Latest news with #ChildProtectiveAct
Yahoo
05-05-2025
- Politics
- Yahoo
New Idaho law restricts right to public defenders in parental rights termination
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.' (Getty Images) 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. SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX 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. 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. 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.' CONTACT US 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 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. 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. SUPPORT: YOU MAKE OUR WORK POSSIBLE
Yahoo
28-01-2025
- Politics
- Yahoo
Idaho public defender's proposed budget seeks increases to address defense in rural counties
Idaho State Public Defender Eric Fredericksen answers questions from the Joint Finance-Appropriations Committee on Tuesday, January 28, 2025. (Mia Maldonado / Idaho Capital Sun) The Office of the Idaho State Public Defender is seeking a significant budget increase in the next fiscal year because its original budget was based on caseloads during the COVID-19 pandemic, Idaho State Public Defender Eric Fredericksen told the Joint Finance-Appropriations Committee on Tuesday. The committee, or JFAC, sets budgets for every state agency and department. In 2022, Idaho Gov. Brad Little signed House Bill 735 into law, which moved the responsibility of funding public defense from the counties to the state. House Bill 236, signed into law the following year, created the Office of the Idaho State Public Defender to consolidate the county-based public defense system into a statewide system. On Oct. 1, the new agency began taking on cases. The agency was appropriated $52 million its first year, but it has faced funding shortfalls since the transition. That's because the agency's original budget was set when the caseload for public defenders was low because of the COVID-19 pandemic, Fredericksen told JFAC, and caseloads have since significantly increased. The agency is now seeking legislative approval for a supplemental $8 million for the remainder of the 2025 fiscal year to cover representation to parents who qualify for the Child Protective Act, transcript costs, and personnel and contracting costs. And for the 2026 fiscal year, which starts in July, Little recommended an $88 million budget. Fredericksen said a budget increase would allow the office to increase pay based on merit, contract with attorneys in rural counties, and add new institutional offices in Benewah, Elmore, Jerome and Shoshone counties. Those four new offices would increase public defense coverage, relieve the pressure on contract attorneys, and support a uniform system across the state, Fredericksen said in a letter to JFAC on Monday. 'We believe the governor's recommended budget request … will provide us with the resources we need to expand and improve on our initial work,' Fredericksen wrote in the letter. In the letter to JFAC, Fredericksen addressed what the new agency has accomplished since it began taking on cases in October, including: Gotten rid of flat-fee contracts Created a statewide case management system Given all public defenders and contract attorneys access to Lexis legal research platform at no cost Equalized salaries across the state, with nearly 77% of public defenders receiving raises Established 12 institutional offices across Idaho But progress for the agency has been complex. The overhaul of Idaho's public defense system triggered a wave of public defender resignations, particularly in the state's largest counties where attorneys cited frustration with pay cuts, loss of mentorship from experienced attorneys, declining office morale and disorganization in the new system, the Idaho Capital Sun previously reported. 'October 1 (was) difficult,' Fredericksen said. 'We walked into 1,300 withdrawals in cases.' Many of those withdrawals were because the agency got rid of flat fee contracts for attorneys in Idaho, which led to those case withdrawals. Fredericksen told JFAC that flat fee contracts are unethical. Since then, Fredericksen said he's had to appear in court, along with his district attorneys who usually manage public defenders. From a business perspective, Rep. Josh Tanner, R-Eagle, asked what the Legislature can do to make sure Fredericksen and his district attorneys are more focused on management rather than having to appear at court. 'Is it just money?' Tanner asked. Idaho governor recommends $88 million for State Public Defender FY 2026 budget 'It is money,' Fredericksen said. 'We've lost a lot of contractors. We've lost a lot of senior employees and institutional losses. Do I want to be in Jerome, Gooding and Twin Falls on a daily basis? That's not the best use of my time. The best use of my time is to send out my district defenders and let them do their jobs, and get them out of court so they're not handling cases.' Fredericksen said one of the agency's biggest challenges is finding attorneys to represent clients in rural Idaho. To address this, the budget proposal includes an increase in the hourly rate for contract attorneys from $100 to $150, which would alleviate the shortage of legal representation in rural areas of the state, he said. Sen. Melissa Wintrow, D-Boise, said she understands that the Legislature underestimated the budget for the office. 'Regardless of where we are now, I think we could've done a better job in the Legislature setting you up for a little more success,' Wintrow said. The proposed budget will be voted on by JFAC at a later date. After the committee approves it, the budget will be included in appropriation bills for the Idaho House and Senate to consider and vote on at a later time. SUPPORT: YOU MAKE OUR WORK POSSIBLE
