Right to counsel

Idaho Code Ann. § 16-1613(1) states that “[i]f the parent or guardian is without counsel, the court shall inform them of their right to be represented by counsel and to appeal from any disposition or order of the court.”  Likewise, the Child Protective Act also states that when children are taken into shelter care, “[e]ach of the parents or custodian from whom the child was removed shall be given notice of the shelter care hearing. Such notice shall include the time, place, and purpose of the hearing; and, that such person is entitled to be represented by legal counsel.” Idaho Code Ann. § 16- 1615(2). These statutes likely provide only a right to privately retained counsel, as a) Idaho Code Ann. § 16-1618 used to refer to the court having the power to “appoint independent counsel for a parent if the proceedings are complex, counsel is necessary to protect the parent’s interests adequately and such interests are not represented adequately by another party”, but this language was deleted in 2001; and b) Idaho Code Ann. § 16-1614 specifically refers to appointment of counsel for the child and makes no mention of appointment for the parents.

However, Idaho Juv. R. 37(c) states, “[t]he parent(s), guardian, or legal custodian has the right to be represented by counsel in all proceedings before the court. The court shall appoint counsel to represent the parent(s), guardian, or legal custodian if it finds that they are financially unable to pay for such legal services, unless representation is competently and intelligently waived.” Section (d) of this rule further specifies, “Notice of the right to be represented by counsel, and at public expense where financial inability exists on the part of the child, parent(s), guardian, or legal custodian, should be given at the earliest possible time. Notice shall be given in the summons, and at the outset of any hearing in which the child, parent(s), guardian, or legal custodian is making a first appearance before the court.” In addition, where there is notice of an emergency removal proceeding, that notice to the parent or guardian “shall contain a notification of right to counsel and right to court appointed counsel.” Idaho Juv. R. 32(c).