2018 Mass. App. Div. 152

July 20, 2018 - October 24, 2018

Appellate Division Western District

Court Below: District Court, Springfield Division

Present: Hadley, P.J., McGill & Stark, JJ.

Mary Beth Ogulewicz and Marilyn J. Schmidt for the petitioner.

Nadell Hill for the respondent.

STARK, J. The respondent, J.V., appeals from a commitment order pursuant to G.L. c. 123, §§ 7 and 8. As an initial matter, although J.V. has been discharged from the facility, her appeal from the order of commitment is not moot, see Matter of F.C., 479 Mass. 1029 (2018), quoting Seney v. Morhy, 467 Mass. 58, 62 (2014) (holding such appeals "should not be dismissed as moot where the parties have a continuing interest in the case"), nor does the court's dismissal of the commitment petition following her discharge affect the appeal. For the reasons set forth below, we hold that there was sufficient evidence to warrant the order of commitment.

The judge who ordered the commitment found that J.V. was mentally ill; that failing to retain her in the hospital would create a likelihood of serious harm; and that there was no less restrictive alternative for her. See G.L. c. 123, § 8 (setting forth standard for commitment). The judge made the following findings of fact in support of his order. The court credited the treating physician's expert opinion and found that J.V. was delusional, paranoid and psychotic. J.V. believed she would be killed. She had confronted people in the community, including accusing a young woman of having an affair with her husband. Several days prior to the hearing, J.V. drove to the airport with the intent to fly to Florida, and she stopped her car along the way and had what appeared to be an emotional breakdown on the side of the road. J.V. told the doctor that she believed people driving their vehicles were attempting to harm or kill her. She also said she was "directed by the radio to follow certain automobiles." The judge found there was no evidence of assaultive or violent behavior. He also found that J.V. had remained in her delusional state at the time of the hearing, and that although she had recently begun taking medication, it was at a level far less than necessary for her to be stabilized.

The term "likelihood of serious harm" is defined by statute 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

Page 153

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.

In this case, there was no allegation or any credible evidence to support a finding under the first prong. The petitioner alleged a risk of harm existed under the second and third prongs. J.V. contends that the evidence was insufficient to support either of these allegations.

With regard to the second prong, we find that J.V. is correct. In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court noted that the Legislature's use of words like "homicidal" and "violent behavior" and "serious physical harm" signifies "an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Id. at 126. Here, J.V. had no history of homicidal behavior, and neither committed any act of physical violence, nor threatened anyone or expressed an intent to do so. As such, there was insufficient evidence to establish beyond a reasonable doubt that the second prong was met.

We do hold, however, that there was sufficient evidence to establish that there was a "likelihood of serious harm" under the third prong of the definition. In Matter of G.P., the Court noted that with regard to the third prong, the harm that is to be considered is "physical impairment or injury" to the respondent and a "very substantial risk" of that type of harm is shown by evidence that the respondent's judgment is so adversely affected by her mental illness that she cannot protect herself from physical harm, and that the community does not include any reasonably available external source of adequate protection. Id. at 128-129. The focus in this context is on the respondent's degree of impaired judgment due to her illness; the degree of likelihood that she will sustain or inflict injury; and the inability of any other person or persons in the respondent's community to provide her protection against these risks. Id. at 129.

In this case, the judge determined that although J.V. had recently begun taking medication, such medication was not of an adequate amount to stabilize her, and in fact she was still in a delusional state at the time of the commitment hearing. These facts, coupled with the other findings that J.V. suffered a breakdown on the side of the road, that she believed people in their cars were trying to kill her, that she heard voices from the radio instructing her to follow certain vehicles, and that she confronted people in the community, were sufficient to meet the standard for commitment.

We hold that the order of commitment was lawful and was supported by the evidence. For these reasons, the order of commitment is affirmed.