Idaho legislature repeals right to counsel for parents

Previously, indigent parents in Idaho had a statutory right to counsel in all involuntary termination of parental rights (TPR) matters.  However, in April 2025, the Idaho legislature repealed this right by enacting SB 1181, which significantly amended two key provisions:  Idaho Code § 16-2009 (found within Chapter 20, titled “Termination of the Parent and Child Relationship”) and § 19-6009 (in Chapter 60, the “State Public Defender Act”).  The changes are effective as of July 1, 2025.

First, amended Section 16-2009 now states:

The parent or guardian ad litem shall be notified as soon as practicable after the filing of a petition and prior to the start of a hearing of his right to have counsel and, if counsel is requested and the parent or guardian is financially unable to employ counsel, counsel shall be provided only if such representation is constitutionally required.

Idaho Code § 16-2009(2) (emphasis added).  Despite testimony indicating that legislative intent was to impact only private TPR cases, Chapter 20, which contains § 16-2009, plainly covers involuntary TPR cases that are both publicly and privately initiated.[1]  And the language mandating appointment “only where constitutionally required” is reminiscent of the standard articulated by the U.S. Supreme Court in Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981).  In Lassiter, the Court declined to recognize a federal constitutional right to counsel for all indigent parents in state-brought TPR cases.  Instead, it articulated a balancing test for trial courts to apply to determine whether counsel is necessary based upon the individual circumstances of the case.  Though numerous state high courts have held (both before and since Lassiter) that parents have a right to counsel in TPR cases on state constitutional grounds, Idaho is not one of them.  At the same time, bill proponents opined that it is not the role of the state to represent parents in private disputes, providing as an example a divorce matter in which a husband sues his spouse for custody of the couple’s children.  But unlike a divorce matter during which custody is at issue, a private TPR results in exactly the same outcome as state-initiated terminations.  Testimony by both the NCCRC and a local child welfare expert highlighted that the State could be opening itself up to lawsuits under the Equal Protection Clause if it provides representation to all indigent parents in state-brought TPR cases but not to all parents facing private TPRs.  Indeed, several state high courts–namely, Illinois, Iowa, Massachusetts, North Dakota, and Oregon–have made such rulings.

In the wake of this change, Idaho joins just three other states that do not guarantee a right to counsel for all indigent parents in state-brought TPR cases.  In other words, 46 states have chosen to provide a categorical right to counsel in these cases despite Lassiter, which articulated the case-by-case approach to appointment that SB 1181 makes the law in Idaho.[2]

Second, SB 1181 also amended Section 19-2009 to preclude the public defender from providing representation to parents.  In pertinent part, Section 19-6009 reads:

(3) Upon a finding of indigency, representation by an attorney under subsection (1) of this section shall include the following cases . . .

. . .

(e) Actions arising under the child protective act, chapter 16, title 16, Idaho Code, but excluding actions brought exclusively under chapter 20, title 16, Idaho Code.

Idaho Code § 19-6009(3)(e) (emphasis added).  Thus, even if a trial court decides that representation is constitutionally required for a parent in a particular case, the law as amended does not indicate who will provide the representation.  (Prior to SB 1181, § 19-6009 made clear that the public defender would be responsible for the representation of indigent parents.)

Despite significant testimony in opposition and the fact that Committee members shared many of the same concerns as bill opponents–in fact, deciding unanimously to set it aside for amendment–the bill was ultimately brought to the floor for a vote and prevailed, becoming law on April 14, 2025.

The bill was covered by a few Idaho-based news outlets. See Kyle Pfannenstiel, New Idaho law restricts right to public defenders in parental rights termination, Idaho Capital Sun (May 5, 2025) and Laura Guido, Bill to clarify public defender duties eliminates right to counsel for some facing termination of parental rights, Idaho Press (Apr. 15, 2025); see also Post Register and Moscow-Pullman Daily News.

To view the March 27, 2025 hearing on SB 1181, visit the Idaho legislature’s website, and navigate to “Download Audio/Video” for the March 27, 2025 Idaho House Judiciary, Rules & Administration Committee hearing.

You can also read the testimony the NCCRC submitted in opposition, which discusses some of the legal issues in greater detail.

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[1] Indeed, many state statutory schemes house public and private terminations in different code sections.  Although Chapter 15 of the Idaho Code is devoted to adoption proceedings, those proceedings require the consent of both birth parents, so Chapter 20 is the only path for involuntary termination of parental rights by a private party.

[2] Notably, the case-by-case approach to appointing counsel has failed nearly everywhere it has been tried.  Under the new law, courts will be forced to speculate on both the front- and back-end of TPR cases.  On the front end, the trial court must weigh, in each case, the nature of the parent’s interests and the state’s interests and then measure the likelihood that the court will reach an erroneous conclusion on the TPR petition if the parent lacks counsel.  The court is forced to predict the necessity and value of counsel in a particular case without any information other than what the parties have alleged in their pleadings.  And on the back-end, if alleged on appeal that counsel was wrongfully denied below, courts must typically try to predict whether counsel would have made a difference.

A dissent penned by Justice Blackmun (and joined by Justices Marshall and Brennan) in Lassiter highlights the fact that the case-by-case approach was previously used in criminal cases, but it was abandoned for good reason:

The Court today denies an indigent mother the representation of counsel in a judicial proceeding initiated by the State of North Carolina to terminate her parental rights with respect to her youngest child. The Court most appropriately recognizes that the mother’s interest is a ‘commanding one,’ ante at 452 U. S. 27, and it finds no countervailing state interest of even remotely comparable significance, see ante at 452 U. S. 27-28, 452 U. S. 31. Nonetheless, the Court avoids what seems to me the obvious conclusion that due process requires the presence of counsel for a parent threatened with judicial termination of parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in Gideon v. Wainwright, 372 U. S. 335 (1963).

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 35 (1981) (Blackmun, J., dissenting).