DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KAREN ROSS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-2949
[August 30, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 50-2022-MH-
002985-XXXX-SB.
Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jacqueline I.
Kurland, Senior Assistant Attorney General, Fort Lauderdale, for appellee.
FORST, J.
Appellant Karen Ross appeals the trial court’s order granting South
County Mental Health Center’s (“the Center”) petition for involuntary
inpatient placement at the Center. Ross contends that the State failed to
establish by clear and convincing evidence the criteria set forth in section
394.467(1), Florida Statutes (2022) (part of “The Florida Mental Health
Act,” a/k/a “The Baker Act” 1) to support her involuntary inpatient
placement. We agree and reverse the order of commitment.
Background
Ross’s mother, with whom Ross resided, became concerned about
“peculiar” behavior that Ross reportedly exhibited at home. Consequently,
Ross was taken to the Center for “involuntary examination” pursuant to
section 394.463, Florida Statutes (2022). There, a psychiatrist examined
her. Based on this doctor’s examination of Ross and his communications
with Ross’s family, the Center petitioned for section 394.467 involuntary
1 § 394.451, Fla. Stat. (2022).
inpatient placement. Ross challenged this petition, and a magistrate judge
conducted a hearing.
At the hearing, the psychiatrist testified:
So the family was concerned because of several peculiar
behaviors. For example -- and that’s in the Court-ordered
Baker Act -- the patient was found eating dog food, and you
know, when the mother tried to confront her and put it back,
she was also found had stashed it away. She’d probably been
sleeping in a chair for several years because she was too
paranoid to sleep in a bed. Pulls her hair out, hits herself in
the face, and when she’s too upset doesn’t come home at night
and sleeps in the storage room. She’s also been reported
urinating in cups and jars, which she saves up. . . . And
doesn’t shower, she doesn’t eat properly and hoards garbage
at home, and claims to be employed, but hasn’t had a job.
And you know, seems to be able to -- as soon as she gets
released from the hospital she seems to be able to get off of
her medication, and you know, get off the radar for a little bit
until the situation exacerbates and she gets re-Baker acted in
the hospital.
The psychiatrist diagnosed Ross as suffering from schizophrenia, and
he opined that Ross was incapable of making her own decision regarding
continued treatment at the Center. However, the doctor agreed that Ross
did not appear malnourished. He did not identify any obvious signs that
Ross’s behavior impacted her health. In addition, the psychiatrist testified
that Ross’s family members had no physical health concerns regarding
Ross’s behavior. When asked about his concerns if Ross was discharged,
he responded that “the bizarre behavior will simply continue, the parents
would likely file again, and then find theirself [sic] in the same situation
shortly.”
Ross denied that she consumed dog food or lived in a storage unit. She
further claimed to have a job. Her counsel argued that the petition should
be dismissed because there was insufficient evidence of self-harm or self-
neglect.
The trial court ultimately granted the petition, ordering Ross’s
involuntary placement at the Center for up to three weeks. The order
found that Ross was “mentally ill” and consequentially she was “manifestly
incapable of surviving alone or with the help of willing and responsible
family or friends, including available alternative services, and, without
treatment, [was] likely to suffer from neglect or refuse to care for herself,
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and such neglect or refusal pose[d] a real and present threat of substantial
harm to her well-being.” This finding serves as the basis for Ross’s appeal.
Analysis
Ross argues on appeal that the State failed to prove:
2.a. [S]he is incapable of surviving alone or with the help of
willing and responsible family or friends, including available
alternative services, and, without treatment, is likely to suffer
from neglect or refuse to care for . . . herself, and such neglect
or refusal poses a real and present threat of substantial harm
to . . . her well-being; or
b. There is a substantial likelihood that in the near
future . . . she will inflict serious bodily harm on self or others,
as evidenced by recent behavior causing, attempting or
threatening such harm . . . .
§ 394.467(1)(a)2., Fla. Stat. (2022) (emphasis added).
The State has not argued, and the trial court did not find, that Ross
was at risk of “inflict[ing] serious bodily harm on self or others.” Thus, our
review is limited to whether Ross “[was] incapable of surviving alone or
with the help of willing and responsible family or friends, including
available alternative services, and, without treatment, [was] likely to suffer
from neglect or refuse to care for . . . herself, and such neglect or refusal
pose[d] a real and present threat of substantial harm to . . . her well-being.”
§ 394.467(1)(a)2.a., Fla. Stat. (emphasis added).
Ross’s schizophrenia diagnosis and potential failure to take medication
for her mental illness do not alone justify Baker Act involuntary placement.
See Boller v. State,
775 So. 2d 408, 409 (Fla. 1st DCA 2000) (“It is well-
settled that the need for treatment and medication and the refusal to take
psychotropic medication despite a deteriorating mental condition,
standing alone, do not justify involuntary commitment under the Baker
Act.”).
Moreover, the psychiatrist failed to identify any obvious signs Ross’s
behavior affected her health and confirmed that Ross’s family members
had no physical health concerns based on her behavior. Despite concern
by Ross’s mother that Ross consumed dog food, the psychiatrist confirmed
Ross did not appear malnourished. See Schexnayder v. State,
495 So. 2d
850, 852 (Fla. 1st DCA 1986) (reversing involuntary hospitalization when
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doctor testified there was “no evidence of dehydration or gross
malnutrition”).
Similarly, the psychiatrist’s response that if Ross was released, her
“bizarre” behavior would “simply continue” and posed a real and present
threat of substantial harm to her well-being, was “speculative and
conclusory.” See Kogel v. State,
339 So. 3d 373, 374–75 (Fla. 4th DCA
2022); see also Lyon v. State,
724 So. 2d 1241, 1243 (Fla. 1st DCA 1999).
“Importantly, ‘[c]onclusory testimony, unsubstantiated by facts in
evidence . . . is insufficient to satisfy the statutory criteria by the clear and
convincing evidence standard.’” Kogel, 339 So. 3d at 375 (alterations in
original) (quoting Bess v. State,
336 So. 3d 36, 37–38 (Fla. 4th DCA 2022)).
Accordingly, the trial court erred in finding clear and convincing
evidence of self-neglect posing a real and present threat of substantial
harm to Ross’s well-being under section 394.467(1)(a)2.a.
Conclusion
Because the psychiatrist’s testimony was conclusory and
unsubstantiated by the facts in evidence, the State has failed to establish
by clear and convincing evidence the required involuntary inpatient
placement criteria. Consequently, we reverse the trial court’s order of
commitment.
Reversed.
KLINGENSMITH, C.J., and CONNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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