IN THE MATTER OF I.M.

CRANE, J. This is an appeal from an order of commitment pursuant to G.L. c. 123, § 35. We are asked to review whether the evidence was sufficient to find that: 1) the respondent suffered from alcohol or substance use disorder; and 2) there was a very substantial risk of harm to the respondent if she were not committed for treatment.

The uncontroverted evidence was that the respondent had a history of alcohol use disorder and admitted drinking within the day preceding the hearing. She also had a history of substance use disorder, but there was no evidence of any current or recent use of any substance other than marijuana. There was no evidence of any hospitalization or overdose in the preceding six months. The respondent's sister, the petitioner, had not seen her for more than a month but alleged that the respondent was using alcohol currently to the point that she was calling other family members to complain that her boyfriend was taking her medications from her and keeping her from communicating with family members or others about her circumstances. The respondent denied this and testified that she was not living with her boyfriend. The clinician testified that the respondent had told her she was taking her medications as prescribed, going to meetings, and starting a job. She also testified that the respondent told her that she was treating regularly with a physician connected to the Beth Israel Hospital and was about to enter an outpatient program at Faulkner Hospital. Her sister informed the clinician that an unidentified social worker from the Department of Children and Families ("DCF") had told her she felt the respondent was at risk to resume alcohol or substance use because she had missed several appointments. The respondent denied this at the hearing and appeared to be well dressed and groomed and did not show any signs of intoxication.

Notwithstanding this, the clinician who examined the respondent at the court opined that the respondent had an alcohol and substance use disorder and was in danger because of that.

A person may be committed for treatment pursuant to G.L. c. 123, § 35 upon proof by clear and convincing evidence that he or she suffers from an alcohol or substance use disorder and there is a likelihood of serious harm as a result. Matter of G.P., 473 Mass. 112, 120 (2015); Matter of A.M., 94 Mass. App. Ct. 399, 400 (2018).

Standard of review. In this case, I.M. does not challenge the judge's subsidiary findings. Rather, she challenges the sufficiency of the evidence in support of the judge's conclusion that I.M. suffered from a substance or alcohol use disorder that resulted in a "likelihood of serious harm." G.L. c. 123, § 35, third par.

"It is within the purview of the judge to weigh evidence, assess the credibility

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of witnesses, and make findings of fact, which we must accept unless clearly erroneous. [Note 1] See G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996), and cases collected. 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.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004). This standard of review was previously applied in the context of § 35 commitments. See Matter of G.P., 473 Mass. at 129-130. Accordingly, it is the standard we employ in our review here of the judge's order under § 35." Matter of A.M., supra at 401.

Discussion. There was evidence that the respondent had a history of substance use disorder and that she admitted to recent use of marijuana. She had been committed under G.L. c. 123, § 35 in July, 2017. The call to the respondent's sister from an unidentified DCF worker that she believed the respondent was abusing substances because the respondent missed appointments with her is speculation and not evidence of substance use disorder. There was no evidence that the respondent's current use of marijuana was having any adverse effect upon her to indicate she had lost control over her consumption or her ability to care for herself in the community at the time of the hearing. The evidence was inadequate to establish by clear and convincing evidence that the respondent suffered from a substance use disorder currently. Matter of G.P., supra at 129-130.

Similarly, the evidence was insufficient to establish by clear and convincing evidence that the respondent suffered from alcohol use disorder currently. The only evidence of alcohol use was the respondent's admission that she had a drink of vodka the night before the hearing and her sister's testimony that she made telephone calls to family members several weeks before while intoxicated. This was insufficient.

Next, we examine the sufficiency of the evidence that there was a "likelihood of serious harm" to the respondent, as defined by G.L. c. 123, § 1. There was no evidence of any risk that the respondent would harm others or engage in self-harm, the first two prongs of the statutory definition of "likelihood of serious harm." This leaves us with the question of whether the evidence was sufficient to establish the third prong by clear and convincing evidence. It was not. The third prong is "(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

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available in the community." G.L. c. 123, § 1.

The only evidence of harm to the respondent was her sister's testimony that the respondent's boyfriend was using her medications or otherwise preventing her from taking them. There was no evidence of how the sister knew this, how recently this allegedly occurred, and whether anyone had observed any deterioration to the respondent's health because of this. The respondent asserted that she was taking her medications and otherwise complying with treatment. Also, her appearance in court did not give any indication of ill health. The respondent's history of commitment may be relevant in determining whether a very substantial risk of harm exists. Matter of D.K., 95 Mass. App. Ct. 95, 101 (2019). However, it diminishes where it is remote in time, as here, and the evidence of current substance or alcohol use disorder is lacking. Finally, the only evidence that the respondent was unable to protect herself in the community and that reasonable provision for her protection was not available was the respondent's sister's assertion that her boyfriend was taking her medications. The respondent's sister had no direct knowledge that this was happening currently, and the respondent denied it.

Because the evidence was insufficient to establish an alcohol or substance use disorder or a likelihood of serious harm, we reverse.

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