Dept. of Children and Families v. Garcia , 245 So. 3d 919 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed April 24, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-0479
Lower Tribunal Nos. 17-875-A-K & 17-876-A-K
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Department of Children and Families,
Petitioner,
vs.
Adalberto Garcia, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Monroe County, Timothy J.
Koenig, Judge.
Patricia Salman, Assistant Regional Legal Counsel, for petitioner.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General; Carlos J. Martinez, Public Defender, and John Eddy Morrison,
Assistant Public Defender, for respondents.
Before EMAS, FERNANDEZ and LUCK, JJ.
PER CURIAM.
The state department of children and families petitions for a writ of
certiorari from the trial court’s order involuntarily committing defendant Adalberto
Garcia to the department after Garcia was found incompetent to proceed with his
pending felony lobster-catching charges. We grant the petition because the trial
court exceeded its jurisdiction by requiring the department to involuntarily commit
Garcia where there was no evidence of a substantial probability that he would
regain competency to proceed in the reasonably foreseeable future, as required for
involuntary commitment under Florida Statutes section 916.13(1)(c).
Factual Background and Procedural History
On August 2, 2017, a Monroe County sheriff’s deputy found the eighty-one
year old Garcia walking with a five pound bucket full of Florida spiny lobsters.
There were twenty-nine lobsters in the bucket caught out of season, with eight of
the lobsters smaller than the minimum allowable size. Garcia was arrested on
felony lobster violations and booked in the Monroe County detention center.
While still in custody, the trial court ordered that Garcia be evaluated for
competency to stand trial. Dr. Tanju Mishara conducted the competency
evaluation on November 20, 2017. Dr. Mishara opined that Garcia was not
competent to stand trial because of his impairment “due to cognitive decline into
dementia which happens to many seniors his age.” Dr. Mishara also believed that
while Garcia met the criteria for involuntary commitment, “it [was] quite doubtful
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that his competency can be restored.” “[I]t is likely,” Dr. Mishara explained, “that
his dementia will progess, and he will experience more cognitive function loss
with time.” “[G]iven his age, treatment [was] not likely to restore his competence
to proceed appreciably.” Dr. Mishara recommended that Garcia be placed in a
senior assisted living facility where he would be supervised for his self-care needs.
The trial court held a non-testimonial competency hearing on February 26,
2018, where it received Dr. Mishara’s written report as evidence. Based on Dr.
Mishara’s report, the trial court found Garcia incompetent to proceed with the trial
in the case. The trial court also found that Garcia met the criteria for commitment
to a treatment facility as provided in section 916.13(1), and committed Garcia to
the department to be placed in a secure mental health treatment facility. The
sheriff was directed, within fifteen days, to transport Garcia to the treatment
facility designated by the department.
The department moved for rehearing and reconsideration of the trial court’s
commitment order. In the rehearing motion, the department highlighted the part of
Dr. Mishara’s report where she opined that it was doubtful Garcia’s competency
could be restored. The department also pointed the trial court to the involuntary
commitment statute, section 916.13(1), which provides that the defendant may be
involuntarily committed only on a finding by clear and convincing evidence that
there’s a substantial probability he will respond to treatment and will regain
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competency to proceed in the reasonably foreseeable future. The department cited
to a case from the Fifth District Court of Appeal, Department of Children &
Families v. Ewell, 949 So. 2d 327 (Fla. 5th DCA 2007), where the appellate court
granted the department’s certiorari petition after the trial court ordered the
defendant involuntarily committed without evidence the defendant could be
restored to competency. The trial court denied the rehearing motion on March 12,
2018.
The next day, the department served a petition for writ of certiorari. Like
the rehearing motion, the department petitioned to quash the trial court’s
involuntary commitment order because there was no evidence supporting the trial
court’s finding that Garcia met the requirement for involuntary commitment that
there be a substantial probability he will respond to treatment and regain
competency in the near future.
We ordered Garcia and the Attorney General’s office to respond to the
department’s petition. Garcia responded that we should grant the certiorari
petition because all competent evidence – i.e., Dr. Mishara’s report – indicated that
Garcia was not restorable, and therefore, he could not be committed to the state
hospital under section 916.13(1). The Attorney General, in her response, agreed:
DCF asserts that the law prohibits their assuming the care and custody
of Mr. Garcia. The cited statute, section 916.13, Florida Statutes,
places into DCF’s care subjects who have a “substantial probability”
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of responding to treatment for their mental illness. Dr. Tanju T.
Mishara’s report suggests that Mr. Garcia does not meet that criterion.
Although DCF is in the best position to assess its
responsibilities under the regulations, the above-cited statute appears
to supports its current contention. Hence, the State asks that this
Court rule accordingly on the question of Mr. Garcia’s placement.
Jurisdiction
“Certiorari jurisdiction lies to rectify a trial court order to the [d]epartment to
assume treatment responsibilities for an individual beyond what is required by
statute.” Dep’t of Children & Families v. C.Z., 201 So. 3d 78, 81 (Fla. 3d DCA
2015). “Certiorari jurisdiction lies to review DCF’s claim that the trial court has
acted in excess of its jurisdiction by ordering DCF to undertake responsibilities
beyond what is required by statute.” Dep’t of Children & Families v. Amaya, 10
So. 3d 152, 154 (Fla. 4th DCA 2009). Finally, “certiorari does lie where there is
irreparable harm if entities such as . . . HRS, and [the county] are required to pay
for treatment or transportation of the detainee and there is no adequate remedy on
appeal considering the non-party status of these petitioners.” State Dep’t of Health
& Rehab. Servs. v. Myers, 696 So. 2d 863, 865 (Fla. 4th DCA 1997).1
Discussion
We agree with the department, Garcia, and the Attorney General that the
trial court acted in excess of its jurisdiction when it ordered the department to
1 “The [d]epartment also has standing to being such a petition, despite the fact that
it was not a party to the criminal case or commitment proceeding.” C.Z., 201 So.
3d at 81 n.2.
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involuntarily commit Garcia without evidence of a substantial probability he will
respond to treatment and will likely regain competency. After a defendant is found
incompetent to proceed, he may be involuntarily committed only if the trial court
finds by clear and convincing evidence that the defendant meets the following
criteria:
(a) The defendant has a mental illness and because of the mental
illness:
1. The defendant is manifestly incapable of surviving alone or with
the help of willing and responsible family or friends, including
available alternative services, and, without treatment, the defendant is
likely to suffer from neglect or refuse to care for herself or himself
and such neglect or refusal poses a real and present threat of
substantial harm to the defendant’s well-being; or
2. There is a substantial likelihood that in the near future the
defendant will inflict serious bodily harm on herself or himself or
another person, as evidenced by recent behavior causing, attempting,
or threatening such harm;
(b) All available, less restrictive treatment alternatives, including
treatment in community residential facilities or community inpatient
or outpatient settings, which would offer an opportunity for
improvement of the defendant's condition have been judged to be
inappropriate; and
(c) There is a substantial probability that the mental illness causing the
defendant’s incompetence will respond to treatment and the defendant
will regain competency to proceed in the reasonably foreseeable
future.
§ 916.13(1), Fla. Stat. (2017) (emphasis added).
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Here, the only evidence the trial court had at the competency hearing was
Dr. Mishara’s report. Regarding the last involuntary commitment criteria –
whether there was a substantial probability that the defendant’s mental illness
would respond to treatment and the defendant would regain competency in the
foreseeable future – Dr. Mishara diagnosed Garcia with dementia. Dr. Mishara
opined that Garcia’s ability to understand was “impaired due to cognitive decline
into dementia which happens to many seniors his age.” Dr. Mishara believed “[i]t
possible that [Garcia’s] cognitive impairment from dementia [could] benefit
superficially from appropriate treatment, but given his age, treatment [was] not
likely to restore his competency to proceed appreciably.” Dr. Mishara continued
that “it [was] quite doubtful that [Garcia’s] competency can be restored,” and it
was “likely that his dementia will progress, and he will experience more cognitive
function loss with time.” Given Dr. Mishara’s opinion, which was the only one the
trial court had to support its conclusion that Garcia met the criteria for involuntary
hospitalization, the trial court could not have found by clear and convincing
evidence that Garcia’s dementia would respond to treatment and Garcia would
regain competency in the foreseeable future.
The Fifth District has at least twice granted certiorari petitions from similar
involuntary commitment orders where there was no evidence the defendant would
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respond to treatment or regain competency. The courts’ opinions are short and
worth quoting in full:
We grant the Department of Children and Families’ petition for
writ of certiorari and quash the trial court’s order of continued
commitment of the respondent, Teresa Ann Gilliland, an individual
declared mentally incompetent to proceed to trial on two felony
charges. The uncontradicted medical testimony presented to the trial
court reveals that Gilliland suffers from dementia that will become
progressively worse and that there is little or no probability that she
will become competent in the future. Therefore, Gilliland no longer
meets the criteria for commitment to the Department under section
916.13(1)(c), Florida Statutes. § 916.13(1)(c), Fla. Stat. (2006)
(“Every defendant who is charged with a felony and who is
adjudicated incompetent to proceed may be involuntarily committed
for treatment upon a finding by the court of clear and convincing
evidence that ... [t]here is a substantial probability that the mental
illness causing the defendant’s incompetence will respond to
treatment and the defendant will regain competency to proceed in the
reasonably foreseeable future.”); Dep’t of Children & Families v.
Wehrwein, 942 So. 2d 947 (Fla. 5th DCA 2006) (granting petition for
writ of certiorari and quashing lower court's order of commitment to
Department of Children and Families; holding that although
respondent was adjudicated incompetent to proceed to trial,
respondent’s commitment to the Department was improper under
section 916.13(1)(c) because he suffered from a mental illness that
was permanent and there was not a substantial likelihood that
competency would be restored); Andrews v. Johnson, 941 So. 2d 494
(Fla. 1st DCA 2006) (same); Oren v. Judd, 940 So. 2d 1271 (Fla. 2d
DCA 2006) (same).
Dep’t of Children & Families v. Gilliland, 947 So. 2d 1262, 1262-63 (Fla. 5th
DCA 2007) (alteration and omission in original).
Petitioner, the Department of Children and Family Services,
(“Department”), seeks a writ of certiorari quashing the trial court’s
order committing Respondent, Shannon Edward Ewell, to the Florida
State Hospital for treatment to restore him to competency. The only
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medical expert who evaluated Ewell opined that Ewell will not be
able to reach competency through any known therapeutic program.
Section 916.13(1)(c), Florida Statutes (2006), requires that before a
defendant is committed to the Department for competency restoration,
there must be “clear and convincing evidence that ... [t]here is a
substantial probability that the mental illness causing the defendant's
incompetence will respond to treatment and the defendant will regain
competency to proceed in the reasonably foreseeable future.” Because
there was no evidence presented below to support Ewell’s
commitment pursuant to section 916.13(1)(c), we find the trial court
departed from the essential requirements of the law by ordering
Ewell’s commitment for competency restoration. E.g., M.H. v. State,
901 So. 2d 197, 200 (Fla. 4th DCA 2005) (recognizing that “[w]here
competent, substantial evidence does not support the trial court's
finding regarding competency or involuntary commitment, the trial
court has departed from the essential requirements of the law”).
Therefore, we grant the petition, quash the order below, and remand
this matter to the circuit court for further proceedings.
Ewell, 949 So. 2d at 327-28 (alteration and omission in original).
We also have uncontradicted evidence from the only medical expert who
evaluated Garcia explaining Garcia’s dementia will get progressively worse, and it
is doubtful Garcia will be restored to competency. As in Gilliland and Ewell, the
trial court exceeded its jurisdiction when it ordered the department to involuntary
commit Garcia after he was found incompetent without evidence that he met the
criteria under section 916.13(1)(c).
Conclusion
We quash the trial court’s February 26, 2018 order to the extent it committed
Garcia to the department for involuntary hospitalization pursuant to section
916.13(1). We remand this matter to the trial court for further proceedings.2
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FERNANDEZ, J., concurring.
I wholeheartedly concur and write only to express my concern about the
level of confidence expressed by Dr. Mishara in the results of the Brief
Neuropsychological Cognitive Examination (“BNCE”), a mental status exam, due
to the use of an interpreter to administer the test. The BNCE appears to be the test
that resulted in the diagnosis of dementia. Dr. Mishara wrote in her report:
To assess mental status BNCE was used. This instrument assesses
major cognitive functions usually targeted by neuropsychological
testing. Part 1 relates to more conventional types of information
processing; and Part 2 subtests are aimed at the processing of novel
incomplete and less conventional types of information. This latter is
required for successful information processing of executive functions.
It tends to decrease earlier and more sharply in those with progressive
dementia or other assaults to the brain. His total score in the BNCE
was 5 which placed him in the Severe Impairment category.
Individuals with scores in this range cannot independently [sic]. His
Part 2 score was notably lower than Part 1 meaning that his
information processing functions [sic] was significantly compromised.
Given his age, dementia adversely affecting the cognitive process was
likely. It should be pointed out, however, that having to
administered [sic] the BNCE through an interpreter emphasizes
that caution be exercised in appraising the accuracy of the results.
(Emphasis added).
2 Those further proceedings could include the state instituting civil commitment
proceedings, releasing Garcia, Gilliland, 947 So. 2d at 1263, or the trial court, on
its own motion, ordering Garcia to be examined by additional experts, Fla. R.
Crim. P. 3.210(b). Because our review is by certiorari, we express no opinion on
what the trial court should do on remand other than to quash the involuntary
commitment part of the trial court’s order.
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