IN THE MATTER OF J.P.

HAND, P.J. This is J.P.'s appeal of his commitment, pursuant to G.L. c. 123, §§ 7 and 8, to Southcoast Behavioral Health ("Southcoast"). For the reasons below, we affirm the order of commitment.

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).

J.P. presented to the emergency department at St. Luke's Hospital ("ER") and, pursuant to G.L. c. 123, §§ 10 and 11, transferred to Southcoast Behavioral Health ("Southcoast") on February 12, 2018. Notified of J.P.'s request for discharge, Southcoast filed a timely petition for J.P.'s involuntary commitment pursuant to G.L. c. 123, §§ 7 and 8 ("petition"). In the petition, Southcoast alleged that as a result of mental illness, J.P. presented both a risk of harm to others and a very substantial risk of harm to himself. The matter was heard on March 6, 2018; after hearing, the court found that J.P. met the criteria for commitment and ordered J.P. committed for six months. [Note 2] On appeal, J.P. challenges the sufficiency of the evidence supporting each element of the court's commitment order; he also argues that the court impermissibly relied on hearsay evidence in making its order. We address these arguments in turn, first summarizing the relevant evidence.

Southcoast's witness, Ronald Lee, M.D. ("Lee"), was J.P.'s attending physician for the three weeks of J.P.'s inpatient admission preceding the commitment hearing. As J.P. declined to authorize Southcoast to communicate with his family or outside medical treaters, Dr. Lee's testimony at the commitment hearing relied on his own observations of J.P., the few statements that J.P. made to him, one report about J.P. from another patient, voicemail messages forwarded to him from J.P.'s mother, and

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J.P.'s medical records. Dr. Lee testified that he had received J.P.'s records from the ER, that he had reviewed them, and that he relied on them. [Note 3]

Dr. Lee testified to his understanding that J.P. had been admitted to the ER based on a petition pursuant to G.L. c. 123, § 12, on February 12, 2018, and that according to the ER record, J.P. had also been committed approximately a month earlier, on January 16, 2018. When J.P.'s counsel objected to that testimony as hearsay, the court overruled the objection as to that statement; as to any future evidence that Southcoast might offer, however, the court explicitly invited counsel to continue to object as necessary. [Note 4] The hearing continued. Other than an objection to Dr. Lee's testimony that the ER record included a note about a conversation between the ER social worker and J.P.'s mother (and which did not include the substance of that statement), which the court sustained, J.P. did not make any other objections on the basis of hearsay. [Note 5]

On direct, Dr. Lee testified that J.P. told ER staff and Dr. Lee that he had been taken to the ER "because of a 209"; Dr. Lee understood this to be a reference to a restraining order, although he was never able to confirm that such an order existed or, if it did, what the underlying allegations supporting that order had been. Dr. Lee then testified without objection about J.P.'s preadmission behavior as outlined in the ER records, specifically, that J.P. was paranoid, making accusations against his mother and neighbors about leaving beer in his refrigerator, that J.P. kept his mother up all night so that she could keep watch for him when he went outside to smoke, that J.P. was responding to unspecified internal stimuli, and that J.P. was not sleeping. Dr. Lee also testified that the ER records recounted a past admission to the psychiatric unit at St. Luke's Hospital, an admission in the past year to Pembroke Hospital, and J.P.'s failure to engage with Department of Mental Health services set up for him after discharge from that admission. [Note 6] Dr. Lee testified that J.P.'s own answers to Dr. Lee's questions about prior psychiatric admissions included a reference to J.P.'s past treatment at Bridgewater State Hospital and J.P.'s suggestion that he had had more than one prior hospitalization. [Note 7]

Dr. Lee testified, apparently from the ER record, that although J.P. had been living with his mother prior to admission to the ER, J.P. had threatened his mother, telling her not to come back into the house, and that he was no longer welcome to return to his mother's house. Additionally, Dr. Lee testified that a social worker had forwarded to him "multiple frantic-sounding voicemails from [J.P.'s] mother saying he cannot return home."

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Dr. Lee diagnosed J.P. with schizoaffective disorder, bipolar type. Based on the medical record, Dr. Lee determined that J.P. had suffered from mental illness since 2000.

In addition to his review of the medical record, Dr. Lee testified to his own interactions and observations of J.P. According to Dr. Lee, J.P. was "probably one of the most paranoid" of the 300-500 patients that he had treated at Southcoast, with physical symptoms and behaviors that Dr. Lee witnessed suggesting that J.P. was responding to internal stimuli. As examples of J.P.'s symptoms, Dr. Lee pointed to J.P.'s refusal to sign releases to allow Southcoast to contact his family or other treaters, his unwillingness to discuss his prior psychiatric history, and J.P.'s reference to a 209A restraining order the existence of which Dr. Lee was unable to confirm. Additionally, Dr. Lee testified that J.P.'s serial inability to work cooperatively with the Southcoast staff despite efforts to pair him with more than one treating physician was a manifestation of the paranoid-delusion process. Dr. Lee testified that J.P. would agree to take only one medication Dr. Lee recommended, Zyprexa, and that even as to that medication, refused to take the full dose recommended for him.

According to Dr. Lee, J.P.'s illness caused him to act in a way that Dr. Lee saw as threatening to himself and to others at Southcoast. On one occasion, while denying his psychiatric symptoms, "[J.P.'s] jaw was clenching, his muscles were tensing," and Dr. Lee felt that J.P. was on the verge of "lashing out." On several other occasions, J.P.'s speaking in a lowered voice and "lean[ing] in" while speaking with Dr. Lee made Dr. Lee feel threatened. One such conversation centered on J.P.'s efforts to be assigned to a different doctor, in which J.P. said to Dr. Lee in a threatening tone, "You better drop me as a patient." Later, J.P. warned Dr. Lee "in a threatening tone" that "proceeding with court would be a mistake"; Dr. Lee testified that he felt "potentially unsafe or threatened" by this interchange. Additionally, shortly after admission to Southcoast, as Dr. Lee walked away from him, J.P. loudly said to Dr. Lee, "you fucking punk"; another time, he called Dr. Lee a "fucking rat." J.P. told Dr. Lee he could not work with him based on Dr. Lee's "Asian ethnicity" and on "cultural differences."

J.P.'s confrontational behavior was not directed exclusively toward Dr. Lee. Dr. Lee testified that J.P. had gotten into multiple verbal altercations with other Southcoast patients during his admission, the most serious of which was one where a patient reported to Dr. Lee that J.P. had threatened to kill him or her. [Note 8] The seriousness with which Southcoast took J.P.'s words was evidenced by the fact that, according to Dr. Lee's testimony, staff had to separate J.P. from another patient based on safety concerns for both J.P. and the other patient involved, saying, "We're not talking about not getting along, we're talking about being able to safely co-exist with each other." Additionally, on redirect examination, Dr. Lee testified, without objection, that the Southcoast record included a nursing note stating that J.P. had

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threatened a nurse, telling the nurse that if J.P. did not get his (nonpsychiatric) medication "soon, 'something uncontrollable will happen and you won't like it.'" [Note 9]

Dr. Lee was further concerned by a statement J.P. made to another Southcoast doctor indicating that he was trained in martial arts, "[could] handle himself in a bar," and "[knew] what to do if anybody [got] in [his] face." Dr. Lee's concerns were heightened by evidence of J.P.'s having suffered a broken nose in a fight.

Dr. Lee testified that although J.P. had been living with his mother prior to admission, if released as of the date of the commitment hearing, he would not have been able to return there, and that he did not have a plan for J.P.'s safe discharge, given J.P.'s condition as of the hearing date. Dr. Lee testified to his opinion that J.P.'s mental illness grossly impaired his ability to recognize reality, and that if discharged, J.P. would be able to protect himself in the community only "at the expense of others."

J.P.'s expert, David Rosmarin, M.D. ("Rosmarin"), offered a diagnosis that differed from Dr. Lee's, but testified that J.P. suffered from mental illness and that J.P. was "quite ill." Dr. Rosmarin's contact with J.P. was limited to a two-hour examination conducted shortly before the commitment hearing, review of the medical record, and a three-way telephone conference with himself, J.P., and J.P.'s mother. In the course of that call, J.P.'s mother (who did not testify at the hearing) reportedly denied that J.P. had ever been violent with her, and denied knowing anything about a restraining order.

Dr. Rosmarin testified that J.P. was suspicious of others, but not acting against others, and that J.P. was "quite constricted in not acting although feeling threatened and paranoid." Dr. Rosmarin confirmed that J.P. had been acting in a paranoid and psychotic way while at his mother's house, including confirming that J.P. had been suspicious of neighbors putting beer in his refrigerator and requiring that his mother stand guard at home "in case someone came in," but emphasized that he had not been violent. Dr. Rosmarin also testified that having taken some of the medication prescribed for him at Southcoast, J.P. was showing some improvement. Dr. Rosmarin confirmed that J.P.'s mother would not allow him to return to live with her if he were released, but testified that J.P. had told Dr. Rosmarin that when released, J.P. had money, a girlfriend, or could otherwise stay in a shelter. Dr. Rosmarin testified to his opinion that J.P. "continue[d] to be quite ill and quite paranoid, although improved," but told the court, "I don't think he is likely to be violent, physically violent." Likewise, although conceding that J.P. was "tense and irritable and sort of borderline nasty," Dr. Rosmarin opined that J.P. was not "at very substantial risk of imminently being unable to care for himself." When asked specifically about his opinion about whether J.P. posed a risk of harm to himself or others, Dr. Rosmarin testified to a very narrowly drawn opinion: "My testimony is that I don't think [J.P.] reaches the level of risk for a commitment, which is that, with reasonable medical certainty, there's a substantial risk that failure to hospitalize would cause a likelihood of serious harm."

Dr. Rosmarin testified that J.P.'s mother had told him that J.P. had previously been committed to Bridgewater State Hospital for nine months.

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J.P. himself was the final witness at the commitment hearing. J.P. told the court that if released, he would go to an ATM for money, then go to a hotel or, alternatively, to a shelter. He testified that he had a job opportunity through a family friend, raising money for a police department. According to J.P., he had a treater in the local community who prescribed psychiatric medication for him, and the ability to have a friend go to J.P.'s mother's home to obtain J.P.'s current prescription. He testified that if he were unable to get the existing prescription, he would be willing to accept a prescription for the same medication from Dr. Lee. J.P. offered explanations for his broken nose and for the reported threats to other patients at Southcoast.

At the conclusion of the hearing, the court made findings that J.P. suffered from a major mental illness into which he had little or no insight, then noted the widely differing opinions about J.P.'s risk of harm. The court's finding, that J.P. had placed others in reasonable fear of physical harm and was subject to commitment on that ground, implicitly credited Dr. Lee's testimony: in addition to noting J.P.'s appearance as a "strong-looking man," the court referred to J.P.'s "aggressive nature [and] . . . threatening tone," indicated her finding that J.P.'s mother was afraid of what J.P. would do if she did not do as he ordered her to do, and acknowledged the fact that J.P.'s behavior was threatening to others. Additionally, the court found a very substantial risk of harm to J.P. himself, based on his impaired judgment, if J.P. were to return to the community in the state in which the court saw him. We find no error in the court's determination that J.P. met the criteria for commitment on the grounds identified in Southcoast's petition.

"Sections 7 and 8 of G.L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. . . . Section 8(a) provides that no person shall be committed unless the District Court finds after a hearing that '(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm.'" Matter of N.L., 476 Mass. 632, 634 (2017). Additionally, the petitioner must show that there is no less restrictive alternative to hospitalization. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 n.8 (2008), citing Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980). Relevant to the facts of this case, G.L. c. 123 defines "likelihood of serious harm" as "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 . . . 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." Id. at § 1. As to likelihood of serious harm to others, "the Legislature's use of the word 'homicidal,' and phrases such as 'violent behavior' and 'serious physical harm' signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Matter of G.P., 473 Mass. 112, 126 (2015). Under either definition, the petitioner must show that the risk of harm is imminent, that is, "that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Id. at 128. In order to justify commitment under these sections, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Id. at 119, citing Abbott A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

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J.P.'s first argument appears to be that in light of the conflicting expert testimony, and the testimony of J.P. himself, the court erred in determining that J.P. was mentally ill. For the purposes of commitment pursuant to G.L. c. 123, §§ 7 and 8, mental illness is defined 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." 104 Code Mass. Regs. § 27.05(1). Although Dr. Lee and Dr. Rosmarin testified to different diagnoses, each provided evidence of a qualifying mental illness; the credibility and weight of that evidence was for the trial judge to determine. Matter of A.D., 2017 Mass. App. Div. 183, 184, citing Demoulas v. Demoulas, 428 Mass. 555, 565 (1998) ("The credibility and weight of the evidence are for the fact finder."). The court did not err in finding that the petitioner had proved J.P.'s mental illness beyond a reasonable doubt. See, e.g., Colbert v. Hennessey, 351 Mass. 131, 134 (1966) (appellate court defers even to implied findings of fact by trial judge "unless . . . satisfied that they are plainly wrong").

Next, J.P. challenges the sufficiency of the evidence that J.P. presented a likelihood of serious harm, both by presenting a substantial risk of physical harm to others or by presenting a very substantial risk of injury to himself as a result of his impaired judgment. See G.L. c. 123, § 1.

Reviewing the record, we note that the evidence of J.P.'s risk of harm to others included Dr. Lee's testimony that within the three weeks before the commitment hearing, J.P. had behaved aggressively toward Dr. Lee in a way that made Dr. Lee feel threatened; that J.P. had threatened other staff about the negative consequences of not complying with J.P.'s wishes; and that J.P. had told another Southcoast patient that J.P. would kill that patient. While the evidence did not include any examples of prior homicidal acts or acts of violence, these specific behaviors and statements, all made during J.P.'s admission to Southcoast immediately before the commitment hearing at issue here, presented a risk of harm to others that was both "substantial," Nassar, supra at 915-916, and "imminent." Matter of G.P., supra at 127. We find no error in the court's determination, beyond a reasonable doubt, that J.P. presented a likelihood of serious harm to others.

Likewise, J.P.'s behavior both preceding and during his Southcoast hospitalization supports the trial judge's determination that, beyond a reasonable doubt, J.P.'s impaired judgment put him at very substantial risk of harm based on his inability to maintain himself safely in the community. In this case, the care at issue is not the ability to feed himself or to maintain minimum standards of hygiene, see Matter of D.K., 2017 Mass. App. Div. 129, 131 (affirming court's conclusion that respondent presented very substantial risk of harm to herself where court found that during two months prior to hearing, respondent was unable to care for her hygiene and grooming, and had been inconsistent in eating and drinking), but the inability to interact safely with others in unregulated interactions in the community, and, very likely, an inability to maintain safe housing. [Note 10] We note the uncontroverted evidence

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that J.P. could not return to his mother's house to live; the court could have found that J.P.'s only living arrangements if released would have been in a shelter. [Note 11] In light of the evidence before the court that J.P. was unable to get along with peers on the Southcoast unit, and that he had threatened fellow patients as well as hospital staff, it would not be a leap to imagine that if J.P. were released without treatment, the shelter would likely be a short-lived option. We agree with the trial judge that J.P.'s impaired judgment, including his paranoia, his belief that he needed to guard his home against intrusion by neighbors and others, and his threatening and antagonistic behavior toward those around him demonstrated a very substantial risk that if released into the community in the state in which he presented at the commitment hearing, he would invite attack or retaliation from those around him. The court had sufficient evidence to find, beyond a reasonable doubt, that J.P. presented a very substantial risk of harm to himself, based on his lack of insight and judgment, and that the risk was imminent. See Matter of G.P., supra at 129.

We are not persuaded by J.P.'s claim that the court lacked evidence to support Dr. Lee's opinion that "no less-restrictive alternative to hospitalization [was] appropriate" in J.P.'s case. Magrini, supra at 780 n.8, citing Nassar, supra at 917-918. Dr. Lee testified that J.P. refused treatment at Southcoast, denying that he needed any treatment, and that his voluntary acceptance of prescribed medication was limited to one drug, which he accepted only intermittently. Further, Dr. Lee testified that although J.P.'s repeated requests to be assigned to different treaters during his Southcoast admission were honored, J.P. was unable to work constructively with either of the doctors with whom he was paired. Although, at the commitment hearing, J.P. testified that he had treatment resources in the community, he did not provide any detail to suggest that he had any "therapeutic relationship" with any particular treater. Likewise, although J.P. testified that he would accept treatment from Dr. Lee if necessary, there was little in the evidence about J.P.'s cooperation with Dr. Lee up to the point of the commitment hearing to support that testimony; the court was not required to credit that evidence. Matter of A.D., supra at 184. In combination with J.P.'s paranoia and his aggressive behavior, we find no error in the trial court's determination that J.P. could not be appropriately maintained in his current state outside the hospital setting.

In addition to the arguments above, J.P. challenges the court's reliance on hearsay admitted through Dr. Lee's expert testimony. To the extent that Dr. Lee relied on out of court statements in forming his opinion, there was no error. It is well-settled that "facts and data not in evidence may form the basis of an expert witness's opinion testimony," although the hearsay rule applies to protect against the expert's testifying on direct examination about the specific information on which the opinion relies. Commonwealth v. Greineder, 464 Mass. 580, 583 (2013), citing Commonwealth v. McNickles, 434 Mass. 839, 857 (2001). See Matter of G.P., supra at 121 (contrasting "flexible" approach to evidentiary rules, including admissibility of hearsay, in

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commitment hearings pursuant to G.L. c. 123, § 35, with traditional prohibitions on hearsay in commitment hearings under other sections of that statute).

To the extent that Dr. Lee's direct testimony about the substance of the records and other statements on which he relied in forming his opinions was inadmissible hearsay, J.P. waived his right to appeal the admission of those statements on that basis by failing to make timely objections to them in the course of the commitment hearing. It is well settled that "[t]o preserve a right to appellate review on the admissibility of hearsay evidence, a proper objection is a prerequisite," Matter of J.W., 2016 Mass. App. Div. 74, 75, citing Matter of M.B., 2013 Mass. App. Div. 8, 9-10, and that hearsay offered without objection is admitted for all purposes, for whatever weight the court gives it. E.g., Peterson, petitioner, 354 Mass. 110, 116 (1968); Commonwealth v. Drapaniotis, 89 Mass. App. Ct. 267, 277 (2016) (Green, J. dissenting). [Note 12]

We recognize that even if the hearsay were admissible, due process concerns permit the court to consider it only to the extent that it was reliable. See Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010) (even in criminal matter, due process does not bar party with burden of proof from proceeding solely on basis of hearsay so long as hearsay statements bear substantial indicia of reliability); Costa v. Fall River Hous. Auth., 453 Mass. 614, 625 (2009), quoting Commonwealth v. Durling, 407 Mass. 108, 117 (1990) (reliability is "due process touchstone"). As the hearsay on the issues of J.P.'s ability to return to his mother's home, his prior commitment history, and his threats to other Southcoast patients and staff came from "known, disinterested parties . . . [and was] factually detailed, . . . given under penalty of law, or fit[] a recognized hearsay exception," rather than being "anonymous, uncorroborated, or contradicted by other evidence," it mitigated in favor of its reliability and, hence, the propriety of the court's reliance on it. [Note 13] Id. at 626. See Commonwealth v. Hafford, No. 16-P-1222 (Mass. App. Ct. Dec. 7, 2017) (unpublished Rule 1:28 decision) (no error in prosecution's proceeding solely on basis of hearsay where hearsay description of assault was corroborated by other evidence, including statements of other witnesses and observation of visible evidence, or defendant's own statements). Finally, J.P. urges us to review the evidence on a miscarriage of justice standard for unpreserved error. See, e.g., R.B., petitioner, 479 Mass. 712, 717 (2018). This

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issue was recently addressed in the context of claims of unpreserved error in a hearing to determine sexual dangerousness. Id. As the risk of indefinite loss of liberty applicable in a commitment pursuant to G.L. c. 123, §§ 7 and 8 parallels the risks considered in R.B., petitioner, we consider the question. Even where the liberty interests at stake are significant, the review applies only to errors, id. at 718, citing Commonwealth v. Randolph, 438 Mass. 290, 303 (2002), and "requires a court to consider broadly whether it has 'a serious doubt whether the result of the trial might have been different had the [alleged] error not been made.' Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999)." Id. at 716. The reviewing court considers the strength of the case presented by the proponent of commitment, the nature of the error, the significance of the error in the context of the hearing, and the possibility that the absence of an objection was the result of "a reasonable tactical decision." Id. at 718, citing Azar, supra at 687.

If the admission, through Dr. Lee's direct testimony, of hearsay evidence of J.P.'s mother's statements were error, it cannot have changed the outcome of the hearing: J.P.'s own expert testified to both J.P.'s mother's account of J.P.'s paranoid behavior at her home, and to the fact that he was not welcome to return to live with her.

Dr. Lee's description of his own experiences with J.P.'s physical presentation was not hearsay; J.P.'s statements to Dr. Lee were admissible as statements of a party opponent, and thus fell into an exception to the hearsay rule. See, e.g., Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001), citing P.J. Liacos, Massachusetts Evidence § 8.8.1, at 496 (7th ed. 1999). The information taken from the medical record made by Southcoast staff, including J.P.'s threatening statement to a Southcoast nurse, was admissible as having been made by individuals with personal knowledge of the matters recorded, and as part of the medical record relating to J.P.'s history and treatment. See Bouchie, supra at 528, citing G.L. c. 233, § 79.

While the report made to Dr. Lee by another patient that J.P. had threatened that patient was hearsay with no evident exception, on consideration of the evidence as a whole, our conclusion is that the introduction of that evidence was not a lynchpin of the trial court's commitment order, see R.B., petitioner, supra at 716, and that its admission did not amount to a miscarriage of justice.

For the foregoing reasons, we affirm the order of commitment.

So ordered.