        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          KATHERINE HOWARD,
                               Appellant,

                                      v.

             MICHAEL R. HOWARD, SUZANNE M. HOWARD,
                     and WILLIAM P. HOWARD,
                            Appellees.

                              No. 4D15-2012

                               [May 25, 2016]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Victoria L. Griffin, Judge; L.T. Case No.
312014GA000092.

  Antony P. Ryan, Regional Counsel, and Melanie L. Casper, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.

  Amy D. Shield and Roger Levine of Amy D. Shield, P.A., Boca Raton, for
appellees.

LEVINE, J.

    The issues in this case center on the procedural requirements for
appointing a limited guardian advocate on the behalf of someone with a
developmental disability. One issue relates to the court’s finding of good
cause to proceed with the guardianship proceeding without the potential
ward being present. The other issue concerns the requirements on a trial
court when preparing a written order appointing guardian advocates. As
to the first issue, we hold the court made, albeit implicitly, the necessary
finding of good cause. Regarding the second issue, we find the lower
court’s order did not make the necessary findings as required by section
393.12, Florida Statutes, and remand with instructions. We affirm
without comment as to the remaining issues.

   The father, mother, and brother of Katherine Howard, the ward,
collectively petitioned the trial court to declare the ward incapacitated and,
at the same time, appoint the father, mother, and brother guardian
advocates of the ward. The petition stated the ward suffers from “Spastic
Quadcerebral Palsy - Late Effects, Anxiety, and Depression.” Petitioners
sought to remove the ward’s right to personally apply for government
benefits, to have a driver’s license, and to travel. The petition also sought
to delegate the following rights to the ward’s limited guardian advocates:
to contract, to sue and defend lawsuits, to apply for government benefits,
to manage property or to make any gift or disposition of property, to
determine the ward’s residence, to consent to medical and mental health
treatment, and to make decisions about the ward’s social environment or
other social aspects of the ward’s life.

   The court held a hearing on the petitioners’ petition. The ward did not
attend that hearing.      The ward’s attorney claimed that she had
communicated to him that she did not want to attend. But the attorney
would also not waive her presence and requested additional time to speak
with her. The petitioners’ attorney submitted that the ward had waived
her right to attend the hearing. The court, after noting that there was no
guarantee the ward would ever choose to attend the hearing, held the
hearing in the ward’s absence.

   At the hearing, the ward’s father gave largely unobjected to testimony
regarding the ward’s physical and mental limitations. This testimony
described how, as a result of the ward’s physical limitations, she could
not, for example, ever operate a motor vehicle or cook food. He also
testified that the ward’s mental limitations prevented her from
understanding things like the significance of a contract or what do if she
was sued. Furthermore, the ward, he claimed, was socially vulnerable and
prone to being taken advantage of due to her naïve and trusting nature.
The court also received doctors’ reports, one of which stated that the
ward’s “condition precludes her from being self supporting now, and in the
future . . . .”

   Following the conclusion of the hearing, the court entered a written
order, granting the petition in full, and appointed the ward’s father,
mother, and brother as her guardian advocates. The order further stated
that

   1. Pursuant to Florida Statute 744.3085, the Court, having
      considered alternatives to guardian advocacy, found that no
      alternative to guardian advocacy will sufficiently address the
      needs of the Ward, and that the restrictions imposed upon the
      Ward’s rights and liberties are consistent with the Ward’s
      welfare and safety, and are the least restrictive appropriate
      alternatives, reserving to the Ward the right to make decisions

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      in all matters commensurate with the with the Ward’s ability
      to do so.

   2. The Ward is unable to meet the essential requirements for
      certain aspects of the Ward’s physical health or safety and
      certain aspects of the management of the Ward’s financial
      resources. . . .

   Although a trial court’s decision to appoint a guardian is reviewed for
abuse of discretion, Morris v. Knight, 1 So. 3d 1236, 1238 (Fla. 4th DCA
2009), our review of the rules of procedure is de novo, R.T.G. Furniture
Corp. v. Coates, 93 So. 3d 1151, 1153 (Fla. 4th DCA 2012).

    The ward argues the lower court did not make a finding of good cause
when it proceeded with the hearing without her being present. We find
that the record shows that the court did not “exclude” the ward and
allowed the hearing to proceed without the ward being present and that
the court considered the ward’s non-appearance to be good cause for
holding the hearing in her absence.

   Section 393.12(6)(c), Florida Statutes, provides that “[t]he person with
a developmental disability has the right to be present at the hearing and
shall be present unless good cause to exclude the individual can be
shown.” Obviously, a potential ward’s voluntary waiver of her right to
attend the guardianship hearing can be good cause to proceed without the
ward and effectively “exclude[s] the individual.” See id. Otherwise, judges
would face the dilemma of either compelling someone with an already
vulnerable mental state to attend the hearing or postponing the hearing
indefinitely as a result of the individual’s non-appearance. See In re MH
2006-000749, 152 P.3d 1201, 1204, 1207 (Ariz. App. Ct. 2007). But
waiver must be both knowing and voluntary. See In re Link, 713 S.W.2d
487, 496 (Mo. 1986) (en banc). Cf. Peede v. State, 474 So. 2d 808, 814
(Fla. 1985) (explaining that a defendant may waive his presence at trial if
the waiver is knowing and voluntary).

   A trial court has an obligation to make findings as to whether one’s
waiver of a right is made knowingly and voluntarily. In re Link, 713 S.W.2d
at 496. See also Coney v. State, 653 So. 2d 1009, 1013 (Fla. 1995) (stating
a court must inquire into a defendant’s absence from an essential stage of
a criminal trial to determine whether the waiver is knowing, intelligent,
and voluntary); State v. Upton, 658 So. 2d 86, 87-88 (Fla. 1995) (stating
the trial court must inquire into the voluntariness of a waiver to the
fundamental right to a jury trial). In guardianship cases, such as this one,
the court may examine the individual on the record to determine whether

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the individual is knowingly and voluntarily waiving his or her right to
attend the hearing. See In re MH, 2006-000749, 152 P.3d at 1207-08.
Alternatively, in some cases, it may be necessary to examine third parties
familiar with the potential ward to ascertain the voluntariness of the
potential ward’s waiver. Id.

   In the present case, the court heard from the ward’s attorney who
stated that the ward did not want to attend. Although the court did not
expressly say the ward’s non-appearance was good cause, its comments
make clear that it implicitly considered the ward’s decision to not appear
was good cause to hold the hearing in her absence. Although the record
does not show the ward’s decision to waive her right to be present was
made knowingly and voluntarily, the ward does not raise this issue on
appeal. Therefore, we affirm on this issue.

   After hearing testimony from the ward’s father and receiving evidence
in the form of doctors’ reports, the court entered an order appointing the
ward’s father, mother, and brother as guardian advocates. The ward
argues the lower court’s order does not comply with section 393.12(8),
Florida Statutes. We agree.

   Section 393.12(8) provides:

      (8) COURT ORDER.— If the court finds the person with a
      developmental disability requires the appointment of a
      guardian advocate, the court shall enter a written order
      appointing the guardian advocate and containing the findings
      of facts and conclusions of law on which the court made its
      decision . . . .

This order must include findings as to “[t]he nature and scope of the
person’s lack of decisionmaking ability” as well as findings as to “[t]he
specific legal disabilities to which the person with a developmental
disability is subject.” § 393.12(8)(a), (c), Fla. Stat.

   The court’s order in this case does not fulfill the requirements of section
393.12(8). It does not make findings as to the the “nature and scope” of
the ward’s lack of “decisionmaking ability.” See § 393.12(8)(a), Fla. Stat.
The lower court’s order also does not make a finding as to any “specific
legal disabilities” to which the ward is subject. See § 393.12(8)(c), Fla.
Stat. The failure to make findings of fact and conclusions of law as
required under the statute frustrates judicial review. See Pamela Equities,
Inc. v. Nyren Enters. Inc., 850 So. 2d 673, 673 (Fla. 1st DCA 2003). We
therefore remand with instructions that the court make findings of fact

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and conclusions of law in accordance with the requirements of section
393.12(8).

   We conclude by recognizing the unenviable position of the ward and
her family. The ward’s family has taken care of her for twenty-three years,
seldom spending more than a few hours away from her and have sought
to ensure her continued protection. The ward is a twenty-three-year-old
woman, who, like everyone, seeks to make her own way in life.
Unfortunately, due to the severe impediments caused by her disability, the
ward’s life is unlike other twenty-three year olds. The Florida legislature
has, through its statutory scheme, sought to establish a “form of
assistance that least interferes with the legal capacity of a person to act in
her or his own behalf.” § 744.1012, Fla. Stat. However, achieving this
balance requires adherence to the procedural protections put in place to
protect the rights of those with developmental disabilities.

   In summary, although the trial court satisfied the requirements of
section 393.12(6)(c), Florida Statutes, it did not comply with section
393.12(8), Florida Statutes. Thus, we remand for the trial court to make
the required findings of fact and conclusions of law as set forth in the
statute.

   Affirmed in part, reversed in part, and remanded.

STEVENSON and DAMOORGIAN, JJ. concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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