Erlandsson v. Erlandsson

• Decision Date: 06 May 2020
• Docket Number: Nos. 4D19-2521 & 4D19-2522,s. 4D19-2521 & 4D19-2522
• Citation: 296 So.3d 431
• Parties: Beth Ann Elisa ERLANDSSON, Appellant, v. Guardianship of Beth Ann Elisa ERLANDSSON, Appellee.
• Court: Florida District Court of Appeals

296 So.3d 431

Beth Ann Elisa ERLANDSSON, Appellant,

v.Guardianship of Beth Ann Elisa ERLANDSSON, Appellee.

Nos. 4D19-2521 & 4D19-2522

District Court of Appeal of Florida, Fourth District.

[May 6, 2020]

Charles E. Ray of Charles E. Ray, P.A., Port St. Lucie, for appellant.

No appearance for appellee.

Walsh, Lisa S., Associate Judge.

Appellant Beth Ann Elisa Erlandsson appeals from an order appointing her parents as plenary guardians over her person and property. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const. For the reasons set forth below, we reverse and remand for a new hearing with respect to the parents’ petition for limited guardianship.

Background

Appellant's parents filed a petition for limited guardianship seeking to remove their daughter's rights specified in sections 744.3215(2) and (3), Florida Statutes (2019), except for her right to vote and right to marry. The petition alleged that Appellant was not attending to her basic medical and psychiatric needs and was unable to manage her own finances. The trial court appointed an examining committee to investigate and provide a report and recommendation to the court.

According to the committee's reports, Appellant was not taking care of her medical or psychiatric needs. Her diabetes

was unchecked, resulting in significant blood sugar fluctuations, and her inattention to self-care caused her to become blind in one eye and legally blind in the other. Her mental health fared no better. She was schizophrenic and extremely paranoid. She had recently been involuntarily committed to a mental health facility, and demonstrated a need for long-term psychiatric care. The examining committee unanimously reported that Appellant lacked the capacity to exercise her basic rights and recommended that a plenary guardian be appointed, which was in excess of the relief sought in the petition for limited guardianship.

The trial court appointed counsel to represent Appellant in the guardianship hearings. Appellant asked to discharge her appointed counsel, objecting throughout the hearing to her lawyer's representation and to having a guardianship imposed. Despite her client's objections, appointed counsel did not seek to withdraw, believing her client lacked the capacity to make the decision to fire her. Appellant continued to object to counsel's representation, and the trial court denied her request to discharge her lawyer.

At the hearing, appointed counsel briefly cross-examined one witness, but did not object to the admission of evidence and did not cross-examine the other witnesses. Appellant attempted to cross-examine a witness herself, but was prohibited from doing so. Appointed counsel declined to offer any evidence on Appellant's behalf, and Appellant complained, "I think my attorney should have some evidence and things in my favor." Finally, appointed counsel argued in favor of a plenary guardianship, against Appellant's clear and express wish that no guardianship be established:

[APPOINTED COUNSEL]: Your Honor, based upon my conversations with my client and with her parents and the records that I saw I feel that a refusal to take medication for her schizophrenia

and certain things that she has done to harm herself physically and medically.

* * *

APPELLANT: I have not harmed myself physically and I will not have her as the attorney and she has done nothing in my support or argued in my favor.

* * *

[APPOINTED COUNSEL]: And it's my understanding that she is blind in one eye and legally blind in the other because of actions that she took not protecting herself.

* * *

[APPOINTED COUNSEL]: In addition, she has diabetes and because she refuses to apply for SSI and get Medicaid the family can't afford to buy the insulin, and she's sharing her father's insulin. And because she refuses to take the medication for the schizophrenia her condition is only worsening. I'm not saying that in the future she might not have the capacity to exercise some of her rights, but unless she takes the medication she's never going to improve. So at the present time I have to agree with [the Petitioner] that she has to be under guardianship .

(emphasis added).

The trial court ordered a plenary guardianship, appointing Appellant's parents as guardians.

Analysis

Questions of statutory interpretation are reviewed de novo. Hilton v. State , 961 So. 2d 284, 288 (Fla. 2007) ; Borden v. E.-European Ins. Co. , 921 So. 2d 587, 591 (Fla. 2006). Similarly, issues as to whether the trial court satisfied due process are reviewed de novo. VMD Fin. Servs., Inc. v. CB Loan Purchase Assocs., LLC , 68 So. 3d 997, 999 (Fla. 4th DCA 2011).

At several points during the hearing, Appellant clearly indicated her dissatisfaction with appointed counsel and her desire to proceed with substitute appointed counsel. On appeal, she urges this court to extend principles of constitutional criminal law to guardianship proceedings and argues that she was not afforded her right to counsel under the guardianship statute.

A trial judge in guardianship proceedings has a mandatory statutory obligation to appoint counsel for the alleged incapacitated person. This obligation is established under section 744.331(2)(b), Florida Statutes (2019):

(2) Attorney for the alleged incapacitated person.—

* * *

(b) The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.

Attorneys appointed pursuant to section 744.331(2)(b) are awarded reasonable fees, either "paid by the guardian from the property of the ward or, if the ward is indigent, by the state." § 744.331(7)(b), Fla. Stat. (2019).

Appellant first argues that she had a constitutional right to discharge counsel and either represent herself or require a new appointed lawyer. She argues that when she voiced her displeasure with counsel, the trial court should have conducted a colloquy under Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Nelson v. State , 274 So. 2d 256 (Fla. 4th DCA 1973). Faretta¹ and Nelson² enforce the rights of a criminal defendant to the assistance of counsel and to self-representation under the Sixth Amendment to the United States Constitution, and Article I, section 16 of the Florida Constitution. The text of the Sixth Amendment applies exclusively to criminal matters, and not to guardianship proceedings.³ Under Faretta and Nelson , the trial court had no obligation in a guardianship proceeding to substitute counsel or allow Appellant to represent herself.⁴

Similarly, we reject Appellant's argument that she has a constitutional right to challenge the effective assistance of her appointed counsel. In cases applying the due process clause of the Florida Constitution or the federal constitution, courts have found that the appointment of counsel is required only in proceedings where incarceration or involuntary commitment may be imposed⁵ or where a parent faces loss of the right to parenthood, such as in termination of parental rights proceedings.⁶ A right to effective assistance of counsel under the due process clause has not been extended beyond those areas. See S.B. v. Dep't of Children & Families , 851 So. 2d 689, 694 (Fla. 2003) ("[I]n civil dependency proceedings which do not involve the possibility of criminal charges against the parent or the permanent termination of parental rights, there is no right to pursue a collateral proceeding questioning the competency of court-appointed counsel."); In re Interest of D.B. , 385 So. 2d 83, 87 (Fla. 1980) (constitutional right to counsel for parents in dependency matters arises only in proceedings which may result in permanent loss of parental custody).

We next address whether the trial court should have recognized that a conflict of interest existed between Appellant and her court-appointed counsel, and whether the court had a statutory duty to appoint new counsel. Florida law defines the role of appointed counsel in guardianship proceedings as follows:

(1) "Attorney for the alleged incapacitated person" means an attorney who represents the alleged incapacitated person. The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.

§ 744.102(1), Fla. Stat. (2019) (emphasis added). Representation of a client's expressed wishes in a guardianship proceeding is thus required by section 744.102(1), Florida Statutes, in accord with Florida Bar Rules 4-1.2(a) and 4-1.14.⁷ The language of the statute clearly requires that a lawyer appointed in guardianship proceedings represents the expressed wishes and not necessarily the "best interests" of a prospective ward.

The Florida Bar Rules address the role of counsel where the client suffers from mental or physical incapacity. Florida Bar Rule 4-1.2(a) mandates that "a lawyer must abide by a client's decisions concerning the objectives of representation," and "must reasonably consult with the client as to the means by which they are to be pursued." (emphasis added). Moreover, Florida Bar Rule 4-1.14, which governs representation of a client under a disability, provides that:

(a) Maintenance of Normal Relationship. When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability

, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) Appointment of Guardian. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.⁸

Appellant's counsel struggled with her role because her client was actively manifesting symptoms of a major mental illness:

[APPOINTE

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