D.H. v. K.J.R.

• Docket Number: 2D22-3523
• Decision Date: 07 February 2024
• Citation: 378 So. 3d 1269
• Parties: D.H., Appellant, v. K.J.R., Appellee.
• Court: Florida District Court of Appeals

378 So.3d 1269

D.H., Appellant,

v.K.J.R., Appellee.

No. 2D22-3523

District Court of Appeal of Florida, Second District.

February 7, 2024

Appeal from the Circuit Court for Pasco County; Kimberly Sharpe Byrd, Judge.

Sarah Sultenfuss of Sarah Baker Sultenfuss, P.A., Dade City, for Appellant.

K.J.R., pro se.

ATKINSON, Judge.

D.H. appeals the trial court’s ex parte order, entered pursuant to Florida’s Marchman Act, granting K.J.R.’s petition for the involuntary assessment and stabilization of D.H. for an alleged substance abuse impairment. D.H. contends that (1) the petition did not contain sufficient facts to satisfy the statutory criteria for involuntary assessment and stabilization and that (2) she was deprived of due process because the trial court’s entry of the order on an ex parte basis violated her right to counsel. For the reasons explained in this opinion, we reverse.

Background

On September 26, 2022, K.J.R., the appellee and sister of D.H., filed a Petition and Affidavit for Involuntary Assessment and Stabilization of D.H. for an alleged substance abuse impairment pursuant to Florida’s Marchman Act, sections 397.301 to 397.998, Florida Statutes (2022). This was not the first time K.J.R. had done so, as she acknowledged that she previously filed a petition against D.H. under the Marchman Act "last year for being on crystal meth."

K.J.R.’s 2022 petition was completed using a pre-prepared form containing various prompts for information followed by blank spaces where she could check "yes" or "no" and blank lines where she could fill in the requested information. Relevant to this appeal, K.J.R. checked "yes" in response to five statements and provided handwritten explanations in support of each response, as follows:

(1) K.J.R. cheeked "yes" to the statement that she believed D.H. was "substance abuse impaired … or has a co-occurring mental health disorder" and hand wrote the following in support: "[D.H.] is doing witchcraft[,] going to grave site[,] and talking to the devil. One min[ute] she is ok the next she is not. She is drinking a lot. The things she is doing and saying doesn’t make sense."

(2) K.J.R. checked "yes" to the statement that she believed, "because of such impairment or disorder, [D.H.] has lost the power of self-control with respect to the substance abuse" and hand wrote the following in support: "[D.H.] has started again worshipping the Mexican devil. She doing witchcraft. The only time she has done [that] is … is when she’s on drugs." (Ellipsis in original.).

(3) K.J.R. checked "yes" to the statement that she believed D.H. was "in need of substance abuse services" and was "incapable of appreciating … her heed for services and making a rational decision in that regard" and hand wrote the following in support: "She is back drinking. When she drink[s] she does crystal meth. She move[d] here to [D]ade [C]ity 5 minutes from her drug dealer."

(4) K.J.R. checked "yes" to the statement that she believed, "without care or treatment, [D.H.] is likely to suffer from neglect or refuse to care for … herself and that such neglect or refusal poses a real and present threat of substantial harm to … her wellbeing" and hand wrote the following in support: "If someone doesn’t make her get help and get dean[,] she will or can harm herself."

(5) K.J.R. checked "yes" to the statement that she believed "there is a substantial likelihood that [D.H.] has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another" and hand wrote the following in support: "only when she is drinking or using drugs."

Attached to the petition were a series of pictures, text messages, what appear to be screenshots of social media posts, and court filings. Most of the text messages and social media posts were in Spanish with no English translation provided, and, notwithstanding the language difference, they do not contain a date to indicate when the messages and posts were transmitted. Of the attachments that are comprehensible without a mastery of the Spanish language, only a small number relate to any alleged substance use by D.H. There are a few pictures in which it appears D.H. is drinking or smoking something, but the pictures are not clear as to the substances involved and there is no date to ascertain when the pictures were taken. The attachments otherwise suggest that D.H. does hot use drugs or alcohol, including an undated text message or social media message that D.H. may have authored stating she is "off drugs"; a May 18, 2022, court filing in which D.H. states she "has been sober and drug free, since April 28, 2021"; and an August 8, 2022, court filing in which D.H. states she "has been drag free for approximately sixteen (16) months."

The clerk received K.J.R.’s petition at 4:24 p.m. Approximately one hour later, at 5:26 p.m., the trial court entered an ex parte order directing the sheriffs of the State to take D.H. info custody and deliver her "to the nearest appropriate licensed service provider" to "stabilize and/or assess [D.H.] involuntarily." The trial court stated the following in support of its ruling: "That it appearing [sic] that the Respondent, as a result of substance abuse, meets the criteria of law." D.H. was then served with a copy of the order and the petition. The record does not inform us if D.H. was committed to a facility for assessment and stabilization and, if so, for how long, but at some point D.H. retained counsel and timely appealed the trial court’s ex parte order.

Analysis

D.H. first contends on appeal that the petition did not contain sufficient facts to satisfy the statutory criteria for involuntary assessment and stabilization, a pure question of law that we review de novo. D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003); see also P.G. v. E.W., 75 So. 3d 777, 780 n.1 (Fla. 2d DCA 2011) ("[W]e review de novo the trial court’s application of the statute to th[e] facts."); Terrace Bank of Fla. v. Brady, 598 So. 2d 225, 227 (Fla. 2d DCA 1992), disapproved on other grounds by Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 58 n.19 (Fla. 2001) ("Because this court can review the exact evidence (pleadings, exhibits, and depositions) which the trial court utilized in entering its order, the presumption of correctness which the appellate court normally gives to the trial court’s ruling is slight.").

The Marchman Act authorizes the involuntary commitment of a person to an appropriate facility for assessment and stabilization due to an alleged substance abuse impairment if the person meets the criteria in section 397.675. See, § 397.6811.

A person meets the criteria, for involuntary admission if there is good faith reason to believe that the person is substance abuse impaired or has a co-occurring mental health disorder and, because of such impairment or disorder:

(1) Has lost the power of self-control with respect to substance abuse; and (2)(a) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or

(b) Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another.

§ 397.675. "‘[S]ubstance abuse impaired’ means a condition involving the use of alcoholic beverages or any psychoactive or mood-altering substance in such a manner as to induce mental, emotional, or physical problems and cause socially dysfunctional behavior." § 397.311(19). A petition is required to "state facts to support the need for involuntary assessment and stabilization," including the "reason for the petitioner’s belief that the respondent" meets the criteria for involuntary admission. § 397.6814. Under certain circumstances, a trial court is statutorily authorized to order the involuntary assessment and stabilization on an ex parte basis if, "relying solely on the contents of the petition," the respondent meets the criteria. § 397.6815(2).

Here, we conclude the petition does not set forth sufficient facts establishing a good faith reason to believe D.H. was substance abuse impaired. In support of her belief, K.J.R. refers to D.H.’s alleged involvement in "witchcraft"’ and with "the devil" and her attendance at an unexplained "grave site." There is no context or detail provided indicating the nature of these alleged activities such that...