANALYSIS

In this case, the magistrate court found that Father neglected his minor children by failing to comply with his case plan. The magistrate court also found that termination of Father's parental rights was in the best interests of the children because he failed to complete the case plan and resolve the issues that brought the children within the Department's custody and the children made significant progress in their current placement with the foster parent.

On appeal, Father argues that some of the court's factual findings are unsupported by the record and that the court did not properly consider how Father's period of incarceration affected his ability to comply with the case plan. Both of these issues address the magistrate court's findings on neglect and will be addressed in turn.

A. The magistrate court's finding that Father neglected the children by failing to comply with his case plan is supported by substantial, competent evidence.

The Idaho Code provides several statutory definitions of neglect. See I.C. §§ 16-1602(31)(a)-(d), 16-2002(3)(b). Here, the magistrate court terminated Father's parental rights based on neglect under Idaho Code section 16-2002(3)(b) which provides:

(b) The parent(s) has failed to comply with the court's orders or the case plan in a child protective act case and:
(i) The department has had temporary or legal custody of the child for fifteen (15) of the most recent twenty-two (22) months; and
(ii) Reunification has not been accomplished by the last day of the fifteenth month in which the child has been in the temporary or legal custody of the department.

Finding neglect under Idaho Code section 16-2002(3)(b) requires the magistrate court to "find that the parent is responsible, whether directly or indirectly, for non-compliance with the requirements of a case plan." Idaho Dep't of Health & Welfare v. Doe (2016-14) , 161 Idaho 596, 600, 389 P.3d 141, 145 (2016) (footnote omitted). "This requirement reflects the reality presented by parents who engage in behavior that results in non-compliance with no apparent thought or consideration of the effect of that behavior upon the case plan." Id.

1. There is substantial, competent evidence supporting the magistrate court's finding that Father neglected his children by failing to complete his case plan notwithstanding a few factual misstatements.

In concluding that Father neglected his children, the magistrate court found by clear and convincing evidence that:

This case plan has been in effect for over 23 months, at the close of the evidence on March 16, 2018.... Father has simply not engaged or participated in the case at all until December of 2017. Father had minimal contact with the Minor Children until December 2017. He has not supported the Minor Children emotionally or financially in any way throughout this case. It is clear that the Parent's lack of action on this case plan to date has constituted neglect as to both parents.

The magistrate court also found that the children had continuously remained in the Department's custody since April 2016. This amounted to 21 months without reunification at the beginning of trial in January 2018. Father does not allege error based on the length of custody as stated in subpart (b)(i)-(ii) of section 16-2002(3)(b).

Instead, on appeal, Father attacks specific factual findings in the court's Memorandum Decision. Father argues the following findings are not supported by the record: (1) the children were subject to neglect and abuse at the time of removal from the home; (2) Father did not start his treatment until November or December 2017; (3) Father accrued approximately $3000.00 in back child support; (4) Father only visited the children once during first 12 months of the case plan; (5) Father only saw the children five times between March 2017 and December 2017; (6) Father did not support the children emotionally.

First, Father is correct that the basis for jurisdiction under the CPA was a stipulation to an unsafe housing environment rather than a finding of neglect or abuse. However, the children were first placed in the Department's protective custody after a law-enforcement officer declared them to be in imminent danger based on the condition of the home and Mother's statements about the children's exposure to domestic violence and drug use. Thus, the finding of neglect and abuse is supported by substantial, competent evidence. In any event, this finding has little bearing on the magistrate court's stated basis for terminating Father's parental rights: neglect by failure to complete a case plan under Idaho Code section 16-2002(3). As this Court has stated on prior occasions, "[s]tatutory grounds for termination of parental rights are independent, and if any one or more of the grounds for termination are found, termination may be granted." Idaho Dep't of Health & Welfare v. Doe (2016-11) , 160 Idaho 824, 833 n. 1, 379 P.3d 1094, 1103 n. 1 (2016) (quoting Roe , 142 Idaho at 179, 125 P.3d at 535 ). Even if the court's specific finding was unsupported, it is not statutorily relevant to the magistrate court's ultimate finding that Father neglected his children by failing to complete his case plan under Idaho Code section 16-2002(3)(b).

Second, Father points to E.D.'s testimony stating that he was in treatment in June 2017 to show that he was engaged in counseling prior to November or December 2017. Father is correct that E.D. testified that he participated in an intensive outpatient program prior to his incarceration in July 2017. This undermines the court's finding that "Father has simply not engaged or participated in the case at all until December of 2017." However, E.D. also testified that his time incarcerated was for a petit theft and trespassing. Likewise, at the time of trial, E.D. testified that Father had not completed the intensive outpatient program. So even accepting that Father participated 6 months earlier than the court's finding, 12 months are still devoid of effort by Father. Accordingly, this error does not negate the court's finding that Father's participation in the case plan was significantly delayed.

Third, Father is correct that the judge entered an order ceasing child-support obligations. This order is at odds with Father's testimony about owing $3,200 in child-support obligations on the children and the court's finding on child support. However, this specific finding was part and parcel of a broader finding that Father did not complete the case-plan task of financially providing for his children. This finding also stated that Father did not provide proof of income to the Department until trial and that he had only begun financially providing for the children once he started work in October 2017. As D.W. testified, despite the case-plan task, Father provided proof of income for only 2 of the 12 months she carried the case. Therefore, even excluding the confusion regarding child-support payments, there is substantial, competent evidence supporting the magistrate court's finding that Father did not complete the task of financially supporting his children.

Fourth, Father is correct that D.W. testified that Father attended four out of a possible ten visits during the first year of the case plan. This testimony conflicts with the magistrate court's finding that Father only had one visit with his children in the first year of the case plan. However, D.W. also testified about why Father missed the six visitations:

Q. Did you discuss with him his attendance at visitation?
A. Yes.
Q. And why did he inform you he had stopped coming to those visitations?
A. Well, a great deal of it was due to lack of communication. We would have visits scheduled. He would not follow through with them. We could not obtain contact to schedule additional visitation with him. At times he forgot about visitation, or he would not be able to get to visitation but did not notify the Department of this.

Given this testimony, there is still substantial, competent evidence showing that Father's efforts at visitation were insufficient for case-plan compliance despite the fact that the magistrate court misstated the amount of times Father visited the children during the first year.

Fifth, Father correctly points out that K.S. testified that Father made six visits between March 2017 and December 2017. But this merely revises the magistrate court's finding that "Father only saw the children approximately 5 times from March of 2017 until December 2017." (emphasis added). Even so, K.S. testified that he had difficulties staying in contact with Father and that Father was inconsistent with visitation prior to December 2017. He also testified that Father's lack of transportation was not the root of the problem because "part of our services is we will pick him up and drive him, but I think that was an issue, but we could have worked through that." Given the language of the factual finding and the testimony presented, there is substantial, competent evidence supporting the conclusion that Father failed to adequately visit his children.

Lastly, Father points to K.S.'s testimony that Father was "attentive and nurturing" during visits as the "only non-bias[ed]" testimony to this fact. But D.W. also testified that during one of the Department's visits with both parents, Father was "disengaged" and "very hesitant." He "was not sure what he needed to do during that visit, how to interact with the children. He mostly just stood at the edge of the visitation area." In addition, the children's foster parent testified about the visits supervised by K.S.:

Q. And have those visits had any effect upon the children that you've noticed?
A. I think to a lesser extent. [The younger child]-because they were so intermittent for a long time, in the summer we were going to meet [Father] at a park, and when I'm like, "Oh, your dad's here," [the child] went up to the wrong person and gave him a hug. He didn't recognize him. And now he often refers to the visitor, the person who supervises the visit, [K.S.], that's his other dad to where I think he's very confused as to who really is his dad.

As mentioned, "[i]f the trial court's findings of fact are based upon substantial and competent, although conflicting evidence, they should not be disturbed on appeal." Doe I v. Doe , 138 Idaho 893, 906, 71 P.3d 1040, 1053 (2003) (citing Halen v. State , 136 Idaho 829, 832, 41 P.3d 257, 260 (2002) ). In light of D.W.'s and the foster mother's testimony, the magistrate court's finding on this issue is supported by substantial, competent evidence.

Having assessed the specific factual findings Father challenges, we return to the broader finding of neglect. Even if this Court accepts that some of the magistrate court's specific factual findings are not supported by substantial, competent evidence, there is nevertheless substantial, competent evidence to support the magistrate court's ultimate finding on neglect. At any rate, Father fails to challenge other findings which detail his shortcomings on the case plan.

For instance, Father does not challenge the finding that he used methamphetamine approximately six months prior to trial despite the case-plan task of abiding by the recommendations of his GAIN assessment. Nor does Father challenge the finding that he failed the task of participating in drug testing. Out of the required drug tests, Father tested negative only 7 times, tested positive for methamphetamine or benzodiazepine 17 times, and failed to attend 60 times. The court further found, among other findings, that Father failed to provide adequate housing for his children because he had lived in motels, a tent, and his mother's home. At the time of trial, he lived with three other adult males in a house that was not suitable for children. Thus Father also failed the task of allowing the Department to make home visits. While the court found that the Department made no home visits, D.W. did testify that the Department made one visit to Father's motel in Gooding county, but opined that it was "disheveled" with "belongings all over the place" and, though the physical space may have been appropriate for children, a motel was not "stable housing" as required by the case plan. Further, Father does not challenge the findings that he failed to provide for children's educational or health needs. Nor does Father challenge the finding that he failed to successfully complete a parenting class and demonstrate the ability to apply those skills.

In conclusion, while Father is correct that some of the discrete factual findings in the magistrate court's memorandum decision are not supported by substantial, competent evidence, removing those errors does not reduce or alter the remaining evidence supporting the magistrate court's conclusions. The magistrate court's finding that Father neglected his children by failing to comply with his case plan is supported by substantial and competent evidence.

2. Father has failed to show it was impossible for him to comply with the case plan.

Father contends that the magistrate court erred by failing to take his periods of incarceration into account when it found he failed to complete his case plan because the time in custody made many of the tasks impossible for him to complete. In support, Father points to this Court's decision in In re Doe (2016-14) , 161 Idaho 596, 389 P.3d 141 (2016), as well as D.W.'s and E.D.'s testimony that his incarceration affected his ability to complete the case plan.

In In re Doe (2016-14) , this Court recognized impossibility as a defense to neglect for failure to comply with a case plan under Idaho Code section 16-2002(3)(b). 161 Idaho at 600, 389 P.3d at 145. There, a mother appealed the termination of her parental rights and argued that compliance with the case plan was impossible because she was incarcerated when the case plan was entered into. Id. at 599, 389 P.3d at 144. She also pointed out that she had completed as many of the tasks as possible while incarcerated. Id. While this Court held that impossibility may be asserted as a defense to neglect under section 16-2002(3)(b), it also cautioned that "willful noncompliance" is not the standard to assess failure to comply. Id. at 600, 389 P.3d at 145. Rather, the magistrate court "must find that the parent is responsible, whether directly or indirectly, for non-compliance with the requirements of a case plan." Id. (footnote omitted). This Court noted that "it is the role of the trial court, not this Court, to make the factual finding whether [the parent] bears responsibility for [the] failure to comply with the case plan." Id. at 601-02, 389 P.3d at 146-47.

When later interpreting In re Doe (2016-14) , this Court held that compliance with the case plan was possible even though the parent had various periods of incarceration. Idaho Dep't of Health & Welfare v. Doe (2016-32) , 161 Idaho 754, 759, 390 P.3d 1281, 1286 (2017). There, this Court distinguished In re Doe (2016-14) because the parent in the subsequent case: (1) was not incarcerated at the beginning of the case plan; (2) was only incarcerated some of the time during the case plan; and (3) admitted fault for noncompliance with various tasks at trial. Id .

Turning back to the case at hand, the magistrate court made the follow findings regarding Father's incarceration:

Father made no effort to complete any of the case-plan until approximately October 2017. Father was incarcerated, based upon his testimony for approximately 90 days, 30 days in Gooding County and the rest in Ada County for a total on 3 months during the duration of the CPA.

Thus, Father's argument that the court failed to consider his incarceration lacks foundation. The first sentence of the paragraph also implicitly finds that Father "bears responsibility" for the failure to comply with the case plan because he failed to make an effort. In re Doe (2016-14) , 161 Idaho at 601-02, 389 P.3d at 146-47.

In addition, Father's reliance on In re Doe (2016-14) is misplaced. Unlike that case, where the parent was incarcerated at the time the case plan was adopted, Father's situation is more akin to the parent in In re Doe (2016-32) . Father was incarcerated during portions of the case plan; a conservative estimate based on trial testimony indicates that Father was incarcerated 40% of the time during the first year of the case plan, but the district court's findings place the figure at 25% (3 months) based on his testimony. However, by his own admission, his incarcerations were the result of probation violations and driving without privileges. He also admitted to petit theft and trespassing convictions in Pocatello in December 2016. Thus, the resulting time in custody came from Father's decisions and actions during the pendency of the case plan.

Father also did not comply with the tasks that were within his ability. While Father is correct to point out that two Department social workers testified that his incarcerations made compliance more difficult, he fails to explain how that difficulty excuses his other shortcomings. Father admitted to: using methamphetamine during the case plan;

failing to complete drug tests; failing to provide suitable housing for the children that the Department could visit, not contacting housing-assistance providers until July 2017; and not timely participating in parenting classes. Lastly, when asked why he had only recently begun work on his case plan, Father did not mention his incarceration, but blamed his non-compliance on transportation:

Q. Don't any number of single parents raise children without the assistance of someone else?
A. Oh, absolutely. I'm prepared to do so.
Q. Why haven't you done it until now?
A. Well, the last 2 years has been very difficult to get anything as-let me see how I can put this. Honestly, this case plan is a lot to get in order if you're trying to get on your feet alone, trying to deal with a broken heart, trying to deal with somebody-getting your kids back. I don't know how to put it exactly.
Q. Many of those tasks were time limited to like 30 days of getting them accomplished, and you haven't done that yet on some of those.
A. To really look at this, what's really stopped me from making progress is-the truth-this is really the bottom line truth to-my links to getting to AA treatments and my links to getting a different life really has been based on transportation. If I had transportation, this would have been done months ago. I mean, I had to wait for my driver's license.
How can I get to all my supports, the different recovery things, the things that I need if I don't have transportation? I can't. Half of the year is winter here. Losing my kids, losing [Mother], you know, it dropped me into a hole. And then trying to make all this work on top of it, it's kind of in a losing-nope. Can't make the case plan. It's not that hard now.

(emphasis added). This explanation stands in stark contrast to Father's inconsistent attendance at supervised visitation prior to December 2017 considering that K.S. testified that his company provides transportation.

Given all this, the magistrate court's finding that Father was responsible, whether directly or indirectly, for non-compliance with the requirements of a case plan is supported by substantial, competent evidence.

V. CONCLUSION

In sum, the magistrate court's finding that Father neglected his children under Idaho Code section 16-2002(3)(b) by failing to comply with his case plan is supported by substantial, competent evidence and the magistrate court properly considered Father's periods of incarceration. The decree terminating Father's parental rights is affirmed.

Justices BRODY, BEVAN, STEGNER, and MOELLER concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF: Jane DOE I and John Doe, Children Under Eighteen (18) Years of Age.
    Idaho Department of Health and Welfare, Petitioner-Respondent, v. Jane Doe, Respondent-Appellant, and Guardian ad Litem, Intervenor-Respondent.
    Docket No. 46476
    Supreme Court of Idaho, Boise, February 2019 Term.
    Opinion Filed: March 14, 2019
    Jeremy L. Pittard, Attorney at Law, Burley, for appellant.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
   BURDICK, Chief Justice.

Jane Doe ("Mother") appeals from a Lincoln County magistrate court's judgment terminating her parental rights to her minor children. The judgment also terminated the parental rights of the children's father ("Father"). He appeals in a separate action.

The children were placed in the custody of the Idaho Department of Health and Welfare (the "Department") following a March 2016 petition under the Child Protection Act ("CPA"). After the filing of the petition, the parents stipulated to an unstable home environment. In June 2016, the magistrate court ordered the parents to follow case plans provided by the Department. Roughly eight months later, the State filed a motion to terminate both parents' parental rights based on failure to comply with their case plans and prior neglect. After holding a trial, the magistrate court terminated both parents' parental rights.

Mother timely appeals and argues that the Department did not make adequate efforts to reunify the family and that the magistrate court erred by finding that the Department's efforts were reasonable. We affirm the termination of Mother's parental rights.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal concerns the termination of Mother's parental rights to her two minor children. Mother and Father are the biological parents of the children. Prior to the termination trial, the children and parents were the subjects of a nearly two-year-long CPA proceeding. When the prosecutors first filed a petition under the CPA, the parents were listed with separate addresses, but were living together. However, the parents ended and rekindled their relationship at various times prior to and during the CPA proceeding. By the time of the termination trial, Mother and Father were permanently separated and Mother was residing with her parents at their home.

The Department became involved in early March 2016 after receiving reports of drug use and neglect involving the minor children. Prior to this, the Department had received referrals for the family on two prior occasions in 2013 and 2014 for the same issues. The Department's investigation revealed that both children had been born premature, exposed to drugs in-utero, and tested positive for methamphetamine at birth. Based on these concerns, the Lincoln County prosecutors filed a petition under the Child Protection Act in March 2016.

The Lincoln County magistrate court opened a CPA proceeding and placed the children in the legal custody of the Department under a protective order. However, the court ordered the children to remain with their parents for the time being. A week later, the Department and a Lincoln County law-enforcement officer conducted an unannounced home visit. The visit revealed that the home was in a state of disarray. Mother was not "able to remain still" and "had what appeared to be methamphetamine sores on her face." She admitted to no longer living at home after an incident of domestic violence involving Father which the children had witnessed. She also stated that she had used methamphetamine within the past week and picked the children up afterwards. Declaring the children to be in imminent danger, the officer removed the children from the parents' custody and placed them in foster care. The children were placed with the foster parent who ultimately would care for the children during the CPA proceeding. At the subsequent shelter-care hearing, the court ordered the children to remain in the Department's custody. At the adjudicatory hearing a month later, both parents stipulated to an unstable home environment as the basis for the CPA proceedings and the children remained in the Department's custody.

About a month after the adjudicatory hearing, Mother agreed to both participate in and accomplish a case plan provided by the Department. The case plan contained sixteen tasks aimed at addressing "all original areas of concern that brought the family to the attention of the Department" and ensuring "the children will have a safe, stable, sanitary and drug-free home environment." The Department stated its primary goal was reunification and its secondary goal was adoption.

Mother preferred making the secondary goal guardianship with her parents rather than adoption. The Department explained that guardianships are disfavored because they are an impermanent solution. The court indicated (according to the court minutes) that "[g]uardianship is something to keep in mind as they work through the plan."

Over the next several months, the court held numerous review hearings to assess the parents' progress with the case plan and the Department's efforts to reunify the family. In her appellate brief, Mother admits that she failed to satisfactorily complete her case plan during this time:

Suffice it to say that the Appellant recognizes that she did not complete her case plan. She also acknowledges that during the pendency of these proceedings she was a single parent who was dealing with a severe drug addiction and challenging mental health issues.

During the same timeframe, the Department's stated primary goal was reunification but changed the secondary goal to adoption by relative. To this end, the Department actively sought out and evaluated various family members as possible foster-care placements. Mother's parents applied to become foster parents but were denied due to concerns about their medication use. They administratively appealed the Department's decision, but the appeal was denied for failure to include proper medical forms. They did not appeal the Department's decision to the district court. The Department also looked into having the children's paternal grandparents and maternal aunt as possible foster parents, but their applications were also denied.

Almost a year after the children were first placed in the Department's custody, the court held a permanency hearing. The Department informed the court that it was looking into whether the children's great uncle was a suitable placement. In its report, the Department had changed its primary goal to adoption and its secondary goal to guardianship in one place, but changed the goals to reunification and adoption (nonrelative) in another. The Department advised the court it would inquire into whether the great uncle was a suitable foster parent, but would then schedule a POST ("Permanency Option Selection Team") meeting. At this hearing, Mother testified and the court extended the disposition of the permanency hearing for 30 days in order to allow the parents to show improvement. However, those 30 days were extended to almost 90 days after the hearing was continued until June 2017.

Days after the court originally extended the permanency hearing, the Department filed a petition to terminate parental rights. The Department notified the court that its attempts to contact the children's great uncle were unsuccessful. The court accepted the Department's recommendation for adoption as the permanent plan. The court advised the parties to prepare for a termination trial.

The termination trial was delayed while the parties inquired into whether a guardian ad litem should be appointed for the children's father. Mother's parents independently filed a petition for guardianship of the minor children four days prior to the October trial date. The court then continued the October trial date due to lack of proof regarding whether the parents had been properly served. During the interim, the court heard the grandparents' petition for guardianship. The court concluded that Idaho Code sections 16-1604 and 16-1629(8) give the Department the power and right to determine where and with whom the children reside. The court dismissed the petition because the Department did not consent to the guardianship.

Commencing in January 2018, the termination trial was split over three days in January and March 2018. Mother did not testify. The parties submitted written closing arguments in July 2018 and the court issued its memorandum decision and final judgment in October 2018.

II. ISSUES ON APPEAL

1. Should this Court inquire into the magistrate court's approval of the Department's reasonable efforts to reunify the children with Mother on appeal of the judgment terminating her parental rights?
2. Does substantial, competent evidence support the magistrate court's finding that termination of Mother's parental rights is in the best interests of the children?

III. STANDARD OF REVIEW

Under Idaho Code section 16-2005(1), a court may terminate parental rights if it finds that at least one of the grounds for termination is present and termination is in the best interests of the child. In re Doe (2014-23) , 157 Idaho 920, 923, 342 P.3d 632, 635 (2015). The grounds for termination of parental rights must be proven by clear and convincing evidence. Idaho Dep't of Health & Welfare v. Doe (2016-14) , 161 Idaho 596, 598, 389 P.3d 141, 143 (2016). Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain." Doe I v. Doe II , 150 Idaho 46, 49, 244 P.3d 190, 193 (2010) (quoting In re Adoption of Doe , 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006) ).

However, on appeal, "this Court will not disturb the magistrate court's decision to terminate parental rights if there is substantial, competent evidence in the record to support the decision." Id. (citing State v. Doe , 143 Idaho 343, 345, 144 P.3d 597, 599 (2006) ). As such, "[f]indings are competent, so long as they are supported by substantial, albeit possibly, conflicting, evidence." Doe v. Doe , 148 Idaho 243, 246, 220 P.3d 1062, 1065 (2009) (quoting Roe v. Doe , 142 Idaho 174, 177, 125 P.3d 530, 533 (2005) ) "Substantial, competent evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' " Doe, 150 Idaho at 49, 244 P.3d at 193 (quoting Doe , 143 Idaho at 345-46, 144 P.3d at 599-600 ). This Court "must conduct an independent review of the record, 'but must draw all reasonable inferences in favor of the magistrate court's judgment, as the magistrate court has the opportunity to observe witnesses' demeanor, to assess their credibility, to detect prejudice or motive and to judge the character of the parties.' " In Interest of Doe I , 163 Idaho 274, 277, 411 P.3d 1175, 1178 (2018) (quoting In re Doe (2014-23) , 157 Idaho at 923, 342 P.3d at 635 ).

IV. ANALYSIS

A. The Department's efforts at reunification and aiding a parent with a case plan are not relevant on appeal of the termination of parental rights.

In her brief, Mother collapses her first four issues on appeal into a single, four-page argument section. Her brief then presents the following argument:

[Mother] is asserting that Judge Dolan should have taken into account in his determination the Department's reasonable reunification efforts to: (1) aid Jane Doe in her labors to work the CPA case plan; and (2) the department's decision with whom they should place the children with during the pendency of the CPA action.

Mother concedes that this Court has definitively held that the "inquiry into reunification efforts is not relevant for the court to terminate parental rights." Dep't of Health and Welfare v. Doe (2017-21) , 163 Idaho 83, 96, 408 P.3d 81, 94 (2017). Nevertheless, she contends that a party who disagrees with a magistrate court's decision to adopt the Department's recommendations regarding reunification and placement is left without appellate recourse. So Mother asks this Court to "reverse its current precedent and analyze [her] due process claim by looking at the reasonable reunification efforts of the Department and the magistrates' approval of those efforts."

In lieu of declining to consider mother's issues on appeal for failure to match her argument to her issues , we reformulate those issues to conform with her argument as follows:

Should this Court inquire into the magistrate court's approval of the Department's reasonable efforts to reunify Mother with her children on appeal from a judgment terminating her parental rights?

Having consolidated the issues, we will now address Mother's arguments relating to (1) the placement of the children and (2) the Department's efforts in aiding the completion of her case plan.

First, Mother's argument regarding the magistrate court's approval of the Department's placement decision is without merit. As she acknowledges, the magistrate court did not need to consider where the child was placed in order to properly terminate Mother's parental rights. Even if the magistrate court did consider this when it terminated Mother's parental rights, this Court has made clear that "[o]nce the Department has legal custody of a child under the CPA, the Department and not the court has the authority to determine where the child should live." Matter of Doe (2017-16) , 163 Idaho 565, 570, 416 P.3d 937, 942 (2018) (citing In re Doe , 134 Idaho 760, 767, 9 P.3d 1226, 1233 (2000) ). In fact, even if the Department's decisions were relevant to the termination of parental rights, those decisions are only subject to approval by the magistrate court. See I.C. § 16-1629(8) ("The department, having been granted legal custody of a child, shall have the right to determine where and with whom the child shall live ... all other determinations relating to where and with whom the child shall live shall be subject to judicial review by the court and, when contested by any party, judicial approval."). This review is for the "limited purposes outlined in the statute." Matter of Doe , 163 Idaho at 570, 416 P.3d at 942 (citing In re Doe , 134 Idaho at 767, 9 P.3d at 1233 (listing purposes)).

Mother fails to point out in the record where she contested the Department's placement and why the court should have disapproved of that placement. The Department chose to place the children with a foster parent during the CPA proceedings after the parents stipulated to an unsafe home environment. The Department actively sought to place the children with their maternal grandparents, paternal grandparents, and a maternal great-uncle. However, finding all the proposed family members either unsuitable or unwilling, the Department decided to maintain placement with the foster parent. Even though no objection was raised below, the Department also expressed adequate justification for declining to pursue a guardianship with the maternal grandparents: (1) the Department viewed it as a disfavored option due to its impermanency; and (2) Mother was currently living with the maternal grandparents and she would be required to leave their home if a guardianship with them was put in place. Thus, even if it were relevant to termination, Mother makes no showing that the magistrate court abused its discretion by approving the placement.

Moving on to Mother's second argument, she is correct that this Court has held that inquiry into the Department's efforts at reunification is irrelevant to the termination of parental rights. See In re Doe I (2017-21) , 163 Idaho at 96, 408 P.3d at 94. Rather, "[r]easonable reunification efforts are a requirement under the Child Protective Act, which imposes a duty to ensure such efforts are made throughout the child protective action." Id. (citing Idaho Dep't of Health & Welfare v. Doe (2016-11), 160 Idaho 824, 834, 379 P.3d 1094, 1104 (2016) ). Nevertheless, this Court has indulged such arguments after articulating that they are not pertinent to the termination of parental rights. See , e.g. , In re Doe (2016-11) , 160 Idaho at 834, 379 P.3d at 1104 ; In re Doe (2015-21) , 160 Idaho 154, 162, 369 P.3d 932, 940 (2016) ; In re Doe (2009-19) , 150 Idaho 201, 207, 245 P.3d 953, 959 (2010). When doing so, this Court has assessed the magistrate court's findings for substantial, competent evidence. In re Doe (2016-11) , 160 Idaho at 834, 379 P.3d at 1104.

Mother argues that this Court should evaluate these efforts in termination-of-parental-rights cases because a magistrate court's approval of the Department's actions cannot be appealed before the final order is entered. Mother contends that waiting for the final judgment places her in a procedural no man's land because this Court holds that an inquiry into reunification efforts is irrelevant to a final judgment that terminates parental rights. Mother admits that an aggrieved party "could possibly do an interlocutory appeal," but claims that such an appeal "would only prolong the proceedings of which time seems to be of the essence ..."

We are not persuaded. Mother's argument confuses immediate appellate review and relevancy. As shown by In re Doe (2016-11) and the cases cited alongside it, such findings can be reviewed by this Court. 160 Idaho at 834, 379 P.3d at 1104. However, those cases also demonstrate that such findings are irrelevant to termination proceedings because reasonable efforts are requirements under the CPA, not Idaho's parental-rights termination statute.

This Court rejected a similar argument in Idaho Department of Health & Welfare v. Doe , 151 Idaho 498, 260 P.3d 1169 (2011). There, the parent argued that due process and the Idaho Code required the Department to make "reasonable efforts at reunification" before terminating parental rights. Id. at 506, 260 P.3d at 1177. The parent argued that the CPA's imposition of "reasonable efforts at reunification" required the Department to give her adequate time to complete the case plan before proceeding to termination. Id. Unpersuaded, this Court observed that "[b]oth the termination statute and the CPA seek to balance aims that are sometimes in conflict-such as the best interests of the child and family unity." Id. However, once the parent stipulated to the purview of the CPA and the court placed the child in the Department's legal custody, the Department was authorized to petition for termination under Idaho Code section 16-1624. Id. Thus, the question relevant to termination was whether the Department could prove the statutory grounds by clear and convincing evidence. Id. Because that question is left to the trial process, the parent's due-process rights were not violated. Id.

Here, the parents stipulated to jurisdiction under the CPA and the court placed the children in the Department's legal custody. Thereafter, the Department had the statutory authority to petition for termination. I.C. § 16-1624(1). Once the Department petitioned to terminate Mother's parental rights, the Department still had to prove the statutory basis for termination by clear and convincing evidence. I.C. § 16-2005. Thus, her due process rights were protected. Accordingly, Mother fails to present a compelling argument for why a lack of immediate appellate recourse for a court's determination of the Department's reasonable efforts impacts her due process rights for termination of parental rights.

Even if this Court were to review Mother's argument, the magistrate court's findings are supported by substantial, competent evidence. Mother's first appellate brief contains only two citations to the record. The first citation refers to the fact that she brought up the Department's efforts in closing arguments. The second citation is a broad gesture to 82 pages of testimony from Mother's addiction-specialist physician which is tacked on to her concluding statement:

By carefully looking at the record before it, this Court should conclude that the Department did not reasonably aid in the reunification of the children by failing to provide adequate treatment for [Mother] and by not allowing [the minor children] to be placed with [Mother's] parent which would have greatly aided [Mother] in her efforts to complete the case plan. (See Tr. pgs. 498-580 (testimony of Dr. Hadlock))

Mother's physician was the sole testimony presented on the March 2018 trial date.

Mother began treatment with the physician in April 2017, a little more than a year after the children were placed in the Department's custody. He criticized some of the provider's handling of Mother's medications and opined that he would have approached Mother's mental health and substance-abuse issues differently. He even went so far to say that some of the medication management tactics might have exacerbated her condition. He opined that this may have made it more difficult for her to complete her case plan.

Even so, Mother does not elaborate how or why this testimony shows that the magistrate court's finding on this issue is not supported by substantial, competent evidence. The physician also revealed that Mother tested positive for methamphetamine in December 2016 and April 2017 as well as "bath salts" in January 2017. Likewise, the physician's belief that Mother had been stable the entire year he had treated her was undercut when he admitted he was unaware of Mother's July 2017 delusions about a judge monitoring her through the television. This occurred at the same time Mother reported that she was not taking her mental health medications as directed. The physician later indicated the medication stoppage was the result of a miscommunication.

"If the trial court's findings of fact are based upon substantial and competent, although conflicting evidence, they should not be disturbed on appeal." Doe I v. Doe , 138 Idaho 893, 906, 71 P.3d 1040, 1053 (2003) (citing Halen v. State , 136 Idaho 829, 832, 41 P.3d 257, 260 (2002) ). Here, substantial, competent evidence supports the court's findings that the Department's efforts were reasonable notwithstanding the physician's testimony. The following finding by the magistrate court is representative of the Department's efforts and its results:

Mother has not provided proof of completion of mental health treatment. Mother was giving [sic] a list of 6 different provides [sic] for mental health services contained in exhibit 8. Mother chose to go to Crosspointe, Mother did not complete her treatment at Crosspointe. Mother changed to Valley Community Counseling in the late summer of 2017 and started with a new mental health counselor, [J.J.]. It was reported Mother was doing better when working with [J.J.]. Mother was better able to stay on task and was not having delusions of being monitored by a Judge through her TV. In December 2017, less than 6 months later, [J.J.] discharged Mother from mental health treatment for noncompliance. After being discharged by [J.J.] Mother notified [E.D], Mother's Department case worker that she, Mother, no longer needed mental health counseling. At the close of the evidence on March 16, 2018 there is no evidence that Mother had obtained new mental health counselling.

Mother's social worker testified about when she questioned Mother concerning her discharge from counseling:

Q. ... And what was the nature of that discussion? What did you tell her about that treatment?
A. That I was informed that she had been discharged from the services due to noncompliance.
Q. And what was her response to that?
A. She appeared confused. She felt that she had done what she was asked of with [J.J.].
Q. And since that time in January, has she notified you that she has obtained another provider for counseling?
A. No. During our conversation, I advised her that it was important to find a new counselor, an agency to go through, and she felt that she does not need any more counseling at this time.

This testimony shows that the court's finding that the Department made reasonable efforts is supported by substantial, competent evidence. Mother's failure to complete the case plan was due, at least in part, to her efforts, not because the Department's efforts were substandard.

As a practical matter, Mother fails to articulate why she failed to bring any of these concerns to the court's attention before closing arguments at the termination trial. Mother correctly recognizes that "[o]nce a child has been placed in the legal custody of the State, the Department must make reasonable efforts to reunify children with their parents if there are no aggravating circumstances."

In Interest of Doe , 164 Idaho 143, 146, 426 P.3d 1243, 1246 (2018). However, Mother overlooks that the court is required to make case-specific findings regarding the Department's reasonable efforts to finalize the permanency goal at both review and permanency hearings. See I.C. § 16-1622(2)(c). Though Mother failed to include the transcript of review hearings in the record, the court minutes reveal that Mother inquired about finding closer testing facilities and stated that the Department's reports don't reflect some of her progress. Without more, Mother has failed to show error on this issue. W. Cmty. Ins. Co. v. Kickers, Inc., 137 Idaho 305, 306, 48 P.3d 634, 635 (2002) ("In the absence of a record that is adequate to review the appellant's claims, we will not presume error below.")

Lastly, in her reply brief, Mother presents a wholly new argument contending that the Department committed a "gross due process violation" by allowing the foster mother to participate in the post-permanency meeting in which the Department decided against guardianship. Mother takes issue that her interests weren't represented at that meeting.

Mother's argument is unpersuasive. First, this argument is not touched upon in her original brief. Shepherd v. Shepherd , 161 Idaho 14, 20, 383 P.3d 693, 699 (2016) ("[T]his Court will not consider arguments raised for the first time in the appellant's reply brief."). Second, Mother does not support this argument with relevant legal authority other than an unsupported reference to due process. Lastly, Mother stipulated to an unstable housing environment as the basis for CPA jurisdiction so she affirmatively assented to the Department's custody over her children. And "[o]nce the Department has legal custody of a child under the CPA, the Department and not the court has the authority to determine where the child should live." Matter of Doe (2017-16) , 163 Idaho at 570, 416 P.3d at 942 (citation omitted).

B. Mother has failed to show that the magistrate court's finding on best interests of the children was not supported by substantial, competent evidence.

To terminate the parent-child relationship, a court must find by clear and convincing evidence that at least one of the statutory bases for termination is present and that termination is in the best interest of the child. Idaho Dep't of Health & Welfare v. Doe , 162 Idaho 266, 269, 396 P.3d 695, 698 (2017) (citing In re Doe (2015-03) , 159 Idaho 192, 196, 358 P.3d 77, 81 (2015) ). Here, Mother challenges the magistrate court's finding that termination is in the children's best interests.

On this issue, Mother simply rehashes her argument regarding the prior issues on appeal instead of challenging the magistrate court's findings on best interests of the children. Mother argues that placing the children in a guardianship with her parents was in their best interests. Mother acknowledges that the children have been in foster care for the duration of the CPA proceedings but argues that the children have a strong bond with her and her parents. She argues that the magistrate court "erred in not ordering the Department to fully and fairly explore the guardianship with the maternal grandparents."

These arguments do not show error in the magistrate court's decision on best interests of the children. A magistrate court's decision on termination of parental rights will not be disturbed so long as it is supported by substantial, competent evidence. See Doe I v. Doe , 138 Idaho 893, 906, 71 P.3d 1040, 1053 (2003). Because Mother does not argue that the court's decision lacked substantial, competent evidence, we decline to presume error on appeal. W. Cmty. Ins. Co. , 137 Idaho at 306, 48 P.3d at 635 ("Error will not be presumed but must be affirmatively shown on the record by appellant.") (citation omitted).

V. CONCLUSION

For the reasons stated above, we affirm the magistrate court's decree terminating Mother's parental rights.

Justices BRODY, BEVAN, STEGNER, and MOELLER concur.

      As set out in her brief, Mother's issues were as follows:
      1. Did the magistrate court err by not addressing in its termination memorandum and, in consequence, deciding that the Idaho Department of Health and Welfare did not violate Jane Doe's due process rights by not allowing her children to be placed with family?
      2. Did the magistrate court err in continually determining during the course of the CPA proceeding that the Idaho Department of Health and Welfare had made reasonable efforts to place the children in the least restrictive environment to them by placing the children in foster care instead of with two able and willing grandparents?
      3. Did the Department of Health and Welfare violate Jane Doe's due process rights by not reasonably and adequately aiding her in her efforts to work the CPA case plan.
      4. Did the magistrate court err in approving adoption as the permanent plan as outlined in the Orders Approving Adoption as the Permanent Plan filed on September 21, 2017, and on June 6, 2017?

      See Bach v. Bagley , 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) ("Regardless of whether an issue is explicitly set forth in the party's brief as one of the issues on appeal, if the issue is only mentioned in passing and not supported by any cogent argument or authority, it cannot be considered by this Court.").


author: STEGNER, Justice.

text:
    Arturo AGUILAR, Claimant-Appellant, v. State of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.
    Docket No. 45581
    Supreme Court of Idaho, Boise, September 2018 Term.
    Filed: March 14, 2019
    Goicoechea Law Offices, Chtd., Boise, for appellant. Daniel J. Luker argued.
    Ludwig Shoufler Miller Johnson, LLP, Boise, for respondent. Daniel A. Miller argued.
   STEGNER, Justice.

Arturo Aguilar (Aguilar) appeals from the Findings of Fact and Conclusions of Law and Order of the Idaho Industrial Commission in which it concluded the Idaho Industrial Special Indemnity Fund (ISIF) was not liable to him for worker's compensation benefits. The Industrial Commission (the Commission) found that Aguilar was totally and permanently disabled and that he had pre-existing impairments that constituted subjective hindrances to his employment. However, the Commission rejected Aguilar's claim that the ISIF was liable for benefits. We vacate and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Aguilar was born in Mexico. Aguilar speaks limited English and testified through a translator at his hearing. He can read Spanish but not English. Aguilar, in the words of the Commission, is "a Mexican National and has resided illegally in the United States since approximately 1986." He completed the fifth grade in Mexico and does not appear to have had any additional schooling. Aguilar is married. The couple has two daughters, the eldest of whom has cerebral palsy and is seriously disabled.

Aguilar primarily worked as a manual laborer, including agricultural work, ranch work, and, for the last fifteen to sixteen years prior to the injury giving rise to this claim, concrete and cement work. During this latter line of employment, Aguilar sustained multiple back injuries. In 1999, Aguilar injured his back in a vehicular accident when the company vehicle in which he was riding was rear-ended. He subsequently filed a worker's compensation claim for the injuries he sustained. In 2002, Aguilar strained his back removing a stuck jackhammer. On December 11, 2006, Aguilar suffered another low back injury while screeding concrete. Following this latter injury, Aguilar was diagnosed with degenerative disc disease and a disc herniation at the L4-5 level of his spine. He was treated with epidural steroid injections and anti-inflammatory medications without significant relief. Because he was unable to get his pain to abate, he underwent back surgery, which was performed by Miers Johnson, III, M.D. The surgery resulted in the fusion of the L4-5 level of Aguilar's spine. (This surgery will be referred to as the L4-5 fusion or first surgery.)

After this first surgery, on July 10, 2008, a Functional Capacity Evaluation (FCE) was performed, and Aguilar was given a light physical demand classification, which restricted him to occasionally lifting seventeen pounds. Although Dr. Johnson had previously imposed various work restrictions, on July 7, 2009, (almost a year following the FCE) he imposed a twenty-pound lifting limitation on Aguilar. This restriction was related to Aguilar's diagnosis of "degeneration of lumbar intervertebral disk." Notwithstanding his medical restrictions, Aguilar testified at the hearing that he could lift and move his disabled daughter, once he recovered from the first surgery.

On August 21, 2008, Aguilar filed a second worker's compensation claim seeking benefits as a result of his injury in 2006 and the resulting surgery. Aguilar alleged he was totally and permanently disabled. On July 22, 2009, Aguilar entered into a Lump Sum Agreement with his two previous employers and the Idaho State Insurance Fund to settle his worker's compensation claims for both the 1999 and 2006 accidents. The lump sum payment compensated Aguilar for "permanent partial lifetime disability." On August 5, 2009, the Industrial Commission approved the Lump Sum Agreement. The Agreement approved by the Commission awarded Aguilar benefits for less than total, permanent disability.

Aguilar claimed that his back felt fine as early as September 25, 2009, notwithstanding his earlier injuries and worker's compensation claims. On April 11, 2010, Aguilar began working part time for Gail Ansley at CA Bull Elk Ranch. Aguilar later took up full-time concrete work for Lowry Excavation and Concrete, Inc. (Lowry Excavation), on June 3, 2010.

On December 9, 2010, Aguilar hurt his lower back working at CA Bull Elk Ranch when he tripped and fell backwards while attempting to move a 55-gallon barrel. As a result, Aguilar was diagnosed as having sustained a "[l]umbar strain with sacral contusion." After conservative treatment, Brian Johns, M.D., discharged Aguilar on January 20, 2011, at "maximum medical improvement." Dr. Johns did not anticipate any permanent impairment, and removed a thirty-pound lifting restriction. Aguilar testified that he could still lift and move his disabled daughter after this injury. As a result of this injury in 2010, Aguilar filed a worker's compensation claim.

Aguilar hurt his lower back once again on October 3, 2011, while working for Lowry Excavation when he tried to lift a lodged jackhammer. (The injury of October 3, 2011, will be referred to as the second or subsequent injury.) Aguilar testified that the jackhammer weighed between eighty and ninety pounds. At the time of the injury, Aguilar experienced pain down both legs and into his feet.

Following physical therapy and other conservative treatment that did not resolve Aguilar's pain, he underwent an MRI. In analyzing that study, Cameron Evans, M.D., stated that "[t]here is multilevel degenerative disk disease throughout the lumbar spine, worst at the L3-L4 level, above the fused segment." On January 25, 2012, Aguilar underwent an epidural steroid injection at L3-4 without significant relief. Consequently, on February 13, 2012, Samuel Jorgenson, M.D., "recommended surgical intervention in terms of an L3-L4 laminectomy, discectomy, and fusion." He also wrote "[t]he fusion is required since it is adjacent to an existing fusion and as a consequence of the expected increase stress at the L3-L4 level."

After the recommendation for surgery, the Idaho State Insurance Fund, Lowry Excavation's surety, sought a second opinion from David B. Verst, M.D. Following that independent medical exam, Dr. Verst recommended surgery but suggested that the 2011 jackhammer incident was not the reason Aguilar needed a second surgery.

Dr. Jorgenson disagreed with Dr. Verst's opinion that the second injury was not the cause of Aguilar's need for a second surgery. In spite of their initial disagreement, both doctors ultimately agreed that an underlying condition had been aggravated by the second injury and that compensable surgery was appropriate. Dr. Verst wrote "that the injury that occurred on 10/03/11 aggravated an underlying advanced degenerative condition." Dr. Jorgenson stated that Aguilar's "symptoms are best categorized [as] an aggravation of an existing pathology at the L3-L4 level."

On May 4, 2012, Aguilar filed his original worker's compensation complaint against Lowry Excavation and the State Insurance Fund. Shortly thereafter, on May 15, 2012, Dr. Jorgenson performed surgery on Aguilar. Dr. Jorgenson removed the implant at L4-5 and replaced it with a posterior lumbar interbody fusion and PEEK interbody cage, as well as pedicle screw instrumentations at L3, L4, and L5. (This surgery will be referred to as the second or subsequent surgery.) Following the second surgery, Aguilar continued to experience back and leg pain. Due to Aguilar's ongoing pain, multiple diagnostic images were taken and a CT myelogram of the lumbar spine was performed on November 19, 2012. That study found "mild to moderate degenerative changes" at the L2-3 level, adjacent to the extended fusion. The final impression noted in that study was "postoperative and degenerative change of the lumbar spine" and L2-3 degenerative change. Aguilar also completed post-operative physical therapy and had epidural steroid injections with minimal to no improvement in his symptoms.

Aguilar was next involved in a car accident in December of 2012, and again saw Dr. Jorgenson due to increased back pain. Dr. Jorgenson, R. Tyler Frizzell, M.D., and Nancy Greenwald, M.D., all agreed that the car accident was not a substantial factor in Aguilar's symptoms and that his ongoing symptoms were a result of the second injury. In contrast, Kenneth Little, M.D., found that Aguilar's "aggravated back pain and new left leg radicular symptoms radiating into his calf" were due to the car accident. However, he also concluded Aguilar's "residual back pain and his left anterior thigh parathesis (without motor deficits) [we]re directly related to the October 3, 2011, industrial injury ...."

On July 12, 2013, Dr. Jorgenson wrote, "Mr. Aguilar is currently not working as a consequence of his ongoing symptoms. At this time, he is limited to light duty capacity only with alteration [sic] between standing and sitting with no significant bending, lifting, or twisting." In 2013, almost a year after the second surgery, Aguilar began attempting new lines of work. He tried three different jobs (landscaping, janitorial, and truck driving) but could not last more than a few hours at any of them. Aguilar testified that following the second injury he could no longer lift or move his daughter.

On January 17, 2014, Aguilar filed another worker's compensation claim, adding the ISIF as a defendant to his claims against Lowry Excavation and the State Insurance Fund. On July 22, 2015, the Commission held a hearing regarding Aguilar's claims against Lowry, the State Insurance Fund, and the ISIF. Aguilar was the only witness who testified.

On October 19, 2015, Aguilar, Lowry Excavation, Gail Ansley (Aguilar's employer at CA Bull Elk Ranch), and the State Insurance Fund filed a Lump Sum Agreement to settle Aguilar's claims for his 2010 and 2011 industrial accidents. The ISIF was not a party to that agreement. On that same day, the Commission approved the Lump Sum Agreement and dismissed Aguilar's claims against all parties except the ISIF. Aguilar's claim against the ISIF continued with the taking of two post-hearing depositions of rehabilitation specialists, Delyn Porter, M.A., and John Janzen, Ed.D. Following the depositions, the parties submitted post-hearing briefs. On October 13, 2017, the Commission issued its Findings of Fact, Conclusions of Law and Order (Commission's Order). In it, the Commission rejected Aguilar's claim against the ISIF.

In denying Aguilar's claim, the Commission drew a number of conclusions related to Aguilar's pre-existing impairments. First, the Commission found that Aguilar was totally and permanently disabled as of the hearing, as an "odd-lot" worker. The Commission also found that Aguilar had a number of pre-existing impairments that were manifest as of the injury of October 3, 2011. Those pre-existing impairments and their corresponding impairment ratings were as follows: lower back issues, 19%; hypertension, 17%; right eye deficit, 15%; depression, 5%; and diabetes, 10%. The Commission further found that Aguilar's hypertension, right eye deficit, and lower back issues were all subjective hindrances to his employability prior to the injury of October 3, 2011. Aguilar's depression and diabetes were not considered to be subjective hindrances to his employment. Additionally, the Commission determined that the hypertension and right eye deficit were "vocationally irrelevant in view of [the] conclusion that [Aguilar's] low back limitations restrict him from all the jobs for which he is otherwise suited." Ultimately, the Commission found that Aguilar was rendered "totally and permanently disabled by virtue of his low back condition alone ...."

Finally, the Commission found that Aguilar's pre- and post-injury limitations had not changed, effectively deciding Aguilar was totally and permanently disabled prior to his second injury. The Commission also concluded Aguilar had failed to prove his pre-existing impairments combined with his subsequent injury to cause his total and permanent disability; therefore, the ISIF was not liable for any compensation and all other issues were moot. Aguilar filed a timely appeal of the Commission's Order.

II. QUESTIONS ON APPEAL

1. Did the Commission apply the correct legal standard when it concluded Aguilar's limitations and restrictions did not materially change following his second injury?
2. Did the Commission apply the correct legal standard to analyze the "but for" causation test as set out in Idaho Code section 72-332 ?
3. Is either party entitled to attorney's fees on appeal?

III. STANDARD OF REVIEW

"When reviewing a decision by the Industrial Commission, this Court exercises free review over the Commission's conclusions of law, but will not disturb the Commission's factual findings if they are supported by substantial and competent evidence." Green v. Green , 160 Idaho 275, 280, 371 P.3d 329, 334 (2016) (citing Knowlton v. Wood River Med. Ctr. , 151 Idaho 135, 140, 254 P.3d 36, 41 (2011) ).

Substantial and competent evidence is relevant evidence that a reasonable mind may accept to support a conclusion. Substantial and competent evidence is more than a scintilla of evidence, but less than a preponderance. [This Court] will not disturb the Commission's conclusions on the weight and credibility of the evidence unless those conclusions are clearly erroneous.

Hope v. Indus. Special Indem. Fund , 157 Idaho 567, 570-71, 338 P.3d 546, 549-50 (2014) (citations omitted).

This Court freely reviews the Commission's interpretation of the workers' compensation statutes. Id. at 571, 338 P.3d at 550 (citing Brown v. Home Depot , 152 Idaho 605, 607, 272 P.3d 577, 579 (2012) ). "The provisions of workers' compensation laws are to be liberally construed in favor of the [employee], as the humane purposes they seek to serve leave no room for narrow, technical construction." Fowble v. Snoline Exp., Inc. , 146 Idaho 70, 74, 190 P.3d 889, 893 (2008) (citing Kinney v. Tupperware Co., 117 Idaho 765, 769, 792 P.2d 330, 334 (1990) ).

"This Court reverses the Commission's decisions when the findings of fact do not as a matter of law support the order." Id. (citing I.C. § 72-732(4) ). "All facts and inferences are viewed in the light most favorable to the party who prevailed before the Commission." Corgatelli v. Steel W., Inc. , 157 Idaho 287, 290, 335 P.3d 1150, 1153 (2014) (citing Zapata v. J. R. Simplot Co. , 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999) ).

If the Commission acts "beyond the bounds of its statutory authority the Commission has acted arbitrarily and capriciously and has manifestly abused its discretion." Curr v. Curr , 124 Idaho 686, 691, 864 P.2d 132, 137 (1993).

IV. ANALYSIS

The ultimate issue in this appeal is whether the Commission erred in deciding the ISIF is not liable to Aguilar under Idaho Code section 72-332(1). That code section reads as follows:

If an employee who has a permanent physical impairment from any cause or origin, incurs a subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the pre-existing impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the preexisting impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, ... and the injured employee shall be compensated for the remainder of his income benefits out of the industrial special indemnity account [fund] [sic].

In order for the ISIF to be liable to an injured worker, the claimant must prove that he is totally and permanently disabled and that he suffered from a previous impairment that was "manifest." See Hope, 157 Idaho at 571, 338 P.3d at 550. A claimant can establish total, permanent disability by showing "his or her medical impairment together with the nonmedical factors total 100%" disability, or by showing that he or she "fits within the definition of an odd-lot worker." Boley v. State, Indus. Special Indem. Fund, 130 Idaho 278, 281, 939 P.2d 854, 857 (1997). "An odd-lot worker is one who, as a result of the injury, is impaired to an extent that his or her ability to perform services is so limited in quality, quantity, or dependability that no reasonable market for his or her services exists." Lethrud v. State, Indus. Special Indem. Fund, 126 Idaho 560, 563, 887 P.2d 1067, 1070 (1995) (quoting Ragan v. Kenaston Corp., 126 Idaho 152, 155, 879 P.2d 1085, 1088 (1994) ). In its decision, the Commission found that Aguilar was totally and permanently disabled as a result of his falling within the "odd-lot" category. In addition, the Commission concluded Aguilar was totally and permanently disabled as an odd-lot worker before his second injury.

A. The Commission found Aguilar's limitations and restrictions had not materially changed following the second injury. Having drawn that conclusion, the Commission failed to apply the correct legal test in analyzing the ISIF's liability.

Aguilar claims the Commission implicitly found him totally and permanently disabled as a result of his first injury in 2006 and prior to his second injury in 2011. Aguilar contends the Commission's reliance on this finding to reject ISIF liability was also erroneous.

As noted, the Commission explicitly found Aguilar totally and permanently disabled "under the odd lot doctrine as of the date of the hearing." However, the Commission also concluded that: (1) "prior to October 3, 2011[,] [Aguilar] was already restricted to light duty [work] because of his pre-existing low back condition[,] ... notwithstanding the fact that by June of 2010 [Aguilar] had returned to physically demanding concrete work[;]" (2) Aguilar's "low back limitations/restrictions did not materially change following the 2011 accident[;]" and (3) Aguilar "is totally and permanently disabled by virtue of his low back condition alone, ... as those conditions existed as of October 3, 2011."

The Commission also found:

With respect to the pre-existing low back condition[,] Dr. Janzen testified that Claimant is not any worse off than he was before the subject incident. In other words, a comparison of the restrictions/limitations applicable to Claimant on a pre-injury basis with those applicable to Claimant as of the date of hearing reveals no significant difference. Claimant's low back condition was just as limiting to Claimant on the date of hearing as it was prior to the October 3, 2011, accident.

The Commission thus determined Aguilar to be restricted to light duty work both before and after his second injury. The Commission found Aguilar to be totally and permanently disabled as a result of his light duty work restriction because his "limited English language skills[,]" minimal education, and lack of "training or transferable job skills" precluded him from "sedentary and light duty employment." A fair reading of the Commission's decision confirms that the Commission implicitly found Aguilar to be totally and permanently disabled before his second injury, as his work restrictions, lack of English skills, limited education, and lack of transferable work skills all pre-dated the second injury.

The Commission may find an employee totally disabled before a second injury. The effect of doing so may absolve the ISIF of liability. See Fowble , 146 Idaho at 75, 190 P.3d at 894. However, before the ISIF can avoid liability in this way, the Commission must apply the proper legal test. The Commission failed to apply that test here. The applicable test is set out in Bybee v. State, Indus. Special Indem. Fund, 129 Idaho 76, 82, 921 P.2d 1200, 1206 (1996). To the extent the Commission implicitly found Aguilar to be totally and permanently disabled prior to his second injury (and it appears that it did), and then failed to apply the appropriate test, it erred as a matter of law.

The test to be applied under the Commission's ruling is as follows:

In all cases in which a claimant seeks to establish ISIF liability, I.C. § 72-332(1) places the initial burden on that party to establish that the pre-existing impairment and the subsequent injuries in some way combined to result in total permanent disability ... [T]his requirement is not met if the total permanent disability pre-dates the [subsequent] industrial injury. Therefore, the claimant in this type of case must presumptively establish that she is not an odd-lot worker, ie. [sic] that regular and continuous employment is available to her. A claimant will be able to do this simply by showing that she was working regularly at a job at the time of injury.
Once the claimant makes her initial showing, the ISIF must establish that she was in fact an odd-lot worker even though employed at that time. To do so, it must show that the claimant's actual employment was due to "a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on [her] part."

Bybee, 129 Idaho at 82, 921 P.2d at 1206 (citations omitted).

Here, the record shows that Aguilar met his initial burden because it was undisputed that he was working regularly at two rigorous jobs before his second injury. Once that showing was made, the burden then shifted to the ISIF to show Aguilar was an odd-lot worker before his second injury. The Commission makes no mention of and apparently did not recognize the burden had shifted to the ISIF as Bybee requires. As a result, any finding by the Commission that Aguilar was rendered totally and permanently disabled prior to the second injury was in error. The decision of the Commission must therefore be vacated and remanded. In the event that the ISIF cannot carry its burden under Bybee , Aguilar would still need to prove ISIF's liability by showing the elements of section 72-332. See Fowble , 146 Idaho at 75, 77, 190 P.3d at 894, 896.

B. The Commission also erred by failing to apply the disjunctive test for causation as set out in Idaho Code section 72-332.

According to the Commission's decision, once total and permanent disability has been established, the employee must prove the following four elements to impose liability on the ISIF: (1) the claimant suffered from a pre-existing impairment; (2) the pre-existing impairment was manifest; (3) the pre-existing impairment was a subjective hindrance to employment; and (4) the pre-existing impairment "combined with the impairment referable to the [second] industrial accident to render [an employee] totally and permanently disabled." The Commission cited Dumaw v. J.L. Norton Logging , 118 Idaho 150, 155, 795 P.2d 312, 317 (1990) for the articulation of this test. The Commission found that the fourth element had not been established, and concluded that the "Claimant has failed to prove that but for his pre-existing impairments he would not be totally and permanently disabled." Aguilar contends this conclusion of the Commission did not apply the appropriate legal test, because the fourth element set out in Dumaw is incomplete and therefore incorrect. Aguilar is correct that the Commission's reliance on that case was legally flawed. As a result of the Commission's use of an incomplete test, it erred as a matter of law.

While the Commission correctly identified the "but for" test as being applicable, the operative statute, Idaho Code section 72-332, establishes two alternative ways in which causation may be established. Sines v. Appel , 103 Idaho 9, 14, 644 P.2d 331, 336 (1982). The statute states in relevant part:

(1) If an employee who has a permanent physical impairment from any cause or origin, incurs a subsequent disability by an injury ... arising out of and in the course of his employment, and by reason of the combined effects of both the pre-existing impairment and the subsequent injury ... or by reason of the aggravation and acceleration of the pre-existing impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease ....

I.C. § 72-332 (1) (emphasis added).

The Commission's decision only dealt with one method of proving the ISIF's liability. Because there is medical testimony in this record to support Aguilar's claim under the second (and ignored) method of proof, the Commission erred as a matter of law. One method of proving the ISIF's liability involves the combined effects test (the one used by the Commission); the other focuses on the aggravation and acceleration of a pre-existing impairment as a result of the second industrial accident.

[ Idaho Code section 72-332(1) ] is phrased in the disjunctive, and not in the conjunctive. If either condition exists, i.e., total permanent disability occasioned by the combined effects of both the preexisting impairment and the subsequent injury, or if the facts disclose aggravation and acceleration of the preexisting impairment by the industrial accident, then the liability of the I.S.I.F. arises.

Sines , 103 Idaho at 14, 644 P.2d at 336 (italics added).

The "but for" test "encompasses both the combination scenario where each element contributes to the total disability, and the case where the subsequent injury accelerates the preexisting impairment." Bybee, 129 Idaho at 81, 921 P.2d at 1205. Although Idaho Code section 72-332 specifically includes the means of proving liability of the ISIF when the subsequent injury "aggravates and accelerates the pre-existing impairment," recent cases applying the test (including Dumaw , which was relied on by the Commission) have inexplicably omitted this alternative method of proof. See, e.g., Green, 160 Idaho at 285, 371 P.3d at 339 ; Hope, 157 Idaho at 571-74, 338 P.3d at 550-553 ; Corgatelli, 157 Idaho at 296-98, 335 P.3d at 1159-61.

Accordingly, we take this opportunity to recognize and correct the incomplete articulation of the fourth element of this test set out in Dumaw , Green , Hope , and Corgatelli . To the extent that those cases do not include a basis for ISIF liability due to the aggravation and acceleration of the pre-existing impairment, those articulations of the four part test are incomplete.

In order to be a correct statement of the law, the fourth element of the test must expressly include both the "combined effects" test as well as the "aggravates and accelerates" test. Thus, the elements a claimant must prove to establish the ISIF's liability are correctly stated as follows: (1) the claimant suffered from a pre-existing impairment; (2) the pre-existing impairment was manifest; (3) the pre-existing impairment was a subjective hindrance to employment; and (4) the combined effects of the pre-existing impairment and the subsequent injury or occupational disease resulted in total and permanent disability; or the subsequent injury or occupational disease aggravated and accelerated the pre-existing impairment to cause total and permanent disability. I.C. § 72-332. The pre-existing physical impairment may arise "from any cause or origin." Id.

Aguilar argues that the Commission failed to apply both prongs of the disjunctive test set out in Idaho Code section 72-332(1) for determination of ISIF liability. In this regard, Aguilar is correct. The Commission's failure to apply the appropriate test is a sufficient basis to vacate the Commission's decision, to remand the case to the Commission, and to require it to apply the correct legal test. See Sines , 103 Idaho at 14, 644 P.2d at 336.

C. Neither party is entitled to an award of attorney's fees.

The ISIF contends it is entitled to attorney's fees as a sanction against Aguilar based on Idaho Appellate Rule 11.2. Under Rule 11.2, attorney's fees may be awarded as a sanction if a party files a frivolous appeal or files an appeal for an improper purpose. Andrews v. State, Indus. Special Indem. Fund , 162 Idaho 156, 160, 395 P.3d 375, 379 (2017) (quoting Akers v. Mortensen , 160 Idaho 286, 289, 371 P.3d 340, 343 (2016) ). Because Aguilar has succeeded on appeal, his appeal was obviously not frivolous and the ISIF is not entitled to attorney's fees under Rule 11.2.

Aguilar argued for the first time in his reply brief a claim to attorney's fees on appeal. Notably, Aguilar did not identify attorney's fees as an issue in his initial brief. Rule 41(a) of the Idaho Appellate Rules requires that a claim for entitlement to attorney's fees be included in a party's initial brief. The reason for the Rule is to put the opposing party on notice that a response is necessitated. If a claim is not included in the initial brief, the opposing party will not have an opportunity to respond to it. However, this Court may "permit a later claim for attorney fees under such conditions as it deems appropriate." I.R.A. 41(a). We are unpersuaded that any conditions exist that warrant deviation from the general provisions of this Rule. Because Aguilar's request for attorney's fees did not comply with the applicable rule, and no extenuating conditions exist, his request is denied.

V. CONCLUSION

Because the Commission implicitly found Aguilar totally and permanently disabled prior to the second injury, and it was uncontested that Aguilar was working regularly at two different jobs at the time of the second injury, the Commission failed to appropriately shift the burden of proof to the ISIF. In addition, the Commission erred by failing to analyze both prongs of the disjunctive test as required by Idaho Code section 72-332(1). As a result of these two errors, the order set out in the Commission's decision is vacated. The case is remanded for further proceedings consistent with this opinion. No attorney's fees are awarded on appeal. Costs are awarded to Aguilar.

Chief Justice BURDICK, Justices HORTON, BRODY, and BEVAN concur.

      The relevance of his daughter's disability is that prior to Aguilar's injury of October 3, 2011, he was capable of lifting and carrying his daughter who weighs between 105 and 110 pounds. Since the injury of October 3, 2011, he claims he has been unable to lift or carry his daughter.

      Screeding concrete is the process of flattening and smoothing wet concrete.

      The State Insurance Fund insured both employers.

      The State Insurance Fund was the surety for both Gail Ansley and Lowry Excavation.

      At the conclusion of its Order, the Commission stated that Aguilar's "impairment for diabetes, hypertension and right eye vision loss did constitute subjective hindrance[s] to [Aguilar's] employment as of the date of the October 3, 2011 industrial accident." (Emphasis added.) This conclusion appears to be contradicted because the Commission's previous findings state that Aguilar's diabetes was not a subjective hindrance to his employment.

      The Commission originally identified the following issues as being presented, but ultimately determined they were rendered moot as a result of its final decision: (1) how disability should be apportioned if ISIF is found liable; (2) whether Aguilar is barred from recovering permanent disability benefits due to his alienage; (3) whether Aguilar has a remedy outside of Title 72, Idaho Code if he does not recover; and (4) whether Aguilar engaged in injurious practices that may reduce benefits under Idaho Code section 72-435.