K.R. v. Dep't of Children & Families & Statewide Guardian Ad Litem Office

368 So.3d 986

K.R., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Statewide Guardian Ad Litem Office, Appellees.

No. 4D22-3378

District Court of Appeal of Florida, Fourth District.

[July 26, 2023]

Thomas J. Butler of Thomas Butler, P.A., Miami Beach, for appellant.

Carolyn Schwarz of Children's Legal Services, Fort Lauderdale, for appellee Department of Children and Families.

Luke Newman of Statewide Guardian ad Litem Office Defending Best Interests Project, Luke Newman, P.A., Tallahassee, and Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Krystle Celine Cacci, Senior Attorney, Appellate Division, Statewide Guardian ad Litem Office, Tallahassee, for appellee Guardian ad Litem on behalf of B.R. and M.R.

Forst, J.

Appellant K.R. appeals the trial court's order terminating his parental rights. The sole issue before us is whether the trial court erred in determining that Appellant forfeited his right to court-appointed trial counsel. Finding no error, we affirm.

Background

The Department of Children and Families ("DCF") initially filed a dependency petition against Appellant with respect to his two minor children. After the children were adjudicated dependent based on Appellant's neglect and prospective neglect, DCF filed a termination of parental rights ("TPR") petition.

Appellant was determined to be indigent and entitled to court-appointed counsel. During the course of the dependency and termination proceedings, Appellant was appointed at least five different attorneys by the trial court, each of whom moved to withdraw from representation. Three of the attorneys explicitly moved to withdraw based on "irreconcilable differences with [Appellant] over the handling of the case." Prior to the withdrawal of the second attorney, Appellant inadvertently sent an email to the trial court's judicial assistant that appears to be intended to be directed to his counsel. The message states "Thank you very much to make me waste my time ... I rather represent myself that [sic] a lawyer the [sic] work for the state attorney. God have mercy and [sic] all of you when you guys have to answer to him. AMEN."

Prior to a pre-trial advisory hearing, the fifth appointed attorney moved to withdraw. Counsel stated Appellant was "extremely aggressive," would "get up in my face," and refused to follow the attorney's legal advice ("he's telling me ‘I'm not going to do anything you tell me to do because I don't have to’ "). Counsel surmised that "he needs someone [who's] just going to listen to him berate them and tell them he doesn't have to do anything, and thinking somehow, that's the way to win a court case."

In granting the fifth attorney's motion to withdraw, the trial court noted it did not have any more lawyers to appoint to represent Appellant. The court asked whether Appellant could afford his own private attorney. Appellant answered he could not. The trial court then informed Appellant:

[I]f you are not willing to follow the advice of lawyers who are trained and have expertise in these matters, then you are not protecting your own rights. You think you are, but you are not. You are refusing to allow anyone to protect your rights.

The reason that we keep appointing you lawyers is to ensure that your legal rights as a citizen, including your rights [for] representation, are protected. But, if you continue to refuse to work with your lawyers, you're leaving me without options. All right?

Despite your words, that you do not wish to represent yourself, despite your words, your actions are telling me that you wish to represent yourself because you will not accept the appropriate representation, advice and procedures of appointed counsel.

And you cannot afford to retain a private lawyer. So, the only thing left for you, sir, is to represent yourself. That is your right.

I understand your words are telling me that is not your choice, but [your] actions are telling me that that is, one hundred percent, affirmatively, your choice.

Prior to the TPR trial, Appellant informed the trial court that he could not proceed without a lawyer. The trial court responded:

Your refusal to follow their advice has led to increasing aggression between yourself and your lawyer, putting both lawyers at risk for their safety. The Court at this time is out of lawyers for appointment for you. As we discussed previously, your options are still to hire your own private counsel or to represent yourself. You are present today without privately retained counsel, and therefore the Court will infer that you have chosen to represent yourself today.

....

Through your actions, as we discussed before, you have chosen to represent yourself. You have never verbally requested self-representation and I acknowledge that. However, the Court does find that you have been provided repeatedly with effective assistance of counsel; you have repeatedly denied your effective assistance of counsel, their ability to further represent you. Those five previous court-appointed lawyers were appointed for you to avoid a pro se representation, as you indicated an intention to proceed with court-appointed representation. However, your conduct over the course of those representations has indicated to the Court that you have no other desire than to represent yourself through the course of your actions and conduct. So, I do find your assertions that you do not wish to proceed without a lawyer completely lacking in credibility.

The Court does find that the – your actions throughout the course of these proceedings further support your internal desire for self-representation.

After the TPR trial where Appellant represented himself, the trial court entered final judgment terminating Appellant's parental rights, noting Appellant made little effort to comply with the court's reunification case plan. Appellant rejected or ignored referrals for psychiatric services, parenting classes and drug testing. Moreover, he repeatedly violated a court order limiting his interaction with his children to supervised visitation. In addition to finding support for the TPR petition, the court's order once again addressed the legal representation issue, stating:

[T]his Court appointed numerous attorneys to represent [Appellant] during both the Dependency proceedings, as well as the TPR proceedings. His continued aggression and oppositional conduct towards his lawyers resulted in [Appellant's] discharge of several attorneys, as well as the withdrawal of several attorneys. As this continuing cycle was resulting in ongoing delays for the permanency for these children, this Court, following numerous hearings on the matter, concluded [Appellant] was repeatedly provided with effective assistance of counsel throughout the proceedings, but has engaged in conduct effectively evidencing a desire for self-representation despite his verbal assertions to the contrary.

Appellant appeals the TPR final judgment, arguing the trial court's failure to appoint trial counsel without charge to Appellant constituted a denial of due process.

Analysis

In determining whether a trial court appropriately finds a litigant has forfeited rights via conduct, the abuse of discretion standard applies. See McCray v. State , 71 So. 3d 848, 878 (Fla. 2011) (addressing the physical removal of a criminal defendant, during trial, from the courtroom). However, "[w]e review a claim of deprivation of procedural due process de novo." I.T. v. Dep't of Child. & Fams. , 338 So. 3d 6, 9 (Fla. 3d DCA 2022).

Section 39.013, Florida Statutes (2022), governs a parent's right to court-appointed counsel in a chapter 39 action and explains the procedure for waiving that right, as follows:

At each stage of the proceedings under this chapter, the court shall advise the parents of the right to counsel. The court shall appoint counsel for indigent parents. The court shall ascertain whether the right to counsel is understood. When right to counsel is waived, the court shall determine whether the waiver is knowing and intelligent. The court shall enter its findings in writing with respect to the appointment or waiver of counsel for indigent parents or the waiver of counsel by nonindigent parents.

§ 39.013(9)(a), Fla. Stat. (2022).

There is no dispute that, during the duration of the proceedings below, Appellant was "indigent" and thus entitled to the appointment of court-appointed counsel. Therefore, under section 39.013(9)(a), the trial court had the responsibility to ensure that any waiver of counsel was "knowing and intelligent."

Appellant, supported by DCF's "concession of error," maintains the trial court erred when it found he waived his right to counsel without putting its findings in writing. The Statewide Guardian ad Litem Office's ("GAL") answer brief, which was filed on behalf of Appellant's children, does not directly respond to the "in writing" argument. Nonetheless, the GAL's answer brief contends that, while Appellant did not knowingly and voluntarily waive his right to court-appointed counsel, his inability to work with appointed counsel constituted a forfeiture of that right.

Given DCF's concession that the trial court did not make a waiver finding in writing, and a lack of a direct response to the "in writing" argument from the GAL's answer brief, the only question is whether—as the GAL's answer brief contends—Appellant forfeited his right to court-appointed counsel.

It is important to recognize a distinction between forfeiture and waiver of the right to counsel. A waiver "results from an intentional, knowing, and voluntarily [sic] decision not to exercise the right." State v. Nisbet , 134 A.3d 840, 853 (Me. 2016). In contrast, a forfeiture is an extreme measure that flows "from the defendant's abuse or manipulation of [the right to counsel] and results in the defendant being required to represent himself even though he has not waived counsel and may still want legal representation." Id. (citing ...