2016 Mass. App. Div. 101

March 25, 2016 - July 28, 2016

Appellate Division Northern District

Court Below: District Court, Malden Division

Present: Swan, P.J., Crane & Nestor, JJ. [Note 1]

No brief filed for the petitioner.

Debra Kornbluh for the respondent.

CRANE, J. This is an appeal from an order of civil commitment entered pursuant to G.L. c. 123, §§ 7 and 8, and the denial of a motion for relief from judgment. [Note 2]

The grounds for appeal are that: 1) there was inadequate evidence to support the order of commitment on the ground stated in the petition; 2) there was a violation of due process because the petitioner presented evidence and argued for commitment on a ground not alleged in the petition; and 3) other alleged deficiencies.

Before her admission to Whidden Hospital as a conditional voluntary patient, the respondent, in her mid-sixties, used a cane and had medical problems that required medication for hypertension. She also had a history of admissions for inpatient mental health treatment. She lived independently in an apartment in Enriched Housing in Chelsea, a sixty-unit building. She and other residents of the building received social services from the professional staff of agencies affiliated with Enriched Housing. She was prescribed anti-psychotic medications but was not compliant in taking them while out of the hospital.

The respondent was admitted to Whidden Hospital on August 19, 2015, as a conditional voluntary patient. Shortly thereafter, she gave notice of her intention to be discharged within three days. On August 26, 2015, Whidden filed a petition with the District Court for an involuntary commitment. The petition alleged that the respondent is mentally ill and there is a likelihood of serious harm, specifically, a substantial risk of physical harm to other persons. The petition alleged, “She presented to the ED several days after discharge from inpatient psychiatry. She had not taken medications and Was [sic] noted to be making threatening comments to the staff at her living facility.”

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On September 15, 2015, following a contested hearing, the trial judge entered an order of commitment for six months because the respondent is mentally ill and that failure to retain said person in a facility would create a likelihood of serious harm, and there is no less restrictive alternative for said person. During the hearing, Dr. Jason Strauss (“Strauss”), a psychiatrist called by the petitioner, testified that there was a very substantial risk of the respondent causing harm to herself or not being able to protect herself. His opinion was that the respondent was at substantial risk to herself because she regularly left the Enriched Housing building unaccompanied at 2 A.M. to smoke and walk the street. He was concerned for her safety unaccompanied on the streets in that area at that time of night. However, when asked whether the respondent’s discharge would create a substantial risk of harm to others, he responded that he could not say so. The respondent filed a timely notice of appeal from this order of commitment.

Meanwhile, new counsel filed a motion for relief from judgment that was heard on November 9, 2015. The motion asserted ineffective assistance by respondent’s prior counsel at the original hearing. As grounds, new counsel asserted that her predecessor failed to file a motion for required finding or to object to the petitioner’s failure to present any credible evidence that the respondent was a substantial risk of harm to others. This was the ground alleged in the petition, not substantial risk of harm to herself that was supported by the evidence. None of these grounds for relief were raised at the original hearing.

At the hearing, the judge who entered the order of commitment stated she did so based upon finding that the respondent was a substantial risk of harm to herself and not to others. [Note 3] The judge expressed her inclination to vacate her original order. She also expressed reservations about vacating her original order because, at the date of the hearing, the respondent was no longer a patient of the petitioner but was instead committed to Tewksbury State Hospital pursuant to the original order. While counsel for Whidden Hospital, the original petitioner, appeared and participated at that hearing, no counsel from Tewksbury State Hospital appeared. On November 10, 2015, the motion for relief from judgment was denied without any stated grounds.

The respondent was represented by counsel appointed by the court as required by G.L. c. 123, § 5. “[I]n a proceeding that involves a person’s liberty or a fundamental liberty interest, in which a person has a right to appointed counsel, from whatever source, the person is entitled to the effective assistance of counsel whether counsel is appointed or retained.” Commonwealth v. Patton, 458 Mass. 119, 128 (2010). The grounds for relief from judgment were never raised at the original hearing. We address them now only because failing to raise them at the original hearing constituted ineffective assistance of counsel.

On the question of ineffective assistance of counsel, “[f]irst, we look to determine whether the ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer’ and, if so, we further inquire ‘whether [counsel’s conduct] has likely deprived the defendant of an otherwise available, substantial ground of defence.’” Care & Protection of Stephen, 401 Mass. 144,

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149 (1987), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Under the second prong, prejudice must be shown. Adoption of Holly, 432 Mass. 680, 690 (2000). See Care & Protection of Georgette, 439 Mass. 28, 33-34 & n.7 (2003). Lastly, “[w]here a strategic choice is at issue, ‘[a]n attorney’s tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made.’” Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

The only credible testimony about the respondent being a threat to others came from an Enriched Housing assistant program director, Lisa Casman (“Casman”) and Dr. Strauss. Casman testified that the respondent raised her cane to her in a threatening manner a few days before the respondent’s most recent hospitalization. Dr. Strauss testified that the respondent told a staff member at the hospital that she would break her neck. There was no evidence of the context in which this was stated or whether the staff member was fearful as a result of these words. Dr. Strauss testified that the respondent suffered from a mental illness as defined by 104 Code Mass. Regs. § 27.05(1). However, when asked, he declined to conclude that the respondent’s mental illness made her a threat to others or that these two episodes were related in any way to her mental illness.

Based upon this state of the evidence, the performance of the respondent’s original counsel fell measurably below that which might be expected from an ordinary fallible attorney. By failing to file a motion for required finding or to argue that the evidence did not conform to the ground alleged in the petition, the respondent’s counsel failed to present them to the trial court and would have waived them for appeal. Martin v. Hall, 369 Mass. 882, 884 (1976). This was measurably below the conduct of an ordinary fallible attorney.

The respondent was prejudiced since she was entitled to a required finding because of the absence of any professional opinion that the respondent posed a substantial risk to harm others and that the evidence did not conform to the ground alleged in the petition. The two incidents of threats as reported in the testimony of Casman and Dr. Strauss, if believed, are not sufficient to support a finding of a substantial risk of harm to others where the psychiatrist called by the petitioner declined to support such a conclusion when asked.

Similarly, it was a violation of the respondent’s right to procedural due process to order her commitment on the only ground supported by the evidence, substantial risk of serious harm to herself, when this ground was not alleged in the petition. Blixt v. Blixt, 437 Mass. 649, 665-666 (2002). The time for respondents and their counsel to prepare for evidentiary hearings on petitions for commitment is brief. Matter of N.L., 2015 Mass. App. Div. 160, 162. In this case, it was only fourteen days. When matters are heard on such an expedited basis, a respondent’s right to notice and an opportunity to be heard is violated when the petitioner is permitted to go forward on grounds not alleged in the petition. [Note 4] We also note that the respondent was further prejudiced because these issues were presented only

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at the hearing on the motion for relief from judgment when the respondent was a patient at another hospital. [Note 5]

For the reasons set forth herein, the motion for relief from judgment should have been allowed. Furthermore, any motion for required finding of dismissal should have been allowed. Therefore, the petition shall be dismissed. Finally, because of the foregoing rulings, we need not reach the other grounds asserted by the respondent.

The order of commitment is vacated, and the petition shall be dismissed.


[Note 1] The Honorable Allen G. Swan participated in the hearing of this appeal, but completed his Appellate Division service prior to the issuance of this opinion.

[Note 2] The respondent remains as a patient at the Tewksbury State Hospital at the time of hearing this appeal. She became a conditional voluntary patient when the order of commitment that is the subject of this appeal expired. Although this renders this appeal moot, we exercise our discretion and decide the issues presented. Matter of J.B., 2015 Mass. App. Div. 144, 144-145; BayRidge Hosp. v. Jackson, 2010 Mass. App. Div. 12, 12-13.

[Note 3] The petitioner never moved to amend the petition to conform to the evidence.

[Note 4] The petitioner did not seek to amend the petition, and the respondent did not request a continuance to prepare to respond to the evidence presented that did not conform with the allegations in the petition.

[Note 5] Neither the petitioner nor Tewksbury State Hospital where the respondent was being treated at the time of the hearing of the motion for relief from judgment filed briefs in this appeal. We have noted in the past that our decision-making would benefit from their counsel’s learning. Matter of N.L., supra at 162.