IN THE MATTER OF H.A.

FINNERTY, P.J. H.A. appeals his involuntary commitment to Bridgewater State Hospital under G.L. c. 123, § 16(c) on three grounds. First, he claims that he should have been provided an interpreter in his native Farsi language; second, that his request for a continuance ought to have been granted; and third, that the evidence at hearing was legally insufficient to support the court's order.

On December 11, 2019, [Note 2] H.A. was before the Brockton District Court on the petition ofthe superintendent of Bridgewater State Hospital to commit him under G.L. c. 123, § 16(c) for a one-year period. H.A. is a native of Iran and had no formal instruction in the English language, which he had begun learning while incarcerated. He acknowledged that he had participated in prehearing discussions with the court, including those about his wish to represent himself and to continue the hearing so he could subpoena witnesses. After denial of H.A.'s prehearing motions and a motion to continue the hearing, H.A. requested a Farsi interpreter. After lengthy discussion, the court denied H.A.'s request for an interpreter, noted that at an earlier time H.A. had withdrawn such a request, and determined that H.A. did not require an interpreter for the hearing. H.A. acknowledged the earlier withdrawal but insisted that, considering the petitioner's anticipated expert witness testimony, he needed assistance to understand the witness and prepare cross-examination.

H.A. argues both in his brief and at oral argument that our review of the statutory and constitutional standards at play is de novo. We view compliance with both the statutory and constitutional requirements in this case under an abuse of discretion standard. A judge's discretionary decision constitutes an abuse of discretion where we conclude "the judge made 'a clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable

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alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"General Laws c. 221C, § 2, provides that '[a] non-English speaker, throughout a legal proceeding, shall have a right to the assistance of a qualified interpreter who shall be appointed by the judge.' A 'non-English speaker' is defined as 'a person who cannot speak or understand, or has difficulty speaking or understanding, the English language, because he uses only or primarily a spoken language other than English.' G.L. c. 221C, § 1. Waiver of this right is only effective if approved by the judge, on the record, after the non-English speaker has consulted with counsel, who explains the effect of the waiver through an interpreter. G.L. c. 221C, § 3(a). A non-English speaker's failure to request an interpreter is not deemed a waiver of that right. G.L. c. 221C, § 3(b)." Commonwealth v. Gautreaux, 458 Mass. 741, 753­754 (2011). See also § 14.04 of the Trial Court Standards and Procedures of the Office of Language Access (approved January 20, 2021) established pursuant to G.L. c. 221C, § 7(d), which uses the term Limited English Proficient ("LEP") individuals instead of non-English speakers. [Note 3] An LEP person is one who does not speak English as his or her primary language and has limited ability to read, speak, write, or understand English. See Standards § 2.22.

"A failure to provide a non-English speaker with a competent interpreter implicates multiple constitutional rights. As a matter of fundamental fairness, a [party] has a due process right to understand the proceedings. . . . A judge also is required to provide a non-English speaker with a competent interpreter in order to safeguard a [party's] rights under the Sixth Amendment to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights, to be present at trial and to confront adverse witnesses" (citations omitted). Commonwealth v. Lee, 483 Mass. 531, 540 (2019).

It is generally the duty and burden of the party to raise the need for an interpreter in a timely fashion, and the party claiming a violation of G.L. c. 221C, § 2 bears the burden of proving that the affected party is a non-English speaker. Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729, 735 (2006). See also United States v. Carrion, 488 F. 2d 12, 15 (1st Cir. 1973). The issue was raised by H.A. at the hearing and was addressed by the judge. Where a litigant has at least "some ability to understand and communicate" in English, the determination of the need for an interpreter is left to the wide discretion of the judge. Commonwealth v. Turell, 6 Mass. App. Ct. 937, 938 (1978), quoting United States v. Carrion, supra at 14. Although factors such as the complexity of issues are significant, the crucial factor is the level of fluency of a given party. That judgment is uniquely within the province of the trial judge, who is in direct contact with the party and accordingly must have wide discretion. "Unless the record reveals blatant insensitivity to a language problem, with the result that the [party] was deprived of a fair [hearing], an appellate court will not disturb the exercise of that discretion." Commonwealth v. Garcia, 379 Mass. 422, 437 (1980). See also Adoption of Dave, No. 20-P-763 (Mass. App. Ct., May 25, 2021) (unpublished Rule 23.0 decision). Our review, despite H.A.'s exhortation, is not de novo.

Here, the trial judge found, and the record supports his finding, that H.A. had the ability to understand and communicate in English. The petition had been pending for seven months; H.A. had four prior attorneys since his arrival at Bridgewater State

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Hospital in 2017, all of whom he had discharged; he was representing himself pro se with standby counsel; he had filed numerous pretrial motions and had filed an appeal to the single justice of the Supreme Judicial Court; and on the day of the hearing, he presented some sixteen prehearing motions hehad prepared. It was only after the court denied H.A.'s motion for recusal and his motion to continue the hearing and when the petitioner's first witness began testimony that H.A. claimed a need for an interpreter. The record shows that H.A. engaged in a lengthy back and forth discussion with the court; the trial judge had previously interacted with H.A. in earlier proceedings; and far from "blatant insensitivity to a language problem," Commonwealth v. Garcia, supra, the record shows the trial judge made the considered decision that the respondent was able to proceed without an interpreter. Ultimately, H.A. excused himself from the proceeding, and it went forward with his interests being represented by counsel. [Note 4] We do not find the fact that the petitioner's expert witness used a Farsi interpreter in conducting her psychiatric evaluation of H.A. to require a different conclusion. That choice was based on the expert's determination of her needs in conducting such an evaluation, and the record does not reveal the extent to which interpreter services were needed or used. The only reference in the record is the expert witness's testimony that: "I met with him for two hours and utilized a Farsi phone interpreter at that time as well." [Note 5]

The court did not abuse its discretion in denying H.A.'s motion for a continuance. The petition had been pending for seven months and had been continued at least ten times. At least three of H.A.'s discovery motions had previously been allowed, and it was well within reasonable for the court to conclude that H.A.'s latest request was an attempt to further delay the hearing.

As for the court's finding that H.A. required commitment to the strict security of Bridgewater State Hospital, the court had evidence before it in the testimony of the petitioner's expert witness that H.A. suffered delusional disorder, persecutory type with a possibility that there was an affective component suggesting that H.A. may meet the criteria for schizoaffective disorder. H.A. could not be managed in a penal setting, as he had gone on a twenty-two day hunger strike and cut his wrists when last in such a setting. Furthermore, H.A. did not follow the rules even in the strict security of Bridgewater State Hospital. According to the expert witness's testimony, H.A. presented a risk of harm to other patients, as he had been involved in physical contact and threatening behavior with other patients requiring staff intervention and would be a particular threat to mentally ill female patients if he were to be in a DMH facility. It is worth noting that H.A.'s index event was a sexual assault involving rape and strangulation. "There is no requirement that a 'likelihood of serious harm' be established by evidence of a recent overt act. Nor does the statutory definition of 'likelihood of serious harm' require a recent overt act" (citations omitted). Commonwealth v. Rosenberg, 410 Mass. 347, 363 (1990). See Matter of D.D., 2019 Mass. App. Div. 101. The petitioner's expert testified that in a penal setting, H.A. was at risk of inviting harm to himself due

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to his inappropriate interaction with other inmates. There was ample support for the court's finding that H.A. was not aproper subject for commitment to a Department of Mental Health facility and that the strict security of Bridgewater State Hospital was required.

The commitment order is affirmed.