2018 Mass. App. Div. 139

July 3, 2018 - October 2, 2018

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: McGill, Poehler & Stark, JJ.

No brief filed for the petitioner.

Arielle Sharma for the respondent.

MCGILL, J. A.B. appeals from a civil commitment pursuant to G.L. c. 123, § 35. A.B. raises both substantive and procedural flaws in the commitment proceeding, citing: 1) due process defects in the issuance of process; and 2) that the evidence did not support a finding by clear and convincing evidence that A.B. suffered from a use disorder and that there was a likelihood of serious harm because of that use disorder.

The evidence presented before the District Court judge was brief. A.B., on the advice of counsel, declined to speak with the designated forensic psychologist ("DFP"). As a result, the DFP simply reiterated information relayed to him from the petitioner, A.B.'s father. There was neither corroborating evidence nor exhibits, and A.B.'s father never testified.

A.B.'s father informed the DFP that a couple of weeks prior to the hearing, A.B., while intoxicated, fell and injured his eye. During the same period, also while intoxicated, A.B. left a stove on, and his father later observed smoke in the kitchen from a burnt pancake. [Note 1] The DFP relayed that A.B. smoked marijuana and five to ten cigarettes a day. A.B. stopped drinking four days prior to the filing of the petition. A.B. hallucinated on the evening prior to the filing of the petition. However, during this period, A.B. was under a doctor's care and taking a prescribed medication, of which hallucinations are a potential side effect.

Based on the information provided to him, the DFP opined that A.B. had a polysubstance dependence disorder of alcohol, cannabis, and nicotine. The DFP also opined that A.B. could not care for himself because of such use. The judge credited the DFP's opinion and found that A.B. met the criteria for commitment under G.L. c. 123, § 35. A.B. was committed for a period not to exceed ninety days at the Men's Addiction Treatment Center.

1. Issuance of process - warrant of apprehension. A.B. challenges the issuance of the warrant of apprehension, arguing that a summons should have issued instead. A warrant is appropriate if the judge determines that there are "reasonable grounds to believe that [the respondent] will not appear [at the hearing] and that any further

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delay in the proceedings would present an immediate danger to the physical well-being of the respondent." G.L. c. 123, § 35.

The petition itself did not set forth facts on which the judge could make those findings. We have no transcript of the review of the petition, or any other evidence as to why a warrant issued. Therefore, on the record before us, we cannot find that the warrant issued in error.

2. Sufficiency of evidence. In order to meet the standard for commitment, the court must find by clear and convincing evidence that the respondent suffers from an alcohol or substance use disorder and that there is a likelihood of serious harm as a result of such disorder(s). G.L. c. 123, § 35. "The court shall base its findings on credible and competent evidence, including medical testimony and such other evidence as may be admitted." Rule 7(c) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substances Use Disorders. "Likelihood of serious harm" is defined 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."

G.L. c. 123, § 1.

The testimony offered by the DFP did not meet the criteria for commitment by clear and convincing evidence. The only witness was the DFP, whose testimony was brief, less than three pages of transcript. The DFP opined that A.B. could not care for himself due to his alcohol and substance use disorders. There was no testimony that there existed a likelihood of serious harm because of the respondent's alcohol or substance use. The uncontroverted evidence was that the defendant stopped drinking alcohol days before the filing of the petition. Moreover, there was no evidence that A.B. was currently using marijuana to such an extent that it affected his activities of daily living or caused behavior that would present a danger to himself or others.

The DFP spoke with only one person, A.B.'s father, who failed to provide details about A.B.'s marijuana use, other than the fact that "he uses." The father also indicated to the DFP that A.B. had not consumed any alcohol for a period of days. While the incidents with the stove and the black eye are concerning, they occurred weeks before the petition had been filed, rendering this evidence stale. See Matter of G.P., 473 Mass. 112, 125-127 (2015).

Because the standard for commitment was not met in this case, the finding of the trial court is reversed, the commitment order is vacated, and the petition is dismissed.


[Note 1] There was no evidence that the stove was still on or any other circumstances regarding the condition of the stove. Whether the stove was on and the pancake was burning, or whether the stove was off and there was a burnt pancake are two very importantly different circumstances. In addition, where A.B. was at the time would affect the assessment of the situation. The lack of specificity calls into question the reliability of this hearsay evidence.