               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



D.F.,                                         )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D17-2315
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed July 6, 2018.

Appeal from the Circuit Court for Charlotte
County; Paul Alessandroni, Acting Circuit
Judge.

Kathleen A. Smith, Public Defender, and
Bridget Jackman, Assistant Public Defender,
Punta Gorda, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Caroline Johnson Levine,
Assistant Attorney General, Tampa, for
Appellee.


LaROSE, Chief Judge.


              D.F., who is the subject of a Baker Act proceeding, appeals the trial court's

order involuntarily committing him to an inpatient treatment facility for three months.
See § 394.467, Fla. Stat. (2016). We have jurisdiction. See Fla. R. App. P.

9.030(b)(1)(A). We affirm.

                          I. Procedural and Factual Background

                The director of Riverside Behavioral Center in Punta Gorda filed a petition

for involuntary inpatient treatment of D.F. A magistrate held an evidentiary hearing on

the petition.

                D.F.'s psychiatrist, Dr. Hernandez, testified that D.F. suffers from a mood

disorder and dementia. As a result, D.F. was argumentative, refused to take his

medication, and refused to eat. Dr. Hernandez recounted that D.F. arrived at the Center

mildly malnourished and disheveled. He was "three pounds underweight since his last

discharge" from a group home less than three months prior. Dr. Hernandez testified

that, without treatment, D.F. has "a higher risk to be wandering the neighborhood,

getting lost, [and] maybe being a victim of exploitation due to his mental incapacity to

make decisions."

                Dr. Hernandez recommended that D.F. be placed in a closed facility in

Sarasota County. Twice in the past three months, D.F. was placed in less restrictive

treatment programs (i.e., group homes), and "it backfired" on both occasions. Dr.

Hernandez testified that other facilities outside of Sarasota County would accept D.F.,

but D.F. refused to leave Sarasota County. Dr. Hernandez also noted D.F. had no family

or friends to care for him.

                D.F. testified he was willing to go to a group home. D.F. also testified that

he could stay with a friend in Englewood or with a roommate at a hotel. D.F. did not testify




                                              -2-
that his friend or roommate were willing and able to help him.1 Neither the friend nor the

roommate testified at the hearing.

              The magistrate filed a report recommending involuntary inpatient

placement in a closed facility in Sarasota County. D.F. filed exceptions to the report.

The trial court conducted a hearing, approved the magistrate's report and

recommendation with a three-month time limit, and entered the order now before us.

                                     II. Mootness Issue

              We could treat D.F.'s appeal as moot; more than three months have

passed since the commitment order. See L.P. v. State, 995 So. 2d 1140, 1141 (Fla. 5th

DCA 2008) (holding L.P.'s request for appellate relief moot because the commitment

order was effective for six months and more than six months had elapsed from the entry

of the order). We will not do so.

              The issues on appeal are "capable of being repeated yet evading review."

See id. The trial court committed D.F. to involuntary placement three times in a three-

month period and referenced D.F.'s two prior commitments as one of its bases for

committing him. See id. (addressing an issue raised on appeal, even though L.P.'s

request for appellate relief was moot, because "it [was] an important issue [that was]

capable of being repeated yet evading review"); see also K.B. v. Fla. Dep't of Children &

Families, 202 So. 3d 909, 912-13 (Fla. 3d DCA 2016) (concluding that K.B.'s claim was

not moot because the involuntary commitment on appeal was "not the first time K.B. has




              1D.F.did not know the last name of his friend. D.F. refused to provide the
last name of the roommate based on confidentiality.


                                            -3-
been faced with potential confinement in the [Juvenile Addiction Receiving Facility]

without judicial compliance with the Marchman Act").

                                 III. Standard of Review

              We have previously explained the procedure, the trial court's standard of

review, and this court's standard of review of a trial court order adopting a magistrate's

report recommending involuntary placement in Baker Act proceedings. See In re

Drummond, 69 So. 3d 1054, 1056-58 (Fla. 2d DCA 2011). The magistrate makes

factual findings and applies the law to its factual findings "to reach a conclusion that a

person either should or should not be committed." Id. at 1057. The trial court then

examines the magistrate's report. Id. at 1056-57.

              The trial court reviews the magistrate's factual findings with a presumption

of correctness and must accept the findings if supported by competent, substantial

evidence. Id. at 1056-57. Any factual findings affected by the magistrate's

determinations of credibility of competency must be accepted, unless clearly erroneous.

Id. at 1057. The trial court reviews de novo whether the magistrate applied the correct

law to the facts.2 Id. Generally, the trial court gives great deference to the magistrate's

conclusions "[b]ecause this conclusion is based in large part upon evidence that the

magistrate alone had the opportunity to see and hear." Id.

              Thereafter, we "review de novo the trial court's decision that the findings of

fact in a Baker Act case are supported by competent, substantial evidence and are not

clearly erroneous while giving both the magistrate and the trial court the benefit of the




              2"In a Baker Act case, this law is primarily statutory, so the determination
of the correct law is a relatively simple process." Id. (citing §§ 394.451-.4789).


                                            -4-
presumption of correctness." Id. We "review de novo to determine that both the

magistrate and the trial judge applied the correct law." Id. We review "the trial court's

decision to accept or reject the magistrate's conclusions under the abuse of discretion

standard." Id.

                                          IV. Analysis

               D.F. argues that the trial court erred by ordering D.F. to involuntary

placement because the State failed to meet its burden that: (A) D.F. was likely to suffer

from neglect that would pose a real and present danger of substantial harm to his well-

being; and (B) all available less restrictive treatment alternatives would be inappropriate.

               The State must prove "by clear and convincing evidence that the statutory

criteria authorizing involuntary commitment have been met." Blue v. State, 764 So. 2d

697, 698 (Fla. 1st DCA 2000) (citations omitted). Section 394.467(1) sets forth the

statutory criteria.

               Specific to this case, the State must prove the following as to D.F.:

               (a) He . . . has a mental illness and because of his . . .
                   mental illness:

                      1. a. . . .

                         b. He . . . is unable to determine for himself . . .
                         whether placement is necessary; and

                      2. a. 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 himself or herself, and
                         such neglect or refusal poses a real and present
                         threat of substantial harm to his . . . well-being . . .

                         b. . . . ; and




                                              -5-
              (b) All available less restrictive treatment alternatives which
                  would offer an opportunity for improvement of his . . .
                  condition have been judged to be inappropriate.

§ 394.467(1). D.F. does not dispute that he has mental illness. Nor does he challenge

the finding that he was unable to determine for himself whether placement was

necessary. Thus, only criteria (a)(2)(a) and (b) are at issue.

A.     Whether D.F. Posed a Real and Present Threat of Substantial Harm to His Well-
       Being, under Subsection (a)(2)(a)

              D.F. contends that "there was no evidence of specific occasions [when]

D.F. posed a real and present threat of substantial harm to his well-being[,] . . . nor . . .

any occasion on which such lapses of personal care on his part had resulted in

substantial harm to his well-being."3

              "[T]he need for treatment and medication and the refusal to take

medication despite a deteriorating mental condition, standing alone, do not justify

involuntary commitment under the Baker Act." Lischka v. State, 901 So. 2d 1025, 1026

(Fla. 1st DCA 2005). "Rather, there must also be clear and convincing evidence that

without treatment, the patient would pose a real and present threat of substantial harm

to himself . . . ." Id.; see, e.g., Lyon v. State, 724 So. 2d 1241, 1242-43 (Fla. 1st DCA

1999) (reversing involuntary commitment because the doctor's testimony merely

"amount[ed] to an opinion that Mrs. Lyon would, if not on medication, neglect herself"

where the doctor failed "to specify the nature of the self[-]neglect he anticipated in a way

that established any real and present threat of substantial harm to her well-being").




              3D.F.
                  also argues that section 394.467(1)(a)(2)(b) is inapplicable.
Because section 394.467(1)(a)(2)(b) is inapplicable, we focus on D.F.'s first two
arguments.


                                             -6-
              D.F. relies heavily on Schexnayder v. State, 495 So. 2d 850 (Fla. 1st DCA

1986). In Schexnayder, the district court held that there was no evidence of specific

occasions where the appellant's failure to take medication and care for herself resulted

in substantial harm to her well-being. Id. at 852. Indeed, a doctor testified that "there

was no evidence of dehydration or gross malnutrition at the time of her last self-

admission." Id. Moreover, the appellant was able to take care of herself because she

"ha[d] a place to live, financial resources . . . , insight into her mental illness, knowledge

of the necessity for medication, and a history of self-admissions to hospitals." Id.

              Unlike Schexnayder, D.F. conceded that he cannot take care of himself

without help. And, unlike the doctor in Schexnayder, Dr. Hernandez testified to the

specific harm that would befall D.F. if discharged. Without treatment, D.F. would not

take his medication or eat.4 As noted earlier, D.F. was mildly malnourished and

disheveled when he first arrived at the Center. The record also reflects that D.F.'s prior

placements in a group home were ineffective.

              Although D.F. was mildly, not grossly, malnourished, we are not prevented

from concluding that the State presented evidence of specific occasions where D.F.'s

failure to take medication and take care of himself resulted in substantial harm to his

well-being. We note that the malnutrition followed shortly after D.F.'s last discharge




              4Dr.Hernandez also testified that, without treatment, D.F. has "a higher
risk to be wandering the neighborhood, getting lost, maybe being a victim of exploitation
due to his mental incapacity to make decisions." However, there was no evidence of
any recent behavior that indicated a likelihood that D.F. would wander, get lost, or be
exploited. See Boller v. State, 775 So. 2d 408, 410 (Fla. 1st DCA 2000). This
testimony, alone, is insufficient to establish any real and present threat of substantial
harm to D.F.'s well-being. See Schexnayder, 495 So. 2d at 852. However, the State
provided other evidence of self-neglect D.F. would suffer if he was discharged.


                                             -7-
from a group home. Thus, the trial court did not err in adopting the magistrate's finding

that the State presented clear and convincing evidence that, without treatment, D.F.

would pose a real and present threat of substantial harm to himself.

B.     Whether the Trial Court Erred By Adopting the Magistrate's Finding that there
       were No Least Restrictive Treatment Alternative Available, under Subsection (b)

              D.F. argues that the State failed to show by clear and convincing evidence

that there were no other least restrictive placement alternatives. Particularly, D.F.

maintains that he is not a dangerous individual and can survive safely with the help of

others. D.F. notes that Dr. Hernandez testified about less restrictive alternatives but

preferred that D.F. be in a closed facility in Sarasota County. D.F. also recounts that Dr.

Hernandez testified that other facilities outside of Sarasota County were willing to

accept D.F. if he was willing to go; D.F. testified he was willing to go to a group home.

              However, D.F. ignores the evidence that his previous group home

placements "backfired." Dr. Hernandez also testified that he recommended the facility in

Sarasota County because D.F. refused to go elsewhere. Dr. Hernandez testified, without

rebuttal, that D.F. did not have family or friends to care for him. D.F.'s testimony that he

could stay with a friend or roommate falls short of suggesting that either was willing and

able to help him.

              After hearing the testimony, the magistrate recommended the Sarasota

County closed facility for placement, finding less restrictive alternatives inappropriate.

Under the circumstances, the magistrate's finding was supported by competent,

substantial evidence. See B.L.R. v. State, 74 So. 3d 173, 176 (Fla. 1st DCA 2011)

(holding that the evidence supported the trial court's order committing appellant to a

maximum-risk facility when "the trial court focused on the fact that less restrictive



                                             -8-
options had been unsuccessful in protecting the public from [a]ppellant's continued

delinquency"); see also Singletary v. State, 765 So. 2d 180, 181 (Fla. 1st DCA 2000)

(holding the State failed to prove less restrictive treatment alternatives were unavailable

when Ms. Singletary's mother testified that she would take care of her daughter and

would move away from their harmful environment); Williams v. Davis, 459 So. 2d 406,

408 (Fla. 1st DCA 1984) ("Once the hospital makes a prima facie showing that the patients

meet the criteria, the hearing officer is bound to grant the petition for continued involuntary

placement in the absence of contrary evidence from the patient.").

                                       V. Conclusion

              The trial court did not abuse its discretion in accepting the magistrate's

recommendation. Thus, we affirm the trial court's commitment order.

              Affirmed.




CASANUEVA and ATKINSON, JJ., Concur.




                                             -9-
