IN THE MATTER OF A.S.

STARK, J. The respondent appeals from a commitment order pursuant to G.L. c. 123, § 35, arguing that (1) there was insufficient evidence to support the order of commitment; (2) the court's findings were based on facts not in evidence; and (3) the court improperly permitted and considered expert testimony. For the reasons set forth below, we reverse the decision and return the case back to the District Court to enter an order vacating the commitment order.

Background. On October 1, 2018, the respondent's mother filed a petition for civil commitment pursuant to G.L. c. 123, § 35, and a hearing was held a few days later on October 4th. At the hearing, Dr. Alan Schoenberger ("Schoenberger") was the sole witness. Dr. Schoenberger's testimony was based on an interview with the respondent and the petitioner in person, and with the respondent's uncle via telephone.

The doctor testified that the respondent reported she had no problems with alcohol or drugs. She told the doctor that she maybe drinks once or twice a week, and that she has not been intoxicated since 1997. The respondent denied using any substances and told the doctor that her mother is fabricating the allegations. The respondent answered all of the doctor's questions accurately and appropriately, and she did not appear impaired at all. The respondent admitted she had been to the hospital on several occasions because of bloating in her stomach and tingling in her feet. Over the respondent's objection, the witness testified that while he is not a medical doctor, such medical issues are symptoms of alcoholism.

In sharp contrast to the respondent's statements to the doctor, the petitioner and the respondent's uncle informed the doctor that the respondent was drinking to intoxication on almost a daily basis. They also informed the doctor that they believed the respondent was using opiate pain pills, but they could not provide any information to support that claim. The family also alleged that the respondent had abused her young child approximately two to three weeks prior to the hearing, and that the Department of Children and Families ("DCF") was involved. The respondent's mother further reported her concern that, on the morning of the hearing, she observed her granddaughter trying to wake the respondent from bed and the respondent failed to wake up. The respondent was not given Narcan or taken to the hospital as a result of this incident. The petitioner also told the witness that the respondent drove her car while impaired and while her young child was in the car, but she failed to say when these incidents occurred. The doctor was also informed that there had been incidents of falls or injuries due to her substance use, and that the respondent had a history of blackouts. The doctor noted that there was no evidence of accidents or of

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the respondent being charged with operating while under the influence of alcohol.

Dr. Schoenberger concluded his testimony by opining that the respondent does have alcohol dependence disorder that is out of control, making her a danger to others and not able to adequately care for herself in the community.

There was no evidence presented at the hearing that the respondent had ever suffered a drug overdose or received Narcan. It was also elicited on cross-examination that there was no history of seizures, delirium tremens, hallucinations, delusions, suicidal ideation, or suicidal threats. Finally, there was no evidence that the respondent was not eating or sleeping or otherwise caring for herself.

Analysis. The respondent argues on appeal that there was insufficient evidence to support the commitment order. 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." Rule 7(c) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders.

Here, there was sufficient evidence that the respondent suffers from an alcohol use disorder. Two individuals -- the petitioner and the respondent's uncle -- informed the doctor that the respondent was drinking to intoxication on almost a daily basis. There was evidence that the respondent drove her car while impaired and while her young child was in the car, that there had been incidents of falls or injuries due to her alcohol use, and that the respondent had a history of blackouts. Finally, the respondent admitted she had been to the hospital on several occasions because of bloating in her stomach and tingling in her feet -- medical conditions that are symptoms of alcoholism. There was credible evidence presented that the respondent had an alcohol use disorder.

The evidence was insufficient, however, to demonstrate a likelihood of serious harm as a result of the respondent's alcohol use disorder. The term "likelihood of serious harm" is defined by statute 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.

"[T]o establish a likelihood of serious harm under the first or second definitional prong, a showing of imminence is required -- that is, the 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." Matter of G.P.,

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473 Mass. 112, 127 (2015).

In this case, there was no allegation or any credible evidence to support a finding under the first prong. The only evidence to support the second prong was hearsay testimony from the doctor that the respondent drove while impaired and while her child was in the car. However, these allegations were not supported by evidence of accidents or arrests for driving under the influence of alcohol; nor was there any evidence about when these alleged instances occurred. The court mentioned a DCF investigation in her findings, but there was no evidence that any DCF involvement was connected to the respondent's alcohol use disorder. This evidence is not enough to meet the requirements of prong two, particularly the imminence requirement.

When a court determines whether an alcohol use disorder presents a "very substantial risk" under the third prong of the statute, the imminence of the risk is a factor that is given greater consideration than the other two prongs. Id. at 129. We find that there was insufficient evidence to establish that there was a likelihood of serious harm under the third prong as well. A "very substantial risk" of "physical impairment or injury" pursuant to the third prong is shown by evidence that the respondent's judgment is so adversely affected by her alcohol use disorder that she cannot protect herself from physical harm, and that the "community does not include any reasonably available external source of adequate protection." Id.

Here, there was minimal, if any, evidence presented that the respondent was at very substantial risk of harm and that such risk was imminent. She had no history of seizures, delirium tremens, hallucinations, delusions, suicidal ideation, or suicidal threats. There was no evidence that the respondent was not eating or sleeping. There was testimony that the respondent's daughter tried to wake her that morning and she failed to respond, but there was no testimony that this incident was related to her alcohol use disorder. Finally, despite the doctor's testimony that the respondent had some health issues that he believed were symptoms of alcoholism, there was nothing presented to suggest the respondent was not seeking medical treatment or that her medical issues were dire.

For all of these reasons, while there was sufficient evidence to demonstrate that the respondent suffered from an alcohol use disorder, there was insufficient evidence to show a likelihood of serious harm by clear and convincing evidence. As such, we reverse the decision and return the case back to the District Court to enter an order vacating the commitment order. [Note 1]