2020 Mass. App. Div. 45

April 6, 2020

Appellate Division Northern District

Court Below: District Court, Framingham Division

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

No brief filed for the petitioner.

Katherine Sheldon for the respondent.

COVEN, P.J. The respondent, K.T., has brought this motion pursuant to Rule 15 of the Dist./Mun. Cts. R. A. D. A. to vacate an order of commitment after a hearing on a petition under G.L. c. 123, § 35. The motion is denied.

We first address a procedural issue. The use of Rule 15 is not a proper avenue to substantively challenge an order of commitment. The use of Rule 15 is for the parties to raise procedural issues that call upon the Appellate Division to take a particular action. See, e.g., Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377 (1975); Dist./Mun. Cts. R. A. D. A. 14(b). An appeal of a commitment order proceeds under Dist./Mun. Cts. R. A. D. A. 8A-8C, subject to a request for "expedite[d] consideration" under Rule 11 of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders. See Matter of G.P., 473 Mass. 112, 123-124 (2015). The respondent having also filed a notice of appeal, the transcript, and written argument, we will address the merits. Allowance of an expedited appeal, however, does not relieve a party's obligations to adhere to the procedures set forth in the Rules for Appellate Division Appeal.

Pursuant to G.L. c. 123, § 35, a person may be involuntarily committed if a judge finds that the person has an alcohol use disorder [Note 1] and presents a likelihood of serious harm. This appeal involves a challenge to the third prong of "likelihood of serious harm" as defined by G.L. c. 123, § 1. [Note 2] Under that definition, the commitment order must be supported by clear and convincing evidence, Matter of G.P., supra at 119-120, that K.T. presented "(3) a very substantial risk of physical impairment or

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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."

The evidence supporting the finding of commitment is found in a letter written by the petitioner in the initial application for a warrant of apprehension. [Note 3] The petitioner is a Framingham police officer, identified in the letter by name and badge number. It is clear from the letter that the petitioner took the initial action solely in the capacity of the performance of police duty ("I have presented to the court representing the Framingham Police Department to petition on behalf of [K.T.] . . . ."). That letter formed the opinion of the court clinician, who testified at the commitment hearing. The Framingham police officer did not testify. According to the transcript, the court clinician spoke with the Framingham police Jail Diversion Program clinician, who informed the court clinician that the petitioning police officer was "not available."

The petitioner states in the January 28, 2020, letter that K.T. is "well known to first responders . . . as he is often found severely intoxicated, staggering and falling down in the community by first responders due to intoxication." In the letter, she also states that "[t]he number of calls for medical attention and transportation to the hospital has increased recently due to [K.T.] being severely intoxicated in the community and falling down frequently while under the influence of alcohol." The petitioner states that K.T. "has suffered several face and head wounds due to these falls." She also states that police responded to a well-being check on January 14, 2020, and K.T. was found "unresponsive on the ground" and transported to the hospital. On January 15, 2020, K.T. was "highly intoxicated" and was observed "staggering in and out of traffic in downtown Framingham." K.T. was once again found unresponsive on the ground and required medical transport on January 26, 2020. And according to the petitioner, between December 3, 2019 and January 26, 2020, "police . . . responded to at least 8 calls for [K.T.] due to intoxication in the community."

The court clinician informed the court at the February 3, 2020, hearing that, in speaking with the Framingham police Jail Diversion Program clinician, he was informed that on January 29, 2020, K.T. was found in public intoxicated. The finding that K.T. has an alcohol use disorder is overwhelmingly clear from the petitioner's letter. Plainly, in statutory terms, K.T.'s use of alcohol "substantially injure[d]" his health: he suffered facial and head wounds as a result of his intoxication. And K.T.'s use of alcohol "substantially interfere[d] with [his] social . . . functioning." There is overwhelming evidence to conclude that K.T. "has lost the power of self-control over the use of" alcohol.

The evidence also firmly supports the finding that K.T. presented "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." Members of the public reached out to police to help K.T. due to his intoxication, and K.T. himself was found staggering in and out of traffic. The number of calls, the community concern demonstrated by police responding to reports, and the pattern of repeated police intervention firmly support the finding that "provision

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for [K.T.'s] protection [wa]s not available in the community."

K.T.'s motion to vacate the commitment order is denied. [Note 4] The order of commitment is affirmed.

So ordered.


[Note 1] General Laws c. 123, § 35, provides the following definition: "'Alcohol use disorder', 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."

[Note 2] The first two prongs of "likelihood of serious harm" require a finding that a respondent presents "(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; [or] (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." There is no evidence in the record that would justify a commitment of K.T. under either of these prongs.

[Note 3] Apart from the transcript, the respondent did not file an appendix or the police officer's letter. We requested a copy of the letter from the trial court.

[Note 4] While K.T.'s motion was pending, the Supreme Judicial Court decided In the Matter of a Minor, 484 Mass. 295 (March 17, 2020). In that case, the Court held that, as a matter of due process, where a judge issues an order of commitment:

"[The judge] must make clear, in writing or orally on the record, the evidence he or she credited in support of the legal conclusion that the respondent had a substance or alcohol use disorder, as well as the evidence supporting an imminent likelihood of serious harm stemming from that disorder. Relevant facts tend 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.

"Additionally, where a judge relies on hearsay, the judge's written or oral findings should indicate why the judge found that hearsay reliable . . . .

"As part of the more detailed findings that due process requires, a judge relying on hearsay evidence at substance use disorder commitment hearings should make clear, in writing or on the record, what specific indicia of reliability led him or her to conclude that the hearsay evidence supporting the determination that commitment was necessary is substantially reliable."

Id. at 307-308.

Although the judge did not have the benefit of this decision, the transcript reflects that the judge made oral findings on the record consistent with the Supreme Judicial Court's directive as to the basis of the finding of commitment.

As to the hearsay, no specific findings were articulated. Typically, a petitioner submits an affidavit in support of a petition for commitment on a trial court form, which is signed under the pains and penalties of perjury. The petitioner's letter in this case did not contain such a declaration. However, it was clear that imprimatur of the officer's name and badge number on the letter was given weight by the judge. On the record before us, it would have been a better practice for any letter or other document that serves as the petition for commitment under G.L. c. 123, § 35, to be signed under the pains and penalties of perjury.

As a general rule on hearsay, "[t]he relevant criteria . . . considered on the question of trustworthiness and reliability [are] '(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the [respondent]; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness.'" Matter of J.W., 2016 Mass. App. Div. 74, 77.