Idaho Supreme Court Holds Indigent Parents Have Constitutional Right to Counsel at Public Expense
by Matt Clarke
On May 12, 2026, the Supreme Court of Idaho held that indigent parents, including prisoners, facing or appealing termination of parental rights (“termination”) in a private action have the right to counsel at public expense. However, no division of the government is specifically required by law to pay for the attorney. It also held that counties must pay for the cost of a clerk’s record and hearing transcripts for indigent parents who are representing themselves in appeals from a private termination action.
In 2025, Idaho Senate Bill (SB) 1181 eliminated the previous statutory right of indigent parents to counsel in termination cases. The new statute limited the right to case where “such representation is constitutionally required,” as outlined in Iowa Code (IC) 16-20009(2), leaving unresolved when exactly the constitution required representation. SB 1181 also listed the circumstances in which the State Public Defender’s Office (SPD) was required to provide representation. Private termination actions were not on the list. It also clarified that counties were not obligated to pay for representation in other cases, per IC 19-6009.
This appeal arose out of the consolidation of two cases, initiated prior to the enactment of SB 1181, in which indigent state prisoner fathers’ parental rights were terminated. In the first case, the magistrate court appointed an attorney to represent the father and terminated his parental rights. The appointed attorney moved to withdraw as he does not provide appellate services.
In the second case, following termination and the father’s notice of appeal, the magistrate court ordered SPD to pay for preparation of the transcript. SPD objected as it did not represent the father and, under IC 19-6009, was not responsible for expenses associated with representation in private cases.
The Supreme Court first determined that the pre-SB-1181 version of IC 16-2009, which was in effect when the termination actions were filed, did not provide a statutory right to counsel for indigents appealing termination. Instead, the pre-SB 1181 right to counsel was limited to the termination hearing.
The Court then held that whether an indigent parent has a constitutional right to counsel in a private termination action under SB 1181 “must be determined on a case-by-case basis.” To do so, a court must consider the three elements articulated in Matthews v. Eldridge, 424 U.S. 319 (1976), “the private interests at stake, the government’s interest, and the risks that the procedure used will lead to erroneous decisions,” per Lassiter v. Dept. of Soc. Servs. of Durham Co., N.C., 452 U.S. 18 (1981). This includes factors such as the complexity of the case and abilities of the indigent parent to represent themselves.
The Court held that an indigent parent who is constitutionally entitled to counsel at the termination hearing is also entitled to counsel on appeal. See: M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Court also held that SB 1181 “failed to address financial responsibility for constitutionally required representation of indigent parents in private termination cases, thereby creating a risk that private termination cases will fail to comply with due process,” rendering them subject to successful appeal or collateral attack. However, the SPD or counties could voluntarily pay for the representation.
Finally, the Court held that unrepresented indigent parents appealing termination must be provided the necessary record and transcripts at public expense with the counties paying the costs, per M.L.B., Mayer v. City of Chicago, 404 U.S. 189 (1971). The cases were remanded for appropriate orders regarding the appeals. See: In re Doe, 2026 Ida. LEXIS 71.
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Related legal case
M.L.B., Mayer v. City of Chicago
| Year | 1971 |
|---|---|
| Cite | 404 U.S. 189 (1971) |
| Level | State Supreme Court |