IN THE MATTER OF A.L.

KARSTETTER, J. The Worcester Recovery Center and Hospital (the "Hospital") petitioned to commit A.L. pursuant to G.L. c. 123, § 16(b) after A.L. had been adjudicated incompetent to stand trial in a criminal case. [Note 1] On October 4, 2018, the Hospital's petition was allowed. In this appeal, A.L. challenges the finding that he was mentally ill as defined by 104 Code Mass. Regs. § 27.05 in accordance with G.L. c. 123, § 2. In addition, A.L. challenges the sufficiency of the evidence in support of the trial court's finding that there was no less restrictive alternative to commitment. We affirm.

Facts. Diagnosis. In its petition for commitment, the Hospital alleged that A.L. was "mentally ill by reason of a 'substantial disorder,' within the meaning of DMH Reg. 104 CMR 27.05(1), namely: Major Neurocognitive Disorder due to Traumatic Brain Injury." Traumatic brain injury is explicitly excluded from the definition of mental illness for purposes of involuntary commitment. 104 Code Mass. Regs. § 27.05(1). See infra. [Note 2]

At the hearing, the Hospital's only witness was Dr. Natalie Anumba ("Anumba"). The respondent stipulated to her qualifications "as to diagnosis." Dr. Anumba testified consistent with the petition that A.L. suffered from a major neurocognitive disorder due to a traumatic brain injury that occurred in June of 2017. She also testified, without objection or motion to strike, that A.L. also suffered from an impulse control disorder. Specifically, she testified on direct examination as follows:

"Q. Have you diagnosed [A.L.]'s mental illness?

"A. I have, yes.

"Q. What is that diagnosis?

"A. Major neurocognitive disorder due to traumatic brain injury. As well as impulse control disorder."

When asked to restate what the "other" diagnosis was (i.e., other than the disorder due to traumatic brain injury), she replied, "So I'll refer back to my report for the precise wording. 'Other specified disruptive impulse control and conduct disorder.'" She also testified that the two diagnoses constituted "disorders of mood[,] orientation

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and memory." By way of further explanation, she testified:

"By nature of his disorders, he does present with some impulse control problems, most notable are -- well, there's a couple different sets. One, is some self-injurious behavior that seems to be a response to limit setting. That it tends to manifest itself in outbursts or episodes of head banging. The other most notable and most frequent, at least during this hospitalization, where this is presented has been in inappropriate, unwanted, sexual behaviors directed towards female staff and patients on the unit."

On cross-examination, respondent's counsel asked, "[A.L.]'s not been diagnosed with a mood disorder though, is that correct?" To this question, Dr. Anumba replied, "At this point it's been difficult to parse out the precise source and nature of the mood disorder, whether that's specifically due to the traumatic brain injury versus, you know, other -- other factors." Questioned again about whether A.L. had been diagnosed with a mood disorder, she replied, "Not a separate mood disorder. Not a primary disorder, due to the difficulties with the diagnostic verification." Dr. Anumba also testified regarding the opinion of A.L.'s attending psychiatrist, Dr. Sarah Spratt ("Spratt"). Dr. Anumba acknowledged that Dr. Spratt had diagnosed A.L. with neurocognitive disorder due to traumatic brain injury and alcohol and cannabis use disorders, "but not a mood disorder."

A.L. moved for a required finding based on the argument that the traumatic brain injury did not constitute a mental illness and that the evidence that he also suffered from a mood disorder was essentially not credible. The Hospital argued that the testimony supported a finding that A.L. suffered from both a traumatic brain injury and a mental illness and that A.L.'s "two disorders working in conjunction" caused his dangerous behavior.

Less restrictive alternative. On the issue of whether there was a less restrictive alternative to commitment, Dr. Anumba opined that a "locked psychiatric facility such as [the Hospital]" was "the least restrictive placement" appropriate for A.L. She also testified that despite his social worker's "extensive efforts to try to find appropriate settings for him," none had been identified. At that time, "the only options" for A.L. were his mother's home or a shelter, neither of which would provide him with "the structure and support" that he needed "to be safe."

Analysis. Diagnosis. To prevail in a commitment hearing, 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 to the commitment. G.L. c. 123, §§ 7 and 8; Commonwealth v. Nassar, 380 Mass. 908 (1980). See Matter of G.P., 473 Mass. 112 (2015). For the purpose of involuntary commitment, "mental illness" is defined in 104 Code Mass. Regs. § 27.05(1) as:

"a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, but shall not include intellectual or developmental disabilities, autism spectrum disorder, traumatic brain injury or psychiatric or behavioral disorders or symptoms

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due to another medical condition as provided in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, or except as provided in 104 CMR 27.18, alcohol and substance use disorders; provided however, that the presence of such conditions co-occurring with a mental illness shall not disqualify a person who otherwise meets the criteria for admission to a mental health facility" (emphasis added).

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass. R. Civ. P. 52(c). 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. See G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). "A finding 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." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See Marlow v. City of New Bedford, 369 Mass. 501, 508 (1976); Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 125 (2009). "The hearing judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because 'it is the trial judge who, by virtue of his [or her] firsthand view of the presentation of evidence, is in the best position to judge the weight' and materiality of the evidence and credibility of the witnesses at trial." Matter of A.M., 94 Mass. App. Ct. 399, 401 n.5 (2018), quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). "We do, however, 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." C.O. v. M.M., 442 Mass. 648, 655 (2004). See also Iamele v. Asselin, 444 Mass. 734, 741 (2005).

We cannot say that the judge's finding that A.L. suffered from a mental illness as that term is defined in 104 Code Mass. Regs. § 27.05(1) was either clearly erroneous or inconsistent with the relevant legal standards. Although the diagnosis of a traumatic brain injury would not qualify as a mental illness for purposes of commitment, the diagnosis of an impulse control disorder (which Dr. Anumba described as a disorder of mood, orientation, or memory) would. So long as a qualifying condition, i.e., a condition that falls within the regulatory definition, is present, the presence of a co-occurring but nonqualifying condition does not, by its own terms, remove the diagnosis from the regulatory definition set forth in 104 Code Mass. Regs. § 27.05(1). See also Commonwealth v. Delverde, 401 Mass. 447, 450 (1988) (depression coupled with nonqualifying condition sufficient for finding of mental illness within regulatory definition of same where two conditions severely affected defendant's behavior and mood).

Although Dr. Anumba acknowledged difficulties with the diagnostic verification of a mood disorder in A.L. on cross-examination, we note that it is up to the fact finder to resolve any conflicts in the testimony and to decide where the truth lies. Inconsistencies in a witness's testimony are a matter for the fact finder, who is free to accept or reject testimony in whole or in part. Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978). The hearing judge could have credited Dr. Anumba's direct testimony and discounted the rest.

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Moreover, having credited Dr. Anumba's direct testimony of a diagnosis of a co-occurring impulse control disorder, the hearing judge could have interpreted Dr. Anumba's cross-examination testimony as little more than a description of her difficulty in determining which of A.L.'s behaviors or symptoms were the result of which of his co-occurring disorders. This difficulty does not by necessity cast doubt on the existence of one or the other of those co-occurring disorders.

Less restrictive alternative. A.L. argues in his brief: "Respectfully, the trial court neglected strive [sic] to find the least restrictive alternative for A.L. . . . [and] its order [of commitment] required a more strident and exhaustive effort to find the least restrictive alternative" (emphasis added). We do not think, and A.L.'s counsel conceded the point at oral argument, that it is an appropriate judicial function to make a "strident and exhaustive effort" to find a less restrictive alternative, though we are cognizant of the notion that it is "natural and right that all concerned in the law and its administration should strive to find the least burdensome or oppressive controls over the individual that are compatible with the fulfilment of the dual purposes of our statute, namely, protection of the person and others from physical harm and rehabilitation of the person." Commonwealth v. Nassar, supra at 917-918. Rather, it is incumbent upon the parties to present (or challenge the sufficiency of) the evidence supporting their positions with respect to this element. It is then incumbent upon the hearing judge to make a determination based on that evidence. There was sufficient evidence from which the hearing judge could conclude that there was no less restrictive alternative to commitment in the form of both fact and opinion testimony from a qualified expert.

The order of commitment is affirmed.