2020 Mass. App. Div. 14

December 6, 2019 - February 24, 2020

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Stark & Ginsburg, JJ.

Nathan Frommer for the petitioner.

Devorah A. Borenstein for the respondent.

GINSBURG, J. This is J.L.'s appeal of his commitment, pursuant to G.L. c. 123, §§ 7 and 8, to the Worcester Recovery Center and Hospital. For the reasons below, we affirm the commitment.

We review the trial court's findings of fact for clear error and "'scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004)." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

"Sections 7 and 8 of G.L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. ...Section 8(a) provides that no person shall be committed unless the District Court finds after a hearing that '(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm.'" Matter of N.L., 476 Mass. 632, 634 (2017).

Chapter 123 defines "likelihood of serious harm" in three ways: 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." G.L. c. 123, § 1. In order to justify commitment under these sections, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Matter of G.P., 473 Mass. 112, 119 (2015), citing Abbot A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

We find no error in the court's determination that J.L. met the criteria for commitment. Only the third prong is at issue in this case. J.L. insisted on going to his father's house if discharged, and when he was told that he could not go to his father's house, J.L. threatened to kill himself and ran to his room and started smashing his head against the window in his room. J.L. has made suicide attempts in the past and has made suicidal statements that have resulted in him being psychiatrically hospitalized before. Suicidality is appropriately considered on the issue of

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whether a person can care for himself in the community. Accordingly, we find there was sufficient evidence of J.L.'s risk of harm to himself to support the court's order of commitment.

J.L. also claims that because the commitment petition cited an incorrect regulation defining mental illness, the District Court lacked jurisdiction. This argument was not presented in the trial court and is therefore waived on appeal. Commonwealth v. Olson, 24 Mass. App. Ct. 539, 544 (1987). [Note 1] Worcester Recovery Center and Hospital filed a motion to strike exhibits attached to J.L.'s brief, which were civil commitment petitions filed in other matters. The motion to strike is allowed as that evidence was not raised in the trial court.


[Note 1] The Massachusetts Trial Court has a model petition for civil commitment form that can be found on the Trial Court website.