2018 Mass. App. Div. 179

October 19, 2018 - December 18, 2018

Appellate Division Southern District

Court Below: District Court, New Bedford Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

No brief filed for the petitioner.

Evelyn O'Regan for the respondent.

HAND, P.J. Following a hearing in the New Bedford District Court, and pursuant to G.L. c. 123, § 35, respondent, A.R., was committed to the Massachusetts Alcohol and Substance Abuse Center on September 18, 2018. In addition to a qualified court clinician ("clinician"), both A.R.'s son, who was the petitioner ("petitioner"), and another child of A.R. were present and testified at the hearing. [Note 1]

In the petition for commitment ("petition"), which the petitioner signed under the pains and penalties of perjury, the petitioner stated that he and A.R. used to work together "until [A.R.] lost his job due to drinking." It indicated that A.R. was "drunk and high on drugs . . . last weekend," that A.R. "drinks everyday [sic] . . . sometimes all day," and that A.R. had been "high on drugs . . . on weekends." In response to the portion of the required affidavit that called for the petitioner's explanation of how the respondent posed a danger to himself or others, A.R.'s son wrote, "Not a danger. Has had overdoses. Has been hospitalized. There [has] been a video on Facebook of [A.R.] passed out on the floor."

Based on the petition, the court issued a warrant of apprehension for A.R. [Note 2] Once A.R. was in court, his attorney moved to dismiss the petition on the ground that the

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information included in it was insufficient to support an order of commitment. The court denied A.R.'s motion.

At the commitment hearing, the clinician testified that according to the petitioner, A.R. had been using heroin and alcohol for the petitioner's entire lifetime. According to the clinician, and consistent with the information included in the petition itself, the petitioner reported to her that A.R. had lost his job several days earlier when, after drinking at lunch, he refused to take a breath test required by his employer. The petitioner reported that A.R. "drinks daily all day . . . wine coolers, beers, and anywhere between two to ten nips a day, primarily Hennessy or vodka."

The clinician testified that according to the petitioner, A.R. "sniffs heroin" and had overdosed two months ago. The petitioner told the clinician that in the same time frame, approximately two months before the hearing, the defendant appeared in a Facebook video, passed out on the floor, unconscious. [Note 3] The petitioner himself testified at the hearing that he had never seen his father using heroin, but reported to the clinician that he had heard A.R. "sniffing" drugs in the bathroom "in the past," and that he "realizes that [A.R. is] using based on his behavior, which is scratching, slurring, nodding."

According to the clinician, the petitioner also reported "another recent[]" incident in which a family member "said he found [A.R.] in the middle of the street, nodding out with traffic whizzing all about him." The petitioner testified that he had seen A.R. "passed out with people coming up to [him] in the streets" and that he was afraid that someone might victimize A.R., or that A.R. could be hit by a car. More specifically, the petitioner testified that on the weekend before the hearing, he had gone looking for A.R. and had found him walking around "under the influence" and had brought A.R. home.

The petitioner also reported that his young child had found a bag of heroin two months before the hearing. The inference was that the heroin belonged to A.R.

The petitioner told the clinician that A.R. was verbally abusive, but not physically violent to anyone, and that despite the family's attempts to confront A.R. and "do interventions," A.R. "refuses help." The respondent declined to speak with the clinician. The clinician testified that she felt unable to offer an opinion on whether A.R. met the criteria for commitment under G.L. c. 123, § 35.

In the course of the hearing, and after the conclusion of the clinician's testimony, A.R. answered questions put to him by the court. A.R. told the judge that he had been working for the last forty years, although he confirmed that he had lost his job the week before the hearing. In speaking with the judge, A.R. said, unprompted by any specific question, "Do I have a problem? Yes. Do I need help? Yes." A.R. then explained his concerns about how he would care for his wife if he were committed.

At the conclusion of the evidence, the court ordered A.R. committed. The court found that A.R. posed a likelihood of serious harm to himself based on his "walking around intoxicated," exposing himself to the risk of being attacked by other people or injured in an accident. The judge's order committing A.R. indicated his finding that A.R. suffered from both an alcohol and substance use disorder.

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Analysis. General Laws c. 123, § 35 "authorizes the involuntary civil commitment of a person, for care and treatment, where there is a likelihood of serious harm as a result of the person's alcoholism or substance abuse, or both." Matter of G.P., 473 Mass. 112, 113 (2015). The statute enumerates the categories of permissible applicants -- "[a]ny police officer, physician, spouse [of a person whom he or she has reason to believe has an alcohol or substance use disorder], blood relative [of such a person], guardian [of such a person] or court official" -- and the procedure to be followed by the courts: "Upon receipt of a petition for an order of commitment of a person and any sworn statements the court may request from the petitioner, the court shall immediately schedule a hearing on the petition and shall cause a summons and a copy of the application to be served upon the person . . . . Upon presentation of such a petition, if there are reasonable grounds to believe that such person will not appear and that any further delay in the proceedings would present an immediate danger to the physical well-being of the respondent, said court may issue a warrant for the apprehension and appearance of such person before it." G.L. c. 123, § 35.

Once in court, the subject of the petition is entitled to appointed counsel, and the court is required to order that he or she be examined by a qualified physician, psychologist, or social worker. Id. A hearing follows, which must include expert testimony, "and may include other evidence." Id. If, at the conclusion of that hearing, the court finds that such person is an individual with an alcohol or substance use disorder and there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder, the court may order the respondent's commitment for up to ninety days to a facility designated by the Department of Public Health. Id. The rules of evidence do not apply to the commitment hearing, and the court may rely on hearsay provided the hearsay is substantially reliable. [Note 4] Rule 7(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders ("Uniform Rules"); Matter of G.P., supra at 121.

Motion to dismiss petition. Before the court began the commitment hearing in this matter, A.R. moved to dismiss the petition as insufficient on its face to meet the criteria for commitment. The court denied A.R.'s motion, noting that it did so "after hearing." Despite arguing that the court erred in this ruling, A.R. does not include a transcript of the motion hearing in the appellate record. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992) ("It is the obligation of the appellants to include in the appendix those parts of the jury trial and c. 93A trial transcripts, as well as copies of the motions, which

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are essential for review of the issues raised on appeal (both to determine whether the evidence supports the theory on appeal and whether the issue was properly presented and preserved)."). Even without the hearing transcript, however, we conclude that the court did not err in denying A.R.'s motion.

Rule 2 of the Uniform Rules authorizes the court to dismiss a petition for commitment under G.L. c. 123, § 35 if, after initial review of the petition and any "sworn statements," "the judge determines that . . . the petitioner's allegation that the respondent is an individual with an alcohol or substance use disorder has no reasonable basis." Id. As defined in § 35, a person with an alcohol or substance use disorder is one whose "chronic or habitual consumption of [alcohol or a controlled substance] . . . (1) . . . substantially injures the person's health or substantially interferes with the person's social or economic functioning," or "(2) [one who] has lost the power of self-control over the use of" alcohol or drugs. Id. The petition here, while providing more limited information than that ultimately presented in the commitment hearing, did provide sworn testimony to the respondent's long-term use of drugs and alcohol, his intoxication "on weekends" and as recently as the weekend before the petition was filed, and the respondent's very recent job loss as a result of his substance use. The fact that the petitioner stated that the respondent was "not a danger" did not negate the other information provided in the petition indicating that A.R. met the statutory definition as a person suffering from an alcohol and/or substance use disorder, and did not prevent the court from considering that information. The court did not err in denying the motion to dismiss and acting on the petition. Cf. Greenberg v. Commonwealth, 442 Mass. 1024 (2004) (affirming dismissal of §35 commitment where commitment petition was "wholly insufficient").

Propriety of warrant versus summons. A.R. contends that the court erred in issuing a warrant of apprehension for A.R. in order to obtain his presence in court to address the petition, rather than issuing a summons for A.R.'s appearance. Chapter 123 does not explicate the showing required for issuance of a summons or warrant of apprehension. Rule 3 of the Uniform Rules, however, makes clear that the court may issue a warrant where the court determines that there are "reasonable grounds to believe that the respondent will not appear at the hearing and that any further delay in the proceeding would present an immediate danger to the physical well-being of the respondent." Id. In this case, the petitioner's sworn statements about A.R.'s persistent and recent drug and alcohol use, and his recent job loss, provide the "reasonable grounds" for issuance of the warrant of apprehension. [Note 5]

Sufficiency of evidence in support of commitment. A.R. argues that the evidence presented at the hearing was insufficient to meet the criteria for commitment under G.L. c. 123, § 35. We disagree. We find no error in the court's determination that A.R. suffered from alcohol use disorder and substance use disorder, and, in light of the evidence that A.R.'s alcohol and substance abuse had, at least within two weeks of the commitment hearing, actually resulted in A.R.'s being at risk of serious harm, we

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find that the court had clear and convincing evidence that there was an ongoing and imminent likelihood of such harm to A.R. himself going forward.

As noted above, pursuant to G.L. c. 123, § 35, a court may order an individual to be committed to a facility designated by the Department of Public Health for a period not to exceed ninety days on a finding that "such person is an individual with an alcohol or substance use disorder and there is a likelihood of serious harm as a result of" that disorder. Id. See Matter of G.P., supra at 117. Section 35 defines an "alcohol use disorder" as "the chronic or habitual consumption of alcoholic beverages by a person to the extent that (1) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning, or (2) the person has lost the power of self-control over such beverages." Id. "Substance use disorder" parallels this definition with regard to "chronic or habitual consumption or ingestion of controlled substances or intentional inhalation of toxic vapors by a person." Id.

"In the context of § 35, the 'likelihood of serious harm' means, among other definitions not applicable here, 'a very substantial risk of physical impairment or injury to the [respondent] himself as manifested by evidence that [the respondent'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." Matter of A.M., 94 Mass. App. Ct. 399, 402 (2018). It is clear that "chronic substance abuse, 'by itself, is insufficient to establish a "very substantial risk" of harm.' Matter of G.P., 473 Mass. at 128." Id. Further, the required "very substantial risk of harm" must be "imminent," that is, "[t]he evidence must support a conclusion that the . . . harm will materialize 'in the reasonably short term -- in days or weeks rather than in months.' [Matter of G.P., 473 Mass.] at 128." Id.

Here, the court's finding that A.R. suffered from an alcohol use disorder and/or a substance use disorder was supported by clear and convincing evidence of A.R.'s drinking "daily all day" as of the time of the hearing; losing his employment due to his alcohol use [Note 6] within days of the hearing; and, within two weeks of the hearing, being brought home by the petitioner after the petitioner found A.R. walking around downtown New Bedford in an intoxicated state. [Note 7] Additionally, the court heard evidence that A.R. was a current heroin user [Note 8] and that "recently," a family member

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brought A.R. home after finding A.R. "nodding out" in traffic. [Note 9] Most compellingly, A.R.'s own statements on the issue are clear: "Do I have a problem? Yes. Do I need help? Yes."

We also agree that the trial judge heard clear and convincing evidence that A.R.'s substance and/or alcohol abuse not only presented a potential for very substantial and imminent harm to A.R., but that it had, in fact, exposed A.R. to such risk in the weeks and days leading up to the hearing, with the promise of imminent continuing risk. We are convinced that the evidence of A.R.'s overdose in the two months before the hearing; the petitioner's finding A.R. wandering the streets of New Bedford, intoxicated, within two weeks of the hearing; and A.R.'s having in the "recent" past nodded out in traffic, was sufficient to show by clear and convincing evidence that A.R.'s ongoing substance and/or alcohol abuse presented a continuing risk that harm "[would] materialize . . . in days or weeks." Matter of A.M., supra at 402. We distinguish these facts from those of Matter of A.M., in which the Appeals Court, citing Matter of G.P., supra at 129, vacated the respondent's G.L. c. 123, § 35 commitment on the ground that the court lacked clear and convincing evidence of "imminent serious harm" to the respondent based on the respondent's substance use disorder. Id. at 403. In Matter of A.M., the court heard evidence that the respondent's abuse of illicit drugs led to failures in taking prescribed medication on an "unspecified medication regiment" in order to treat a "serious medical condition," and perhaps to the respondent's combining the illicit drugs with his prescribed medications in a way that was "potentially life-threatening." Id. at 402-403. Concluding that the respondent's actions had "mere potential to be life threatening," the Court ruled that the trial judge had not had clear and convincing evidence that the risk to the respondent rose to the level of "imminent serious harm." Id. at 403. Here, the evidence supporting A.R.'s commitment was both more specific and more immediate than that on which the commitment in Matter of A.M. was based: A.R. had overdosed within two months; he had been walking around an urban area while intoxicated; and he had been nodding out in the roadway in the middle of traffic. As the court recognized in Matter of A.M., there is no bright line test for determining imminence of harm in the context of a § 35 commitment. In our view, the specific facts presented at the commitment hearing here were sufficient to show, by clear and convincing evidence, a very substantial risk of injury to A.R. based on his substance abuse at that time.

The order committing A.R. is affirmed.


[Note 1] A.R. was discharged on October 18, 2018, the day before the hearing on this appeal. As civilly committed individuals have an ongoing interest in ensuring the lawfulness of their commitments, however, we consider the merits of A.R.'s appeal despite the termination of that commitment. See Matter of F.C., 479 Mass. 1029 (2018).

[Note 2] We are aware that in many cases, and very likely in this one, the G.L. c. 123, § 35 petitioner is a self-represented nonlawyer family member with little experience in drafting legal documents. Not surprisingly, the petition itself is often a shorthand effort, prepared on an emergency basis, in which the petitioner provides limited information in the interests of getting the petition before the court as quickly as possible. As a result, in addition to reviewing the written petition for commitment before determining whether to take action on the petition, a judge may (and often does) hear sworn testimony from the petitioner before deciding whether to bring the respondent into court to address the petition. In this case, the record is not clear whether the court heard such additional information in connection to the written petition.

[Note 3] The record does not establish whether the video was recorded at that time, or simply posted then.

[Note 4] In determining whether hearsay is "substantially reliable," the court considers "'(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the [respondent]; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness.' [Commonwealth v. Patton, 458 Mass. 119,] 132-133 [(2010)]. However, the evidence need not satisfy all five criteria to be sufficiently reliable. Id. at 133." Commonwealth v. Pina, No. 16-P-616 (Mass. App. Ct. March 17, 2017) (unpublished Rule 1:28 decision) (in context of probation violation hearing).

[Note 5] Even if a summons, and not a warrant, would have been the most appropriate method of bringing A.R. into court on the petition, A.R. does not provide any legal support for his argument that the commitment order should be vacated in response.

[Note 6] Although on appeal, A.R. objects to this evidence as hearsay, he did not make any objection to its admission at the commitment hearing itself. Having failed to preserve the issue with an objection, A.R. is not entitled to raise it on appeal. Matter of J.W., 2016 Mass. App. Div. 74, 75 n.2, citing Matter of M.B., 2013 Mass. App. Div. 8, 9-10 ("To preserve a right to appellate review on the admissibility of hearsay evidence, a proper objection is a prerequsite.").

[Note 7] In her comments to the court, A.R.'s counsel conceded "some sort of chronic substance use disorder," but argued that the existence of the disorder was not sufficient, without more, to justify a commitment order.

[Note 8] The clinician's testimony indicated that the petitioner's description of the indicia of heroin use was given in the present tense: "[Petitioner] primarily realizes that [A.R. is] using based on his behavior, which is scratching, slurring, nodding" (emphasis added).

[Note 9] Although A.R. raises a hearsay objection to this evidence in his brief, he did not preserve that objection at the hearing, and we do not consider it. Matter of J.W., supra.