2017 Mass. App. Div. 93

December 16, 2016 - May 10, 2017

Appellate Division Northern District

Court Below: District Court, Woburn Division

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

No brief filed for the petitioner.

Craig T. Spratt for the respondent.

CRANE, J. K.M. was committed to the Women's Addiction Treatment Center pursuant to G.L. c. 123, § 35 for a period of up to ninety days following an order entered on July 25, 2016. She has been discharged from treatment. Despite her discharge, she appeals the order for her commitment.

K.M. claims that her appeal is not moot because the order for commitment precludes her from obtaining a license to carry a firearm or a firearm identification ("FID") card for at least five years. See G.L. c. 123, § 35, sixth and seventh pars. There is no evidence that she has ever applied for a license to carry or expressed any interest in doing so. Her work does not involve any aspect of security that might benefit from a license to carry a firearm or for her to be issued an FID card.

Her father, the petitioner, did state in the petition for commitment that assisting in obtaining custody of the respondent's daughter was one of his reasons for petitioning for commitment. However, there is no evidence about any current contest for custody of her child or any proceedings in any court or by any agency seeking to abridge her rights to full custody of her child. [Note 1]

The evidence before the judge consisted only of testimony from a qualified professional that she spoke to the respondent, her father, mother, sister, boyfriend, and the local police. She reported that the respondent admitted to a history of abuse of Percocet but that she denied any current abuse. The family members reported that the respondent had snorted or otherwise used Percocet at unspecified times in front of her two year old daughter. They also reported that the respondent was driving with her child in a car while under the influence of Percocet, also with no specification of time. They did not report any accidents or stops or arrests by the police.

Family members reported an incident, on the night before the hearing, where the respondent and her sister engaged in a verbal argument when the respondent went to the sister's home to pick up her child. The argument was about whether the respondent was under the influence of Percocet then and whether it was safe

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for her to leave with her child and drive. The respondent does not have a license and denies that she was driving. Police arrived and permitted the respondent to continue home with her child by unknown means. There is nothing in the record about how the respondent traveled from her sister's home to her own on the night before the hearing.

The respondent is regularly employed and appeared in court voluntarily in response to the petition. She has no history of mental health issues, no suicidal ideation, and no self-threatening behavior. However, the witness opined that the respondent met the criteria for commitment, especially because of the risky behavior of driving in the car with her daughter while under the influence. There was no testimony about how recently the respondent may have engaged in this conduct.

The trial judge ordered commitment, having found by clear and convincing evidence that the respondent had a substance use disorder and that there was a likelihood of serious harm as a result of her substance use disorder. The respondent challenges the sufficiency of the evidence for each of these findings. Other than asserting that the prohibition from obtaining a license to carry or FID card overcomes mootness, the respondent has not argued or urged that we should exercise our discretion to review whether the trial court committed error by imposing these prohibitions, as mandated by G.L. c. 123, § 35, upon the respondent or others who are ordered committed under that section.

This appeal is moot. Matter of G.P., 473 Mass. 112, 113 (2015); Guardianship of V.V., 470 Mass. 590, 591 (2015); Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000). The respondent argues that we should exercise our discretion to address the sufficiency of the evidence because even after the respondent has been discharged, the order of commitment disqualifies the respondent for five years from obtaining a license to carry or FID card that she has never sought or shown any inclination to seek. If the respondent is ever inclined to seek a license to carry or FID card, she may seek relief after five years, as authorized by c. 123, § 35, seventh par. There is nothing in the record to indicate that the respondent will be adversely affected by following this statutory procedure to seek relief after five years.

When a matter is moot, we may exercise our discretion to address issues raised that are of significant public importance, capable of repetition, and will evade review on account of the relatively short duration of a commitment under § 35. Acting Supt. of Bournewood Hosp., supra. However, where the only issue is the sufficiency of the evidence, we decline to do so. The issue of the sufficiency of the evidence is unique to this case, unlikely to arise in similar circumstances, and would have little or no precedential value. Matter of K.R., 2012 Mass. App. Div. 229. We also decline to exercise our discretion to address issues concerning the consequences of the order of commitment upon any person's right to seek a license to carry a firearm or an FID card where the current respondent is not aggrieved thereby and has not argued that issue in her brief other than to present it as a speculative loss that she has neither sustained nor demonstrated any likelihood of doing so.

Where the trial judge applied the proper standard of proof and found both of the elements required for an order of commitment by clear and convincing

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evidence consistent with Matter of G.P., supra, the appeal is moot and must be dismissed. [Note 2]


[Note 1] Because the respondent did not raise the argument in her brief, we do not consider whether any dispute over custody of the child would warrant exercising our discretion to address any issue despite the appeal being moot. Dist./Mun. Cts. R. A. D. A. 16(a)(4).

[Note 2] We note that the evidence of substance use disorder and risk of serious harm is no stronger than that presented in Matter of G.P., supra. The basis for the opinion by the sole witness, the provider who examined the respondent, was that she drove her car with her two year old daughter in it while under the influence of Percocet. There was no evidence that this occurred in the aftermath of whatever incident happened at her sister's home on the night before the hearing. The witness did not testify that the persons she consulted reported any recent or specific episodes of this conduct. The respondent admitted that she used Percocet improperly in the past, but there was no information about how recent that was. Furthermore, there was uncontroverted evidence that the respondent was regularly employed and living independently. She left her work and appeared at the hearing voluntarily when she was notified that the court had issued a warrant of apprehension.

Still, we do not reach the issue of sufficiency of the evidence where it is the only issue raised and the respondent has been discharged.