2016 Mass. App. Div. 74

April 27, 2016 - June 8, 2016

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Singh & Crane, JJ.

No brief filed for the petitioner.

Nicholas Grefé for the respondent.

COVEN, P.J. J.W. was involuntarily committed, pursuant to G.L. c. 123, § 35, to the Men’s Addiction Treatment Center, a facility operated by the Department of Public Health. In this appeal, J.W. argues that the court erred in admitting unreliable hearsay and that the evidence did not support a finding by clear and convincing evidence that the respondent posed a very substantial risk of harm to himself or others. [Note 1]

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On March 10, 2016, J.W.’s sister filed a petition for commitment in the Cambridge District Court. A hearing on the petition was conducted on March 14, 2016. Mary Seeley (“Seeley”), a social worker for the Department of Mental Health, was the only witness to testify in support of the petition. J.W. declined to speak with her.

The petition alleged that J.W. overdosed the prior evening in their parents’ kitchen at approximately 10:00 P.M., that J.W. admitted to intravenous heroin use, was not receiving his Vivitrol shot, and refused medical attention the prior evening. It was also asserted that J.W. was committed in July of 2014, pursuant to G.L. c. 123, § 12, for threatening to kill himself, and committed in November of 2015, pursuant to G.L. c. 123, § 35, after threatening to kill his mother in her sleep.

At the hearing, Seeley testified that she spoke with J.W.’s sister and was informed by her that she was called by the parents after J.W. had overdosed. Seeley also stated that the “family came in” to file the petition. Although unclear as to who made the report, Seeley testified, without objection, [Note 2] to the following: J.W.’s mother had earlier in the day of March 9, 2016, entered J.W.’s room and found a large bag of needles. Seeley also stated that J.W. “uses a number or other substances in the past, bath salts, Percocets and so forth.” It was reported that when J.W. came home that evening, he was standing at the kitchen sink and “went out like a light.” He was revived but refused to go to the hospital, and it was reported that J.W. had missed a few Vivitrol shots that he was to get every twenty-one days.

Seeley had spoken with J.W.’s girlfriend who stated that J.W. overdosed on March 9, 2016. Seeley also reported that the family stated that J.W. comes home “sweating profusely,” in “high and low” moods, is unable to “sit still,” is “confrontational at times,” and “not making a lot of sense.”

Seeley, who saw J.W. in 2015, stated that he remains abusive toward his father, who has early onset of Alzheimer’s disease, and because he had previously threatened to kill his mother in her sleep, was of the opinion that his continued use of heroin was “very concerning.” Seeley testified that J.W.’s girlfriend reported J.W. as having overdosed a week prior to the hearing. Additionally, Seeley reported as having spoken with the sister on the day of the hearing and that the sister stated that J.W. “fled” the home the day the petition was filed and returned the next day. According to the sister, the night before the petition was heard, J.W. was “talking nonsense,” was “manicky, sweaty,” and had “dark circles under his eyes.”

Additional testimony was presented through Seeley that she spoke with J.W.’s father during the break in the petition hearing, and he recounted what had happened

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the evening of the overdose, adding that J.W.’s girlfriend was present. The father informed Seeley that J.W. “had a lot of incidents like this.”

J.W.’s girlfriend testified on his behalf and informed the court that he had not used since his 2015 commitment up until the date of the overdose. She stated that she was the one who called 911 and thought that because J.W. had not “use[d] for so many months and then he did use, he ended up overdosing.”

Pursuant to G.L. c. 123, § 35, a person may be involuntarily committed if a judge finds that the person has a substance abuse disorder [Note 3] and presents a likelihood of serious harm, “established by a showing of (1) a substantial risk of serious physical harm to the respondent; (2) a substantial risk of serious physical harm to other persons; or (3) a very substantial risk of physical ‘impairment or injury’ to the respondent resulting from an inability to protect himself or herself in the community. G.L. c. 123, § 1.” [Note 4] Matter of G.P., 473 Mass. 112, 117 (2015). The standard by which this commitment criteria must be met is clear and convincing evidence. Id. at 120. “To meet it, there must be a showing that the facts establishing the ‘likelihood of serious harm,’ see G.L. c. 123, § 1, are ‘highly probably true’ (citation omitted).” Id.

The standard may be based upon hearsay. Id. at 121-122. “But precisely because hearsay evidence may well play an extremely significant role in these hearings, the judge’s obligation to ensure that any hearsay on which he or she relies is ‘substantially reliable,’ as required by rule 7(a) [of the Uniform Rules], is

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critical, particularly in light of the clear and convincing evidence standard of proof required by rule 6(a) [of the Uniform Rules].” Id. at 122.

The Uniform Rules do not discuss what constitutes substantially reliable hearsay, but the Supreme Judicial Court in Matter of G.P. cited to Commonwealth v. Patton, 458 Mass. 119 (2010), in which the Court discussed criteria for the admission of hearsay in the context of a probation hearing. The relevant criteria that were considered on the question of trustworthiness and reliability were “(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness.” Id. at 132-133, quoting Commentary to Rule 6 of the District Court Rules for Probation Violation Proceedings (LexisNexis 2008-2009). “There is no requirement that hearsay satisfy all the above criteria to be trustworthy and reliable.” Id. at 133.

The evidence in this case was more than sufficient to find by clear and convincing evidence a basis for commitment. The testimony as to J.W.’s overdosing, his state of appearance, the act of falling unconscious, his refusal to seek medical treatment, and his history of substance abuse were more than conclusory. Furthermore, the evidence obtained from family members and his overdose were corroborated by J.W.’s girlfriend.

Appeal dismissed.


[Note 1] This is the first opportunity for this Appellate Division, Northern District, to consider such a petition since the promulgation of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse (“Uniform Rules,” effective February 1, 2016) and the Supreme Judicial Court’s guidance in Matter of G.P., 473 Mass. 112 (2015). While the respondent has been discharged, thus rendering this appeal moot, we exercise our discretion and decide the issues raised. Matter of J.B., 2015 Mass. App. Div. 144, 144-145; BayRidge Hosp. v. Jackson, 2010 Mass. App. Div. 12, 12-13.

[Note 2] To preserve a right to appellate review on the admissibility of hearsay evidence, a proper objection is a prerequisite. Matter of M.B., 2013 Mass. App. Div. 8, 9-10. We also note that, as to totem pole hearsay, “evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule.” Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987).

[Note 3] General Laws c. 123, § 35, provides the following definition, effective April 24, 2016: “‘Substance use disorder’, the chronic or habitual consumption or ingestion of controlled substances or intentional inhalation of toxic vapors by a person to the extent that: (i) such use substantially injures the person’s health or substantially interferes with the person’s social or economic functioning; or (ii) the person has lost the power of self-control over the use of such controlled substances or toxic vapors.” At the time of the petition hearing, G.L. c. 123, § 35 defined “substance abuser” as “a person who chronically or habitually consumes or ingests controlled substances or who intentionally inhales toxic vapors to the extent that: (i) such use substantially injures his health or substantially interferes with his social or economic functioning; or (ii) he has lost the power of self-control over the use of such controlled substances or toxic vapors.” The Legislature amended § 35 to replace “substance abuser” with a person who has a “substance use disorder,” effective April 24, 2016. St. 2016, c. 8, §§ 1, 4.

[Note 4] The full relevant test found in G.L. c. 123, § 1, is as follows: “‘Likelihood of serious harm’, (1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.”