2018 Mass. App. Div. 159

July 13, 2018 - November 16, 2018

Appellate Division Northern District

Court Below: District Court, Cambridge Division

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

Diane M. Geraghty Hall for the petitioner.

Courtney A. Dunn Logan for the respondent.

CRANE, J. This is a patient's appeal from an order extending a civil commitment made pursuant to G.L. c. 123, §§ 7 and 8 and an amendment to a treatment plan pursuant to § 8B.

The respondent argues that it was error to extend his commitment and involuntary treatment and amend his treatment plan because: 1) it was a violation of due process to permit the patient's mother to testify without more notice; 2) the evidence was insufficient to establish that the failure to hospitalize the respondent created a likelihood of serious harm; 3) the order was based upon inadmissible lay opinion concerning the respondent's mental capacity and dangerousness; and 4) a Probate Court order for treatment was in effect and there was no evidence of need or emergency to warrant amending it in this proceeding. We reject these arguments and affirm the orders. We have reviewed these issues as directed in Matter of F.C., 479 Mass. 1029 (2018). Having done so, we do not address the respondent's arguments on whether the decided issues are moot.

The respondent was originally ordered committed for treatment on December 1, 2016. A treatment plan was also ordered pursuant to G.L. c. 123, § 8B. All of those orders were due to expire on May 31, 2017. The petitioner filed to extend the respondent's commitment on May 30, 2017, alleging that the respondent continued to require commitment pursuant to §§ 7 and 8. On June 6 and 8, 2017, the court conducted hearings on the current petition and ordered continued commitment and extended and amended the existing plan for involuntary treatment with medication pursuant to § 8B. When the Probate Court appointed the respondent' mother as his temporary guardian on December 23, 2016, it also incorporated the treatment plan that the District Court had ordered on December 1, 2016. The temporary guardianship, and any order for treatment that it incorporated, was due to expire on June 15, 2017, unless extended.

The respondent's mother testified that immediately before his hospitalization commenced on November 23, 2016, the respondent had lived with his parents and two other siblings at their home. The family no longer lived in their home because it had been substantially damaged by a fire shortly before the respondent was hospitalized. The origin of the fire was from a couch in an area of the basement used almost exclusively by the respondent and where he frequently smoked.

In the months preceding the fire, the respondent told his parents that he wanted them to die on more than one occasion. When he was living with his family before the fire, the respondent frequently left the home and spent nights in a tree fort

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on their property. He did this well into November despite the lack of plumbing, electricity, or heat. About a year before that, he had enrolled to take college classes away from his home. He had lived with friends for a while, but left them to live in his car. When he returned to his parents' home, he was so unkempt that it appeared to his mother that he had not bathed in six months. His mother saw injuries that required medical treatment on several occasions. The respondent told her he suffered the injuries in three separate fights he had been involved in with unidentified persons in the community. His parents refused to let the respondent return to the home they rented after the fire because they were afraid for the safety of themselves and their other children. The respondent also wanted to live alone at his family's lake house, which his parents refused. His mother also testified that the respondent's physical appearance was improved compared to pre-hospitalization.

Respondent's mother was appointed temporary guardian by the Probate Court and was not sure if her appointment would be extended or made permanent. She also did not know about the status of any Probate Court proceedings and whether the respondent's doctor would seek any revisions to the treatment plan ordered by the Probate Court, or whether anyone associated with that plan was going to seek its extension on June 15, 2017, or any time soon.

The respondent's treating psychiatrist met with him for five to ten minutes each day since his original commitment. She testified that at his admission, the respondent was irritable, unmotivated, noncommunicative, and filthy from lack of care for personal hygiene. Since being placed on medication, he had become less irritable except when he was told that he could not live at his parents' lake house or that a medication that he likes would be terminated. Also, although she testified that she believes that the respondent is not suffering from delusions or hallucinations, his conversation is minimal. His hair is greasy, and he showers infrequently. The floor in his room is covered by dirty clothes and empty food containers. She diagnosed the respondent with schizoaffective disorder.

When his psychiatrist asked about any plan for where he will live after discharge, the respondent told her that he will live with friends without identifying who they are or where he might live with them. Because the respondent strongly objects to any kind of injection, his treating psychiatrist was of the opinion that if the respondent were discharged to any unsupervised setting, he would likely cease his medications and resume using alcohol and marijuana and get into fights again because his volatility would return without medication.

The treating psychiatrist testified that her plan for any extended commitment was to get the respondent transferred to the Worcester Recovery Center within the next few weeks so that the respondent might start the process of transferring to a group home in a more appropriate supervised setting. She also testified that during his hospitalization, two group homes had declined to accept the respondent because placement there was inappropriate despite the willingness of the respondent's parents to pay for his care. She also testified that the department of mental health had accepted the respondent to a respite bed during his hospitalization. However, she believed that keeping the respondent hospitalized until a bed at Worcester Recovery Center opened was more likely to achieve her long-term goal of placement for him in a group residence.

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The respondent offered testimony from a nontreating psychiatrist. He had met with the respondent before the hearing on the original petition for commitment and on two instances since the current petition was filed. He did not contest that the respondent suffered from mental illness when originally committed. However, it was his opinion that the respondent had improved to the point that he was no longer a risk of substantial harm because of treatment with medications since his hospitalization began. He acknowledged the respondent's difficulties with hygiene and irritability and attributed those to boredom with extended and, in his view, unnecessarily long hospitalization at an acute care facility. He also explained the respondent's threatening responses to a change in medication or refusal to permit him to live at the family's lake house as arising from social immaturity. It was his opinion that the respondent could be discharged to less restrictive settings than continued hospitalization at McLean or Worcester Recovery Center without likelihood of serious harm. It was his opinion that there was no likelihood for serious harm if the respondent were permitted to follow his plan of living with unidentified friends, promising to take medications, and treating with his primary care physician who was not a psychiatrist. Also, during the hearing, the judge warned the respondent that he would be removed from the hearing if he continued to engage in conduct that she had observed and considered threatening.

1. Mother's testimony. The respondent argues that he was entitled to notice that his mother would be called as a witness and claims that he could not effectively cross-examine her. He urges that the hearing judge should have excluded the mother's testimony or continued the hearing to permit more preparation. The respondent has not identified any statute, rule, or court order that requires either party to identify witnesses before the hearing is conducted. The respondent has not cited any case or authority to support his claim of a violation of procedural due process arising from denial of adequate time to prepare for cross-examination.

Section 5 of G.L. c. 123 grants any person subject to civil commitment or involuntary treatment the right to counsel and to present independent testimony. An indigent person must be appointed counsel and has the right to present independent testimony. A person is allowed "not less than two days after the appearance of his counsel" to prepare the case, and after this period the hearing "shall be conducted forthwith ... unless counsel requests a delay." Id. Initial requests for continuances by respondent's counsel shall be granted "where a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense." Matter of N.L., 476 Mass. 632, 633 (2017). We are satisfied that denial of the respondent's request for a continuance was not reasonably likely to prejudice his ability to prepare a meaningful defense.

As the petitioner has argued, it appears that the respondent knew or expected that the respondent's mother would testify. This is because the respondent's counsel submitted a written and typed motion in limine to limit the mother's testimony for other reasons. This typed motion was clearly prepared in advance of the hearing and submitted to the judge before testimony had begun. The hearing judge denied this motion. When the respondent's counsel went on to claim lack of notice of the mother's testimony, the hearing judge offered to continue the hearing to permit respondent's counsel to prepare. Respondent's counsel did not pursue this offer

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and never raised the issue on either day of the hearing. [Note 1] The respondent has not identified any specific prejudice that he suffered in his ability to cross-examine his mother because he did not know sooner that she was going to testify.

2. Sufficiency of evidence. Before a patient may be committed involuntarily, the petitioner is required to prove beyond a reasonable doubt that 1) the patient suffers from a mental illness; 2) there is a likelihood of serious harm if the patient is not committed; and 3) there is no less restrictive alternative. G.L. c. 123, §§ 7 and 8; Commonwealth v. Nassar, 380 Mass. 908 (1980). See Matter of G.P., 473 Mass. 112 (2015); Matter of J.C., 2018 Mass. App. Div. 63. The previously recited evidence was more than sufficient to meet this burden. The respondent presented testimony from another psychiatrist that disagreed about the likelihood of serious harm and whether there were less restrictive alternatives. The hearing judge, as fact finder, determines credibility of the competing expert testimony on these issues. Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 414 (2003). The existence of a dispute in testimony does not affect the sufficiency of the evidence. There was sufficient evidence from the respondent's treating psychiatrist, if credited, together with the respondent's conduct at the hearing, to support the findings required for commitment.

3. Lay opinion. The respondent claims that the court relied upon inadmissible lay testimony from the respondent's mother. She testified, "We've had a wonderful relationship up until he started . . . . until he became mentally ill and started to engage in very risky and dangerous behavior towards himself and us." The judge ruled that this testimony would not be taken for the truth of these assertions. There was no error. Even if there were, it was harmless and not reversible. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 316 (2003). The respondent's treating psychiatrist provided well-substantiated expert testimony on both of these subjects. There was more than adequate expert testimony to support the conclusions that the respondent was mentally ill and currently dangerous without any consideration of the mother's testimony as an opinion.

4. Amended treatment plan. The respondent argues that it was error for the hearing judge to amend the treatment plan pursuant to G.L. c. 123, § 8B because the respondent was subject to an existing treatment plan from the Probate Court and the circumstances did not require immediate action by the District Court. The respondent relies upon the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011) and, in particular, Standard 7:01: Related Probate and Family Court Proceedings. Standard 7:01 states, in part:

"If there was a prior Probate and Family Court determination regarding the same respondent and the same or related issues of competency and treatment, the District Court should be informed of and give careful consideration to that earlier decision.

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"If there is a Probate and Family Court treatment plan currently in effect, the District Court should refer the petitioner seeking to change that plan back to the Probate and Family Court that issued it, unless immediate action is necessary."

The pertinent part of the commentary to Standard 7:01 states:

"Where a § 8B petition is filed solely to modify a treatment plan authorized by the Probate and Family Court that is currently in effect, jurisdiction should be declined and the petitioner directed to the Probate and Family Court that issued that treatment plan, unless circumstances require immediate action."

The request to amend the treatment plan was part of the proceeding to extend the imminently expiring order of commitment from the District Court, not solely to modify a Probate Court treatment plan. Furthermore, the Probate Court treatment plan did nothing more than adopt the District Court's original treatment plan for the respondent that was ordered pursuant to G.L. c. 123, § 8B. It was unnecessary for the hearing judge to refer or decline to hear the petition to modify under these circumstances. It was also unnecessary to conduct a preliminary inquiry to determine whether immediate action was required in these circumstances. Under all of these circumstances, the hearing judge's decision to amend the treatment plan does not fall outside the preferred reasonable alternatives. [Note 2] There was no abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014); Matter of T.M., 2017 Mass. App. Div. 139, 142.

Orders of commitment and of amendment to the treatment plan affirmed.


[Note 1] The respondent's mother's testimony was completed on the first hearing day. The hearing went into a second day because the judge requested additional testimony before making a final ruling on whether there were any less restrictive settings for the respondent.

[Note 2] The proposed amendment reduced the dosage of one medication in the existing plan and eliminated another entirely.