2021 Mass. App. Div. 61

November 20, 2020 - July 27, 2021

Appellate Division Western District

Court Below: District Court, Pittsfield Division

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

No brief filed for the petitioner.

Ilana Hollenberg for the respondent.

GINSBURG, J. On July 19, 2019, after a hearing pursuant to G.L. c. 123, § 35, the respondent, C.C., was committed to the Women's Addiction Treatment Center. On appeal, the respondent argues that the evidence at the hearing was insufficient to meet the criteria for commitment under the statute. For the reasons set forth below, we vacate the order of commitment.

C.C.'s commitment hearing. At the time of the hearing, C.C. was a twenty-one year old woman. The petitioner in this matter was C.C.'s mother, who lived with C.C. Dr. Reese met with the petitioner and testified at the hearing to the following: C.C. used PCP since she was sixteen years old after she suffered a brutal rape and her mental health status declined. C.C. had a diagnosis of PTSD and bipolar disorder and had several psychiatric hospitalizations in the past. C.C. had admitted to her mother, the petitioner, that she used PCP. The petitioner believed C.C. was using PCP every few days, as she would "go out on a run" and be missing for four days, then come home and sleep for several days in a row, become very depressed and cry, then go out again and the pattern would repeat itself. The petitioner believed C.C. was prostituting herself to get drugs, and worried that her daughter, a very petite woman, was extremely vulnerable in the streets of Holyoke and Springfield. Petitioner believed C.C. was driving to Springfield to get drugs. Months earlier, the petitioner was called by police in Springfield and advised that C.C. was loitering in the train station and appeared to be smoking something, perhaps PCP. The police brought C.C. to a hospital where she was released, and the petitioner had to pay to get C.C. home.

Dr. Reese spoke to C.C. and testified that C.C. admitted she used PCP "every now and then," but would not clarify when she last used it. C.C. denied prostituting herself, denied going to Springfield or Holyoke to obtain drugs, and said that she had not been assaulted on those trips.

Dr. Reese then opined," I don't have enough information here to indicate that [C.C.] is at current serious risk of harm. I think there's enough to indicate that she abuses PCP and probably has a substance use disorder, but I don't know that prostituting comes to the level of imminent risk of harm. So I am not recommending commitment . . . ."

The judge then asked to hear from the petitioner directly. In response to the judge's questions, the petitioner testified to the following: C.C. was twenty-one years old and 115 pounds. She was not presently working. C.C. had admitted to her she had a drug problem. C.C. will "use" for days and then she will sleep and

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cry and be depressed and she hates her life. "[W]hen she's high she tells you right when she's coming down." Petitioner believed C.C. needed a psychiatric evaluation, as in the past she was working, going to therapy, and taking her medication, but then she stopped taking her medication, the depression and PTSD came back, and she started self-medicating. The judge asked how the petitioner knew C.C. was prostituting herself. The petitioner responded that C.C. had told her at least three or four times, most recently a couple of months ago, that she prostitutes herself to get drugs. She stated that C.C. had admitted to her older sister that she prostitutes herself for money, and she has hundreds of dollars in her bank account with no job and no other source of money known to the petitioner. According to her mother, C.C. does not have a criminal record; she does not steal. The judge explicitly credited the testimony of the petitioner regarding C.C. prostituting herself, found a sufficient risk of harm to C.C. as a result, and ordered C.C. committed to a facility not to exceed ninety days.

Discussion. General Laws c. 123, § 35 "authorizes the involuntary civil commitment of a person, for care and treatment, where there is a likelihood of serious harm as a result of the person's alcoholism or substance abuse, or both." Matter of G.P., 473 Mass. 112, 113 (2015). A petition for commitment may be filed by a police officer, physician, spouse, blood relative, guardian, or court official. Id. at 116. A hearing is held on the petition after the person appears in court, is appointed an attorney, and is examined by a qualified physician, psychologist, or social worker. Id. at 116-117. After the examination, the court then must hold a hearing, at which the expert must testify, and "other evidence" may be introduced. G.L. c. 123, § 35. See Matter of G.P., supra at 117. The rules of evidence do not apply to the commitment hearing, and the court may rely on hearsay, so long as the hearsay is substantially reliable. Rule 7(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders (Uniform Rules). See Matter of G.P., supra at 121-122; Matter of A.M., 94 Mass. App. Ct. 399, 400 (2018).

The evidence at the hearing must be sufficient for the judge to find that (1) the respondent suffers from a substance use disorder, and that (2) he or she faces a "likelihood of serious harm" as a result of that substance use disorder if the petition is not allowed. G.L. c. 123, § 35. See Matter of G.P., supra at 117.

The burden of proof that applies is clear and convincing evidence. Matter of G.P., supra at 120. A "substance use disorder" is defined as "the chronic or habitual consumption or ingestion of controlled substances or intentional inhalation of toxic vapors by a person to the extent that: (i) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning; or (ii) the person has lost the power of self-control over the use of such controlled substances or toxic vapors." G.L. c. 123, § 35.

"In the context of § 35, the 'likelihood of serious harm' means, among other definitions not applicable here, 'a very substantial risk of physical impairment or injury to the [respondent] himself as manifested by evidence that [the respondent'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." Matter of A.M., supra at 402. The "very substantial risk" of harm is demonstrated by evidence that "(1) the respondent's judgment is so adversely affected by [substance abuse] that the respondent cannot protect himself or herself

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from physical harm, and (2) the respondent's community does not include any reasonably available external source of adequate protection." Matter of G.P., supra at 128-129. A showing of imminence is also required. Id. To establish a substantial risk of physical harm required for the first two definitional prongs of "likelihood of serious harm" under the statute, the evidence must support a conclusion that the harm will materialize "in the reasonably short term -- in days or weeks rather than in months." Id. at 128. To establish a very substantial risk of physical harm required by prong three of the statute, which is applicable here, "the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129.

While hearsay evidence is admissible in proceedings pursuant to G.L. c. 123, § 35, it may be relied upon by the judge only if the judge finds it to be substantially reliable. Matter of G.P., supra at 121-122, citing Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). Reliability criteria include the level of factual detail (rather than generalized and conclusory assertions), statements made based on personal knowledge and direct observation, corroboration, statements made under circumstances that support the veracity of the source, and statements made by disinterested witnesses. See Commonwealth v. Durling, 407 Mass. 108, 121 (1990); Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 932 n.4 (1994).

"It is within the purview of the [trial] judge to weigh evidence, assess the credibility of witnesses, and make findings of fact, which [a reviewing court] must accept unless clearly erroneous." Matter of AM., supra at 401, citing G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996).

Here, there was evidence that the petitioner, C.C.'s mother with whom she lived, believed C.C. was using PCP every few days. C.C. had admitted to her mother she had a drug problem. C.C.'s mother saw C.C. disappear for days, come home and sleep for several days in a row, then become very depressed and cry. When C.C. came down from the high of the drug, she would admit drug use to her mother. C.C.'s mother watched this pattern repeat itself over and over, and it was a problem that had been going on for years. C.C. admitted to the examining doctor using PCP "every now and then." The examining doctor opined at the hearing that C.C. abused PCP and "probably" had a substance use disorder. There was sufficient evidence to support the judge's determination that C.C. suffered from a substance use disorder.

The problem here, however, is that there was insufficient evidence on the issue of imminent risk of harm to the respondent. In order to establish prong three of the definition of likelihood of serious harm -- that there is a very substantial risk of harm to the respondent herself -- there is a heightened imminence requirement. Matter of G.P., supra at 128. The examining doctor was not sure that prostitution was sufficient to establish an imminent risk of harm, and therefore did not recommend commitment. The hearing judge was not bound by the examining doctor's opinion. Under Rule 7(c) of the Uniform Rules, "[t]he court shall base its findings on credible and competent evidence, including medical testimony and such other evidence as may be admitted." The commentary for Rule 7(c) further provides that "a judge must hear medical testimony but may base a decision on other testimony and evidence."

The hearing judge appropriately questioned the petitioner to clarify her concerns about risk of harm to C.C. due to prostitution. We accept the findings of fact of the trial judge and defer to her assessment of the credibility of the petitioner, C.C.'s

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mother. "The hearing judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because 'it is the trial judge who, by virtue of his [or her] firsthand view of the presentation of evidence, is in the best position to judge the weight' and materiality of the evidence and credibility of the witnesses at trial." Matter of A.L. 2019 Mass. App. Div. 131, 133, quoting Matter of A.M., supra at 401 n.5. The judge heard evidence that C.C. was a petite, twenty-one year old woman, with a history of psychiatric issues, who was admittedly struggling with a drug problem that was significantly interfering with her life. She had no apparent source of income to support her drug use. She had admitted to her mother and her sister that at times she had prostituted herself to get money for drugs. We agree with the hearing judge that prostitution is evidence of a risk of physical harm, but we do not see a sufficient showing here that the risk of harm to C.C. due to prostitution was imminent. The petitioner told the judge that C.C. had admitted to her, most recently "a couple of months" before the hearing, that she had prostituted herself for money. The petitioner also told the judge that C.C. had admitted to her sister that she prostituted herself for money, but there was no time frame given for those statements. There was no other evidence to show that the risk of physical harm to C.C. due to prostitution, or anything else, was imminent.

For all these reasons, while there was sufficient evidence to demonstrate that the respondent suffered from a substance use disorder, there was insufficient evidence to show a likelihood of serious harm by clear and convincing evidence. Therefore, the order of commitment is vacated.