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

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.
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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
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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. &
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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.
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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
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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.
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