2019 Mass. App. Div. 98

February 8, 2019 - September 25, 2019

Appellate Division Southern District

Court Below: District Court, New Bedford Division

Present: Hand, P.J., Finigan & Cunis, JJ. [Note 1]

No brief filed for the petitioner.

Anna Kastner for the respondent.

FINIGAN, J. The respondent ("A.H.") appeals her involuntary commitment to a substance abuse treatment facility pursuant to G.L. c. 123, § 35. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

Facts. After the filing on September 7, 2018 of a petition in the New Bedford District Court for the involuntary commitment of A.H. pursuant to G.L. c. 123, § 35, a judge issued a warrant of apprehension for A.H. That warrant, if not otherwise served, was scheduled to expire in five days. On September 12, 2018, A.H. was brought before the court after being arrested on the warrant. Following a hearing at which she was represented by counsel, a different judge ordered A.H. committed to the Women's Addiction Treatment Center ("WATC") in New Bedford for a period not to exceed ninety days. The ninety-day period was set to expire on December 11, 2018.

Within days of arriving at WATC and long before the expiration of the ninety days, A.H. left WATC on her own accord, prompting WATC to file on September 27, 2018 a "notice of escape from custody" with the New Bedford District Court. On that same day, a third judge issued a second warrant of apprehension for A.H.

Prior to her arrest on the warrant, on October 1, 2018, A.H. appeared voluntarily at the New Bedford District Court accompanied by her stepfather. Court personnel placed A.H. in custody while her stepfather completed a new petition under G.L. c. 123, § 35. A different judge appointed counsel for A.H. and ordered that she be evaluated by the court clinician in anticipation of a hearing.

Prior to the start of the hearing, A.H.'s attorney objected, arguing the stepfather was not a blood relative and, as a result, could not serve as petitioner. In response, the judge postponed the hearing for roughly one hour until A.H.'s mother (the petitioner on the original G.L. c. 123, § 35 petition) could appear. A.H.'s mother did appear, and the hearing went forward.

A.H.'s mother testified that during the previous twenty-four hours, A.H. had worked as a prostitute to obtain money for drugs, suffered an overdose requiring the administration of Narcan, and threatened suicide. After a luncheon recess, a court clinician testified that A.H. met the criteria for having a substance use disorder and presented a risk of harm to herself and others. Based upon the testimony, the judge allowed the petition and committed A.H. to a different facility for a period not to exceed ninety days.

Page 99

The order of commitment has now expired. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (appeal from expired or terminated commitment order should not be dismissed without considering the merits of appeal in light of party's surviving interest in establishing order not lawfully issued).

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). In her appeal, A.H. essentially raises two challenges: (i) the court violated her procedural due process rights by detaining her in connection with the commitment hearing on October 1, 2018, and (ii) even if A.H. were properly before the court, the evidence presented failed to establish by clear and convincing evidence that A.H. had a substance use disorder or posed a danger to herself or others. We address each of these in turn.

A.H. contends that her original commitment had already expired when she arrived at the court house on October 1, 2018. For that reason, A.H. argues, the court was without authority to issue a new warrant of apprehension or to hold her pending a second hearing. We disagree. Paragraph 3 of G.L. c. 123, § 35 makes clear that a review of the necessity of a ninety-day commitment shall take place on days 30, 45, 60, and 75 so long as the commitment continues. A person so committed may be released prior to the expiration of the commitment "upon written determination by the superintendent of the facility that release of that person will not result in a likelihood of serious harm." Id. The superintendent of WATC made no such determination in this case.

Following A.H.'s leaving WATC in disobedience of the court's order, WATC did notify the New Bedford District Court of A.H.'s "escape." Contrary to A.H.'s argument, her decision to leave the facility and WATC's unwillingness to have her return (for obvious reasons) did not amount to a release as contemplated by G.L. c. 123, § 35, as the superintendent made no finding that she no longer posed a risk of harm. Rule 8(b) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders ("Uniform Rules") requires commitment orders to contain a provision that the facility provide notice to the court of any escape by a respondent. For that reason, we see no error in the decision by the third judge to issue a new warrant of apprehension. See Commentary to Uniform Rule 8 (2015) ("In the case of any escape, such notification permits the court to determine whether further action is advisable, such as the issuance of a warrant of apprehension."). Likewise, Uniform Rule 9 allows a judge to "take such action and issue such orders as may be necessary to secure the presence of the respondent after the respondent's arrival at court." Although A.H. arrived voluntarily at the court house on October 1, 2018, the judge's decision to hold her in custody pending the hearing would seem to be the prudent course in light of her recent elopement from WATC. [Note 2]

We now turn to A.H.'s substantive challenges to her commitment, namely, whether

Page 100

she had a substance use disorder and posed a risk of harm to herself. 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(s). G.L. c. 123, § 35. "The court shall base its findings on credible and competent evidence, including medical testimony and such other evidence as may be admitted." Uniform Rule 7(c).

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." G.L. c. 123, § 35. "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 himself or herself in the community." Matter of G.P., 473 Mass. 112, 117 (2015), citing G.L. c. 123, § 1.

At the hearing, the court heard sworn testimony from both A.H.'s mother and a forensic psychologist. A.H.'s mother testified she was aware A.H. was engaging in prostitution to support her habit, and had overdosed and voiced suicidal intentions on the day prior to the hearing. Her drug of choice was heroin. According to the mother, the overdose incident began at a local market and ended at a hospital emergency room, where emergency medical personnel believed "[A.H.] was dead; they couldn't get her revived." A.H. was revived, however, and called her mother for a ride home. Although it appears A.H. refused to speak to the psychologist, the psychologist echoed the mother's concerns. The credibility and weight of the evidence was for the trial judge to determine. See Matter of A.D., 2017 Mass. App. Div. 183, 184, citing Demoulas v. Demoulas, 428 Mass. 555, 565 (1988) ("The credibility and weight of the evidence are for the fact finder."). Considering the events of the forty-eight hours preceding the hearing -- including A.H.'s suicidal thoughts and overdose -- we conclude the court did not err in finding by clear and convincing evidence that A.H. suffered from a substance use disorder and posed a serious risk of harm to herself. See, e.g., Colbert v. Hennessey, 351 Mass. 131, 134 (1966) (appellate court defers even to implied findings of fact by trial judge "unless . . . satisfied that they are plainly wrong").

The court's order of commitment is affirmed.


[Note 1] The Honorable Kathryn E. Hand participated in the review of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.

[Note 2] "Of necessity, a judge's inherent powers must encompass the authority to exercise 'physical control over his courtroom.'" Commonwealth v. O'Neil, 418 Mass. 760, 764 (1994), quoting Chief Admin. Justice of the Trial Court v. Labor Relations Comm'n, 404 Mass. 53, 57 (1989).