Lawmakers intend the bill to only end the automatic right to counsel in private cases. But child welfare attorneys say it could end right in all cases.
A new public defender workload law might inadvertently end the right to legal counsel in Idaho court cases that could result in parents permanently losing their kids.
Despite a more narrow intent in the Idaho Legislature, two child welfare attorneys worry that broad language in Senate Bill 1181 could have far-reaching effects in legal cases for parental rights termination, which some attorneys call the “civil death penalty.”
There are two ways parental rights termination cases can be brought: By the state — often initiated by a state health department, or by a private party, such as one parent wanting to end the rights of another parent.
The law could make Idaho one of only four states in the U.S. that don’t guarantee a right to counsel in state-initiated parental rights termination cases, according to the National Coalition for a Civil Right to Counsel.
“We’ve not really seen a state go backwards on this before Idaho,” John Pollock, an attorney and coordinator with the coalition, told the Idaho Capital Sun in an interview.
But Idaho lawmakers who sponsored the bill say they believe the bill won’t work that way.
Instead, the lawmakers say the law’s impact will be more narrow: It would just revoke the automatic right to counsel in parental right termination cases brought by private parties, as opposed to the state.
And they say the new law outlines a process for the court to grant counsel rights to certain parents under what is called a legal indigency test, which is commonly used to appoint public defense attorneys in criminal cases.
Rep. Dustin Manwaring, R-Pocatello, cosponsored the bill in the House. He says the bill was widely negotiated and narrowly crafted.
“We were careful to make sure that we said that that counsel can still be provided if constitutionally required. And that’s how several states do it right now,” Manwaring told the Sun in an interview.
How public defense rights work in parental rights termination cases. And how this new Idaho law changes it.
The law takes effect July 1.
The new law makes two changes to how public defenders work on parental rights termination cases:
The bill amends an Idaho law around parental rights termination, to specify counsel shall be provided “only if such representation is constitutionally required.” That is in addition to existing language in the law that allows the right to legal counsel in those cases, if requested “and the parent or guardian is financially unable to employ counsel.” The bill also amends an Idaho law about broader right to legal counsel that guarantees the right to an attorney in cases brought under Idaho’s Child Protective Act. The new bill adds language “excluding actions brought exclusively under” Idaho’s parental rights termination law, found in Idaho Code Title 16 Chapter 20. Those two changes are what worries Mary Shea, an Idaho child welfare attorney and previous Democratic candidate for the Idaho Legislature in Pocatello.
First, there’s no constitutional requirement for counsel in parental rights termination cases, she said. The U.S. Constitution’s Sixth Amendment right to counsel applies in criminal cases, not civil cases — like parental right termination cases.
In a 1981 ruling, the United States Supreme Court clarified that indigent parents didn’t have a constitutional right to counsel in parental rights termination cases.
Mary Shea, an Idaho child welfare attorney and previous Democratic candidate for the Idaho Legislature in Pocatello. (Courtesy of Mary Shea) In that ruling, the court said it “would not force states to provide counsel for termination of parental rights cases except on a ‘case-by-case basis,’” Shea said. “And nobody really knows what that means. But basically that the court said if the case was sufficiently complex or complicated, that a parent’s parental due process rights would be violated. Only in the most difficult cases where without an attorney, it just is not a fair process, would counsel be required.”
In Idaho, attorneys will now have to go before judges in every parental rights termination case to make the case for right to counsel, Shea said.
The new law’s second change also effectively eliminates the right to a state-appointed public defender in all parental rights cases, she said.
“I personally believe that there should be a right to counsel in every termination of parental rights cases — because the rights at stake are so important,” Shea said.
Bill meant to require legal indigency test in private parental rights termination cases
Sen. Todd Lakey, R-Nampa, the bill’s original cosponsor, said when he was a prosecutor, judges would ask defendants requesting a public defender about their financial circumstances. If they met the criteria, then an attorney was appointed.
That’s the sort of vetting process he sought to bring in privately initiated parental rights termination cases through his bill.
Asked if he agreed with the concern the bill would revoke all right to counsel in these cases, Lakey said “we can see how it goes, but I don’t think so.”
In 2024, when the state took over the management of the public defense system from Idaho counties, Manwaring said officials didn’t expect they’d be providing legal counsel in private parental termination cases.
He said there’s always been an indigency test in these cases, but Manwaring didn’t know if it was happening.
“I think the reason it is is because a lot of times in these cases, the majority of them probably are indigent,” he said.
In privately initiated termination cases, Manwaring said lawmakers believe counsel shouldn’t be automatically provided. By instead allowing a judge to determine if counsel should be provided, he argued the state can analyze the scope of how many private cases get counsel appointments.
“Because these are taxpayer funds,” Manwaring said. “This is a state agency. We want to be careful that we’re not overstepping the bounds of what the state should be paying for.”
Idaho State Public Defender Office spokesperson Patrick Orr said the office believes its public defenders should not be representing parents in privately brought cases. If a court appoints legal counsel in a privately initiated case, he said “it will be up to others to decide how to find, assign, and pay attorneys to represent clients in private termination cases.”
“Our office, which provides indigent criminal defense representation and representation for parents in Child Protective Act cases where the state seeks to interfere with the parent-child relationship, should not be providing legal representation in disputes between private parties,” Orr told the Sun in an email.
Parents representing themselves face difficult prospect, attorney says
Parents would have a tough time representing themselves, Shea said.
“If you don’t understand the rules of civil procedure or the rules of evidence, if you don’t know how to get your questions about the other side’s case answered in the discovery process of litigation, and if you don’t know how to argue your case to a judge — it would be very difficult for a parent to go against an attorney on the other side and succeed,” she said.
But even if lawmakers had fixed the bill to just end the right to counsel in privately brought parental termination cases, Pollock said his legal advocacy group would still have an issue with the bill.
Several courts have struck down that distinction to only remove the right to counsel only in privately initiated cases, ruling those moves violate equal protection, he said.
Bill attempts to clarify public defense roles, amid rocky new system
The bill is an attempt to clarify public defender roles months into Idaho’s troubled switch from county-level public defenders to a state-managed public defense office.
In October 2024, Idaho officially transferred public defense from Idaho’s 44 counties into the new statewide agency, called the Office of the State Public Defender.
During that transition, some public defenders quit, citing new pay cuts.
The ACLU of Idaho, which sued the state in 2015 alleging Idaho’s public defense system violated low-income people’s constitutional right to counsel, in January asked the Idaho Supreme Court to intervene in the new public defense system. The organization alleged “countless indigent defendants have appeared in courts” across Idaho without representation from the State Public Defender’s Office, the Sun previously reported.
Manwaring said the bill was meant to be a first step to smooth out kinks in the transition. And he expects more tweaks in the years ahead.
“We know we’re going to continue to look at this carefully and make adjustments going forward that need to happen, including in this lane of termination of parental rights cases,” Manwaring said. “If we don’t have this right, we’re going to make sure we’re going to continue to review this and make those amendments going forward if we need to.”
In March, lawmakers introduced the bill. Within two weeks, it passed both chambers of the Legislature — one day before this year’s legislative session ended.
In the House’s committee hearing on the bill, Shea testified about her concern that the bill would end all right to counsel in parental termination cases.
Then the House Judiciary, Rules and Administration Committee slated the bill for amendments. But in the final days of the Legislature, the House passed the bill without amendments.
Asked why the bill wasn’t amended, Manwaring said lawmakers were able to address concerns among committee members about the bill in the meantime.
Less than two weeks after it passed the House and Senate, Gov. Brad Little signed it into law. The governor’s office could not be immediately reached for comment.
Idaho Capital Sun is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Idaho Capital Sun maintains editorial independence. Contact Editor Christina Lords for questions: info@idahocapitalsun.com.