2019 Mass. App. Div. 65

December 14, 2018 - April 29, 2019

Appellate Division Northern District

Court Below: District Court, Lowell Division

Present: Coven, P.J., Nestor & Karstetter, JJ.

Opinion vacating order of commitment. Appealed from a decision by Crane, J. [Note 1] in Lowell District Court.

No brief filed for the petitioner.

Benjamin L. Falkner for the respondent.

KARSTETTER, J. On June 29, 2018, respondent S.M.'s father ("Father") filed a Petition for Commitment for Alcohol or Substance Use Disorder in the Lowell District Court pursuant to G.L. c. 123, § 35. On the same day, following a hearing in the Lowell District Court, respondent S.M. was committed to the Women's Addiction Treatment Center. S.M. appealed the order of commitment on the ground that the evidence was insufficient to support the order. We agree.

Facts. The only evidence at the hearing was the testimony of Dr. Foster [Note 2] and two police reports, which the judge considered sua sponte. S.M. did not speak with Dr. Foster.

Dr. Foster testified about his interviews of Father and S.M.'s sister ("Sister"). Father told Dr. Foster that he feared for S.M.'s safety and her life because he believed she had a "cocaine problem [that was] spiraling out of control." Father told Dr. Foster that his daughter did not have an opiate problem, but that her crack cocaine problem had "essentially destroyed her life." Father reported to Dr. Foster that S.M. had been living with him until December or January, and that he had told her to get help with her drug problem or find somewhere else to live. Dr. Foster also testified that Father told him that S.M., "over the past six months, apparently, crashed two vehicles of his" and that she "stole a thousand dollars from her girlfriend last December." Dr. Foster testified that Father was "concerned" that S.M. "has been living on her own," is "single," childless, and "continues to use." Dr. Foster testified that Father told him that he had had contact with S.M. "yesterday" and "found that she was under the influence," had "a black eye," and "was asking her to get into some treatment for herself."

Dr. Foster also testified that Sister reported that S.M. had been "out of control for five years," that cocaine had "destroyed her," and that she had "numerous arrests." Sister reported to Dr. Foster that she had "several text messages . . . where [S.M.]'s talking about her problems with cocaine . . . and can't believe that -- that [S.M.] isn't willing to get help and that it's being offered now."

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After testifying to what he had learned from Father and Sister, Dr. Foster opined as follows:

"So, based on all of what I was able to learn, which wasn't -- I wasn't able to -- to speak with [S.M.], there does seem to be a lot of information suggesting that she has a pretty serious problem with cocaine from collateral sources. To me, on interview, she seems a little bit agitated. I don't know for sure that she's under the influence but I wouldn't rule that out. And I think she is one of those cases where I can't say with certainty that she's committable but I strongly believe that she likely is. And, again, that's based on my inability to interview her."

The first of the two Lowell Police Department reports considered by the hearing judge described S.M.'s arrest on May 5, 2018 for possession of cocaine with intent to distribute it. She was arrested as a result of an investigation that began with a confidential informant telling police that a woman acting as a runner for a known drug seller would be making a delivery at a certain time and place. The police set up surveillance of the place at the pertinent time, and ultimately stopped S.M. who was driving a car. During a later search of the car, the police found a "female wallet in the map holder that contained 10 bags of crack cocaine" and, in a purse, $153 in cash. The reporting officer wrote, "Based upon the quantity and packaging of the 10 bags of crack cocaine I formed the opinion that the 10 bags . . . were intended for distribution and not personal use."

The second of the two Lowell Police Department reports considered by the hearing judge described S.M.'s arrest for distribution of cocaine and possession with intent to distribute cocaine on June 22, 2018. Police observed a man get into a car S.M. was driving, then get out. They stopped the man who told them he had purchased cocaine from S.M. Police then stopped S.M.; when she got out of the car, police saw that she had been sitting on $120 in cash. They also "located 9 (nine) end-tied bags of suspected cocaine located in her right bra area." The reporting officer wrote, "Through my training and experience I identified this packaging and quantity as packaging intended for street level distribution and not for personal use."

Although the doctor's belief that S.M. was "likely" committable was based on his "inability to interview her," the judge did not commit her based solely on the doctor's opinion or on her refusal to speak to the doctor. [Note 3] In fact, the judge stated:

"I've also considered now the police reports of the Lowell Police of events . . . on May 5, 2018, where they found [S.M.] with a number of bags of a substance they believed to be cocaine. Also, on June 22 with her was a

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number of bags of cocaine in her possession. And based upon that, and the testimony of the doctor, she'll be committed."

Analysis. Where an appellant argues that the evidence does not adequately support the ultimate conclusion by the requisite standard of proof, we review the evidence to determine whether the judge's conclusion was clearly erroneous and, in this case, whether the petitioner proved by clear and convincing evidence that S.M. suffered from a substance use disorder and there was a risk of serious harm as a result of that disorder. G.L. c. 123, § 35. The statute defines "substance use disorder" as:

"[T]he 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."

"Likelihood of serious harm" is defined as one of three separate kinds of risk: 1) a substantial risk of serious physical harm to the respondent; 2) a substantial risk of serious physical harm to other persons; or 3) a very substantial risk of physical impairment or injury to the respondent resulting from an inability to protect herself in the community. Matter of G.P., 473 Mass. 112, 117 (2015), citing G.L. c. 123, § 1.

The first prong requires evidence of "threats of, or attempts at, suicide or serious bodily harm" to the respondent. Id. at 125, quoting G.L. c. 123, § 1. The second prong requires 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." Id. at 126, quoting G.L. c. 123, § 1. The third prong requires evidence of "physical impairment or injury" to the respondent and the "very substantial risk" of such harm, which is to be shown by: 1) evidence that the respondent's judgment is so adversely affected by the use of drugs that the respondent cannot protect 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. To establish a very substantial risk of harm, there must be an element of imminent risk of serious harm. Id. at 127. The evidence must support a conclusion that the imminent harm will materialize "in the reasonably short term -- in days or weeks rather than in months." Id. at 128.

"Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a fair preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases." Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977). The clear and convincing standard "is not without teeth. To meet it, there must be a showing that the facts establishing the 'likelihood of serious harm,' see G.L. c. 123, § 1, are 'highly probably true' (citation omitted)." Matter of G.P., supra at 120, citing Callahan, supra at 588.

"It is within the purview of the judge to weigh evidence, assess the credibility of witnesses, and make findings of fact, which [a reviewing court] must accept unless clearly erroneous." Matter of A.M., 94 Mass. App. Ct. 399, 445 (2018), citing G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). A finding of fact is clearly erroneous

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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. Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 183 (2013); White v. Hartigan, 464 Mass. 400, 414 (2013); J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986); Marlow v. City of New Bedford, 369 Mass. 501, 508 (1976); Matter of A.M., supra at 401 n.5; Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017).

With the exception of Dr. Foster's opinion, all of the evidence at S.M.'s hearing was hearsay (specifically, the statements of Father and Sister made to Dr. Foster, and the two police reports). And while hearsay evidence is admissible in proceedings pursuant to G.L. c. 123, § 35, it may be relied upon by the judge only if the judge finds it to be substantially reliable. Matter of G.P., supra at 121-122, citing Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). Because hearsay evidence often plays a significant role in commitment hearings, "the judge's obligation to ensure that any hearsay on which he or she relies is 'substantially reliable,' as required by rule 7(a), is critical, particularly in light of the clear and convincing evidence standard of proof required by rule 6(a)." Id. at 122. [Note 4] Reliability criteria include the level of factual detail (rather than generalized and conclusory assertions), statements made based on personal knowledge and direct observation, corroboration, statements made under circumstances that support the veracity of the source, and statements made by disinterested witnesses. See Commonwealth v. Durling, 407 Mass. 108, 121 (1990); Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 932 n.4 (1994).

Much of Dr. Foster's testimony regarding Father's statements lacked indicia of substantial reliability as measured against the factors set forth in Commonwealth v. Durling, supra. Father reported that he was "very concerned" about S.M., that he felt she had "a cocaine problem that [was] spiraling out of control," and that he believed S.M. was "under the influence" when he saw her the day before. These statements were conclusory and unsupported by articulated factual foundation. There was no description of what symptoms or what observations Father made that led to his conclusions. [Note 5]

Dr. Foster also testified to Father's report that S.M. had crashed two of his cars over the past six months, but there was no evidence to suggest that the cause of those crashes was S.M.'s substance use (though it may be a permissible inference to conclude that it played a role given the context in which the information was provided). Father reported that S.M. stole money from her girlfriend in December, 2017, but there was no evidence of S.M.'s motive for doing so (though it may be a permissible inference to conclude she was supporting a drug habit) or of how he knew this fact. Father did directly observe S.M. to have a black eye, but there was no evidence at the hearing of how she got it.

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Similarly, much of what Sister reported to Dr. Foster lacked indicia of substantial reliability. Dr. Foster testified that in response to his question about S.M.'s use of cocaine, Sister reported that S.M. was "out of control for five years" and that it had "destroyed her," both of which are conclusory statements. Her factual statements were about S.M.'s "numerous arrests" and several text messages from S.M. "where [S.M.]'s talking about her problems with cocaine." There was no evidence about the time frame of the messages or anything else about their content. It could reasonably be inferred from this information that S.M. suffered from a substance use disorder; it could also be inferred that cocaine was "destroying her" because she was involved with the criminal justice system, or both.

The police reports contained numerous direct personal observations of S.M. made by the officers, and as such contained information that was substantially reliable. The reports do not contain any indication that S.M. was showing signs of being under the influence of a drug, or was charged with operating a motor vehicle while under the influence of a drug. The judge could (and did) properly rely on much of the reports, specifically, that S.M. was found in possession of alleged cocaine.

Dr. Foster's opinion was equivocal. He observed S.M. to be "a little bit agitated"; he did not know "for sure" whether she was under the influence, but he "wouldn't rule that out." His conclusion was that S.M. was "one of those cases where I can't say with certainty that she's committable but I strongly believe that she likely is." Said another way, Dr. Foster was not certain, but held a strong conviction that it was more likely than not that S.M. met the criteria for commitment.

The fact that S.M. was twice found in possession of cocaine and arrested, among other evidence, supported an inference that S.M. suffered from a substance use disorder. Common sense might also suggest that the family's description of S.M.'s history of crack cocaine use and the circumstances of her two arrests in two months support a reasonable inference that she suffered from a substance use disorder. We need not reach the question of whether that evidence clearly and convincingly proved this first required prong (that she suffered a substance use disorder), however, because we conclude that there was insufficient evidence to support a conclusion that there was a very substantial risk of serious harm.

The statute provides, "If, after a hearing which shall include expert testimony and may include other evidence, the court finds that such person" meets the criteria for commitment, the court may order the commitment. G.L. c. 123, § 35. [Note 6] The expert testimony in this case was Dr. Foster's equivocal opinion, which cannot be said to have established clearly and convincingly that S.M. was likely to harm herself or others, nor was there any but scant evidence of "the quantum of risk necessary to establish 'a very substantial risk of physical impairment or injury to the [respondent] as manifested by evidence that such person's judgment is so affected that [she] is unable to protect [herself] in the community.'" Matter of G.P., supra at 116, citing G.L. c. 123, §§ 1, 35. It may be true that many people suffering from an active substance use disorder are at a very substantial risk of imminent serious harm, but the law provides for their commitment only upon clear and convincing proof of their judgment being so adversely affected by the use disorder that they cannot protect themselves from

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physical harm and proof that their community does not include any reasonably available external source of adequate protection. Id. at 128-129, citing G.L. c. 123, § 1.

A respondent's inability to care for a life-threatening medical condition due to her substance use disorder, a respondent's lengthy exposure to extreme weather conditions because of her impaired judgment due to her substance use disorder, or a respondent's recent several overdoses on fentanyl that have necessitated emergency hospital care might all provide the kind of proof required. It is difficult in this case to articulate, based upon clear and convincing reliable hearsay and expert evidence (rather than simply on a general sense or on a preponderance of the evidence), what the immediate danger to the physical well being of S.M. was. The statutorily required expert evidence was equivocal at best, not clear or convincing. The reliable hearsay contained in the police reports was not enough to tip the equivocal opinion from Dr. Foster to clear and convincing evidence. The evidence did not, therefore, support a finding that S.M. met the criteria for commitment pursuant to G.L. c. 123, § 35.

The trial court's allowance of the petition is reversed, and an order is to enter vacating the order of commitment.


[Note 1] The Honorable Daniel C. Crane recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 2] Dr. Foster's first name does not appear anywhere in the record. Nor do his credentials. No challenge was made to the latter, however, and we accept that he was a "qualified physician, a qualified psychologist or a qualified social worker." G.L. c. 123, § 35, par. 2.

[Note 3] Rule 7(b) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders and its commentary provide that the judge may not draw any adverse inference from a respondent's refusal to testify or to speak during the examination or at any other time during the proceedings. The clinician is not prohibited, however, from offering an opinion despite such refusal or from reporting such refusal to the court. Id. See Matter of G.P., 473 Mass. 112, 121 n.14 (2015).

[Note 4] The rules cited come from the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders.

[Note 5] We are cognizant that a father's conclusory statements about his offspring may be more reliable in light of the length and strength of the familial relationship, but we note that the last time Father had lived with S.M. was December or January, some five to six months before the hearing, and there was no evidence of how often Father had seen S.M. or spoken with her in that time, only that he had seen her the day before the hearing.

[Note 6] "[E]xpert testimony" may come from "a qualified physician, a qualified psychologist or a qualified social worker." G.L. c. 123, § 35, par. 2.