DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

J.J.J., 

Appellant, 

v. 

D.G. and A.G., 

Appellees. 

No. 4D2023-2185 

[July 24, 2024] 

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Nicholas R. Lopane, Judge; L.T. Case No. MHC23-2347. 

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant 

Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, 

West Palm Beach, for appellant. 

No appearance for appellees. 

GERBER, J. 

The respondent in a Marchman Act proceeding appeals from the circuit 

court’s order requiring the respondent to immediately enter a substance 

abuse treatment facility for a thirty-day period. The respondent argues 

the circuit court abandoned judicial neutrality at the Marchman Act 

hearing when, after the pro se petitioners had rested without having called 

as a witness the mental health counselor who had executed the 

involuntary services certificate, the circuit court sua sponte directed the 

mental health counselor to testify regarding the assessment. 

We find no error in the circuit court’s action. The plain language of 

sections 397.6957(1) and (3), Florida Statutes (2023), respectively requires 

that, at a Marchman Act hearing, “the court shall hear and review all 

relevant evidence, including the review of results of the assessment 

completed by the qualified professional,” and “[o]ne of the qualified 

professionals who executed the involuntary services certificate must be a 

witness.” § 397.6957(1), (3), Fla. Stat. (2023) (emphases added). 

Therefore, we affirm the circuit court’s order. 
2 

Procedural History 

The pro se petitioners—who are the respondent’s parents—filed a 

Marchman Act petition for involuntary assessment of the respondent, 

pursuant to section 397.6814, Florida Statutes (2023). The circuit court 

entered an ex parte order for involuntary assessment, and an order 

appointing counsel for the respondent. 

A mental health counselor and a social worker issued the assessment

report, which later was filed with the circuit court. The report pertinently 

recommended the respondent should be involuntarily admitted into a 

substance abuse treatment center, and opined that “failure to engage in 

further treatment would result in risk of harm to [the respondent] and 

others.” 

After the assessment occurred, the pro se petitioners filed a petition for 

involuntary services and treatment pursuant to section 397.6951, Florida 

Statutes (2023). The circuit court then issued an order setting a 

Marchman Act hearing by Zoom. 

At the hearing, the pro se petitioners and the respondent’s appointed 

counsel appeared. The respondent and the social worker appeared from 

the assessment facility. The mental health counselor initially did not 

appear from the assessment facility. 

The petitioners testified about the respondent’s drug use and its 

psychological effects on the respondent. The petitioners also testified the 

respondent had ignored a recovery center’s recommendation to be 

admitted for inpatient treatment, and had instead chosen to live “on the 

streets,” where he had become subject to violence. After the petitioners 

testified, they rested their case without calling any other witnesses. 

The respondent’s counsel then moved for a judgment of dismissal, 

arguing the petitioners had failed to “present[] any evidence of the 

assessment, which is a prerequisite ... in a services hearing” and, more 

specifically, had failed to comply with section 397.6957(3), Florida 

Statutes (2023), which provides: “One of the qualified professionals who 

executed the involuntary services certificate must be a witness.” § 

397.6957(3), Fla. Stat. (2023). 

The respondent’s counsel then cited two recent Fifth District cases for 

the proposition that the petitioners, despite being pro se, still had the 

burden to call as a witness one of the qualified professionals who had 

executed the involuntary services certificate: 
3

[In J.W. v. R.W., 351 So. 3d 1243 (Fla. 5th DCA 2022),] the 

[Fifth] DCA [held] ... the trial court erred by granting the 

petition without hearing testimony from a qualified 

professional who executed the involuntary assessment 

pursuant to [section 397.6957(3)]. ... [A] licensed mental 

health counselor who assessed the respondent ... wrote 

something that contained her findings and ... 

recommendations, much like we have in the assessment here. 

And the petitioner never called [that qualified professional] as 

a witness, ... therefore, the trial court erred in ... granting the 

petition.

[In the instant case, the] pro se petitioners ... may not be 

familiar with the law and the rules, and the procedures; 

however, ... they step into the shoes of an attorney and are 

not relieved of the same obligations that any attorney would 

have.

[In] another case that came out ... last year, R.S. v. C.P.T., 

333 So. 3d 1190 [(Fla. 5th DCA 2022),] ... the trial court called 

... as a witness for the[] [petitioner], ... the assessor, the 

clinician, and was questioning her and laying foundation and 

things of that nature, and the [appellate] court basically said 

the [trial] court can’t present the petitioner’s case for them.

So at this point [here], the Court’s asked the [p]etitioners if 

they have anything further to present. They’ve said no. I don’t 

believe they’ve met their burden by clear and convincing 

evidence since ... the testimony of the person who did the 

assessment is required.

The circuit court then asked the petitioners if they understood what the 

respondent’s counsel had just said, and the following discussion occurred:

COURT: [Petitioners], did you understand what ... [the 

respondent’s counsel] just said?

MOTHER: No.

STEPFATHER: Not really. But I thought [the] assessment 

would be coming from the [facility] that [the respondent is] ... 

staying at and they would decide on what’s going on with him, 

and how to help him.
4

COURT: Okay. So did you have any contact with [the mental 

health counselor or the social worker] who signed the petition 

for involuntary services?

...

MOTHER: Yes.

STEPFATHER: Yes. They were ... there on the phone 

[yesterday] talking about all of this. So I don’t know why no 

one turned up today.

...

COURT: ... I don’t know that they’ve gotten notice of this 

hearing today. Some people did, some people didn’t.

...

RESPONDENT’S COUNSEL: ... Yes, Judge. We ... did set 

this and coordinated with [the social worker], who is present 

with the respondent. ... I don’t know if the petitioners ... want 

to inquire further, but [the social worker] is on Zoom.

COURT: Okay. [Social worker], are you there? ... Who was 

the [person who performed the] ... clinical assessment[?] ... 

[Looking at the assessment.] [H]ere it is. ... [The mental 

health counselor] and [the social worker]. Okay.

SOCIAL WORKER: I wasn’t sure [the mental health counselor] 

was needed. So I can give her a call to come down if need be.

...

COURT: ... I need the person who wrote ... this clinical 

assessment ... to testify to it. ... I need to have [the mental 

health counselor] on the stand to find out –

RESPONDENT’S COUNSEL (speaking to the social worker): I 

think [the mental health counselor is] in the [assessment 

facility] ... ?

SOCIAL WORKER: Yeah. I can call her down.
5

...

COURT: ... Call [the mental health counselor] down now. 

SOCIAL WORKER: Okay. 

COURT: Okay. We’ll take a five-minute recess. 

After the recess, with the mental health counselor present and sworn 

as a witness, the circuit court proceeded to question the mental health 

counselor about her report and recommendations:

COURT: [C]an you please explain to me your report? Because 

it ... just ends at a mental review of intake and admission 

report, and ... doesn’t say the recommendation, but at the top 

of the report page 3, it has something there. Can you go ahead 

and explain ... what ... you [have] done to talk to or assess 

[the respondent]? What steps did you take?

RESPONDENT’S COUNSEL: ... Judge, again, I would object 

to the Court assisting the petitioner presenting their case 

pursuant to ... R.S. v. C.P.T. .... 

COURT: Okay. [Your objection is] noted for the record. 

The mental health counselor proceeded to testify that the respondent 

initially had agreed to enter inpatient treatment, but then changed his 

mind. The mental health counselor also testified the respondent’s “insight 

as to his substance use and living on the street is very poor. I don’t think 

that he understands that it’s dangerous for him and he does have support 

from family; however[,] he’s still refusing to go into treatment.”

The circuit court then asked: “So what are you recommending for [the 

respondent]?” The mental health counselor testified she recommended the 

respondent be involuntarily committed to a thirty-day inpatient treatment 

program.

At that point, the circuit court asked if anyone else wanted to question 

the mental health counselor. The petitioners did not do so. The

respondent’s counsel briefly voir dired the mental health counselor as to 

her qualifications.
6

The circuit court permitted the parties to make closing arguments. The 

petitioners argued they “can’t cope with dealing with this stuff,” and told 

the circuit court “if [the respondent will] only just try the 30 days, try it. 

You know, we would really, really appreciate that if [the respondent] was 

go in for 30 days.”

The respondent’s counsel then argued:

I would, on behalf of my client, ask the Court to deny the 

petition. I would just renew all my previous motions and 

objections that I know the Court’s ruled upon and the case 

law that I cited.

My client does not want to go to residential treatment; 

however[,] he would be open to a lower level of care .... He 

does not feel that he has an addiction to drugs or a drug 

problem, and is asking the Court to deny this petition. And I 

would argue that the [p]etitioners failed to meet their burden 

by clear and convincing evidence. ...

The circuit court then announced its ruling:

[I] ... find that the [p]etitioners have met their burden, that 

... [the respondent] is in need of substance abuse services and 

by reason of the substance abuse impairment. His ... 

judgment has been so impaired that he’s incapable of 

appreciating his need for such services or making a rational 

decision in that regard, that without care or treatment, he’s 

likely to suffer from neglect. I find that the [p]etitioners’ 

testimony was credible and that ... without treatment, [the 

respondent is] going to suffer from neglect or is unable to care 

for himself or refuse care for himself, and that ... such neglect 

or refusal poses a real and present threat of substantial harm 

to his well-being and that it’s apparent that the harm may be 

avoided through the help of ... the provision of services. So 

I’m going to ... order 30 days [of in-patient treatment].

The circuit court later entered a written order, pertinently finding:

1. Both the petitioners ... and [the mental health counselor] 

testified as to the current threats posed to the [respondent] by 

his current use of illegal substances and his 

emotional/psychological state including but not limited to 

being homeless and engaging in activities that have caused 
7 

serious physical harm and injuries to himself, [and] this Court 

finds that testimony to be credible. This Court also finds that 

[the respondent] is in need of substance abuse services, and 

by reason of his impairment, his judgment has been so 

impaired that he is incapable of appreciating his need for such 

services and of making a rational decision in that regard. 

2. This Court also finds that without care or treatment, [the 

respondent] is likely to suffer from neglect or refuse to care for 

himself; that such neglect or refusal poses a real and present 

threat of substantial harm to his 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 less 

restrictive services and that based on the testimony there is a 

substantial likelihood that [the respondent] has inflicted or 

threatened to ... or attempted to inflict [sic] or unless admitted 

is likely to inflict physical harm on himself or another. 

3. Therefore, this Court orders ... [the respondent] to enter 

[a certain in-patient treatment facility] ... for a minimum of 

thirty (30) days to begin forthwith. 

This appeal followed. The respondent summarizes his argument as 

follows: 

The [circuit court] denied [the respondent’s] rights of due 

process by abandoning judicial neutrality and impartiality 

during the involuntary services Marchman Act hearing. The 

[circuit court] called the [mental health counselor] who 

examined [the respondent] and questioned her about her 

interactions and recommendations, going beyond mere 

clarification of issues. The [circuit court’s] active participation 

enabled [the] [p]etitioners to prove the necessary elements for 

involuntary treatment and relieved the [p]etitioners of their 

burden of proof for the imposition of such treatment. 

The petitioners have not filed an answer brief or otherwise appeared in 

this appeal. 

Our Review 

Our review is de novo. See J.W. v. R.W., 351 So. 3d 1243, 1244 (Fla. 

5th DCA 2022) (“We review de novo the order for involuntary substance 

abuse treatment under chapter 397.”). 
8 

Applying de novo review, we conclude the respondent’s argument lacks 

merit. Section 397.6957, Florida Statutes (2023), entitled “Hearing on 

petition for involuntary services,” pertinently provides: 

(1) At a hearing on a petition for involuntary services, the 

court shall hear and review all relevant evidence, including the 

review of results of the assessment completed by the qualified 

professional in connection with the respondent’s protective 

custody, emergency admission, involuntary assessment, or 

alternative involuntary admission. ... 

(2) The petitioner has the burden of proving by clear and 

convincing evidence that: 

(a) The respondent is substance abuse impaired and has a 

history of lack of compliance with treatment for substance 

abuse; and 

(b) Because of such impairment the respondent is unlikely 

to voluntarily participate in the recommended services or is 

unable to determine for himself or herself whether services are 

necessary and: 

1. Without services, the respondent 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 there is a 

substantial likelihood that without services the respondent 

will cause serious bodily harm to himself, herself, or another 

in the near future, as evidenced by recent behavior; or 

2. The respondent’s refusal to voluntarily receive care is 

based on judgment so impaired by reason of substance abuse 

that the respondent is incapable of appreciating his or her 

need for care and of making a rational decision regarding that 

need for care. 

(3) One of the qualified professionals who executed the 

involuntary services certificate must be a witness. ... The 

testimony in the hearing must be under oath, and the 

proceedings must be recorded. ... 
9 

(4) At the conclusion of the hearing the court shall dismiss 

the petition or order the respondent to receive involuntary 

services from his or her chosen licensed service provider if 

possible and appropriate. 

§ 397.6957, Fla. Stat. (2023) (emphases added).1

1 The 2024 Legislature substantially amended section 397.6957 effective July 1, 

2024, and thus the amendments do not apply here. However, for informational 

purposes, we note the amendments to sections 397.6957(1) and (3):

(1)(a) The respondent must be present Aat a hearing on a petition 

for involuntary treatment services, unless the court finds that he or 

she knowingly, intelligently, and voluntarily waives his or her right 

to be present or, upon receiving proof of service and evaluating the 

circumstances of the case, that his or her presence is inconsistent 

with his or her best interests or is likely to be injurious to self or 

others. tThe court shall hear and review all relevant evidence, 

including testimony from individuals such as family members 

familiar with the respondent’s prior history and how it relates to his 

or her current condition, and the review of results of the assessment 

completed by the qualified professional in connection with this 

chapter. The court may also order drug tests. Witnesses may 

remotely attend and, as appropriate, testify at the hearing under 

oath via audio-video telecommunications technology. A witness 

intending to remotely attend and testify must provide the parties 

with all relevant documents by the close of business on the day 

before the hearing. the respondent's protective custody, emergency 

admission, involuntary assessment, or alternative involuntary 

admission. The respondent must be present unless the court finds 

that his or her presence is likely to be injurious to himself or herself 

or others, in which event the court must appoint a guardian 

advocate to act in behalf of the respondent throughout the 

proceedings. 

... 

(3) One of the qualified professionals who executed the involuntary 

services certificate must be a witness. The court shall allow 

testimony from individuals, including family members, deemed by 

the court to be relevant under state law, regarding the respondent’s 

prior history and how that prior history relates to the person’s 

current condition. The Testimony in the hearing must be taken

under oath, and the proceedings must be recorded. The respondent

patient may refuse to testify at the hearing.

2024 Fla. Sess. Law Serv. Ch. 2024–245 (C.S.C.S.H.B. 7021).
10

As can be seen above, although the plain language of section 

397.6957(2), Florida Statutes (2023), places the burden on petitioners to 

prove by clear and convincing evidence the criteria for a Marchman Act 

involuntary commitment, the plain language of sections 397.6957(1) and 

(3), Florida Statutes (2023), nevertheless requires that one of the qualified 

professionals who executed the involuntary services certificate must testify 

regarding the assessment. As we stated in Graham v. Jenne, 837 So. 2d 

554 (Fla. 4th DCA 2003): 

[It is a] well-established principle that statutes are to be read 

in their entirety. See Burdick v. State, 594 So. 2d 267 (Fla.

1992). “A basic principle of statutory construction requires 

that ‘all parts of a statute must be read together in order to 

achieve a consistent whole. Where possible, courts must give 

effect to all statutory provisions and construe related 

statutory provisions in harmony with one another.’” M.W. v. 

Davis, 756 So. 2d 90, 101 (Fla. 2000) (quoting Forsythe v. 

Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 

(Fla. 1992)) (emphasis in original). Additionally, “[s]tatutes 

which authorize the deprivation of an individual’s liberty must 

be strictly construed.” Lee v. State, 546 So. 2d 436, 437 (Fla. 

5th DCA 1989). 

Id. at 558–59. Thus, after the pro se petitioners had rested without having 

called as a witness the mental health counselor who had executed the 

involuntary services certificate, the circuit court did not err in sua sponte 

directing the mental health counselor to testify regarding the assessment, 

as required by the plain language of sections 397.6957(1) and (3). 

Our decision is not inconsistent with the Fifth District’s decision in J.W. 

v. R.W., 351 So. 3d 1243 (Fla. 5th DCA 2022). There, a mental health 

counselor was the qualified professional who had conducted the 

assessment and had executed the certificate containing her findings and 

recommending involuntary treatment. Id. at 1244. However, contrary to 

sections 397.6957(1) and (3), the mental health counselor did not testify 

at the Marchman Act hearing, and the mental health counselor’s

assessment was not admitted into evidence at the hearing. Id. For those 

reasons, the Fifth District reversed the trial court’s order for involuntary 

treatment and remanded for a new hearing. Id.

As in J.W., if the mental health counselor in the instant case had not 

appeared at the Marchman Act hearing to testify regarding the 

assessment, then we likewise would have reversed the circuit court’s 
11

involuntary treatment order and remanded for a new hearing. But that is 

not what occurred in the instant case. Here, regardless of the pro se 

petitioners’ lack of knowledge to have the mental health counselor testify 

regarding the assessment, the circuit court complied with sections 

397.6957(1) and (3) by directing the mental health counselor to testify 

regarding the assessment at the Marchman Act hearing. 

Our only quarrel with the Fifth District’s decision in J.W. is the 

sentence which paraphrases section 397.6957(3) as stating that “a 

petitioner must present witness testimony, under oath, from ‘one of the 

qualified professionals who executed the involuntary services certificate.’” 

Id. (emphases added). Our quarrel with that statement is that section 

397.6957(3) does not provide that “a petitioner” must present such witness 

testimony. Rather, section 397.6957(3) provides: “One of the qualified 

professionals who executed the involuntary services certificate must be a 

witness.” (emphases added). While ordinarily “a petitioner” might be the 

party which would present such a witness, nothing in section 397.6957(3) 

requires “a petitioner” to present such a witness. Thus, here, after the pro 

se petitioners had rested without having called as a witness the mental 

health counselor who had executed the involuntary services certificate, the 

circuit court appropriately directed the mental health counselor to testify 

regarding the assessment, as required by sections 397.6957(1) and (3). 

Our decision also is distinguishable from the Fifth District’s decision in

R.S. v. C.P.T., 333 So. 3d 1190 (Fla. 5th DCA 2022). In R.S., as described 

by the Fifth District: 

[T]he trial judge assisted [the petitioner], who appeared pro 

se, in the presentation of her case in numerous ways. Of 

relevance, the trial judge: called the clinician who evaluated 

[the respondent] to testify; questioned the clinician about her 

findings; and laid the evidentiary foundation for the 

assessment and ultimately admitted the same document into 

evidence. Notably, [the petitioner] did not question the 

clinician during the hearing, she did not lay the foundation 

for the admission of the assessment into evidence, and she 

did not attempt to enter the assessment into evidence. 

Rather, only the trial judge and [the respondent’s] attorney 

questioned the clinician and the trial judge entered the 

assessment into evidence. During the proceedings, [the 

respondent’s] attorney consistently objected to the trial judge 

assisting [the petitioner] in the presentation of her case. 
12

We find that the trial judge departed from his role as a 

neutral arbiter by assisting [the petitioner] in the presentation 

of her case and by actively participating in the hearing. It is 

particularly important that the trial judge laid the foundation 

for the admission of the assessment into evidence and 

questioned the clinician about her findings because that 

evidence was key to proving [the petitioner’s] case—i.e., that 

[the respondent] is substance abuse impaired with a history 

of a lack of compliance with treatment and that he is unlikely 

to voluntarily participate in the recommended services. The 

effect of the trial judge’s actions was to relieve [the petitioner] 

of her burden of proof and to help her prove the essential 

elements of the case. Therefore, the trial judge’s actions 

deprived [the respondent] of a fair hearing. Accordingly, we 

reverse and remand for a new hearing. 

Id. at 1191-92 (emphases added; internal citations omitted). 

We do not have the benefit of the hearing transcript in R.S. to know 

what the trial judge there exactly said or did to warrant the Fifth District’s 

reversal. In the instant case, however, the hearing transcript—which we 

have quoted in detail above—does not reflect that the circuit court 

“departed from its role as a neutral arbiter” by “assisting the petitioners in 

the presentation of their case,” “actively participating in the hearing,” or 

“relieving the petitioners of their burden of proof and to help her prove the 

essential elements of the case.” Rather, here, the petitioners both testified 

about the respondent’s activities leading to their petition—without the 

circuit court’s assistance or active participation—to prove much of section 

397.6957(2)’s criteria by clear and convincing evidence. Only after the 

petitioners had rested without having called as a witness the mental health 

counselor who had executed the involuntary services certificate, the circuit 

court appropriately directed the mental health counselor to testify 

regarding the assessment, as required by sections 397.6957(1) and (3). 

And as reflected in the hearing transcript, the circuit court merely asked 

the mental health counselor: “Can you go ahead and explain ... what ... 

you [have] done to talk to or assess [the respondent]? What steps did you 

take?” and “[W]hat are you recommending for [the respondent]?” We do 

not consider these fundamental questions as having relieved the 

petitioners of their burden to prove all of section 397.6957(2)’s criteria by 

clear and convincing evidence. 

Lastly, our decision also is distinguishable from the Fifth District’s 

recent decision C.W.R.K. v. Stewart Marchman Act Behavioral Healthcare, 
13

2024 WL 2952822 (Fla. 5th DCA June 12, 2024). In C.W.R.K., as 

described by the Fifth District:

A hearing on [the petition for involuntary treatment] was 

held over two days. At the end of the first day of the hearing, 

Appellant’s counsel argued that there was no testimony from 

a qualified professional who executed the involuntary services 

certificate as section 397.6957(3) requires. Without a request 

from the petitioner, and over Appellant’s objection, the trial 

court continued the hearing so the qualified professional 

could appear and testify. 

On the second day of the hearing, the petitioner was not 

present, but the health care professional who executed the 

involuntary services certificate appeared as a witness. The 

trial court began a colloquy with the health care professional 

and asked various questions going to the heart of the issues 

raised in the petition. The health care professional indicated 

that mandating follow-through with treatment was necessary. 

Appellant’s counsel objected on the basis that the petitioner 

was not present, and it was the petitioner’s burden to present 

the case. The court overruled the objection and granted the 

petition.

...

The circumstances of this case are strikingly similar to J.C.

[v. State, 293 So. 3d 627 (Fla. 5th DCA 2020),] where we 

reversed the order for involuntary substance abuse treatment 

explaining: “At the hearing in question, the trial court called 

the sole witness and examined him, thereby developing the 

testimony on which it would rely in granting the petition for 

involuntary treatment. In doing so, the court failed to follow 

the applicable statute by essentially functioning as the absent 

petitioner.” 293 So. 3d at 628. Here, the trial court continued 

the hearing to allow the health care professional, a statutorily 

required witness, to testify. In the absence of the petitioner 

on the second day of the hearing, the court called and 

examined the health care professional to develop the 

testimony on which it would rely in granting the petition.

[Thus, t]he trial court failed to follow the governing statute 

when, in the absence of the petitioner, it called and questioned 

the health care professional who executed the involuntary 
14

services certificate. Accordingly, we reverse and remand for a 

new hearing. See R.S. v. C.P.T., 333 So. 3d 1190, 1192 (Fla. 

5th DCA 2022) (remanding for new hearing where appellant 

was deprived of fair hearing). 

Id. at *1-2 (headings and footnote omitted). 

Unlike in C.W.R.K., the pro se petitioners in the instant case were 

present during the entire Marchman Act hearing, testified as witnesses on 

their own behalf, and presented a closing argument in support of their 

petition. While the circuit court here called and examined the mental 

health counselor in the middle of the hearing after the petitioners had not 

done so, the mental health counselor’s testimony was not the only 

testimony upon which the circuit court relied in granting the petition. 

Thus, in the instant case, the circuit court did not “fail[] to follow the 

governing statute.” Id. at *2. On the contrary, the circuit court in the 

instant case followed the requirements of sections 397.6957(1) and (3) by 

directing the mental health counselor to testify regarding the assessment.

Conclusion 

Based on the foregoing, we affirm the circuit court’s order requiring the 

respondent to immediately enter a substance abuse treatment facility for 

a thirty-day period. We find no error in the circuit court having sua sponte 

directed the mental health counselor to testify, because the plain language 

of sections 397.6957(1) and (3), Florida Statutes (2023), requires that, at 

a Marchman Act hearing, one of the qualified professionals who executed 

the involuntary services certificate must testify as a witness regarding the 

assessment. Lastly, to the extent our opinion conflicts with R.S., J.W., or 

C.W.R.K., or with the statement in J.W. that “a petitioner must present 

witness testimony, under oath, from ‘one of the qualified professionals who 

executed the involuntary services certificate’ under section 397.6957(3),” 

we certify conflict with R.S., J.W., and C.W.R.K., for the reasons stated 

above. 

Affirmed; conflict certified.2

2 As our colleague’s dissent aptly points out, the 2024 amendments to section 

397.6957(1) and (3) may preclude the instant issue from arising again. Thus, the 

practical necessity of resolving the certified conflict may be lessened. 

Nevertheless, to the extent our conflict with the Fifth District at least affects the 

ward in the instant case, we have certified conflict to permit the guardian to have 

the opportunity to pursue any further appellate consideration.
15

KUNTZ, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J., dissenting.

I dissent, because the trial court departed from a position of neutrality 

in denying the motion for dismissal and calling the clinician as a witness, 

examining the clinician, and relying on that testimony in granting the 

petition. I do not agree that the court had an independent obligation to 

call the clinician as a witness. The statute places the burden on the 

petitioner to prove its case by clear and convincing evidence. See § 

397.6957(2), Fla. Stat. (2023); see also, J.C. v. State, 293 So. 3d 627, 628

(Fla. 5th DCA 2020). That one of the witnesses must be a clinician who 

executed the involuntary services certificate is a direction to the petitioner 

in presenting its case, not an invitation to the trial court to act for the 

petitioner to create clear and convincing evidence so that the court might 

grant the petition, particularly over the objection of the respondent. See § 

397.6957(3), Fla. Stat. (2023).

The majority opinion, however, has limited impact. The Legislature 

amended the statute this year to remove the requirement of the clinician 

witness and other matters. The statute now provides:

(3) Testimony in the hearing must be taken under oath, and 

the proceedings must be recorded. The respondent patient 

may refuse to testify at the hearing.

2024 Fla. Sess. Law Serv. Ch. 2024–245 (C.S.C.S.H.B. 7021). Instead,

section 397.8957(1)(b) of the revised statute compels an assessment and 

the filing of a report prior to a hearing on the petition. Id. Thus, this issue 

will not arise again.

* * *

Not final until disposition of timely filed motion for rehearing.