Weissmann, J.
In this appeal, we consider what procedure a trial court must follow before accepting a civil-commitment respondent’s waiver of the right to counsel. We conclude the court must expressly find, on the record, that the respondent is mentally capable of knowingly, voluntarily, and intelligently waiving the right. Because that did not happen in the trial court below, we reverse and remand.
….
L.B. challenges his commitment on due process grounds, arguing that the trial court erred in accepting his waiver of the right to counsel without first finding that he was competent to waive that right. We agree.
Indiana Code § 12-26-2-2 grants a person alleged to have mental illness the right to counsel in a civil-commitment proceeding. Ind. Code § 12-26-2-2(b)(4). To effectively waive this right, the person must be “capable of making such a decision,” and the waiver must be made “knowingly, voluntarily, and intelligently.” GPH v. Giles, 578 N.E.2d 729, 737 (Ind. Ct. App. 1991). Though Indiana’s appellate courts have not had occasion to consider what procedure a trial court must follow before accepting a civil-commitment respondent’s waiver of the right to counsel, our Supreme Court has considered an analogous issue that we find instructive.
In addition to the right to counsel, Indiana Code § 12-26-2-2 grants a person alleged to have mental illness the right to be present at a civil commitment proceeding. I.C. § 12-26-2-2(b)(3)….
We see no reason to require a different procedure when a civil-commitment respondent is waiving the right to counsel rather than the right to appear. Both are due process rights provided by Indiana Code § 12-26-2-2, and both implicate the same concerns….
Accordingly, we conclude that a trial court must expressly find, on the record, that a civil-commitment respondent is capable of knowingly, voluntarily, and intelligently waiving the right to counsel before accepting the respondent’s waiver of that right. How that is done will depend on the circumstances of the case, as with waiver of the right to appear. When mental competency is more doubtful, the court may need to diligently observe and question the respondent in person. Other cases may not require such a deep inquiry. See id. at 613.
….
Robb, J., and Pyle, J., concur.