2019 Mass. App. Div. 111

May 3, 2019 - September 25, 2019

Appellate Division Southern District

Court Below: District Court, Orleans Division

Present: Finnerty, P.J., Finigan & Cunis, JJ.

No brief filed for the petitioner.

Timothy P. Roy for the respondent.

FINIGAN, J. The respondent ("C.R.") appeals her involuntary commitment to a substance abuse treatment facility pursuant to G.L. c. 123, § 35. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

Facts. On April 5, 2019, C.R.'s father filed a petition for commitment for alcohol or substance use disorder in the Orleans District Court pursuant to G.L. c. 123, § 35. On the same day, following a hearing in the Orleans District Court, C.R. was committed to the Women's Addiction Treatment Center ("WATC") in New Bedford. C.R. appealed the order of commitment on the ground that the evidence was insufficient to support the order. We disagree.

The sole witness at the hearing was Janie White, a licensed clinical social worker (the "clinician"). Prior to testifying, the clinician had spoken to C.R.'s parents, both of whom were present in the court room, to C.R.'s two "recovery coaches" who had been working with C.R. since her recent release from the house of correction, as well as to C.R. herself.

The clinician testified about her interviews of C.R.'s parents, who were both in their eighties. According to the parents, C.R. was a forty-nine year old woman living at home. She was recently released from the house of correction, where she had been sent following a violation of probation. Since her release, C.R. had relapsed, was drinking daily, and the drinking had increased. C.R. had a history of hitting her father and had recently offered to fight him. C.R. was at times incoherent, according to the parents, falling, smoking in the home, and occasionally leaving cigarettes burning. According to the clinician, both the parents and the recovery coaches reported C.R. had lost weight, was not eating, not taking her medications, and was drinking despite having received a Vivitrol shot earlier in the week.

After testifying, the clinician opined as follows: "It is my clinical opinion that she does fit the criteria for a Section 35, and she does meet the criteria for an alcohol use disorder, and she does pose risk to herself and others by combining her medication, especially with the Vivitrol, she can overdose and die, and the aggression towards her parents."

The order of commitment has now expired. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (appeal from expired or terminated commitment order should not be dismissed without considering the merits of appeal in light of party's surviving interest in establishing order not lawfully issued).

Analysis. Where an appellant argues that the evidence does not adequately

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support the ultimate conclusion by the requisite standard of proof, we review the evidence to determine whether the judge's conclusion was clearly erroneous and, in this case, whether the petitioner proved by clear and convincing evidence that C.R. suffered from an alcohol use disorder and there was a risk of serious harm as a result of that disorder. G.L. c. 123, § 35.

We recite here the familiar definitions applicable in hearings under G.L. c. 123, § 35. 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." G.L. c. 123, § 35. "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 use of drugs that the respondent cannot protect 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. To establish a substantial or very substantial risk of harm, there must be an element of imminent risk of serious harm. Id. at 127, 129. The evidence must support a conclusion that the imminent harm will materialize "in the reasonably short term -- in days or weeks rather than in months." Id. at 128.

On the record before us, one would be hard pressed to find C.R. did not meet the definition of having an "alcohol use disorder" according to the definition set forth above. She had recently been jailed due to an alcohol-related probation violation, and was drinking daily to the point of slurring her words, becoming incoherent, and falling down. Collectively, those suggest a person struggling with alcohol, and we find no error in the judge's conclusion on that score. We turn then to the second half of the equation, namely, whether C.R. posed a danger to herself or others.

Rule 6(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders requires clear and convincing evidence. "Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a fair preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases." Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977). The clear and convincing standard "is not without teeth. To meet it, there must be a showing that the facts establishing the 'likelihood of serious harm,' see G.L. c. 123, § 1, are 'highly probably true' (citation omitted)." Matter of G.P., supra at 120, citing Callahan, supra at 588. "It is within the purview of the judge to weigh evidence, assess the credibility of

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witnesses, and make findings of fact, which [a reviewing court] must accept unless clearly erroneous." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018). A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 183 (2013).

The bulk of the clinician's opinion was based on hearsay, i.e., the statements of C.R.'s parents and her recovery coaches. Hearsay evidence is admissible in proceedings pursuant to G.L. c. 123, § 35, but it may be relied upon by the judge only if the judge finds it to be substantially reliable. Matter of G.P., supra at 121-122. Because hearsay evidence often plays a significant role in commitment hearings, "the judge's obligation to ensure that any hearsay on which he or she relies is 'substantially reliable,' as required by [uniform] rule 7(a), is critical, particularly in light of the clear and convincing evidence standard of proof required by rule 6(a)." Id. at 122. Reliability criteria include the level of factual detail (rather than generalized and conclusory assertions), statements made based on personal knowledge and direct observation, corroboration, statements made under circumstances that support the veracity of the source, and statements made by disinterested witnesses. See Commonwealth v. Durling, 407 Mass. 108, 121 (1990).

Here, the judge made a finding that the hearsay was detailed and based on first-hand knowledge. We agree. The fact that C.R.'s aggression had been increasing and she had become combative toward her elderly parents to the point of challenging her father to a fight, was sufficient for the judge to find, by the clear and convincing standard, that she posed a danger to her parents.

Likewise, C.R.'s mixing of alcohol and Vivitrol as recently as three days before the hearing, her failure to follow her prescription medications, and her falling "sometimes numerous times in one night where her father has to go up and help her off the floor," permitted the court to find there existed a danger of "physical impairment or injury" to the respondent and the presence of a "very substantial risk" of such harm. Based on the testimony, a fair inference could be drawn by the judge that C.R., living with her parents at the age of forty-nine, suffering from alcoholism, apparently unemployed, had nowhere else to live and she lacked any reasonably available external source of adequate protection. See Matter of G.P., supra at 129.

The court's order of commitment is affirmed.