2021 Mass. App. Div. 1

September 15, 2020 - January 5, 2021

Appellate Division Western District

Court Below: District Court, Westfield Division

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

No brief filed for the petitioner.

Patrick Nicoletti for the respondent.

GINSBURG, J. On July 10, 2020, an evidentiary hearing was held in Westfield District Court after P.D.L.'s wife filed a petition pursuant to G.L. c. 123, § 35, seeking the involuntary commitment of P.D.L. for alcohol and substance use disorder treatment. After a hearing, the trial judge ordered P.D.L. committed to the treatment center at Stoneybrook at Ludlow.

Because the findings as required by the recent cases of Matter of a Minor, 484 Mass. 295 (2020) and Foster v. Commissioner of Correction, 484 Mass. 698 (2020), were not made, we reverse the court's allowance of the petition.

At a commitment hearing pursuant to G.L. c. 123, § 35, the petitioner must prove by clear and convincing evidence that the respondent "is an individual with an alcohol or substance use disorder and there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder." G.L. c. 123, § 35. A short time prior to the hearing in this case, the Supreme Judicial Court, in Matter of a Minor, held that in order to meet minimum due process, a commitment order must be supported by written or oral findings identifying the evidence that the judge relied on to determine that the respondent had a substance or alcohol use disorder that placed the respondent in imminent likelihood of serious harm. Id. at 306-307. Of particular relevance are "facts tend[ing] 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." Id. at 307. A judge must also find by clear and convincing evidence that there were no appropriate, less restrictive alternatives to commitment. Id. at 307-310.

Here, the judge made no written or oral findings to satisfy the requirements of Matter of a Minor. The judge said: "The Court does find based on clear and convincing evidence and competent medical testimony that [P.D.L.] has a[n] alcohol use disorder, and that there's a likelihood of serious harm to himself or others. Therefore [P.D.L.] would be committed under Chapter 123, Section 35 for a period not to exceed ninety days at the Stoneybrook Program at Ludlow." These oral findings did not satisfy the requirements set out recently by Matter of a Minor. "In order to comport with due process where a liberty interest is at stake, commitment orders must be supported by more than conclusory statements. The judge need not provide extensive written findings, but at a minimum, the findings must meet the

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criteria laid out in Matter of a Minor." Matter of D.H., No. 19-P-1461 (Mass. App. Ct. July 10, 2020) (unpublished Rule 23.0 decision). Therefore, the commitment order here must be vacated.

Further, in the very recent case of Foster v. Commissioner of Correction, 484 Mass. 698 (2020), the Supreme Judicial Court held that in light of the COVID-19 pandemic, a judge "shall not commit an individual under G.L. c. 123, § 35, unless the judge finds that the danger posed by the individual's substance use disorder outweighs the risk of transmission of COVID-19 in congregate settings." Id. at 730. The judge must also find "that commitment is necessary notwithstanding the treatment limitations imposed by quarantine protocols." Id. The judge's findings may be made in writing or orally on the record, and such requirements are in effect for the duration of the COVID-19 state of emergency unless altered by further order of the Supreme Judicial Court. Id. Here, no such written or oral findings were made, and therefore the order must be vacated on this basis as well. [Note 1]

Accordingly, the decision of the trial court is reversed, and this case is returned for entry of an order vacating the order of commitment under G.L. c. 123, § 35.


[Note 1] Because the commitment order must be vacated based on failure to make appropriate findings, we have no occasion to reach P.D.L.'s other challenges to the validity of the order.