2017 Mass. App. Div. 29

July 15, 2016 - February 15, 2017

Appellate Division Southern District

Court Below: District Court, New Bedford Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

No brief filed for the petitioner.

Craig T. Sprat for the respondent.

FINNERTY, J. The determinative issue in this appeal is straightforward. Was the appropriate standard of proof applied in granting the petition and committing C.V. to a Department of Mental Health facility under G.L.c. 123, §§7 and 8?

Pursuant to §§7 and 8 of G.L.c. 123, Southcoast Behavioral Health filed a petition for commitment of C.V. as well as a petition pursuant to §8B for authorization to treat C.V. medically. One hearing on both of these petitions was held on December 7, 2015, as stipulated by the attorneys for the petitioner and for C.V. but over an objection stated by C.V. herself. In fact, C.V. declared that she did not want to be represented by an attorney, and the court answered that the attorney would be her "standby counsel." [Note 1] Following the evidence presented at the hearing, the trial judge announced that she had found "clear and convincing evidence" that C.V. was mentally ill and that by "clear and convincing evidence," C.V. was a "danger to herself and "unable to care for herself in the community." The trial judge also approved the treatment plan proposed in the §8B petition. A few days after the hearing, the court allowed a petitioner-requested modification to the medical treatment plan, noting that "Respondent's counsel indicated he will not assent but will not oppose this modification." The appeal of the trial court's rulings was timely filed on December 16, 2015.

Although C.V. has been released from commitment prior to this appeal, she asks us to consider the appeal for two reasons. First, it is a matter of "public importance, capable of repetition, yet evading review." See Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978). Second, there is a stigma associated with a finding that a person is mentally ill, id. at 276, and there are consequences under recent amendments to G.L.c. 123, §35. St 2014, c. 284, §15 (prohibition against person committed under G.L.c. 123, §35 being issued firearm identification card or license to carry firearm). We agree that the Hagberg principle is applicable and warrants our review of the decision, but note that the respondent has not shown she has been actually prejudiced by the firearms licensing consequences.

The long-standing standard of proof for allowance of a petition for involuntary commitment under G.L.c. 123, §§ 7 and 8 is "beyond a reasonable doubt" Guardianship of Roe, 383 Mass. 415, 423-424 (1981). See Hagberg, supra at 276. Nothing in the record before us demonstrates that the trial judge applied a standard of proof other than as

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announced on the record of "clear and convincing evidence." [Note 2] For that reason, the finding allowing the §§7 and 8 petition and ordering the involuntary commitment of C.V. must be vacated. As necessarily follows from that conclusion, the finding on the petition under §8B must also be vacated, as it "shall not be heard or otherwise considered by the court unless the court has first issued an order of commitment on the pending petition for commitment." G.L. c. 123, §8B(b). See also Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass, 101, 106 (2000).

Because we hold that, based on the record before us, the order granting the petition for commitment must be vacated, we do not address the other issues raised by C.V. regarding the manner in which the evidence was presented, the modification of the treatment plan without further hearing, or issues with respect to the role of C.V.'s trial counsel in the hearing given C.V.'s expressed desire to represent herself.

The order of commitment is vacated. The order approving the treatment plan is vacated.


[Note 1] Notwithstanding that characterization, counsel participated fully in the hearing as C.V.'s representative.

[Note 2] The standard of "clear and convincing evidence" is applicable to involuntary civil commitments for alcohol use disorder and substance use disorder under G.L.c. 123, §35. See Rule 6(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders. We note that the experienced trial judge may have had this standard in mind and simply misspoke, but nothing in the record allows us to make that assumption.