The case is K.R. v. Department of Children & Families. Duringtermination of parental rights proceedings, K.R.(the Father) was appointed five different lawyers, each of whom moved to withdraw. Three cited irreconcilable differences. One moved to withdraw because the Father inadvertently sent a caustic email, which was addressed to the lawyer, to the trial judge’s judicial assistant. And another lawyer asked to withdraw because the Father was extremely aggressive and refused to follow counsel’s advice.
The trial court granted the 5th lawyer’s motion to withdraw, ruling that the Father’s actions and refusal to follow counsel’s advice demonstrated he wished to represent himself. The court also concluded that the Father put his lawyers’ safety at risk.
The Father went forward pro se, and his parental rights were terminated. The 4th DCA affirmed. It acknowledged thatthe Father had a right to appointed counsel under Chapter 39 and that he had not waived his right to counsel. The court addressed the distinction between forfeiture of counsel and waiver of counsel. Waiver requires an intentional, knowing, and voluntary decision. Forfeiture, on the other hand, 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.”
Analyzing the case under forfeiture, the 4th DCA determined the Father forfeited his right to appointed counsel through his refusal to cooperate and his expressions of hostility directed at multiple lawyers.
The court made these observations:
- If a criminal defendant can forfeit the right to counsel, socan a party in a parental rights case. (The court cited cases about forfeiture of counsel in criminal cases.)
- Forfeiture is an extreme measure only justified by a party’s serious misconduct.
- If a trial court finds forfeiture is appropriate, it need not conduct a Faretta hearing or otherwise warn a litigant of the dangers of proceeding pro se. Why? Because forfeiture is not waiver. When a litigant waives the right to counsel, a warning is required.