2020 Mass. App. Div. 117

September 11, 2020 - September 16, 2020

Appellate Division Northern District

Court Below: District Court, Ayer Division

Present: Coven, P.J., Nestor & Karstetter, JJ.

No brief filed for the petitioner.

Eleanor R. Hertzberg for the respondent.

COVEN, P.J. After a hearing pursuant to a petition for commitment under G.L. c. 123, § 35, the trial judge determined by clear and convincing evidence that the respondent suffered from an alcohol use disorder and presented a substantial likelihood of harm to herself or others and entered a commitment order. The respondent has appealed. [Note 1]

At the hearing on July 28, 2020, which was conducted remotely, there was one witness, Dr. Stephanie Hansen ("Hansen"), the court clinician. The respondent refused to be interviewed, and thus the clinician's opinion was based on conversations with the collateral contacts. The petitioner is one of the respondent's daughters.

The petitioner provided historical context in recounting that her mother had begun drinking heavily over the past five years and has completed at least two thirty-day treatment programs, as well as several detox programs. Respondent had been in a program in Florida from July 1, 2020 to July 22, 2020.

Petitioner indicated that she believed that her mother began drinking again immediately following her discharge. She indicated that her mother contacted a number of family members three days after the end of her program while she was under the influence of alcohol. This was corroborated by the respondent's mother, who also indicated respondent called her the previous Sunday morning at 6:45 A.M. under the influence of alcohol.

Respondent's other daughter, who resides in Florida, indicated to Dr. Hansen that she believed her mother was under the influence of alcohol during a telephone conversation the weekend prior to the petition. The next Monday, respondent admitted to her that she had been drinking all weekend. A long- term friend of the respondent, similarly, indicated that she had observed the defendant two days after the discharge from her program and that she had already been drinking.

In addition to the statements that were made by the collateral contacts indicating a continued use and abuse of alcohol by the respondent immediately following her completion of the treatment program, those contacts provided statements to Dr. Hansen concerning the likelihood of serious and imminent harm to herself and others.

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The petitioner indicated that her mother had a history of driving under the influence of alcohol and witnessed her intoxicated while driving on June 23, 2020 immediately prior to entering the treatment program in Florida. In addition, the petitioner as well as respondent's mother indicated conversations with respondent evidencing suicidal ideation, particularly when intoxicated. According to the statements of the daughter and respondent's mother, respondent stated that she wanted to "go the route of her . . . father," who had committed suicide. Respondent had made that type of statement the Sunday preceding the petition.

Dr. Hansen also recited the observations of the court officers, who stated that respondent appeared to be unstable on her feet and shaking. The police officer who brought the respondent to the court stated that she was sitting with a bottle of liquor in her lap when he went to serve the warrant of apprehension. Police had responded, as well, to the home in late June when they had been informed by one of the daughters that respondent had made statements about wanting to die.

Based on all of the statements by the collateral contacts who had direct visual or oral observation of the respondent within days of the petition, the doctor gave her expert opinion that the respondent suffered from an alcohol abuse disorder, had lost the ability to control her use of alcohol, and that she presented an imminent risk of harm to herself and others as a result of her alcohol use disorder.

Under G.L. c. 123, § 35, "alcohol use disorder" is defined as "the chronic or habitual consumption of alcoholic beverages by a person to the extent that (1) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning, or (2) the person has lost the power of self-control over the use of such beverages."

"Likelihood of serious harm" is defined 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 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."

Matter of G.P., 473 Mass. 112, 124-125 (2015), quoting G.L. c. 123, § 1.

While the harm necessary for a commitment under the statute must be "imminent," that does not require that the harm be immediate but that it be in the very near future and present serious anticipated physical harm. Id. at 128.

At the close of the hearing, the trial judge made extensive findings of fact. Matter of a Minor, 484 Mass. 295 (2020). The judge relied on the expert opinion of the clinician based on the direct observations made by two daughters, a close family friend, respondent's mother, as well as the observations made by the police and court personnel. All of the statements to the clinician were based on direct observations and not second-level hearsay. Id.

The evidence was certainly sufficient to establish that the respondent suffered an

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alcohol use disorder, as defined by the statute, in light of the fact that she began to drink to excess immediately following her completion of a treatment program.

The requirement that there be a demonstration of an imminent risk of serious harm to herself and others was established by the statements regarding driving while intoxicated approximately one month earlier, as well as the respondent's expressions of suicide that had been made within days of the filing of the petition while she was under the influence of alcohol. This evidence of alcohol use disorder and the imminent threat of harm to herself or others was established by clear and convincing evidence. [Note 2]

After having been in a number of thirty-day programs and short-term detox programs, and having just completed an inpatient program in Florida, there was clearly support for the expert's opinion that there was no less restrictive alternative. In her findings, the trial judge found that the facts warranted the placement in a secure setting. [Note 3]

We are aware of a trial judge's responsibility to make specific findings with regard to the effect of the COVID-19 pandemic. "Going forward, 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. ... Additionally, the judge must find that commitment is necessary notwithstanding the treatment limitations imposed by quarantine protocols." Foster v. Commissioner of Correction, 484 Mass. 698, 730 (2020). This was never raised before the trial judge. Nor was there any evidence presented as to the risks at the facility or any particular susceptibility of the respondent. As the Supreme Judicial Court further stated, "Without a more complete factual record, and without expert guidance, we are not able to reach such a broad conclusion." Id. at 726. Without having raised this issue before the trial judge, it cannot be raised for the first time on appeal based on an undeveloped record. Kwong Kow Chinese School, Inc. v. Chinese Consolidated Benevolent Ass'n of New England, No. 01-P-207 (Mass. App. Ct. Nov. 27, 2001) (unpublished Rule 1:28 decision).

The order of commitment is affirmed.


[Note 1] The respondent filed a notice of appeal and a motion to vacate the commitment order to the Appellate Division.

As we recently stated in Matter of K.T., 2020 Mass. App. Div. 45, "The use of Rule 15 is not a proper avenue to substantively challenge an order of commitment."

[Note 2] Because the statements made to the clinician were based on personal knowledge and direct observations, and were factually detailed, these statements constituted reliable hearsay. Matter of S.M., 2019 Mass. App. Div. 65, 68.

[Note 3] The trial judge's findings state:

"All of these, and her failure to be able to maintain sobriety after long periods of rehab, her indifference to her own personal health, the -- the history of suicides -- and I credit the families quoting that she has made statements regarding it, it is numerous family members who have made similar statements, that gives it some -- quite a bit of credibility, and I do believe that the failure to put her in -- put her in a more secure setting could cause a very significant hardship or a hard -- a danger to her."