K.R., THE FATHER v. DEPARTMENT OF CHILDREN AND FAMILIES ( 2023 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    K.R., the father,
    Appellant,
    v.
    DEPARTMENT OF CHILDREN AND FAMILIES and
    STATEWIDE GUARDIAN AD LITEM OFFICE,
    Appellees.
    No. 4D22-3378
    [July 26, 2023]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Yael Gamm, Judge; L.T. Case No. 2021-00706CJ-DP.
    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.
    2
    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
    3
    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
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    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 Commonwealth v. Means, 
    907 N.E.2d 646
    , 652
    (Mass. 2009)). Forfeiture is a “judicial response that adapts the course of
    the legal proceedings to the defendant’s choice to engage in misconduct
    that undermines the legitimate exercise of the right to counsel.” 
    Id.
     at 853
    n.3 (emphasis added) (citing Means, 907 N.E.2d at 652).
    The right to counsel in termination proceedings, derived from the due
    process clause in the Florida Constitution, is not equivalent to the right to
    counsel in criminal proceedings, which is derived from the Sixth
    Amendment in the U.S. Constitution. See E.T. v. State Dep’t of Child. &
    5
    Fams., 
    930 So. 2d 721
    , 726 (Fla. 4th DCA 2006) (“The liberty interest at
    stake in criminal cases is simply not equivalent to that involved in custody
    cases involving children.”); see also N.S.H. v. Fla. Dep’t of Child. & Fam.
    Servs., 
    843 So. 2d 898
    , 902 (Fla. 2003) (“Although we do not minimize the
    significant interests at stake in parental rights termination proceedings,
    the essential difference between termination proceedings and both
    criminal proceedings and civil commitment proceedings is that
    termination proceedings do not involve the risk of loss of physical liberty.”).
    Nonetheless, case law regarding forfeiture of the right to counsel in
    criminal cases is instructive in examining forfeiture of this right in parental
    rights cases.
    Under the United States Constitution, criminal defendants have a right
    to counsel and representation. In a typical criminal waiver of court-
    appointed counsel case, the focus of the court is whether the waiver is
    knowingly, intelligently, and voluntarily made. E.g., Potts v. State, 
    718 So. 2d 757
    , 759–60 (Fla. 1998). The trial court is obligated to conduct a
    Faretta 1 hearing and to otherwise warn a litigant of the dangers of
    proceeding pro se.
    However, federal courts have held defendants can forfeit that right
    based on their conduct during the proceedings. See, e.g., United States v.
    Goldberg, 
    67 F.3d 1092
    , 1100 (3d Cir. 1995) (“Unlike waiver, which
    requires a knowing and intentional relinquishment of a known right,
    forfeiture results in the loss of a right regardless of the defendant’s
    knowledge thereof and irrespective of whether the defendant intended to
    relinquish the right.” (quoted in Bowden v. State, 
    150 So. 3d 264
    , 267 (Fla.
    1st DCA 2014))); United States v. McLeod, 
    53 F.3d 322
    , 325 (11th Cir.
    1995) (despite expressing concern that the defendant was not warned that
    his misbehavior could result in the loss of court-appointed counsel, the
    court nevertheless held that, “under certain circumstances, a defendant
    who is abusive toward his attorney may forfeit his right to counsel,” even
    without warning); United States v. White, 
    529 F.2d 1390
    , 1393 (8th Cir.
    1976) (“[T]he right to counsel is a shield, not a sword. A defendant has no
    right to manipulate his right for the purpose of delaying and disrupting
    the trial.”).
    At least one Florida court has also held a criminal defendant’s conduct
    may be severe enough to warrant forfeiture of his right to court-appointed
    1 Faretta v. California, 
    422 U.S. 806
     (1975). A Faretta hearing is required in
    criminal cases in which a defendant chooses self-representation, to determine
    whether waiver of the right to counsel was knowingly and intelligently made. 
    Id. at 834
    .
    6
    counsel. In Jackson v. State, 
    2 So. 3d 1036
     (Fla. 3d DCA 2009), the Third
    District affirmed a defendant’s conviction for aggravated battery based in
    part on his forfeiture of his right to court-appointed counsel. 
    Id. at 1037
    .
    The court noted the forfeiture was a result of “his recalcitrance,
    antagonism and even personal attacks upon each of a lengthy series of
    court-appointed attorneys, all of whom were required to withdraw, [which]
    rendered it obvious that he simply would not permit himself to be
    represented by anyone.” 
    Id.
    Because forfeiture is an extreme measure only justified by a defendant’s
    serious misconduct, upon a declaration of forfeiture, a trial court is not
    obligated to conduct a Faretta hearing or to otherwise warn a litigant of
    the dangers of proceeding pro se. See Bowden, 
    150 So. 3d at 266
     (“[S]ince
    the mid–1990s, state and federal courts have found that a defendant may
    forfeit his right to counsel such that the procedural safeguards typically
    associated with waiver of counsel do not apply.”); Watson v. State, 
    718 So. 2d 253
    , 253–54 (Fla. 2d DCA 1998) (finding no error in the trial court’s
    determination that, “[a]fter the withdrawal of six different court-appointed
    attorneys,” the defendant had forfeited his right to trial counsel (as distinct
    from sentencing counsel)), receded from on other grounds by Waller v.
    State, 
    911 So. 2d 226
    , 228 & n.2 (Fla. 2d DCA 2005).
    Given that a defendant has a greater right to counsel in a criminal
    proceeding than a parent has in a parental rights case, if a defendant can
    forfeit his or her right to counsel, then so too may a parent. See W.S. v.
    Dep’t of Child. & Fams., 
    31 So. 3d 329
    , 330-31 (Fla. 4th DCA 2010)
    (“[T]ermination proceedings do not require all of the protections of a
    criminal trial.”). In reviewing a trial court’s determination that an indigent
    parent forfeited the right to court-appointed counsel in a dependency or
    TPR case, the test is whether there was sufficient evidence of abuse and
    non-cooperation on the part of the parent that “rendered it obvious that
    he simply would not permit himself to be represented by anyone and
    amounted to a binding forfeiture or waiver of that right.” Jackson, 
    2 So. 3d at 1037
    . Thus, if the client abuses the right to counsel, the client loses
    court-appointed counsel.
    There is a fine line between being a “difficult client” and being a client
    whose conduct forfeits the right to court-appointed counsel. Here, at least
    three court-appointed counsel withdrew from representing Appellant due
    to “irreconcilable differences,” with the most recent withdrawing attorney
    claiming Appellant informed counsel that “I’m not going to do anything
    you tell me to do because I don’t have to.” Counsel explained Appellant
    was “extremely aggressive,” and would “get up in my face.” Under the
    circumstances present in this case, we find no error in the trial court’s
    7
    proceeding with the TPR trial without appointing a sixth attorney to
    represent Appellant.
    Conclusion
    As detailed above, the trial court did not err in determining that, by his
    expressions of hostility and non-cooperation directed to multiple court-
    appointed counsel, Appellant forfeited his right to court-appointed
    counsel. Moreover, Appellant’s appeal does not address the merits of the
    trial court’s TPR final judgment, and we have found nothing in the record
    supporting a reversal of that decision.
    Affirmed.
    KLINGENSMITH, C.J., and ARTAU, J., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    8