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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 32972
JOHN DOE,                                                                                           )
                                                                                                    )   Boise, May 2007 Term
Appellant,                                                                                          )
                                                                                                    )   2007 Opinion No. 80
v.                                                                                                  )
                                                                                                    )   Filed: May 23, 2007
STATE OF IDAHO, DEPARTMENT OF                                                                       )
HEALTH AND WELFARE,                                                                                 )   Stephen W. Kenyon, Clerk
)
Respondent.                                                                                         )
)
Appeal from the District Court of the Third Judicial District of the State of Idaho,
in and for Canyon County.   The Hon. James C. Morfitt, District Judge; Hon.
Gregory F. Frates, Magistrate Judge.
The judgment of the magistrate court is affirmed.
Canyon County Public Defender, Caldwell, for appellant.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.
EISMANN, Justice.
This is an appeal from an order terminating Appellant’s parental rights in his five
children.  We affirm.
I.  FACTS AND PROCEDURAL HISTORY
On August 23, 2002, the Idaho Department of Health and Welfare (Department) filed a
petition under the Child Protective Act, I.C. §§ 16-1601 et seq., seeking custody of John and
Jane Does’ five children whose ages ranged from one through seven.   After an evidentiary
hearing, the magistrate judge found that the children had been subjected to chronic abuse and
neglect and that they were within the purview of the Child Protective Act.  The abuse and neglect
included:   putting duct tape over the children’s mouths to keep them from crying; spanking the
children to the point that it would leave welts; locking the children in their room for extended




periods of time without food or access to a bathroom; locking the children in a closet; failing to
provide the children with adequate food; depriving one child of medical care for a deep cut until
the cut became infected; and failing to have any interaction with the children.  John Doe also did
not develop a relationship with his children.   Typically, he would arrive home from work, fix
himself something to eat, and then spend the rest of the evening in the computer room with the
door locked to keep his children out.   On May 29, 2003, the magistrate judge entered a decree
vesting custody of the children in the Department.  Both parents timely appealed.
On July 16, 2003, the Department filed a petition under the statutes providing for the
termination of the parent and child relationship, I.C. §§ 16-2001 et seq., seeking to terminate the
parental rights of John and Jane Doe in their children.   The district court therefore stayed the
appeal of the judgment entered under the Child Protective Act and remanded the case to the
magistrate judge to resolve the petition to terminate John and Jane Does’ parental rights.
After a hearing, the magistrate judge on January  12,  2004, issued findings of fact,
conclusions of law, and a decree terminating John and Jane Does’ rights in their children.   The
magistrate found:                                                                                     (1) that both parents had abused and neglected the children; (2) that because
of mental illness both parents were unable to discharge their parental responsibilities and there
was reason to believe such conditions would continue for a prolonged indeterminate time and
would be injurious to the children; (3) that termination would be in the best interests of both
parents because of their personality disorders and the lack of any likelihood that they could be
rehabilitated sufficiently to care for their children; (4) that termination would be in the best
interests of the children because of their need for permanency; and (5) that the Department had
taken reasonable efforts to prevent or eliminate the need to remove the children from their
parental home, but continuation in that home would be contrary to the children’s welfare.   Both
parents timely appealed.
The district court first considered the appeal of the decree terminating John and Jane
Does’ parental rights.   It addressed and rejected the mother’s argument that the magistrate court
lacked jurisdiction in the termination proceedings because the children had been placed out of
state by the Department; the mother’s argument that the magistrate judge improperly limited her
cross-examination of a witness; and both parents’ argument that the magistrate judge erred in the
termination proceedings by taking judicial notice of the Child Protective Act proceedings.   The
district court did find that it was unclear whether the magistrate judge had applied the proper
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evidentiary  standard—clear  and  convincing  evidence—in  the  termination  proceeding.    It
therefore remanded the case to the magistrate to clarify that matter.
On March 1, 2005, the magistrate judge issued amended findings of fact, conclusions of
law, and a decree, clarifying that the Department had proven the grounds for termination by clear
and convincing evidence.  John Doe then timely appealed.
On the second appeal to the district court, John Doe alleged that the words “aggravated
circumstances” in Idaho Code § 16-1619(b)(d) are unconstitutionally vague; that the magistrate
judge’s finding of “chronic abuse” as an aggravating circumstance in the Child Protective Act
proceedings was not supported by substantial and competent evidence; and that if the finding of
aggravating circumstances was erroneous, the Department was premature in filing a petition
seeking termination of John Doe’s parental rights.   The district court rejected those arguments
and affirmed the decree terminating John Doe’s parental rights.   John Doe then timely appealed
to this Court.
II.  ANALYSIS
John Doe appeals the decree terminating his parental rights.   The sole issue he raises on
appeal is whether there is substantial and competent evidence to support the magistrate judge’s
finding of “chronic abuse.”   That finding was made in the Child Protective Act proceedings, not
in  the  termination  proceedings.The  finding  of  chronic  abuse  constituted  an                    “aggravated
circumstance” that relieved the Department of any requirement to make reasonable efforts to
prevent placement of the children in foster care.   I.C. § 16-1619(6) (2003 version).   It also
relieved the Department of the need to prepare a case plan setting forth the reasonable efforts that
would be made to reunify the family in a timely manner.   I.C. § 16-1610 (2003 version).   In a
proceeding under the Child Protective Act, the definition of “abuse” includes a situation in which
a child has been the victim of “failure to thrive.”   I.C. § 16-1602(1).   John Doe’s youngest child
was diagnosed with failure to thrive.   He had been deprived of adequate food for a long enough
period of time that he was seriously malnourished and grossly underweight.
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John Doe argues that such long-term food deprivation is abuse, just not chronic abuse.1
Chronic simply means “suffering from a disease or ailment of long duration.”   Webster’s Third
New International Dictionary of the English Language 402 (Philip Babcock Gove and Merriam-
Webster editorial staff eds., G. & C. Merriam Webster Co. 1971).   The child was about eleven
months of age when examined by a pediatrician.   The child had been deprived of food for a
sufficiently long period of time that his height and weight were well below the third percentile,
he had muscle wasting and was very weak, he lacked subcutaneous tissue, and his abdomen was
protruding.   The pediatrician testified that if you stopped feeding a healthy child, it would take
about five months for the child to be in that condition.   He also stated that if left unchecked, the
condition would likely have led to great bodily harm or death.  The evidence clearly supports the
finding that John Doe subjected his youngest child to chronic abuse.
When the petition to terminate John Doe’s parental rights was filed in this case, Idaho
Code § 16-2005(b) (2003 version) provided that the court could terminate parental rights if it
found “[t]he parent has neglected or abused the child.”   The word “neglect” in that context was
defined to mean “a situation in which the child lacks parental care necessary for his health,
morals, and well-being.”   Id.   The magistrate judge found in the termination proceedings that the
children had been abused or neglected, and John Doe does not challenge that finding.
III.  CONCLUSION
The judgment of the magistrate judge is affirmed.
Chief Justice SCHROEDER, and Justices TROUT, BURDICK and JONES CONCUR.
1 By addressing the alleged error in the Child Protective Act proceedings, we are not expressing any opinion as to
whether an error in those proceedings would justify setting aside a later judgment terminating parental rights where
the evidence supported such termination.
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