JENNIFER BESS v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JENNIFER BESS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-1387
[January 5, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; James L. Martz, Judge; L.T. Case No. 50-2021-MH-
001024-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, West Palm Beach, for
appellee.
PER CURIAM.
In this appeal of an order involuntarily committing appellant pursuant
to the Baker Act, appellant contends that the State did not prove by
competent substantial evidence that the statutory requirements of the
Baker Act were met. We agree and reverse.
At a hearing for involuntary commitment in front of a magistrate, a
psychiatrist testified that he encountered appellant in the emergency room
of a hospital. She was bipolar and experiencing a manic episode. He saw
her the next day and again just before the hearing. She was fifty percent
better by the time of the hearing but was in need of medication. The doctor
testified that he did not think she was in danger of self-neglect, but he
believed that she was in danger of hurting herself or others, thus the need
for involuntary commitment. He did not testify to any recent incidents of
violence. In fact, the only incident he knew of was an assault by appellant
on the father of one of her children several years earlier.
Appellant testified that she wanted to go home and continue treatment
on an outpatient basis. She had a business to attend to, and she was also
responsible for her mother who has dementia. The trial court ruled in the
State’s favor, ordering appellant’s commitment. Appellant then filed this
appeal.
Section 394.467, Florida Statutes (2021), lays out specific criteria
which the State must prove to order the involuntary inpatient placement
of an individual as follows:
(1) Criteria.--A person may be ordered for involuntary
inpatient placement for treatment upon a finding of the court
by clear and convincing evidence that:
(a) He or she has a mental illness and because of his or her
mental illness:
1. a. He or she has refused voluntary inpatient placement for
treatment after sufficient and conscientious explanation and
disclosure of the purpose of inpatient placement for
treatment; or
b. He or she is unable to determine for himself or herself
whether inpatient placement is necessary; and
2. a. He or she 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 himself or herself, and such
neglect or refusal poses a real and present threat of
substantial harm to his or her well-being; or
b. There is substantial likelihood that in the near future he or
she will inflict serious bodily harm on self or others, as
evidenced by recent behavior causing, attempting, or
threatening such harm; and
(b) All available less restrictive treatment alternatives that
would offer an opportunity for improvement of his or her
condition have been judged to be inappropriate.
(Emphasis added.)
2
“[T]here must also be clear and convincing evidence that without
treatment, the patient would pose a real and present threat of substantial
harm to herself, or a substantial likelihood that in the near future she will
inflict serious bodily harm on herself or another, as evidenced by recent
behavior.” Boller v. State, 775 So. 2d 408, 409 (Fla. 1st DCA 2000) (citing
§ 394.467(1)(a)2., Fla. Stat. (1999); Adams v. State, 713 So. 2d 1063, 1063
(Fla. 1st DCA 1998)). “Importantly, ‘[c]onclusory testimony,
unsubstantiated by facts in evidence . . . is insufficient to satisfy the
statutory criteria by the clear and convincing evidence standard.’” J.B. v.
State, 307 So. 3d 986, 988 (Fla. 5th DCA 2020) (quoting Boller, 775 So. 2d
at 410).
In this case, the criteria for involuntary commitment were not met. The
doctor testified that appellant was not in danger of self-neglect, negating
the existence of section 394.467(1)(a)2.a., as a criteria for commitment. As
to 2.b., while the doctor testified that he believed that appellant was in
danger of harming herself or others, his testimony was insufficient. The
doctor did not testify to any altercations between appellant and other
patients or staff since appellant was Baker Acted in the hospital emergency
room. Nor had appellant evinced any suicidal ideation or done anything
to harm herself. His opinion was not based upon recent behavior causing,
attempting, or threatening harm. He could only point to an assault by
appellant several years ago. That is not recent behavior, and thus there
was no evidence to support his conclusion of a likelihood of harm. His
testimony was conclusory, without any support of facts in evidence.
This case is similar to Blue v. State, 764 So. 2d 697 (Fla. 1st DCA 2000).
The issue in Blue, as here, was whether the State proved by clear and
convincing evidence the criteria contained in section 394.467(1)(a)2. Id.
at 698. As to neglect, the court determined that the State failed to
establish that Blue would suffer from neglect or would refuse to care for
herself. As to showing that Blue was substantially likely to inflict bodily
harm on herself or others, the court noted that the testimony showed that
Blue was unstable and threatening to others at times; had emotional
outbursts; was very argumentative and hostile; and her interaction with
other patients could escalate into conflicts and problems. On this record,
the court found that the State failed to show with “specificity” that there
was a substantial likelihood that in the near future Blue “will inflict serious
bodily harm on herself or another person.” Id. See also Henson v. State,
801 So. 2d 316 (Fla. 1st DCA 2001) (finding State did not prove substantial
risk of serious harm where witnesses testified that patient was
argumentative but did not observe any violence, and doctor could not
recall any incidences where patient was involved in physical
confrontation).
3
The State points to a need for treatment as a ground to justify the
commitment. However, “[i]t 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.” Boller, 775 So. 2d at 409 (citing Blue,
764 So. 2d at 698; Singletary v. State, 765 So. 2d 180, 181 (Fla. 1st DCA
2000)).
The State failed to present any competent substantial evidence of all
the criteria required for involuntary commitment. We thus reverse the
order of commitment. 1
Reversed.
CONNER, C.J., WARNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 While the commitment has long since ended, because of potential collateral
consequences, this appeal is not moot. Godwin v. State, 593 So. 2d 211, 214
(Fla. 1992); Swida v. State, 596 So. 2d 670, 671 (Fla. 1992); Archer v. State, 681
So. 2d 296, 297–98 (Fla. 1st DCA 1996).
4