IN THE MATTER OF D.R.

POEHLER, J. D.R. appeals his involuntary civil commitment pursuant to G.L. c. 123, § 35, alleging procedural, evidentiary, due process, and sufficiency of the evidence issues. [Note 1] For the reasons set forth below, we reverse the decision of the trial court.

On August 31, 2017, D.R.'s wife (the "petitioner") filed a petition to commit him pursuant to G.L. c. 123, § 35, alleging an alcohol use disorder. A hearing was held that same day. [Note 2] After hearing, the judge found that the criteria for commitment had been met by clear and convincing evidence and committed D.R. to the Massachusetts Alcohol and Substance Abuse Center at the Plymouth County house of correction for a period of ninety days.

On appeal, D.R. contends that there was insufficient evidence for the judge to find that D.R. suffered from an alcohol use disorder and that such disorder resulted in a likelihood of serious harm.

In reviewing a commitment under G.L. c. 123, § 35, we give deference to the judge's findings of fact and accept them unless clearly erroneous. Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018). "However, 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). Id.

Commitment under G.L. c. 123, § 35 requires that the judge find 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 Matter of A.M., supra at 400. "Clear and convincing evidence is evidence that is 'strong, positive and free from doubt.'" Adoption of Lisette, 93 Mass. App. Ct. 284, 293 n.14 (2018), quoting Stone v.

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Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975). "Alcohol use disorder" is defined under § 35 as "the 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."

The evidence that the judge could have believed regarding alcohol use was that D.R. drank alcohol daily, usually ten to twelve beers a day; that he had recently passed out and the petitioner could not wake him; that at times, he was intoxicated to the point where he would wander around the house looking for the bathroom and eventually would relieve himself outside; that he drank alcohol while driving; that he drank alcohol as a passenger in the car when the petitioner drove; that on a recent vacation, he drank three cases of beer within two days; and that during that same vacation, he closed a car trunk (perhaps unintentionally) on the petitioner's head when he was getting anxious to get to a package store to buy more beer. Based on these facts, we conclude that there was enough evidence for the judge to find that the respondent habitually used alcohol and that he had lost the power of self-control over the use of alcohol.

In addition to clear and convincing evidence of an alcohol use disorder, the judge, if ordering commitment, must find by clear and convincing evidence that "there is a likelihood of serious harm as a result of the person's alcohol . . . use disorder." G.L. c. 123, § 35. "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 of harm must be shown to be "imminent," i.e., that the "harm will materialize in the reasonably short term -- in days or weeks rather than in months." Matter of G.P., 473 Mass. 112, 128 (2015).

There was no evidence presented as to the first or second prong of the definition of likelihood of serious harm. [Note 3] The third prong requires "a very substantial risk" of physical impairment or injury to a respondent. "[T]he 'very substantial risk' of such harm is to be shown by 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." Id. at 128-129. "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 (for example, by failing to take care of an existing medical condition that is exacerbated by continued abuse of

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alcohol or drugs, or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protection against such risks. Finally, because a 'very substantial' risk of harm must be shown in connection with this third prong, the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs" (citation omitted). Id. at 129.

Here, the behavior reported by the petitioner on the date of hearing with respect to D.R.'s alcohol consumption had been occurring for some time. The uncontested evidence was that D.R. worked as a contractor throughout Massachusetts; that his work at times required him to get up at three or four o'clock in the morning; and that he had a doctor (who may or may not have known about D.R.'s alcohol consumption), who was prescribing him oxycodone for a medical issue. There was evidence that he would drink beer while driving, but no evidence of any impairment. Evidence that he had recently on one occasion passed out from drinking and the petitioner could not wake him and that when, after drinking, he could not find the bathroom and stepped outside to relieve himself is not sufficient to meet the requirement of a very substantial risk of imminent injury.

The decision of the trial court is reversed, and an order is to enter vacating the order of commitment.