           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                D.S-B., the Mother,
                                    Appellant,

                                          v.

                DEPARTMENT OF CHILDREN AND FAMILIES,
                              Appellee.

                 Nos. 4D14-1333, 4D14-1836, and 4D14-2443

                                 [January 7, 2015]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Moses Baker, Jr., Judge; L.T. Case No.
2013DP300352JS.

  Andrew A. Holness of Law Offices of Andrew A. Holness, P.A., West Palm
Beach, for appellant.

  Rosemarie Farrell, Orlando, for appellee Department of Children and
Families.

   Patricia M. Propheter, Sanford, for appellee Guardian ad Litem
Program.

WARNER, J.

   In the middle of the final hearing on an adjudication of dependency, the
mother’s attorney withdrew, and the mother sought to represent herself.
While the court questioned the mother about her experience, it did not
permit evidence of her significant mental health problems. It did not make
a determination that the mother had waived her right to counsel with an
“intelligent and understanding choice,” as required by Florida Rule of
Juvenile Procedure 8.320(b)(1). As the order of dependency was entered
without a valid waiver of counsel by the mother, we must reverse for
additional proceedings.

   The court conducted a Faretta-like1 questioning of the mother when
she sought to represent herself. Four attorneys had previously withdrawn

1   Faretta v. California, 422 U.S. 806 (1975).
from representing her, the last one midway through the final hearing on
the dependency petition. In a court-ordered evaluation the mother had
been diagnosed with paranoia and bipolar disorder, which evidenced itself
in a severe mistrust of people. Both the Department of Children and
Families and the Guardian ad Litem urged the court, not once but twice
during these proceedings, to appoint counsel. They presented the
psychological evaluation, yet the court refused to consider it on hearsay
grounds.

   When questioned by the court, the mother told the court that she had
the equivalent of a high school degree but had no training in the law. She
claimed she could ask questions and call witnesses. The court did not
delve into how the mental condition of the mother would affect her ability
to validly waive counsel. Without making a determination that the
mother’s waiver was made “knowingly, intelligently, and voluntarily,” the
court simply decided that the mother had a constitutional right to
represent herself, concluding that it would be a violation of her right to
force a lawyer upon her. In the criminal context, however, “The right to
self-representation may be exercised only by a defendant who is competent
and makes a knowing and voluntary waiver of counsel.” Larkin v. State,
147 So. 3d 452, 465 (Fla. 2014). Similarly, the right to represent oneself
in dependency or termination of parental rights proceedings also depends
upon the intelligent and understanding choice to waive counsel.

   The court did ask the mother if she had ever been adjudged
incompetent or insane. Mere competence to stand trial, however, is not
the same as competence for self-representation. See Indiana v. Edwards,
554 U.S. 164, 177-78 (2008). Hence, there was a need for a full and fair
determination that the mother’s waiver of counsel was knowing and
intelligent, given all the factors involved.

   Because the trial court failed to consider the mother’s mental health in
determining whether she could represent herself, the court failed to
consider all of the factors relevant to whether she had made an intelligent
and knowing choice to represent herself. The Department on more than
one occasion suggested that she was not capable of intelligently waiving
counsel and urged the court to consider her mental health examination,
which the court refused to do.2 Although the court offered counsel to the
mother at several other points in the proceedings, the mother rejected

2 We should also note that the mother sought to represent herself in these
appellate proceedings, but this court denied her that right and ordered the trial
court to appoint counsel for her.


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such an appointment, even though it was apparent that she was not able
to conduct a defense to the proceeding or to properly admit evidence which
was important to her defense. Nevertheless, in its final order the court
found the children dependent in large part because of the mother’s mental
health issues.

   We remand for further proceedings. If appellant continues to wish to
represent herself, the court shall conduct a hearing consistent with this
opinion to determine whether her waiver of counsel is knowing and
intelligent. The court should appoint counsel if it concludes that the
mother’s mental condition prevents her from knowingly and intelligently
waiving counsel.

STEVENSON, J., and LINDSEY, NORMA SHEPARD, Associate Judge, concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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