IN THE MATTER OF J.D.

CUNIS, J. On November 16, 2017, after a hearing pursuant to G.L. c. 123, § 35, a Brockton District Court judge committed the respondent, J.D., to Clean and Sober Teens Living Empowered ("CASTLE"), a substance abuse treatment facility. On appeal, the respondent argues that the evidence adduced at the hearing was legally insufficient to meet the criteria for commitment under the statute. He also argues that the judge failed to consider less restrictive alternatives to involuntary treatment at CASTLE.

The petitioner in this matter was J.D.'s grandmother, with whom he lived. Dr. Heather Jackson ("Jackson") was the sole witness. [Note 2] Dr. Jackson reported that J.D. (a young man who had just recently turned eighteen) refused to speak with her after she administered the "Lamb warning" [Note 3] (advising him that nothing he said to her was confidential and that it may be shared with the court). Consequently, Dr. Jackson's opinion was based solely on her conversation with the petitioner.

According to Dr. Jackson, J.D. had a history of psychiatric hospitalizations as a juvenile, including one year at "Worcester" and time spent at the Fuller Hospital in 2016. Dr. Jackson testified that J.D. was "drinking alcohol every other day in large quantities, that he is smoking marijuana daily, that he has been abusing cocaine, opiates, . . . [and] that he snorted meth at least a month ago." Dr. Jackson further testified J.D. had been transported by ambulance to a hospital about two weeks prior to the hearing date, after some of J.D.'s friends reported that he had consumed two bottles of cough syrup, causing him apparently to overdose on the codeine in the cough syrup.

Dr. Jackson reported that J.D. meets "pretty regularly" with an outpatient provider at CASTLE. He is also a Department of Mental Health ("DMH") client. According to Dr. Jackson, the petitioner reported that only one week prior to the hearing date, the defendant was incoherent and acting erratically, running up and down the street and attempting to drink from a bird bath. His DMH caseworker came to the home

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and opined that J.D. was "high," and sent him to High Point for treatment. He was "psychiatrically cleared" and released a week later with a discharge plan for him to check himself into CASTLE on November 15, 2017 (the day before the § 35 hearing). Apparently, J.D. agreed to this, and someone from High Point drove him to CASTLE. According to Dr. Jackson, because of J.D.'s condition at the time (which she described only as him having a "glazed look"), he was unable to complete the admissions process. He then decided against voluntarily admitting himself to CASTLE. Dr. Jackson testified that a G.L. c. 123, § 12 petition was filed [Note 4] and J.D. was brought to Good Samaritan Hospital. J.D. remained there overnight, and was medically cleared and released in the morning. J.D.'s grandmother filed the § 35 petition that same day.

Dr. Jackson concluded that J.D. met the criteria for commitment under G.L. c. 123, § 35 as a person with a substance use disorder. She further opined that his "erratic behaviors, his running in traffic, his drinking from bird baths while apparently intoxicated" placed him "at a substantial risk in harming himself" and at a risk of "potential substantial impairment." She recommended commitment to CASTLE.

On cross-examination, Dr. Jackson acknowledged that J.D. expressed no desire to hurt himself or anyone else. She further acknowledged that the past hospitalizations that she was aware of had occurred under G.L. c. 123, § 12, and that prior admissions to various treatment programs pertained to his longstanding mental health problems. Substance misuse, Dr. Jackson testified, merely exacerbated J.D.'s mental health issues.

At the conclusion of the hearing, the judge ordered J.D. committed to CASTLE [Note 5] for a period not exceeding ninety days. [Note 6]

Analysis. General Laws c. 123, § 35 "authorizes the involuntary civil commitment of a person, for care and treatment, where there is a likelihood of serious harm as a result of the person's alcoholism or substance abuse, or both." Matter of G.P., 473 Mass. 112, 113 (2015). A petition for commitment may be filed by a police officer, physician, spouse, blood relative, guardian, or court official. Id. at 116. A hearing is held on the petition after the person appears in court, is appointed an attorney, and is examined by a qualified physician, psychologist, or social worker. Id. at 116-117. After the examination, the court then must hold a hearing, at which the expert must testify, and "other evidence" may be introduced. G.L. c. 123, § 35. See Matter of G.P., supra at 117. The rules of evidence do not apply to the commitment hearing, and the court may rely on hearsay, so long as the hearsay is substantially reliable. [Note 7] Rule 7(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders. See Matter

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of G.P., supra at 121-122; Matter of A.M., 94 Mass. App. Ct. 399, 400 (2018).

The evidence at the hearing must be sufficient for the judge to make a two-fold finding that (1) the respondent suffers from a substance use disorder, and that (2) he or she faces a "likelihood of serious harm" as a result of that substance use disorder if the petition were not allowed. The burden of proof that applies is clear and convincing evidence. [Note 8] A "substance use disorder" is defined as "the 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." G.L. c. 123, § 35. "Likelihood of serious harm" is defined as "(1) a substantial risk of physical harm to the [respondent] 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 respondent] 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. See Matter of G.P., supra at 117, 124-125.

Of these three prongs of "likelihood of serious harm," Dr. Jackson's testimony suggests that only the first and third prongs are relevant here. The first prong -- harm to self -- requires a showing of "'evidence of, threats of, or attempts at, suicide or serious bodily harm' to the respondent." Matter of G.P., supra at 125, quoting G.L. c. 123, § 1. [Note 9] The third prong -- harm resulting from the inability to protect oneself in the community -- requires a higher level of proof than the first two. "[A] 'very

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substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Id. at 128. The harm under the third prong is not merely the inability to care for oneself in the community, but rather the evidence must show that the person risks "physical impairment or injury." Id., quoting G.L. c. 123, § 1. The "very substantial risk" of harm is demonstrated by evidence that "(1) the respondent's judgment is so adversely affected by [substance abuse] 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. In addition, 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.

If the judge is satisfied that the respondent suffers from a substance use disorder that creates a likelihood of serious harm, he or she may commit the respondent to a qualified treatment facility for a period not exceeding ninety days.

Considering the facts in the instant matter in light of the principles set forth in Matter of G.P., we conclude that the evidence was insufficient to support the judge's decision to commit J.D. to CASTLE. First, there is the question of whether clear and convincing evidence demonstrated that J.D. suffered from a substance use disorder. Although there was testimony about his daily use of marijuana, his use of alcohol "every other day," his one-time use of "meth," and one-time use of codeine, there was no evidence about when, how often, and how much he consumed of cocaine and opiates. The evidence more strongly established that J.D. suffered from a serious underlying psychiatric illness, which his substance abuse merely exacerbated. Indeed, Dr. Jackson testified as much. The evidence of J.D.'s erratic behavior, his multiple past psychiatric hospitalizations, and his status as a DMH client, more aptly established that he was primarily in need of psychiatric care for a mental illness, for which commitment under G.L. c. 123, § 35 is not appropriate.

Even assuming that there was sufficient evidence that J.D. suffered from a substance use disorder, the evidence failed to establish a likelihood of serious harm. Dr. Jackson's testimony was brief -- less than three pages of transcript -- and lacking in detail. See Matter of A.B., 2018 Mass. App. Div. 139, 140. As to the first prong, there was no evidence that J.D. attempted or even threatened to commit suicide or otherwise harm himself. Indeed, J.D. told Dr. Jackson -- before he exercised his right not to speak with her -- that he had no intention of hurting himself or anyone else.

As to the third prong of "likelihood of serious harm," there was little evidence of a "very substantial risk of physical impairment or injury" from substance abuse. Dr. Jackson testified to J.D.'s frequent use of alcohol and marijuana, one instance of an alleged codeine overdose, and his indeterminate use of other substances. As noted above, the evidence more strongly established that psychiatric illness rather than substance abuse was adversely affecting J.D.'s judgment. Moreover, under the third prong of "likelihood of serious harm," the judge must also consider a second factor: whether "reasonable provision for his protection is not available in the community." G.L. c. 123, § 1. See Matter of G.P., supra at 129 n.24. The record discloses that J.D. did, in fact, have recourse to services in the community -- namely, his CASTLE counselor and DMH -- to help him with his struggles, whether they were psychiatric or substance abuse related. The record is silent, however, as to whether the

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judge considered these available options before deciding to commit him. Thus, to the extent that J.D. argues in this appeal that there were less restrictive alternatives to involuntary commitment available in the community that the judge should have considered, he appears to be correct.

Because the standard for commitment was not met in this case, the decision of the trial court is reversed, and this case is returned for entry of an order vacating the order of commitment.