2022 Mass. App. Div. 1

May 25, 2021 - March 23, 2022

Appellate Division Western District

Court Below: District Court, Winchendon Division

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

No brief filed for the petitioner.

Cara J.O'Donnell for the respondent.

STARK, P.J. On May 18, 2021, a petition for civil commitment pursuant to G.L. c. 123, § 35 was heard in the Winchendon District Court. After the hearing, a judge committed the respondent, A.J., to the Women's Recovery from Addiction Program. The respondent filed an expedited appeal, where she argued that the evidence was insufficient to meet the criteria for commitment. On June 24, 2021, this Division vacated the commitment order without a formal, comprehensive written decision given the expedited nature of the appeal and the liberty interests at stake. What follows is our formal opinion upon which the earlier decision is based.

Dr. Amanda Silveira, a licensed psychologist, testified at the hearing. The respondent declined to speak to the doctor, so the doctor's testimony was based on her conversation with the petitioner who is the respondent's father, with "the individual [named Matt] that [the respondent has] been living with for the past week," and her observations of the respondent. The respondent has a history of drug use spanning approximately five years, including IV heroin use and has been committed two or three times over the past year. The petitioner believes that the only time the respondent has been sober was during the periods of commitment.

The respondent was hospitalized for an infection in her blood and heart area from February of 2021 to May of 2021. She also has blood clots in her lungs. The respondent left the hospital in March against medical advice, yet she returned a couple of weeks later. The respondent was drug free during her hospitalization. Prior to her hospitalization, the respondent had been "using drugs regularly."

When the respondent was released from the hospital, she went to "a rehab" from May 1 to May 11. The rehabilitation center was not one for substance use disorder, but instead was related to the respondent's hospitalization for other medical reasons. During A.J.'s time at the rehabilitation center, the petitioner saw text messages the respondent had been sending and receiving that made the petitioner believe that the respondent had been using drugs while she was at the rehabilitation center. There was no evidence to support the petitioner's suspicion of A.J.'s drug use at the rehabilitation center.

The petitioner also thought that the respondent was using heroin daily immediately prior to the hearing. His belief was based on his assertion that he can tell when the respondent has been using: "[H]er demeanor will change, she'll begin to doze off, her pupils will be become dilated, [and] that she sort of . . . zones out." The petitioner was also concerned that the respondent was using drugs because he gave the

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respondent money to purchase items at a store, but she came home with no money and none of the items she was supposed to purchase. The petitioner was further concerned because the respondent had a doctor's appointment the day before the hearing, and she did not keep the appointment. The petitioner suspected that the respondent relapsed, and that such relapse placed the respondent at a higher risk to have her medical conditions worsen. The petitioner has never seen the respondent use heroin. Nor did he observe any substances or paraphernalia in his home.

The friend that the respondent was residing with one week prior to the hearing, whose name is Matt, was also concerned that the respondent had been using daily because at times she returned to the apartment and her demeanor had changed, she was "dozing off," and her pupils were dilated. Matt never observed the respondent using substances, and he had no firsthand knowledge that the respondent had failed to attend her medical appointment.

Even though the respondent declined to speak to the doctor, the doctor had a brief conversation with her and observed that she made appropriate eye contact, was not falling asleep while speaking, and the doctor did not observe any marks on the respondent's body that would be indicative of substance use. The doctor did, however, see red spots on her face that were consistent with the petitioner's report that such marks appear when the respondent is using. The doctor did not testify that such spots are a common indicia of drug use. There was no evidence that the respondent had any overdoses in at least three months prior to the hearing. Nor had she been hospitalized for any health or drug related issues since her release from the hospital in May.

The doctor opined that the respondent was "chronically, habitually using opioids," and that she "is at imminent risk to harm herself based on the two medical conditions" that she suffers from and that she failed to keep a medical appointment.

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). 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 disorderif the petition were 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. Id. 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., 94 Mass. App. Ct. 399, 402 (2018). The "very substantial risk" of harm is demonstrated by evidence that "(1) the respondent's judgment

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is so adversely affected by [substance abuse] 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." Matter of G.P., supra at 128-129. A showing of imminence is also required. Id. at 129. 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. at128. To establish a very substantial risk of physical harm required by prong three of the statute, which is applicable here, "the imminence ofthe risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129.

The pertinent issue raised in this case was the sufficiency of evidence on the issue of imminent risk of harm to the respondent. To establish prong three of the definition oflikelihood of serious harm -- that there is a very substantial risk of harm to the respondent herself -- there is a heightened imminence requirement. Id. Additionally, the focus of the evidence must be on the respondent's degree of impaired judgment due to drug abuse; the degree of likelihood that, as a direct consequence, the respondent will sustain injury (for example,by failing to take care of a medical condition that is exacerbated by continued abuse of drugs); and the inability of any other person in the respondent's community to provide protection against such risks. Id. Here, the doctor opined that the respondent was at imminent risk to harm herself based on the two medical conditions that she suffers from and that she failed to keep a medical appointment. There was no evidence presented regarding the relationship between a substance use disorder and the respondent's medical conditions. Indeed, the doctor's opinion appears to be based solely on her belief that the respondent missed a doctor's appointment. First, the petitioner and Matt believed that the respondent missed an appointment. They did not know whether the respondent missed an appointment. Second, there was no evidence that if the respondent did indeed miss a medical appointment, that it was due to substance use. There was no other evidence to show that the risk of physical harm to the respondent due to her medical conditions was imminent.

For all these reasons, there was insufficient evidence to demonstrate that there was a likelihood of serious harm by clear and convincing evidence. Therefore, the order of commitment is vacated. [Note 1]


[Note 1] Because the commitment order is vacated on the grounds set forth herein, we need not address the other issues raised on appeal.