2020 Mass. App. Div. 61

February 28, 2020 - April 30, 2020

Appellate Division Western District

Court Below: District Court, Northampton Division

Present: Stark, D'Angelo & Ginsburg, JJ.

Lisa van Gordon d'Errico for the petitioner.

Cara M. Cheyette for the respondent.

D'ANGELO, J. This is J.T.'s appeal of his commitment, pursuant to G.L. c. 123, §§ 7 and 8, to Cooley Dickinson Hospital ("hospital"). For the reasons below, we affirm the order of 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).

On January 11, 2019, the court conducted a civil commitment hearing on the petition. At the hearing, Dr. Ann Vandyke ("Vandyke") testified that she was the treating psychiatrist at the hospital during J.T.'s admission. The parties stipulated to the doctor's qualifications. Elyse Chastain ("Chastain") also testified at the hearing. She is a licensed social worker and supervisor at ServiceNet, and was J.T.'s Adult Community Clinical Services worker from ServiceNet. The court found the testimony of Dr. Vandyke and Chastain credible. Although J.T. testified at the hearing, his responses to questions by his attorney were, at times, nonresponsive and even nonsensical. The judge did not find J.T.'s testimony credible.

Facts. [Note 1] J.T. was admitted to the hospital on December 31, 2018. This hospitalization came after a prior admission to the hospital from which he had been discharged only one week prior. During that time frame, J.T. had not been taking his medication. J.T. had been brought to the hospital on December 31, 2018 by the police after they had responded to numerous 911 calls, in response to which they entered J.T.'s apartment and made a well-person check. The police officers discovered fecal matter all around the apartment. The police also observed that there was a lot of paper around, including on the floor, as well as an ashtray on the floor. J.T. arrived at the hospital with a burn on his nose, which he explained as having occurred when he tried to light a pipe. J.T. had been assigned an outpatient provider team, which included an outreach coordinator, a prescribing doctor, and an Adult Community Clinical Services worker. The case worker was scheduled to visit J.T. at his apartment once a week. The case worker had expressed a growing concern about J.T. prior to his

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December admission to the hospital. J.T. had not permitted the case worker to see him every time the case worker came. Providing housekeeping services had been an ongoing issue and ServiceNet had been continually looking for someone for a period of time, but could not find anyone. But ultimately, housekeeping and visiting-nurse services were no longer available to him specifically because of his repeated refusal to allow them entry.

While at the hospital, J.T. permitted staff to help him with the activities of daily living like showering and, to at least some extent, with laundry. J.T. admitted to staff that it was getting harder for him to do things for himself at home. In addition, J.T. had trouble sleeping, spent hours pacing the halls, and became agitated and called both 911 and the police numerous times. When approached by staff, he became angry and frustrated, stating, "I tried calling my apartment, but got 911 by mistake. Can't a person make a mistake? It's not my fault that so many people have lasagna coming out of their eyes."

The judge found that J.T. was not safe to return to his apartment. She found that he was at risk to fall, to set a fire, had unsafe smoking practices, to care for himself, specifically to bathe, and that J.T. was declining to cooperate with community providers. The judge also determined that all alternative services for J.T. had been exhausted.

Discussion. Although Matter of G.P., 473 Mass. 112 (2015), involved a civil commitment under G.L. c. 123, § 35, its holding is equally applicable to commitments under G.L. c. 123, §§ 7 and 8, because the three-prong definition of "likelihood of serious harm," see G.L. c. 123, § 1, is applicable to each type of commitment. See Matter of R.H., 2019 Mass. App. Div. 16, 18. In this case, the third prong is the issue. Under the third prong, the "likelihood of serious harm" is defined as "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. On the one hand, mental illness, by itself, is insufficient; on the other hand, it is not required that a commitment order be based upon "proof that an individual is unable to sustain himself or herself even marginally in society." Matter of G.P., supra at 128. See Matter of R.H., supra. Rather, as stated in Matter of G.P., the harm is "'physical impairment or injury' to the respondent, and the 'very substantial risk' of such harm is to be shown by evidence that (1) the respondent's judgment is so adversely affected by [mental illness] that the respondent cannot protect himself or herself from physical harm, and (2) the respondent's community does not include any reasonably available external source of adequate protection. G.L. c. 123, § 1." Id. at 128-129.

"The focus of the evidence, then, 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. Finally, because a 'very substantial' risk of harm must be shown in connection with this third prong, G.L. c. 123, § 1, the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two

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prongs." Id. at 129.

In Matter of S.J., 2018 Mass. App. Div. 128, evidence of prior hospitalizations, subsequent rapid decompensations, and risk of failing to take care of an existing medical condition provided sufficient grounds to show that respondent posed a very substantial risk of physical impairment or injury from respondent's inability to protect himself in the community. Id. at 130. In the case at bar, J.T. had been discharged only one week prior to the current hospitalization. During that time, J.T. had not been taking his medication, the police had responded to numerous 911 calls, in response to which they entered J.T.'s apartment and discovered fecal matter all around the apartment. Additionally, housekeeping and visiting-nurse services were no longer available to J.T. because of his repeated refusal to allow them entry.

J.T.'s inability to care for himself, as evidenced by his living conditions, his risk of falling, and his active resistance to accept help from community providers, coupled with his noncompliance with medication, is sufficient evidence to support a determination that his condition would pose a very substantial threat to him. See Matter of D.K., 2017 Mass. App. Div. 129, 131, aff'd, 95 Mass. App. Ct. 95 (2019) (affirming court's conclusion that respondent presented very substantial risk of harm to herself where court found that during two months prior to hearing, respondent was unable to care for her hygiene and grooming, and had been inconsistent in eating and drinking). For the foregoing reasons, we affirm the order of commitment.


[Note 1] No audio recording of the hearing took place due to a defective recording device. Therefore, pursuant to Dist./Mun. Cts. R. A. D. A. 8C(e), the record was established by the parties each submitting proposed statements of fact and the court adopting the statements with additional supplements. We further allow the respondent's motion for leave to file a supplemental appendix in the Appellate Division.