IN THE MATTER OF D.H.

STARK, J. The respondent appeals from a commitment order pursuant to G.L. c. 123, § 35, arguing that there was insufficient evidence to support the order of commitment. For the reasons set forth below, we find there was clear and convincing evidence to warrant the commitment, and we therefore affirm the order.

On June 21, 2018, the respondent's father filed a petition for civil commitment pursuant to G.L. c. 123, § 35. The hearing on the petition was held the same day. At the hearing, Lauren Whelihan, a licensed clinical social worker, testified, as did the respondent's father. Prior to testifying, the social worker spoke to the petitioner in person as well as to the respondent's mother via telephone. The respondent declined to speak to the social worker. The social worker also spoke to a representative of the Department of Mental Health ("DMH"). [Note 1] The respondent is a DMH client with reported diagnoses of PTSD, ADHD, borderline personality disorder, and a past brain injury.

The social worker testified that the respondent's parents and the DMH worker told her that the respondent admitted to her father, her caseworker, and her therapist that she was using substances. The parties reported to the social worker that recently the respondent had lost weight, her complexion was pale, and that she had circles under her eyes, which was to them consistent with the respondent's admission to substance use. The petitioner told the court that the respondent has been addicted to benzodiazepines for many years, and which she abuses as a way of self-medicating.

On June 9, 2018, the respondent was placed in a respite facility while waiting for a bed at a detox facility to become available. At this respite facility, she tested positive for cocaine, marijuana, and opiates. On June 14, while still in the respite facility, it was reported that she was acting erratically, and she again tested positive for cocaine, marijuana, and opiates. The social worker reviewed certain text messages between the respondent and her father from the weekend of June 16 and 17, where the respondent indicated that she was detoxing and was frustrated that she could not get into a detox facility. The petitioner testified that during his text message conversations with the respondent, she wrote, "This is going to kill me. I need to get on Methadone." She also wrote, "And I don't use needles." The respondent was finally admitted to a detox program on Monday, June 18, but she left the facility the

Page 91

next day. When she left, she did not respond to her father or her caseworkers, and they did not know where she was. Two days later, the respondent's father filed the petition that is the subject of this appeal.

The social worker also testified that her family and caseworkers were concerned for the respondent's safety and well-being in the community. It was reported that she was facing eviction due to various people coming in and out of her apartment at all times of the day and night. The petitioner observed bruises on the respondent that he believed were from her being assaulted, sexually and otherwise, by the individuals frequenting her apartment. The respondent told her father she felt unsafe and was afraid to return home recently. The respondent also reported that her prescribed medication had been stolen on a regular basis, which caused concern about medication compliance. Moreover, a tenant in her apartment complex died of an overdose in the respondent's presence.

The social worker testified that the respondent takes various medications, including sedatives, that when taken along with heroin increases her risk of overdose, respiratory failure, and therefore death. Moreover, the social worker opined that the respondent's erratic and unstable behavior, coupled with drug use, placed her at risk. The petitioner testified that he believes she will die if she does not receive long-term treatment for her addiction.

There was no evidence presented at the hearing that the respondent had ever suffered a drug overdose or received Narcan. Nor was there evidence that she had ever been hospitalized for respiratory failure.

The appellant argues that there was insufficient evidence to support the commitment order. In order to meet the standard for commitment, the court must find by clear and convincing evidence that the respondent suffers from an alcohol or substance use disorder and that there is a likelihood of serious harm as a result of such disorder. G.L. c. 123, § 35. See Matter of G.P., 473 Mass. 112, 120 (2015). "The court shall base its findings on credible and competent evidence, including medical testimony and such other evidence as may be admitted." Rule 7(c) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol or Substance Use Disorders.

Here, there was sufficient evidence that the respondent suffers from a substance use disorder. She twice tested positive for opiates, marijuana, and cocaine two weeks prior to the filing of the petition. She admitted to her family and her caseworker that she was using substances. This was consistent with her caregivers' observations that she had recently lost weight, looked pale, and had circles under her eyes. She also told her father in a text message that she wanted to be admitted to a detox facility and that she needed to go on Methadone. She also texted her father, "And I don't use needles." There was evidence that the respondent took several medications, including sedatives, and her father believed that she misused and was addicted to her prescribed benzodiazepine.

We also find that the evidence was sufficient to demonstrate a likelihood of serious harm as a result of the respondent's substance use disorder. The term "likelihood of serious harm" is defined by statute 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

Page 92

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.

In this case, there was no allegation or any credible evidence to support a finding under the first or second prongs. However, we find that there was sufficient evidence to establish that there was a likelihood of serious harm under the third prong. A "very substantial risk" of "physical impairment or injury" pursuant to the third prong is shown by evidence that the respondent's judgment is so adversely affected by her substance use disorder that she cannot protect herself from physical harm, and that the "community does not include any reasonably available external source of adequate protection." Matter of G.P., supra at 128-129.

To establish a likelihood of serious harm, a showing of imminence is required. Id. at 127, 129. A "petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent's alcohol or substance abuse, or both." Id. at 127. When a court determines whether a substance use disorder presents a "very substantial risk" under the third prong of the statute, the imminence of the risk is a factor that is given greater consideration than with respect to the other two prongs. Id. at 129.

Here, the respondent told her father in a text message, "This is going to kill me." She was facing eviction from her apartment due to various people coming and going at all hours of the day and night. The respondent told her father that she felt unsafe in her home and did not want to return to it. The petitioner believed that the respondent had been physically and/or sexually assaulted by the individuals that were coming into her home, and he had observed bruising on her body that he believed was from these assaults. The social worker testified that if the respondent mixed her prescribed medication with heroin, she would be at risk for overdose, respiratory failure, and death. The petitioner testified that he believed the respondent would die if she did not receive long-term treatment for her addiction. All of these facts put the respondent at imminent risk of harm, and established by clear and convincing evidence that there was a likelihood of serious harm pursuant to the third prong of that definition.

We find that the order of commitment was lawful and was supported by the evidence. For these reasons, the order granting the petition for commitment is affirmed.