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-MH002985-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).
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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 selfneglect.

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 wellsettled 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.