IN THE MATTER OF F.P.

CUNIS, J. This is an appeal from orders of involuntary civil commitment and the administration of antipsychotic medication pursuant to G.L. c. 123, §§ 7, 8, and 8B. [Note 1] The respondent, F.P., argues that the trial judge applied the wrong standard in deciding his required finding motion, that the evidence was insufficient to support the order of commitment, and that the trial judge failed to consider less restrictive alternatives to involuntary commitment. Because we agree that the evidence was insufficient, we vacate the orders of commitment and medication, and decline to address the remaining issues.

The hearing was held on the G.L. c. 123, §§ 7 and 8 petition at the Pembroke Hospital ("hospital") on May 8, 2019. The hospital's medical director had petitioned for F.P.'s commitment on grounds that he was mentally ill and that failure to hospitalize him would result in a "likelihood of serious harm" under all three prongs of that term as defined in the statute. G.L. c. 123, § 1. [Note 2]

At the time of the hearing, F.P. was a forty-eight year old male who had been admitted to the hospital on April 19, 2019, after an incident that occurred in the early morning hours at the home of his elderly parents, with whom he had been living for approximately two weeks. The first witness to testify was F.P.'s eighty year old father ("Father"). At around 2:30 that morning, F.P. burst into his parents' room "yelling and screaming" and awakening them. Father initially stayed in bed, hoping his son would eventually calm down. When he did not, Father got out of bed and tried to talk to him. F.P. wanted cigarettes, and so Father offered to drive him to a convenience

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store to purchase some. Because of F.P.'s "out of control" behavior, Father quietly asked his wife to call the police, while he and F.P. departed for the store. Once in the car, Father drove slowly for several miles. Before reaching the store, F.P. decided that he wanted to return home, and so Father turned around. Upon their return to the house, police officers and an ambulance were waiting for them. F.P. attempted to jump out of the car, but officers apprehended him before he was able to flee and transported him to the hospital, where he was admitted pursuant to G.L. c. 123, § 12.

That same morning at 4:00 A.M., Father obtained an emergency abuse prevention order pursuant to G.L. c. 209A, which ordered F.P. to refrain from abusing his father, to have no contact with him and stay at least twenty-five yards away from him, and to stay away from his home. Later that same day, a District Court judge extended the order for one year, until April 17, 2020.

This incident marked the third time that Father had called the police regarding his son's behavior. On cross-examination, Father acknowledged that F.P. had never done anything violent to either Father or his wife, and that F.P. never before had been treated at a psychiatric hospital. Father characterized F.P. as "a good boy."

Father admitted on redirect that he believed F.P. needed psychiatric hospitalization because he "doesn't relate to anything the way a normal person would." Father testified that F.P. believed that he "was never wrong, no matter what he does. He thinks he's always right. He thinks everybody else is wrong." According to Father, F.P.'s attitude had been getting worse as he got older. Father testified that he has been trying "for years" to convince F.P. to get treatment, but that F.P. flatly has refused to do so. Father testified that he and his wife were "scared."

F.P.'s psychiatrist, Dr. Manuel Balderas ("Balderas"), testified that F.P. suffered from a "delusional disorder." According to Dr. Balderas, F.P. believes that he works for "Russians Nationals" and provides security for them when they visit New England. He described F.P.'s speech as "grandiose," and that he professed to know "everything" about many things: "Wall Street, stocks, fishing industry, coffee business in Colombia, fish farm[ing] in Hawaii . . . on, on and on." [Note 3] Dr. Balderas testified that F.P.'s delusions are what caused him to engage "in situations like hurting his father." F.P. also told the doctor that he believed his father was mentally ill.

Dr. Balderas testified that, at some point in the past, law enforcement officers had tried to seize guns and ammunition from F.P. The doctor further expressed concern for Father's safety if F.P. were to be released from the hospital, speculating that violence "would be very, very likely to happen," and that Father likely "will not be so lucky" next time.

Finally, Dr. Balderas testified that F.P. does not believe that he is mentally ill and that he refuses to take medication. Additionally, the doctor testified that F.P. had been engaging in inappropriate behavior on the unit floor, such as advising other patients not to take their medication, kissing a female patient, and sneaking coffee into the unit without permission.

Analysis. F.P. argues that the evidence was insufficient to support the judge's decision

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to civilly commit him. [Note 4] We agree. On the question of whether F.P. suffered from a mental illness, the evidence was spare at best. Dr. Balderas testified that F.P. suffered from a "psychotic disorder" or a "delusional disorder." As for evidence supporting this diagnosis, the doctor noted F.P.'s talk of providing security to "Russian Nationals" who were visiting New England, and his self-proclaimed expertise on many subjects. Dr. Balderas also based his diagnosis in part on his belief that F.P. physically hurt his father, despite the fact that there was no evidence of this. Indeed, F.P.'s father expressly denied that F.P. had ever hurt him or his wife. F.P.'s behavior at the hospital -- urging others not to take medication, kissing a female, and sneaking coffee into the unit -- hardly add support to Dr. Balderas's conclusion that F.P. was mentally ill.

Regardless, even if we were to assume that the hospital met its burden of proving that F.P. was mentally ill, proof of mental illness alone is not enough to justify a commitment. Matter of R.H., 2019 Mass. App. Div. 16, 18. See also Matter of G.P., 473 Mass. 112, 128 (2015) (proof of chronic alcohol or substance abuse, by itself, is insufficient to support commitment under G.L. c. 123, § 35). The petitioner must also prove beyond a reasonable doubt that the respondent's mental illness creates a likelihood of serious harm. On that question, we agree with F.P. that the evidence here was insufficient.

General Laws c. 123, § 1 sets forth a three-prong definition of "likelihood of serious harm." [Note 5] Our analysis is governed by the principles set forth in Matter of G.P., supra at 126-129, a case involving a civil commitment under G.L. c. 123, § 35, because the three-prong "likelihood of serious harm" definition applies in both § 35 and G.L. c. 123, §§ 7 and 8 civil commitments. Matter of J.C., 2018 Mass. App. Div. 63, 66. See Matter of R.H., supra at 18. "[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 [mental illness]" (emphasis added). Matter of G.P., supra at 127. Imminent does not mean "immediate," but rather "a substantial risk that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Id. at 128. The hospital petitioned to commit F.P. under all three prongs of "likelihood of serious harm."

First prong. Under the first prong, a petitioner must produce "evidence of, threats of, or attempts at, suicide or serious bodily harm" to the respondent. G.L. c. 123, § 1. "[T]he assessment of risk is a probabilistic one, and necessarily must be made on the basis of the specific facts and circumstances presented." Matter of G.P., supra at 125. Here, the petition itself merely states that F.P. presented a substantial risk of harm to himself due to "impulsivity" and "poor judgment." At the hearing, there certainly was evidence that F.P. might have acted impulsively and that he exercised

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poor judgment when he burst into his parents' bedroom, but there was no evidence that F.P. had ever attempted or threatened to attempt suicide, or otherwise harm himself. On the record before us, the evidence for likelihood of serious harm under the first prong is insufficient as a matter of law.

Second prong. Proof of the second prong requires the petitioner to produce evidence of "homicidal or other violent behavior" or evidence that the respondent placed others in "reasonable fear of violent behavior and serious physical harm." [Note 6] G.L. c. 123, § 1. "In terms of the character of the evidence presented, the Legislature's use of the word 'homicidal,' and phrases such as 'violent behavior' and 'serious physical harm' signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Matter of G.P., supra at 126.

Here, there was no evidence that F.P. had ever engaged in homicidal behavior. F.P.'s father admitted that F.P. had never "done anything violent" to him or his wife. And although there was evidence that F.P. entered his parents' bedroom in the middle of the night in an agitated state, "yelling and screaming," there was no evidence of any acts, attempts, or threats of physical violence. See Matter of S.J., 2018 Mass. App. Div. 128, 129. Rather, Father tried to calm his son, and then volunteered to drive him to a convenience store to get cigarettes. Father's willingness to get into an automobile with his son and drive him to the store in the middle of the night suggests that he was not afraid of physical violence, and that none was seriously threatened.

Additionally, although there was testimony that this was the third time that Father had called the police about F.P.'s behavior, there was no evidence about what occurred on those two prior occasions. In any event, we must presume, from Father's unequivocal testimony that F.P. never acted in a physically violent manner toward him or his wife, that F.P. had not acted in a violent manner on those past occasions.

Lastly, there was no evidence that F.P. behaved in a violent manner while hospitalized. Rather, he engaged in relatively minor mischief, such as trying to convince others not to take their medication, kissing a female patient, and sneaking coffee onto the unit in violation of rules. We conclude the evidence comes up short in establishing beyond a reasonable doubt the level of risk required for the proof of the second prong. [Note 7]

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Third prong. Proof of the third prong requires the petitioner to produce evidence of 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. "[A] 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Matter of G.P., supra at 128. "The focus of the evidence . . . must be on the respondent's degree of impaired judgment due to [mental illness]; the degree of likelihood that, as a direct consequence, the respondent will sustain or inflict injury (for example, by failing to take care of an existing medical condition that is exacerbated by [mental illness], or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protection against such risks." Id. at 129.

Applying these principles here, we conclude that the hospital presented no evidence that F.P. would suffer physical impairment or injury as a result of his mental illness. The risk listed in the hospital's petition under the third prong is merely that F.P. would be "homeless." While F.P. could not return to his parents' residence because the abuse prevention order forbade it, evidence that F.P. would be rendered "homeless" upon his release is simply not certain from the record. There was testimony that a friend might allow F.P. to live with her, but there was also evidence that this arrangement may have fallen through at the last minute. Regardless, where there was no other evidence of a "very substantial risk of physical impairment or injury" to F.P., the mere fact that he might be homeless upon release is not, by itself, sufficient for the hospital to meet its burden of proof beyond a reasonable doubt as to this prong.

Because we agree that evidence for commitment under G.L. c. 123, §§ 7 and 8 was insufficient, we decline to address the remaining claims. Accordingly, the decision of the trial court is reversed, and this case is returned for entry of an order vacating the order of commitment and the order for treatment with antipsychotic medications.