IN THE MATTER OF C.B.

D'ANGELO, J. On July 27, 2020, C.B.'s sister filed a petition in the Gardner District Court pursuant to G.L. c. 123, § 35, seeking the involuntary commitment of her brother for alcohol and substance use disorder treatment. Following transfer to the Fitchburg District Court and an evidentiary hearing on August 4, 2020, during which Dr. Michael Bail testified, a District Court judge allowed the petition and ordered C.B. committed to the treatment facility at Stonybrook at Ludlow for up to ninety days. The respondent filed an appeal to the Appellate Division on August 10, 2020. A hearing before this Division took place on September 15, 2020 by Zoom. At the time of the hearing, a little more than a month after the respondent was committed, he still remains at the treatment facility.

Because the judge who issued the order of commitment failed to make appropriate findings as required by the recent cases of Matter of a Minor, 484 Mass. 295 (2020) and Foster v. Commissioner of Correction, 484 Mass. 698 (2020), the order must be vacated.

At a commitment hearing pursuant to G.L. c. 123, § 35, the petitioner must prove by clear and convincing evidence that the respondent "is an individual with an alcohol or substance use disorder and there is a likelihood of serious harm as a result of the person's alcohol and substance use disorder." G.L. c. 123, § 35. Just a short time prior to the hearing in the case before us, the Supreme Judicial Court, in Matter of a Minor, held that in order to meet minimum due process, a commitment order must be supported by written or oral findings identifying the evidence that the judge relied on to determine that the respondent had a substance or alcohol use disorder that placed the respondent in imminent likelihood of serious harm. Id. at 306-307. Of particular relevance are "facts tend[ing] to show the reasons for a finding of the existence of a disorder, as opposed to use of a substance, as well as the likelihood of the harm, its imminence, its seriousness, and the nexus between the harm and the underlying substance or alcohol use disorder." Id. at 306. A judge must also find by clear and convincing evidence that there were no appropriate, less restrictive alternatives to commitment. Id. at 307-310.

The judge made no written findings to comport with the mandate of Matter of a Minor. The oral finding that the judge made at the end of the hearing provided insufficient detail. The judge said: "I credit the testimony of the doctor. I find that the Petitioner has met his burden with respect to this case being on the history the Defendant has of clear substance abuse and alcohol abuse disorder, the open criminal

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matter, and the suicidal ideation. So, based on that, I am going to hold him." Even if that oral finding comported with the requirements of showing the likelihood of the harm, its imminence, its seriousness, and the nexus between the harm and the underlying substance or alcohol use disorder, it did not comport with the requirement that there were no appropriate, less restrictive alternatives to commitment. "The judge need not provide extensive written findings, but at a minimum, the findings must meet the criteria laid out in Matter of a Minor." Matter of D.H., No. 19-P-1461 (Mass. App. Ct. July 10, 2020) (unpublished Rule 23.0 decision). Therefore, the order must be vacated.

In addition, the Supreme Judicial Court issued a COVID-19 emergency decision in Foster v. Commissioner of Correction, 484 Mass. 698 (2020). In that case, the Court held that a judge "shall not commit an individual under G.L. c. 123, § 35, unless the judge finds that the danger posed by the individual's substance use disorder outweighs the risk of transmission of COVID-19 in congregate settings." Id. at 730. The judge must also find "that commitment is necessary notwithstanding the treatment limitations imposed by quarantine protocols." Id. The judge's findings may be made in writing or orally on the record, and such requirements are in effect for the duration of the COVID-19 state of emergency unless altered by further order of the Supreme Judicial Court. Id. In the case at bar, no such written or oral findings were made, and the order therefore must be vacated on this basis as well. [Note 1]

This matter is returned to the Fitchburg District Court for entry of an order vacating the order of commitment.