In the Matter of the Termination of Parental Rights of Jane Doe. IDAHO DEPARTMENT OF HEALTH & WELFARE, Petitioner-Respondent, v. Jane DOE, Respondent-Appellant, 149 Idaho 59

LANSING, Chief Judge. Jane Doe appeals from the magistrate court’s decision terminating her parental rights due to neglect of her child. Doe argues that the magistrate’s decision was not supported by substantial and competent evidence. We affirm. I. BACKGROUND Doe gave birth to a son, J.M., on August 11, 2008. About two months later, on October 29, 2008, Doe was arrested and charged with felony possession of methamphetamine with intent to deliver. J.M. was in the car with Doe, where numerous drugs were found, when Doe was arrested.

J.M. was left in the care of Doe’s relatives until Doe was released on bond in early December 2008, at which time she resumed custody of J.M. At the request of the Idaho Department of Health and Welfare (the Department), a detective in the Ada County Sheriffs Office met with Doe on December 11, 2008, to determine the circumstances of J.M.’s care.

At that meeting, the detective declared J.M. in imminent danger because Doe had no permanent residence and was staying with a known methamphetamine trafficker, appeared to be continuing her lifestyle of methamphetamine use, and did not have a vehicle to transport J.M. in an emergency. J.M. was thereupon removed from Doe’s custody and placed in foster care. On December 31, 2008, the magistrate court entered an order giving the Department temporary custody of J.M., effective retroactively to December 11, 2008.

On January 7, 2009, Doe stipulated to a finding of neglect and to placing J.M. in the legal custody of the Department for an indeterminate period. A case plan setting out tasks for Doe to complete in order to be reunified with J.M. was approved by the court on February 4, 2009. On February 18, 2009, Doe was convicted and placed on probation for the October 29, 2008, drug charge. However, Doe was incarcerated on March 12, March 17 to March 30, and May 11 to June 9, 2009, for probation violations — including repeatedly testing positive for methamphetamine, not obtaining employment, and not obtaining stable housing.

These violations ultimately led to the revocation of Doe’s probation in June, and she was incarcerated on a “rider.” On May 11, the Department filed a “six-month” review of the progress toward reunification of J.M. and Doe. In this review, the Department recommended a “concurrent plan of termination and adoption as the primary plan with reunification secondary to termination.” The recommended plan called for J.M. to be “placed in another permanent setting by December 2009 or returned to [Doe].” The Department then filed a petition to terminate Doe’s parental rights on August 26, 2009.

Following a trial, the magistrate court ordered termination on the grounds that Doe had neglected J.M. and that termination was in J.M.’s best interest.

Doe appeals, arguing that the magistrate court lacked substantial and competent evidence to support its conclusion that Doe’s parental rights should be terminated because the court “ignored critical facts.” Specifically, Doe contends that because three witnesses testified at her termination trial that she may have the ability to parent once she has demonstrated a twelve to eighteen-month period of sobriety, because she has a strong bond with J.M., because she visited J.M., because she has worked hard to complete her case plan to make reunification a possibility, and because she has done well in her rider program prompted by her desire to reunify with J.M., the magistrate court erred in ordering termination of her parental rights.

II. ANALYSIS A. Timeliness of Appeal We must first address an argument by the Department that Doe’s appeal should be dismissed because it was not timely filed. This appeal was taken directly from the magistrate division to the Idaho Supreme Court, bypassing an intermediate appeal to the district court. This expedited process for appeals from orders terminating parental rights is authorized by Idaho Appellate Rule 11.1.

Appellate Rule 12.2 specifies that such an expedited appeal must be initiated by filing a notice of appeal with the clerk of the district court “within fourteen (14) days from the date of issuance of the order.” The Department argues that Doe’s appeal did not comply with this time limit.

Following the trial in this matter the magistrate issued a November 18, 2009, “Order Terminating Parental Rights of [Doe]” in which the court made extensive and detailed findings of fact and conclusions of law ultimately determining that J.M. had been neglected and that termination of Doe’s parental rights was in J.M.’s best interest.

This decision said, “The parental rights of [Doe] as to [J.M.] are terminated,” but also directed the Department to “prepare an order consistent with this opinion.” The court subsequently issued a “Findings of Fact, Conclusions of Law, and Decree as to the Mother” on December 1, 2009, ordering termination of the parent-child relationship between Doe and J.M. Doe filed a notice of appeal on December 11, 2009.

The Department asserts that Doe’s appeal was not timely because the fourteen-day period for Doe’s appeal began to run from the November 18, 2009, decision, not the subsequent “Findings of Fact, Conclusions of Law and Decree as to Mother” filed on December 1, 2009. A civil judgment, order, or decree generally must be final to be appealable as of right. I.A.R. 11(a)(1); Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 866-67, 55 P.3d 304, 320-21 (2002).

A final judgment is an order or judgment that ends the lawsuit, adjudicates the subject matter of the controversy, and represents a final determination of the rights of the parties. Camp, 137 Idaho at 867, 55 P.3d at 321; Watson v. Watson, 144 Idaho 214, 217, 159 P.3d 851, 854 (2007). In order to avoid confusion about what written ruling may constitute a court’s final judgment, Idaho Rule of Civil Procedure 58(

a) requires that “[e]very judgment shall be set forth on a separate document.” Thus, a judgment differs from the findings of fact and conclusions of law that must be rendered by a trial court at the conclusion of a court trial pursuant to I.R.C.P. 52(a). In addressing the distinction between an order for

summary judgment and a final “appeal-able judgment,” our Supreme Court recently said, “The judgment must be a separate document that does not contain the trial court’s legal reasoning or analysis,” and “merely typing ‘It is so ordered’ at the end of the memorandum decision does not constitute a judgment.” Spokane Structures, Inc. v. Equitable Inv., LLC, 148 Idaho 616, 226 P.3d 1263 (Jan. 28, 2010). The Court added, “Obviously, the judgment that the court is to sign must be a document that is separate from the jury’s verdict or the court’s decision.” Id.

Whether a judgment, order, or decree is appealable is determined by its content and substance, not its title. Camp, 137 Idaho at 867, 55 P.3d at 321; Watson, 144 Idaho at 217, 159 P.3d at 854. In the present case, the magistrate’s November 18, 2009, decision clearly was not a final judgment set forth on a “separate document.” It was, instead, a twenty-seven-page expression of the magistrate’s findings of fact and conclusions of law and an announcement of the court’s decision to grant the Department’s petition.

Despite its title, this “Order Terminating Parental Rights of [Doe]” did not purport to be the court’s final determination, for the order itself concluded with an instruction that “the Petitioner is directed to prepare an order consistent with this opinion.” A document separate from this expression of the court’s findings and conclusions was both specifically contemplated by the court and necessary for compliance with I.R.C.P. 58(b).

The result of the district court’s directive to the Department to prepare a final order was the December 1, 2009, document drafted by the Department and presented to the magistrate for signature. It declares the rights of the respective parties with finality and constitutes the final judgment from which the time for Doe’s appeal began to run. As Doe’s appeal was filed within fourteen days of that judgment, her appeal is timely. B.

The Magistrate Court’s Decision to Terminate Doe’s Parental Rights is Supported by Clear and Convincing Evidence We next consider Doe’s argument that the magistrate court’s findings and its conclusion that Doe’s parental rights should be terminated are not supported by the trial evidence. A parent’s interest in maintaining a relationship with his or her child is a fundamental liberty interest, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554-55, 54 L.Ed.2d 511, 519-20 (1978); State v.

Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341, 343 (2002). Consequently, a judicial decision to terminate a parent-child relationship must be supported by clear and convincing evidence. In re Doe, 143 Idaho 343, 345, 144 P.3d 597, 599 (2006); Doe, 137 Idaho at 760, 53 P.3d at 343. On review, this Court will uphold the trial court’s findings if they were based on substantial and competent evidence. Id. Substantial and competent evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion,” even if the evidence is conflicting.

In re Doe, 143 Idaho at 345,144 P.3d at 599 (quoting Folks v. Moscow School Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997)); In re Doe, 142 Idaho 594, 597, 130 P.3d 1132, 1135 (2006). The trial court is better positioned than an appellate court to observe a witness’s demeanor, assess credibility, detect prejudice or motive, and make character judgments. State, Dep’t of Health & Welfare v. Doe, 145 Idaho 662, 664, 182 P.3d 1196, 1198 (2008); In re Aragon, 120 Idaho 606, 608, 818 P.2d 310, 312 (1991).

Therefore, the facts, and reasonable inferences to be drawn from those facts, will be viewed in the light most favorable to the trial court’s decision. Doe v. Doe, 148 Idaho 243, 246, 220 P.3d 1062, 1065 (2009); In re Doe, 142 Idaho at 597,130 P.3d at 1135. The magistrate’s decision in this case was based upon Idaho Code § 16 — 2005(1)(b), which provides that a parent-child relationship may be terminated when it is in the child’s best interest and the parent has abused or neglected the child. A “neglected” child is defined in I.C. § 16-1602(25)(

a) and (

b) as a child: (

a) Who is without proper parental care and control, or subsistence, medical or other care or control necessary for his well-being because of the conduct or omission of his parents, guardian or other custodian or their neglect or refusal to provide them ... or (

b) Whose parents, guardian or other custodian are unable to discharge their responsibilities to and for the child and, as a result of such inability, the child lacks the parental care necessary for his health, safety or well-being____ The magistrate’s finding of neglect under this definition is supported by substantial and competent evidence. Trial evidence shows that before the Department assumed custody of J.M., Doe had been unable to discharge her parental responsibilities and to give J.M. the care necessary for his health, safety, and well-being.

Doe acknowledged using methamphetamine while she was pregnant with J.M., and she had the child with her in a vehicle containing illegal drugs when Doe was arrested for possession of methamphetamine with intent to deliver. When Doe was released on bail she again placed J.M. in danger by taking him to stay at least temporarily at the house of a known methamphetamine trafficker. Doe was homeless at this time and without any means to transport J.M. in an emergency.

In January 2009, Doe stipulated that her actions, at least in failing to maintain a home for J.M., constituted neglect, and she agreed to placement of J.M. in the Department’s custody for an indefinite period. Doe thereafter remained unable to discharge her parental responsibilities because she did not address her substance abuse problem through treatment, did not resolve her legal problems stemming from criminal charges, did not obtain and maintain a stable home environment, and did not obtain and maintain legitimate employment.

All of these were tasks required of Doe by her case plan, in addition to requirements that she attend Department-approved parenting classes and submit to a psychological evaluation. Contrary to Doe’s assertion on appeal, the evidence shows that she did not “work hard” to meet these requirements. For example, in order to address Doe’s substance abuse, the Department referred her to Michael Dickson, a chemical dependency program administrator, for treatment. Dickson testified that Doe did not contact him and did not respond to his phone calls from January 16, 2009, through February 20, 2009.

On February 20, Doe appeared at Dickson’s office unannounced and upset because she feared that she would be incarcerated again. Doe requested residential treatment, and after contact between Dickson, Doe’s Department case manager, and Doe’s probation officer, the decision was made to put her in residential treatment rather than incarceration. However, Doe checked out of the residential treatment program after just two days.

She thereafter came to Dickson’s office four times from March through May, always unannounced, and always in response to her perception that she was going to be incarcerated for violating probation terms. On each of these occasions, however, Doe failed to comply with Dickson’s recommendations for treatment. Dickson scheduled three group therapy sessions and one follow-up session with Doe, but Doe did not appear for any of them. Throughout this period, Doe admitted to continued use of methamphetamine.

Thus, Doe was shown to be unwilling or unable to remain drug-free or to undergo treatment even when threatened with incarceration and the loss of her parental relationship with J.M. Doe also did not make progress to resolve her legal problems by complying with probation requirements. Doe’s probation officer testified that she violated probation conditions by repeatedly testing positive for methamphetamine, by not obtaining employment, by not making herself available for drug testing, by changing residences without permission, and by actively avoiding supervision.

Neither did she take any steps to obtain and maintain a stable home suitable for J.M. Dickson, the chemical dependency program administrator, said he attempted to help with housing by suggesting “Safe and Sober housing” and “City Lights housing” but Doe did not want to live at either place “because of the perception or the feeling that she would be locked down.” The evidence also shows that Doe did not obtain and maintain a consistent source of financial support or attend Department-approved parenting classes.

And although she did participate in a psychological evaluation, this did not occur until after she was incarcerated for probation violations, and even then it was arranged through the Department’s efforts, not Doe’s efforts. Overall, the evidence showed that until Doe was incarcerated in the rider program, where she was required to participate in certain education and treatment programs, she made no meaningful effort to complete the tasks required by her case plan and probation terms, which were designed to enable her to discharge her parental responsibilities.

This is substantial and competent evidence to support the magistrate court’s finding that Doe had neglected and continued to neglect J.M. The evidentiary record also supports the conclusion that termination of Doe’s parental rights is in J.M.’s best interests. Doe’s behavior described above led the magistrate court to find that she continuously reverted into her old lifestyle of drugs and criminality when not incarcerated and that such behavior is not in the best interests of J.M. A parent’s past criminal behavior is relevant in considering whether to terminate parental rights.

In re Doe, 142 Idaho at 597, 130 P.3d at 1135. Doe had been using methamphetamine since she was fourteen years old. When she was nineteen, she was sentenced to prison for felony possession of a controlled substance. She was given an opportunity for rehabilitation on a rider, but committed a new felony, escape, as well as probation violations, resulting in Doe serving her sentence of incarceration. She was released on parole twice, but both times was sent back to prison for parole violations and was ultimately released in 2007.

Just two years later, on February 18, 2009, she was convicted of possession of a controlled substance with intent to deliver. In the interim, she became pregnant with J.M. and continued to use methamphetamine before and after his birth. This history supports the magistrate’s conclusion that Doe will likely continue to make choices that will endanger J.M., which is not in J.M.’s best interests, when she is not in a tightly controlled environment.

Although, as Doe points out, she was doing well on her second rider, substantial evidence supports the magistrate’s finding that her performance on this rider was not as indicative of Doe’s future behavior as was her extensive history of misbehavior when not in custody. A psychologist pointed, out at the termination hearing that the rider program is a “different situation when you have no access to drugs and you’re receiving some sort of intervention” than when one has the ability to obtain drugs.

Other evidence showed that in the past after being released from a drug-free, controlled environment, Doe quickly returned to using illegal drugs and associating with other drug abusers. As noted above, the evidence shows that Doe made little or no effort to complete her case plan, apart from appearing for supervised visits with J.M. The magistrate court did not “ignore” the progress made by Doe in the strict confines of the rider program, but found such progress was outweighed by other behavior. No error in this finding is demonstrated by the evidentiary record.

Likewise, the magistrate did not ignore evidence that Doe had a “strong bond” with J.M. Rather, there was conflicting evidence concerning whether a parent-child bond still existed or whether J.M. had bonded with his foster mother instead. Doe merely asks this Court to re-weigh the evidence presented to the magistrate and render different findings. Although, as Doe points out, several witnesses testified that she may have the ability to parent after a prolonged period of sobriety and treatment, such testimony does not demonstrate that the magistrate erred in concluding termination is in J.M.’s best interests.

Indeed, the tenor of these witnesses’ testimony was that a twelve to eighteen-month minimum period of sobriety and treatment would be required before assessment of Doe’s parenting ability would even be possible; they did not opine that Doe would be able to start parenting J.M. at the end of that period. The magistrate permissibly found from this evidence that Doe “will need long term and extensive substance abuse treatment and must exhibit a significant period of sustained sobriety after successful completion of treatment before she could possibly begin to learn any parenting skills.

She needs long term psychiatric treatment, extensive individual counseling and must develop a network of support other than drug dealers.” Moreover, the trial evidence provides no confidence that Doe would be able to remain sober for a twelve to eighteen-month period on her first attempt; her rehabilitation, if eventually successful, may require a much longer period during which J.M. would be left in foster care without the stability of a permanent home environment.

The trial record amply supports the magistrate’s determination that it is in J.M.’s best interests to terminate Doe’s parental rights so that J.M. can be given permanency and stability. Our decision should not be understood, however, as a holding that a long recovery period for parents with substance addictions will alone always justify termination of parental rights.

Indeed in other circumstances, the speed with which the Department sought termination of Doe’s rights with just five months elapsing between the Department’s taking custody of J.M. and its designation of termination as the primary plan, and eight months between J.M. entering custody and the Department filing a petition for termination — would weigh against termination in view of the fundamental right at stake and the legislative policy, expressed in I.C. § 16-1601, that the Department, “to the fullest extent possible, [is to] seek to preserve, protect, enhance and reunite the family relationship.” Nonetheless, in this case, the magistrate could properly deem the brevity of the reunification effort justified by Doe’s unremitting demonstration — by her actions and inaction while not incarcerated— that she would make no effort to reunite with J.M. other than to exercise visitation.

The evidence of Doe’s longstanding high-risk lifestyle of drug use and crime when not incarcerated, which made her a danger to J.M.; Doe’s lack of effort to comply with her case plan in order to reunify with J.M.; the extended time needed before Doe might become able to competently parent, and J.M.’s need for permanency and stability, all support the magistrate court’s conclusion that termination is in J.M.’s best interests. III. CONCLUSION Doe has shown no error in the magistrate court’s findings and conclusions. Therefore, the magistrate court’s decree terminating Doe’s parental rights is affirmed.

No costs or attorney fees to either party. Judge MELANSON concurs. . The term “rider” is commonly used to refer to the period in which a trial court retains jurisdiction for up to 180 days while the offender is in the custody of the Idaho Department of Correction and receives rehabilitative treatment and education with the goal of enabling the offender to become successful on probation. At the end of the retained jurisdiction period, the court may suspend the offender's sentence and place him or her on probation or may relinquish jurisdiction, allowing execution of the original sentence.

See Idaho Code § 19-2601(4); State v. Lutes, 141 Idaho 911, 915, 120 P.3d 299, 303 (Ct.App.2005). . The appeal was subsequently assigned to this Court by the Supreme Court. . The December 1 decree concludes: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the parent-child relationship heretofore existing between [Doe] and [J.M.], child bom to said parent on August 11, 2008, be and the same is hereby terminated, and henceforth said [Doe] and [J.M.] shall not sustain the relationship of parent and child, each to the other.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the legal custody of the said [J.M.], child born to [Doe], on August 11, 2008, be and same [sic] is hereby vested in the Director of the Department of Health and Welfare, State of Idaho, and said Director is hereby appointed guardian of the person of said child, with the rights, including, but not necessarily limited to, the authority to authorize major medical, psychiatric, and surgical treatment; to represent said minor child in legal actions; to consent to the adoption of said child; to provide for the child’s support; and to make any other decisions concerning the child which the child's natural parent could make. .

Additional circumstances constituting neglect that are not relevant here are described in I.C. § 16-1602(25). Idaho Code § 16-2002(3) provides that neglect also occurs where "[t]he parents) has failed to comply with the court’s orders in a child protective act case or the case plan, and reunification of the child with his or her parent(

s) has not occurred within the time standard set forth in

section 16-1629(9), Idaho Code.” This standard is defined as when “a child is placed in the custody of the department and was also placed in out of the home care for a period not less titan fifteen (15) out of the last twenty-two (22) months from the date the child entered shelter care.” I.C. § 16-1629(9). In this case, we evaluate the magistrate's finding of neglect based only on the definition set forth in I.C. § 16-1602(25)(

a) and (b), as J.M. was not in the custody of the Department for the requisite time specified in I.C. § 16-1629(9) to fall within the I.C. § 16-2002(3) definition of neglect.