DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

D.H.,

Appellant,

v.

K.J.R.,

Appellee.

No. 2D22-3523

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 
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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. checked "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.).
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(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 need 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 

clean[,] 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 
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D.H. does not 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 drug 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. into 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 
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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 
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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 a reader could 

conclude there is a good faith reason to believe the conduct—even if 

presuming it is unorthodox or does not "make sense" to K.J.R.—

constitutes "socially dysfunctional behavior" or exhibits "mental, 

emotional, or physical problems." § 397.311(19). Especially in a society 

in which the right to freely exercise one's religion is guaranteed, see

amend. I, U.S. Const.; art. I, § 3, Fla. Const., a petitioner's perception of 

a respondent's spiritual practices as peculiar cannot be sufficient to 

curtail the latter's physical liberty absent an explanation for how the 

precise nature of such practices have the potential to cause the harm the 

statute is designed to prevent or ameliorate. 

While K.J.R. explains that D.H. "is ok" one minute but "the next 

she is not," K.J.R. does not elaborate on what it might mean for D.H. to 

be "not" "ok." And K.J.R.'s unelaborated description that D.H.'s actions 

and words do not "make sense" include no examples that would allow the 

reader to assess how aberrant D.H.'s behavior might actually be. What 

K.J.R. considers nonsensical could merely be notions misaligned with 

common sense; on the other hand, by not making sense K.J.R. might be 
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describing hysterical, dissociative, or threatening expressions or actions 

that could support a reasonable fear of imminent harm. K.J.R.'s vague 

description of D.H.'s behavior lacks necessary "facts," see § 397.6814, to 

allow the court to determine whether the respondent meets the criteria 

for involuntary assessment and stabilization.

The only reference to any alcohol or substance use in K.J.R.'s 

petition is the allegation that D.H. is "drinking a lot," which—like K.J.R.'s 

reference to nonsensical behavior—is too vague and indefinite to indicate 

a "substance abuse impairment," see § 397.675(2)(a). And while some of 

the attachments indicate that D.H. may have had substance abuse 

issues in the past, none of them indicates any potential substance abuse 

impairment at the time the petition was filed. In fact, K.J.R.'s responses 

to other prompts on the form petition she filled out tacitly admit that her 

belief of D.H.'s substance abuse impairment was speculative. K.J.R. 

alleged that the "only time [D.H.] has done [witchcraft] is . . . is when 

she's on drugs." (Ellipsis in original.). However, K.J.R. offered no 

personal knowledge that D.H. was "on drugs" at the time the petition was 

filed, only the presumption that D.H. must have been on drugs because 

she was "doing witchcraft." Similarly, K.J.R. elsewhere alleged that D.H. 

was "back drinking" and "when she drink[s] she does crystal meth." 

Again, this allegation is merely a speculative theory that because D.H. is 

"drinking" she is using "crystal meth." 

The petition at issue here is far too vague and speculative to 

establish a good faith reason to believe D.H. met the statutory criteria 

warranting the extreme remedy of infringing upon her liberty by 

involuntarily committing her to a facility for substance abuse assessment 

and stabilization—especially where, as here, the trial court awarded that 

remedy on an ex parte basis with no evidentiary support. Because the 
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petition did not establish a good faith reason to believe D.H. met the 

statutory criteria for involuntary assessment and stabilization, the trial 

court erred in entering the ex parte order.

We acknowledge the additional, compelling argument D.H. raises 

that the trial court violated her due process right to be represented by 

counsel by entering the order under review on an ex parte basis. See § 

397.681(2) ("A respondent has the right to counsel at every stage of a 

proceeding relating to a petition for his or her involuntary assessment 

and a petition for his or her involuntary treatment for substance abuse 

impairment."); § 397.501(8) ("Each individual must be informed that he 

or she has the right to be represented by counsel in any involuntary 

proceeding for assessment, stabilization, or treatment and that he or she 

. . . may apply immediately to the court to have an attorney appointed if 

he or she cannot afford one."); Hillsborough County v. Albrechta, 841 So. 

2d 644, 645 (Fla. 2d DCA 2003) ("Because due process is implicated, we 

conclude that a defendant has a constitutional right to be represented by 

counsel in Marchman Act proceedings." (citing Vitek v. Jones, 445 U.S. 

480, 491–92 (1980))); K.B. v. Fla. Dep't of Child. & Fams., 202 So. 3d 909, 

912 (Fla. 3d DCA 2016) (describing the right to be represented by 

counsel in connection with an involuntary Marchman Act proceeding as 

a "fundamental due process right[]"). We are not the first panel of this 

court to recognize the inconsistency between a person's constitutional 

and statutory right to counsel in an involuntary Marchman Act 

proceeding and the Act's provision for an ex parte procedure under 

certain circumstances. See T.L. v. F.M., 289 So. 3d 494, 509 (Fla. 2d 

DCA 2019) (Lucas, J., concurring) ("How can a Marchman Act 

respondent have a right to counsel but not a preliminary court hearing? 

. . . Without a court hearing in which to present and challenge evidence, 
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the lawyer's role in this Marchman Act proceeding (such as it is) becomes 

so cabined it scarcely resembles representation."); Cole v. State, 714 So. 

2d 479, 483 n.5 (Fla. 2d DCA 1998) ("[T]hat the court may enter an ex 

parte order involuntarily admitting the client for assessment and 

stabilization without the appointment of counsel seemingly conflicts with 

the direction in section 397.681(2) that a respondent has the right to 

counsel 'at every stage' of an involuntary admission proceeding." 

(emphasis in original)). However, we need not address that inconsistency 

or D.H.'s due process claim given our conclusion that the petition was 

facially insufficient to meet the statutory criteria for D.H.'s involuntary 

assessment and stabilization. See Sarasota-Herald Tribune v. State, 924 

So. 2d 8, 13 (Fla. 2d DCA 2005) ("[W]e are required, whenever possible, 

to resolve a dispute without reaching the constitutional issues and 

without declaring statutes unconstitutional.").

Accordingly, we reverse the trial court's ex parte order and remand 

for the trial court to dismiss the petition.

 Reversed and remanded with instructions.

KELLY and MORRIS, JJ., Concur.

Opinion subject to revision prior to official publication.