Right to counsel

Key_development Question_mark

Legislation, Termination of Parental Rights (Private) - Birth Parents

I.C. § 16-2009, which is part of Chapter 20 ("Termination of Parental Rights") provides in relevant part that “[the] parent . . . 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 . . . is financially unable to employ counsel, counsel shall be provided.”  While adoptions are conducted under Chapter 15 and not Chapter 20, I.C. § 16-2007(1) states that for a termination of parental rights proceeding,


[t]he petitioner shall give notice to any person entitled to notice under section 16-1505, Idaho Code [Notice of Adoption Proceedings], the authorized agency having legal custody of the child and the guardian ad litem of the child and of a parent. The petitioner shall give notice to the Idaho department of health and welfare if the petition for termination was not filed in conjunction with a petition for adoption or by an adoption agency licensed by the state of Idaho.


This suggests the adoption and termination proceedings are intertwined.  


Moreover, in Doe v. Doe, No. 40913, 2013 WL 6009546 (Idaho Ct. App. Aug. 30, 2013) (unpublished), the petitioners, who were the birth mother and stepfather of the child, sought to terminate of the father’s parental rights (on the grounds of abandonment) and to have the child’s stepfather adopt the child.  According to the appellate court’s opinion, the magistrate realized during the proceeding that he not advised the father that, pursuant to I.C. § 16-2009, the father had a right to counsel and if he could not afford one, counsel would be provided.  The magistrate did so and the father declined.  Later, the father requested a continuance, which the magistrate granted on the condition that the father accept appointed counsel, which he did.  However, at no point did the appellate court analyze the applicability of § 16-2009 to adoption proceedings; rather, it seemed to accept the magistrate’s conclusion that the statute applied.  Moreover, Idaho court rules do not permit the use of unpublished opinions in any way.

Appointment of Counsel: categorical Qualified: yes