2019 Mass. App. Div. 180

September 13, 2019 - December 23, 2019

Appellate Division Southern District

Court Below: District Court, New Bedford Division

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

No brief filed for the petitioner.

Anna Kastner for the respondent.

FINNERTY, P.J. The appellant contends that her involuntary commitment to a treatment facility of the Department of Public Health pursuant to G.L. c. 123, § 35 was error as it was based on ex parte statements not part of the hearing; that the court clinician did not offer an opinion as to whether the appellant met the criteria for commitment; and that the evidence at the hearing did not support the commitment order.

General Laws c. 123, § 35 empowers the court to commit involuntarily a person whom the court finds to suffer from "an alcohol or substance use disorder" where the court also finds "there is a likelihood of serious harm as a result of [that] disorder." Id. The statute provides that "[t]he court shall order examination by a qualified physician, a qualified psychologist or a qualified social worker," and it defines "substance use disorder" as "the chronic or habitual consumption or ingestion of controlled substances . . . 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." Id. For the purposes of the statute, "likelihood of serious harm" includes "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide . . . ; (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 court is bound in these findings to a clear and convincing evidence standard. Rule 6 of Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders ("Uniform Rules"). See Matter of G.P., 473 Mass. 112, 120 (2015).

We review the trial court's findings of fact for clear error, and "'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.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004)." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

On July 16, 2019, appellant's mother filed a petition accompanied by a written statement under the penalties of perjury averring that the appellant was homeless;

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using fentanyl and crack cocaine daily; soliciting; had lost a tremendous amount of weight; and barely showers or eats. The petitioner averred that she saw the appellant every other day and that, about an hour before filing the petition, her daughter told her she needed to go to the hospital to be treated for an abscess on her arm caused by intravenous injections of fentanyl. The petitioner also stated that the appellant had previously been involuntarily committed under the statute (in February, 2019); that she had been removed from the methadone program; that she had previously overdosed, had been making suicidal statements, and had been unsuccessfully treated in halfway houses and detox centers; and that the appellant was nodding off to the point that she risked injury from falling.

The appellant appeared before the court for hearing on the petition late in the day, in fact, at 4:39 P.M. according to the record.

Although there was some discussion at the outset about a possible criminal default on which the appellant might be held overnight and whether or not a hearing on the petition would occur at that hour, contrary to the appellant's assertion in her brief, a hearing was held on the petition and the appellant, through counsel, was provided an opportunity to and did in fact cross-examine the court clinician. She also had the opportunity to present evidence in her own behalf, which she chose not to do.

At the commencement of the hearing, the court asked the clinician, "Are you planning on opining that [the Appellant] should be sent to a facility? I mean, her mom said to me that she's doing fentanyl. I mean, if that's not enough, I don't know what is." The clinician responded, "According to the brief conversation that [I] had [with the petitioner] there was a -- she's using IV fentanyl, overdosed recently, and she came [to the court] from the hospital today." The clinician further testified that the appellant had been in the hospital due to an abscess that was the result of her use of IV drugs. The court then stated, "I didn't know that. I['ve] got to hold her." The testimony of the clinician then continued. The clinician stated that she would have liked to have reviewed the court clinic files on the appellant's prior commitment, but she had reviewed the petition and had a brief conversation with the petitioner, who provided the most notable risk factors as described above. The appellant refused to speak with the clinician, apparently on the advice of counsel. The clinician was then cross-examined by the appellant's counsel. The petitioner did not testify, and the appellant offered no evidence.

In argument, appellant's counsel did not contend the appellant does not suffer from a substance use disorder, and we find that the testimony of the clinician was sufficient for the court to find that the appellant was a person suffering from a substance use disorder. Her argument was that there was insufficient evidence of imminent serious harm. Counsel then began reciting information, apparently gleaned from conversation with her client, which was not part of the evidence at the hearing. She argued that her client is on MassHealth, has a treatment plan in place, has an appointment at the methadone clinic, wants to become a nurse, and is taking classes at Bristol Community College. That argument, based on alleged facts not in evidence, was inappropriate. See Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997); Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 239-243 (2013) (Agnes, J. concurring). Argument based on facts not in evidence is improper. Commonwealth v. Storey, 378 Mass. 312, 324 (1979) (1980), and cases cited. Similarly, it is improper for an attorney, through cross-examination of a witness, to communicate an impression

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by innuendo that he or she possesses as yet undisclosed information, with no good faith basis for doing so. See Commonwealth v. Christian, 430 Mass. 552, 561 (2000), overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002). See also Commonwealth v. Johnston, 467 Mass. 674, 699 (2014).

The appellant cannot refuse to participate in the court-ordered examination and choose not to present evidence at the hearing and then attempt, through improper argument, to present her version of the facts or mitigation to oppose the petition.

The detailed information in the written petition supported the court's finding, but since those details were not presented at the hearing, we must find that the hearing evidence fell short of that required to allow the petition. Reliable hearsay is admissible in G.L. c. 123, § 35 proceedings. Rule 7(a) of the Uniform Rules. See Matter of G.P., supra at 122. Had the petitioner testified or had the clinician testified in greater detail about information known to the petitioner and conveyed to the clinician, our holding might be different.

None of the appellant's other arguments require further discussion.

The decision of the trial court is reversed, and this case is returned for entry of an order vacating the order of commitment.