2016 Mass. App. Div. 81

June 21, 2016 - July 22, 2016

Appellate Division Northern District

Court Below: District Court, Chelsea Division

Present: Coven, P.J., Nestor & Flynn, JJ.

NESTOR, J. A.M. was committed to the Massachusetts Alcohol and Substance Abuse Center after a hearing was conducted under G.L. c. 123, § 35 in the Chelsea District Court on June 2, 2016. A.M. petitioned for relief from that order to this Appellate Division pursuant to G.L. c. 123, § 9(a).

On June 1, 2016, A.M.’s mother (the “petitioner”) filed a petition under G.L. c. 123, § 35. On June 2nd, A.M. was brought to the Chelsea District Court on a warrant of apprehension. The petitioner and Raquel Luesner Jones, LICSW (“Court Clinician”), as well as A.M., testified at the hearing.

A.M. has suffered from an addiction to crystal methamphetamine for approximately four years. He has refrained from use for lengthy periods of time, but he has also had periods of relapse. The petitioner first realized that her son had a substance use disorder when she visited him while he was living in New York City approximately four years ago. He was emaciated. His two dogs were emaciated. He was living in filth and squalor. The petitioner returned her son to the Boston area, and he has been living with her since that time.

A.M. was previously committed under G.L. c. 123, § 35 in November, 2015. The petitioner believed that he had maintained sobriety until sometime around May 12, 2016. The petitioner, who is a registered nurse, believed he was under the influence of drugs on a near daily basis since his relapse. She found bloody needles in his bedroom along with pipes she believed he was using to smoke crystal methamphetamine. She observed track marks on his arms that she believed to be consistent with drug abuse. He was fired from his job. He inexplicably drained his bank account of nearly $2,600. On May 12th, A.M. was in the backyard complaining that a woman was jumping over the fence and exclaiming, “I can hear her.” There was, in fact, no one there. On May 31st, the petitioner came into the bathroom because the toilet was overflowing. A.M. was standing there and not doing anything and was oddly unembarrassed by the situation. The petitioner believed he was unaffected by the situation because he was under the influence. In addition, the petitioner testified that A.M. would leave home without notifying anyone and be gone for several days at a time. The petitioner believed he was binge using drugs during those unexplained absences.

The Court Clinician testified that A.M. admitted to her that he used crystal methamphetamine once on May 15, 2016. She further testified that A.M. was taking prescribed medication for a very serious medical condition and that the combination of that drug and crystal methamphetamine was very dangerous. In his testimony, A.M. admitted that he had relapsed on May 15th.

Page 82

In order to commit a person under G.L. c. 123, § 35, a court must find that “such person is an individual with an alcohol or substance use disorder and there is a likelihood of serious harm as a result of the person’s alcohol or substance use disorder.” Id. Under the statute, a “substance use disorder” is defined as “the chronic or habitual consumption or ingestion of controlled substances . . . 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.” Id.

“Likelihood of serious harm” is defined in G.L. c. 123, § 1 as:

“(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.”

See Matter of G.P., 473 Mass. 112, 124-125 (2015).

In addition, the Supreme Judicial Court has determined that there must also be a showing under the first and second prong that the harm is imminent. Id. at 127. The petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent’s substance abuse. Id. at 128. “Imminent” is not immediate. The petitioner does not need to establish that the harm will occur immediately, but rather that it will occur in the reasonably short term. A finding that the harm will materialize in days or weeks is sufficient. Id.

The burden of proof in establishing a “likelihood of serious harm” is clear and convincing evidence. Id. at 120.

There was substantial evidence upon which the trial judge based his finding. In this case, testimony at the hearing supports the finding that A.M. suffers from a substance use disorder. Hallucinating, inability to care for himself, constant sleeping coupled with continuous observations that he is under the influence, track marks on his arms, unexplained lengthy absences, mixing prescription drug use and illegal narcotics, job loss, and draining his entire savings all support that conclusion.

Those same facts support the conclusion by clear and convincing evidence that there is a substantial imminent risk of injury or death to A.M. as a result of his substance use disorder.

The order of commitment of A.M. under G.L. c. 123, § 35 is affirmed.