IN THE MATTER OF D.N.

POEHLER, J. D.N. appeals her involuntary civil commitment pursuant to G.L. c. 123, § 35 on two grounds. She argues, first, that her constitutional right to confront witnesses was violated when the hearing was allowed to proceed without the testimony of the petitioner or any witnesses with firsthand knowledge and, second, that the clear and convincing standard of proof for an involuntary commitment was not met.

Procedural background. On August 13, 2018, D.N.'s mother ("petitioner") filed a petition pursuant to G.L. c. 123, § 35 to commit D.N. for a substance use disorder. On August 15, 2018, D.N. was brought from Baystate Medical Center, where she had been admitted following a car accident, to the Springfield District Court for a hearing on the petition. [Note 1] Dr. Amber Robinson-Green ("Robinson-Green"), a licensed psychologist and a DFP, [Note 2] was the sole witness in support of the petition. The petitioner was not present. D.N. testified in opposition to commitment. After hearing, the court found by clear and convincing evidence that the standard for commitment was met and ordered the commitment for a period not to exceed ninety days.

Constitutional issue. D.N. first argues that she was deprived of her constitutional right to confront witnesses against her because the only evidence presented in support of the petition was hearsay evidence. Dr. Robinson-Green's testimony was based on the written petition, a telephone conversation with the petitioner, a conversation with D.N., a telephone conversation with the father of D.N.'s child, a telephone conversation with an identified social worker at the psychiatric unit at Baystate Medical Center, and a telephone conversation with an individual at the psychiatric crisis center at Baystate Medical Center who was identified only by first name. Dr. Robinson-Green also reviewed a toxicology report from D.N.'s treatment at the Baystate Medical Center emergency room following the car accident and a report of her transfer to the psychiatric unit.

Section 35 of G.L. c. 123 provides that a hearing "shall include expert testimony

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and may include other evidence." The statute clearly envisions circumstances where the only testimony would be expert testimony that would necessarily include hearsay.

Rule 7(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders under G.L. c. 123, § 35 ("Uniform Rules") [Note 3] provides as follows:

"The rules of evidence shall not apply in proceedings under G.L. c. 123, § 35, except that privileges and statutory disqualifications shall apply. Hearsay evidence shall be admissible, but may be relied upon only if the judge finds that it is substantially reliable" (emphasis added).

The allowance of hearsay evidence in a § 35 hearing and specifically Uniform Rule 7(a) has been reviewed and approved by the Supreme Judicial Court. See Matter of G.P., 473 Mass. 112, 122 (2015). [Note 4] However, the Court cautioned that because Uniform Rule 7(a) does permit hearsay evidence, "the judge's obligation to ensure that any hearsay on which he or she relies is 'substantially reliable,' . . . is critical, particularly in light of the clear and convincing evidence standard of proof required by rule 6(a)." Id. Here, it is clear that the trial judge was aware of her responsibility to consider only hearsay that she found to be substantially reliable. In making verbal findings at the conclusion of the hearing, she stated:

"Counsel, just so that you're aware, the comments about suicide, I'm not -- the suicide attempt being the bus accident, I'm not considering that because -- through no fault of yours because the statement is that the defendant told a witness at the scene, who told a police officer, who [sic] a hospital person, who told another hospital person, who told you and that's too much totem pole hearsay for the Court to consider. So I want to make it clear to you, Counsel, that I'm not considering that . . . ." [Note 5]

In Commonwealth v. Patton, 458 Mass. 119 (2010), the Court discussed some of the criteria relevant to a determination of hearsay reliability. These include the level of factual detail provided; whether information is based on personal knowledge or direct observation; whether there is corroboration for hearsay evidence; the overall circumstances of the matter; and whether information is being provided by disinterested witnesses. Id. at 132-133. In this case, medical records created in the course of the respondent's treatment following a motor vehicle accident; information provided

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by disinterested witnesses; and the defendant's own admissions supported a finding of substantial reliability.

Insufficiency of evidence. D.N. next argues that the evidence fell short of the clear and convincing standard of proof required for an involuntary commitment. While we give deference to the trial judge's findings of fact and will not disturb them unless clearly erroneous, "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" (internal quotations and citations omitted). Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

An involuntary commitment under G.L. c. 123, § 35 must be supported by clear and convincing evidence that the respondent "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." G.L. c. 123, § 35. See also Rule 6(a) of the Uniform Rules. Clear and convincing evidence requires a showing that the facts supporting the commitment are "highly probably true." Matter of G.P., supra at 120.

A substance use disorder is defined under G.L. c. 123, § 35 as "the chronic or habitual consumption or ingestion of controlled substances or intentional inhalation of toxic vapors by a person to the extent that: (i) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning; or (ii) the person has lost the power of self-control over the use of such controlled substances or toxic vapors." G.L. c. 123, § 1.

"Likelihood of serious harm" is defined as: "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by 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; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person'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. The risk must be imminent, meaning "that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Matter of G.P., supra at 128.

Prongs one and two of the definition of likelihood of serious harm are inapplicable here. [Note 6] Prong three, which requires a "very substantial risk" of physical injury to the respondent, requires "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. The focus of the evidence, then, 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 sustain or inflict injury . . . ; and the inability of any other person or persons in the respondent's community to provide protection against such risks" (citation omitted). Id. at 128-129. Because prong three requires a "very substantial risk" of harm as opposed to a "substantial risk" under the other two prongs, the

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imminence of the risk is a more important factor than under the first two prongs. However, "in the degree that the anticipated physical harm is serious -- approaches death -- some lessening of a requirement of 'imminence' seems justified." Id. at 128, quoting Commonwealth v. Nassar, 380 Mass. 908, 917 (1980).

Here, although there was some conflicting evidence, the evidence in support of commitment was as follows. D.N. had a long-standing substance abuse problem, which in the year before the hearing had become a heroin addiction. She admitted the same. [Note 7] She had been receiving methadone for approximately two and one-half months prior to the hearing. She had participated in other outpatient treatment, some imposed by the Department of Children and Families and some undertaken on her own. Approximately two weeks prior to the hearing, D.N. was operating a motor vehicle with her eighteen month old twins in the car. It was reported to the crisis team that she was driving fifty miles per hour without a seat belt when she drove head-on into a school bus. Emergency responders administered Narcan to her at the scene, and she responded. A toxicology report from her hospital admission that day was positive for opioids. As a result of the accident, D.N. suffered a head injury requiring ten staples as well as a broken wrist and ankle.

Some of the hospital records contained admissions by D.N. to using heroin. The father of one of her children offered that she had been using heroin, [Note 8] and D.N. admitted to Dr. Robinson-Green that she had a heroin use problem and, although on methadone, was still using heroin. Records varied on her admission to use on the day of the accident, one indicating that she had reported use thirteen hours prior to the accident while another saying that she admitted to use immediately before getting into the car. At the hearing, D.N. denied that she was using heroin on the day of the accident. She admitted that she fell asleep while driving her children at 12:30 P.M. in the afternoon and hit a school bus. D.N. reported to Dr. Robinson-Green that "in some ways she's relieved because she can now stop denying that she has a problem because her children have been taken away and she can treat it with more severity now and actually get some help, but she would like to get the help on her own."

At the conclusion of the hearing, the judge made findings on the record as follows:

"So [D.N.], you're here before the Court and you have some significant injuries caused by an accident where you admitted that you fell asleep in the middle of the day driving your car with your children . . . in the car and when you're brought to the hospital, urine sample was taken and it's positive for opioids. So the Court can make a reasonable inference in support of clear and convincing finding that you were using Heroin at and near the time of the accident and that use caused you to fall asleep or to nod off and to cause a serious accident where you were seriously injured. You have

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a long standing history of drug abuse, I think you're at serious risk of harm to yourself."

The evidence supported the judge's finding by clear and convincing evidence that D.N. suffered from a substance use disorder. We also conclude that the evidence as to D.N.'s heroin use and the circumstances surrounding the serious motor vehicle accident supported the judge's determination that there was an imminent likelihood of serious harm as a result of the disorder. Based on the evidence surrounding the accident, it was reasonable for the judge to draw the inference that the accident resulted from heroin use, thus showing by clear and convincing evidence that D.N.'s judgment was so affected that she put herself and her children at grave risk by driving that day. At the time of the hearing, D.N. was only two weeks postaccident. She had been receiving methadone in the hospital. Prior to the accident, she was using heroin contemporaneously with the methadone treatment. The risk of physical injury to D.N. based on the heroin affecting her judgment was very substantial. Community-based treatment leading up to the car accident had not mitigated that risk.

We agree with the trial judge that the criteria for commitment were met, and we affirm the order of commitment.