2019 Mass. App. Div. 105

April 19, 2019 - September 25, 2019

Appellate Division Northern District

Court Below: District Court, Chelsea Division

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

No brief filed for the petitioner.

Jessica Gallagher for the respondent.

NESTOR, J. On March 14, 2019, a Chelsea police officer filed a petition for commitment for alcohol or substance use disorder in the Chelsea District Court pursuant to G.L. c. 123, § 35, with an affidavit in support of the petition. On the same day, following a hearing, the respondent ("R.G.") was committed to the Massachusetts Alcohol & Substance Abuse Center in Plymouth.

General Laws c. 123, § 35 provides for the involuntary commitment of a person found to suffer from an alcohol use disorder if the court also finds that there is a likelihood of serious harm as a result of the person's disorder. Id. The statute defines "alcohol use disorder" as:

"[T]he 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 the use of such beverages."


"Likelihood of serious harm" is defined as one of three separate kinds of risk: "(1) a substantial risk of serious physical harm to the respondent; (2) a substantial risk of serious physical harm to other persons; or (3) a very substantial risk of physical 'impairment or injury' to the respondent resulting from an inability to protect himself or herself in the community." Matter of G.P., 473 Mass. 112, 117 (2015), citing G.L. c. 123, § 1. The first prong requires evidence of "threats of, or attempts at, suicide or serious bodily harm" to the respondent. Id. at 125, quoting G.L. c. 123, § 1. The second prong requires 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." Id. at 126, quoting G.L. c. 123, § 1. The third prong requires evidence of "physical impairment or injury" to the respondent and the "very substantial risk" of such harm, which is to be shown by evidence that "(1) the respondent's judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect himself or herself from physical harm, and (2) the respondent's community does not include any reasonably available external source of adequate protection." Id. at 128-129. Additionally, the focus of the evidence under the third prong must be on "the respondent's degree of impaired judgment due to alcohol or drug abuse (or both); the degree of likelihood that, as a direct consequence, the respondent will

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sustain or inflict injury (for example, by failing to take care of an existing medical condition that is exacerbated by continued abuse of alcohol or drugs, or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protection against such risks." Id. at 129.

Under any of the prongs of the statutory definition of likelihood of serious harm included in G.L. c. 123, § 1, the petitioner must show that the risk of harm is imminent, that is, the evidence must support a conclusion that the harm will materialize "in the reasonably short term -- in days or weeks rather than in months." Id. at 128. Finally, the court is bound in its findings of an alcohol use disorder and likelihood of serious harm 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.

R.G. does not challenge the court's finding that he suffered from an alcohol use disorder, but rather that there was insufficient evidence to support a finding that R.G. presented a likelihood of serious harm because of that disorder. "It is within the purview of the judge to weigh evidence, assess the credibility of witnesses, and make findings of fact, which we must accept unless clearly erroneous. However, we generally 'scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts'" (citations omitted). Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

Dr. Ann Marie O'Keefe ("O'Keefe") was the sole witness at the hearing. She testified that R.G. was well known to the police as someone who struggled with alcohol use and that they had repeatedly found him intoxicated in public places. The Chelsea police officer averred in his affidavit in support of the petition that R.G. uses alcohol every day and has a history of being periodically placed into protective custody dating back to the early 1990s.

R.G. had been hospitalized nine times in approximately the last month before the March 14, 2019 hearing. The last hospitalization occurred on March 10. The police indicated that there were other times where R.G. needed to be placed into protective custody. The police also reported to Dr. O'Keefe that they were concerned for R.G.'s physical safety in the community because when R.G. is under the influence, he becomes verbally animated.

The police also indicated concern for R.G.'s medical condition. R.G. confirmed in an interview with Dr. O'Keefe that he takes medication for his heart.

Dr. O'Keefe also testified that in speaking with R.G. on the day of the hearing that he seemed very confused and unable to follow his attorney's explicit instructions. R.G. acknowledged that he had already consumed alcohol that day. The hearing began at 12:53 P.M.

While it is clear that R.G. was not threatening suicide or threatening the safety of others, there was sufficient evidence to support the court's finding of a very substantial risk of physical impairment or injury to R.G. resulting from his inability to protect himself in the community.

The order of commitment is affirmed.