2018 Mass. App. Div. 136

June 22, 2018 - September 24, 2018

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Welch, Finnerty & Finigan, JJ.

No brief filed for the petitioner.

Joshua Grammel for the respondent.

WELCH, J. The respondent, J.H., appeals from his commitment under G.L. c. 123, § 35. [Note 1] J.H. challenges the sufficiency of the evidence supporting the court's findings both that the respondent had a substance use disorder and that his substance use created a likelihood of serious harm to J.H., himself, based on his suicidal statements. We hold that the evidence properly supported the court's determination that the respondent did present with a substance use disorder. Concluding that there was insufficient support for the trial court's finding that the respondent was a danger to himself, however, we vacate the order of commitment.

At the commitment hearing, the court heard testimony from the court psychologist ("clinician") and from J.H.'s girlfriend ("girlfriend"). The clinician chronicled her conversations with J.H.'s sister ("petitioner"), with J.H.'s girlfriend, and with J.H. The court then allowed the girlfriend to testify. After both the clinician and the girlfriend had been cross-examined by J.H.'s attorney, the clinician testified to her opinion that J.H. met the criteria for commitment pursuant to G.L. c. 123, § 35. [Note 2] The testimony of both witnesses, although obviously credible in the court's view, was often conclusory, with limited supporting detail.

The clinician testified that the petitioner and girlfriend had provided information about J.H.'s past and present substance use, including an account of J.H.'s past years-long struggle with drugs and alcohol, and "approximately 50 detoxes"; [Note 3] a history, confirmed by J.H., of "approximately six overdoses in 2015," with no later overdoses; and, following a period of sobriety, J.H.'s current "[use of] alcohol on a daily basis, approximately ten nips, Percocets, fentanyl," and his positive tests for illicit drugs within the month before the commitment hearing. According to the clinician, during her interview with J.H., he conceded that he had "a problem" and needed help. J.H.

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did not dispute this testimony during the hearing; the evidence, in fact, was that J.H. had admitted himself to a detox facility "recently," but had left against medical advice after two days based on concerns about losing his employment as a plumber. J.H. had also attempted, unsuccessfully, to gain entry into a Brockton treatment program in the days preceding the commitment hearing.

The clinician's opinion that J.H. posed a risk of harm to himself or others focused on J.H.'s alleged suicidality; [Note 4] specifically, the girlfriend's report to the clinician that while at the police station and in the face of a failed effort to obtain a bed at "the Champion program," [Note 5] J.H. tearfully told the police that "he . . . didn't want to be locked up," followed by his statement, "just shoot me." The petitioner and, apparently, the clinician interpreted this statement, "just shoot me," as a demonstration of J.H.'s suicidal state of mind. The court heard that J.H. had admitted to one prior suicide attempt in 1989 or 1999, but that neither J.H. nor the petitioner or girlfriend reported any other attempts. In speaking with the clinician on the day of the hearing, J.H. was "compliant." The clinician confirmed that she had no information to indicate that J.H. had tried to catalyze the police to act on his statement inviting them to "just shoot [him]." There was no other evidence that J.H. had made any recent suicidal statements or behaved in a way that indicated a risk of harm to himself or others based on his substance abuse. Finally, the evidence at the hearing was that J.H. was taken from the police station to a hospital, and was released from the hospital before being brought to court to address the § 35 petition. [Note 6]

General Laws c. 123, § 35 empowers the court to involuntarily commit a person whom the court finds to suffer from "an alcohol or substance use disorder" where the court also finds "there is a likelihood of serious harm as a result of . . . [that] disorder." G.L. c. 123, § 35. The statute defines "substance use disorder" 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. For the purposes of the

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statute, "likelihood of serious harm" includes: "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide . . . ; (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." Id. at § 1. The court is bound in these findings to a clear and convincing evidence standard. See Rule 6 of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders; Matter of G.P., 473 Mass. 112, 120 (2015).

On appeal, J.H. challenges the sufficiency of the evidence supporting the court's commitment order. J.H.'s status as a person suffering from a substance use disorder was, in our view, supported by at least clear and convincing evidence, not least by J.H.'s own acknowledgment of his need for "help," and his unsuccessful attempt to obtain treatment in the days before his commitment hearing. The issue for us to determine is whether, by the same standard, the facts supported the court's finding that J.H. posed a substantial risk to harm himself by evidence of threats of or attempts at bodily injury or suicide. The assessment of risk is a probabilistic one and necessarily must be made on the basis of specific facts and circumstances presented. Matter of G.P., supra at 125-126. In considering this question, we defer to the trial judge's assessments of the weight and credibility of the evidence. Addiction alone is insufficient to form a basis for commitment. Id. at 130. As to J.H.'s behavior, the evidence showed he was aware of his addiction and was undergoing voluntary testing; did take steps to enter a detoxification program, despite his failure to complete it; and was not violent. While the petitioner, through the report of the clinician, provided some evidence that J.H. left a stove burner on while intoxicated and also passed out with a lit cigarette in hand, there was no evidence that those behaviors, if true, put any other person at risk of serious bodily harm. As to the effect of his disorder on J.H.'s own well-being, despite evidence of past overdoses, there was no evidence of a recent overdose. Likewise, although the court heard about a 1989 or 1999 suicide attempt, it was clear that there was no evidence of any more recent attempt. The commitment, then, rested on J.H.'s statement, made in the context outlined above, "just shoot me." The court had argument on both sides about the import of that statement, but no evidence either way about what J.H. meant by it. While certainly concerning, the statement could have been, as J.H.'s counsel argued, simply a dramatic way of expressing J.H.'s frustration with his circumstances at the time. That evidence -- the only evidence of J.H.'s present risk of harm to himself by suicide -- simply is not the "clear and convincing" evidence of substantial risk of self-harm that G.L. c. 123 requires.

As there was insufficient evidence to support the involuntary commitment of J.H., the order of commitment under G.L. c. 123, § 35 is vacated.

So ordered.


[Note 1] J.H. has since been released from commitment. Guided by the Supreme Judicial Court's reasoning in its recent decision, Matter of F.C., 479 Mass. 1029 (2018), we consider the issues raised in this appeal.

[Note 2] The record does not reflect the court clinician's name or qualifications. While this is not an issue on appeal, we note that the better practice in such hearings is to establish the identity and qualifications of the testifying witnesses in order to create the clearest possible record.

[Note 3] The clinician testified that J.H. left a 2015 detox hospitalization after thirty-five days, characterizing it as an "elopement." The evidence did not establish the actual end date of that commitment, or whether J.H.'s departure was, in fact, premature.

[Note 4] There was little evidence that J.H. posed a risk of harm to others based on his substance abuse. Any such evidence was limited to a reference to his driving under the influence of liquor, and a suggestion he had "passed out with a lit cigarette." Cross-examining the clinician, J.H.'s counsel elicited testimony that J.H. had denied passing out with lit cigarettes, although the petitioner claimed that J.H. had done so. Further, on cross-examination, J.H.'s counsel elicited testimony by the clinician that J.H. reported that he had not participated in other risky behaviors, including leaving a burner going on the stove while he was intoxicated, "reach[ing] for anyone's gun," and using marijuana or "meth." That testimony added little to the evidence of J.H.'s risk of harm to himself or others.

[Note 5] We understand this to be a substance abuse treatment program.

[Note 6] The record is silent as to why J.H. went to the hospital and under what process; we surmise that J.H. was transported to the hospital pursuant to G.L. c. 123, § 12(a). If so, J.H.'s immediate release from the hospital may imply that the examining hospital staff found it unnecessary to seek to commit J.H. at the hospital as a danger to himself, and may lend support to J.H.'s argument in opposition to commitment based on concerns about his likelihood of self-harm.