2022 Mass. App. Div. 4

June 11, 2021 - March 24, 2022

Appellate Division Southern District

Court Below: District Court, New Bedford Division

Present: Finnerty, P.J., Pino & Campbell, JJ. [Note 1]

No brief filed for the petitioner.

Maja Bozic for the respondent.

CAMPBELL, J. After a hearing on a petition for commitment pursuant to G.L. c. 123, § 35, the judge determined by clear and convincing evidence that the respondent, M.O.D., suffered from a substance use disorder and presented a likelihood of harm to himself. The judge entered an order of commitment to a facility approved by the Department of Public Health for care and treatment of individuals with an alcohol or substance use disorder for a period not to exceed ninety days. The respondent, M.O.D., appeals. We vacate the order of commitment. [Note 2]

On May 10, 2021, M.O.D.'s father petitioned the New Bedford District Court for the commitment of his son, M.O.D. While the petitioner was in telephone contact with his son, he had not seen him in person for almost five years, until he came to visit just the day before filing the petition. [Note 3] Prior to the hearing, Angela Razza ("Razza"), a designated licensed social worker,interviewed and examined M.O.D. She also spoke with the petitioner, M.O.D.'s father.

Razza and the petitioner testified at the hearing. They agreed that for a year or so preceding the filing of the petition, M.O.D. was living in an apartment on his own and working. While the petitioner raised a concern that M.O.D.'s employment was in jeopardy due to issues associated with tardiness, there was no evidence of job loss.

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At the hearing, there was no evidence of any recent overdose, visit to an emergency room,or hospitalization. There was no evidence of Narcan being administered to M.O.D. at any time in the recent past.

Razza provided M.O.D. with the Lamb warning, [Note 4] which he understood. M.O.D. answered Razza's questions coherently. He fully cooperated in her assessment.

M.O.D. admitted that about eight weeks earlier, he suffered a relapse. He denied the petitioner's representation that he was using heroin, methamphetamines, crack cocaine, benzodiazepines, or alcohol. His relapse involved Percocet and Adderall. M.O.D. denied any recent intravenous drug use.

Based on her training and experience, Razza offered her clinical opinion that M.O.D. met the definition ofa person who suffered from a substance use disorder. She further opined that based on the totality of the facts and circumstances, M.O.D. did not meet the second requirement for commitment pursuant to G.L. c. 123, §35. She found there was not sufficient evidence of a likelihood of serious harm to warrant involuntary commitment. Razza testified that there were less restrictive treatment alternatives in the community to meet the needs of M.O.D.'s substance use disorder. [Note 5]

M.O.D.'s father told the court he did not observe M.O.D. using drugs. Nor did he see any drugs in M.O.D.'s apartment. He stated that M.O.D.'s actions, such as nodding off, falling asleep in the father's car while having a lit cigarette, and his discovery of what he believed to be a crack pipe in M.O.D.'s apartment, demonstrated M.O.D.'s need for commitment. He said, "[L]eft to my son's devices, he will end his life." He testified that the day before the hearing, M.O.D. told him he no longer had a desire to live. Other than that statement, there was no time context provided to petitioner's claim M.O.D. made an additional statement that he would overdose. [Note 6]

While the petitioner said M.O.D. was involved with the Department of Children and Families ("DCF") because of a dirty urine, he admitted on cross-examination that DCF's involvement arose, not only from M.O.D.'s dirty urine, but also because of an incident where M.O.D.'s child's mother hit M.O.D. with her car.

The judge found there was sufficient evidence to support M.O.D.'s involuntary commitment.

General Laws c. 123, § 35 guides judges in their assessment regarding whether a respondent meets the statutory criteria for civil commitment for a substance use disorder. Pursuant to G.L. c. 123, § 35, 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." Id.

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In addition to finding a respondent suffers from a substance use disorder, a judge must find a "likelihood of serious harm." A likelihood of serious harm is defined as: "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) 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." Matter of G.P., 473 Mass. 112, 124-125 (2015), quoting G.L. c. 123, § 1.

As to our review of the trial court's findings, we review the 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). See Matter of B.D., 2019 Mass. App. Div. 180 (where respondent came from hospital after treatment for abscess but there was no more detailed evidence of risk of harm, second requirement for commitment, likelihood of serious harm, could not be met).

The clinician at M.O.D.'s hearing clearly testified that she found M.O.D. did not meet the second requirement for commitment. He did not present a "likelihood of serious harm." Instead, she found there was adequate care available in the community for the treatment of M.O.D.'s substance use disorder. The clinician's testimony does not support the judge's finding. Therefore, we look elsewhere in the record for facts supporting a finding of a likelihood of serious harm. The only prong of G.L. c. 123, § 35 regarding likelihood of serious harm that the judge found was proven in M.O.D.'s case was that he presented "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm." G.L. c. 123, § 1. The statements offered at the hearing in support of that finding were hearsay statements of the petitioner, M.O.D.'s father, which M.O.D. denied ever making.

The petitioner told the court M.O.D. did not desire to live any longer and that at some undisclosed time in the past he threatened to take his life by overdosing. These hearsay statements were unsupported as there was no evidence of recent overdoses, visits to the emergency room, or hospitalizations. There was no evidence of recent use of Narcan. The petitioner had not observed M.O.D. using drugs. Nor did he see any drugs when he visited M.O.D.'s apartment. As such, there is insufficient evidence to find by "clear and convincing evidence" a likelihood of serious harm as defined in the statute. See Matter of a Minor, 484 Mass. 295, 297-298 (2020) (even though mother believed juvenile was mixing alcohol and Xanax, exhibited signs of impairment, and had recently undergone unsuccessful treatment, there was insufficient evidence to support finding of likelihood of serious harm). Further, there was no proof any self-harm was "imminent." See Matter of G.P., supra at 128 (harm must be "imminent," which in this context means "a substantial risk that the harm will materialize in the reasonably short term --in days or weeks rather than in months"). See also Matter of a Minor, supra at 297.

The facts of this case stand in contrast with Matter of B.E., 2020 Mass. App. Div. 117,

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aff'd, 21-P­177 (Mass. App. Ct. March 7, 2022) (Rule 23.0 unpublished decision) (where respondent recently was seen operating her car while under influence ofalcohol, made several suicidal statements in past few days to different family members, and was in treatment and immediately began consuming alcohol when released, standard for commitment met); Matter of K.T., 2020 Mass. App. Div. 45 (where respondent suffered from face and head injuries from falls while intoxicated and was seen staggering in and out of traffic while under influence, he presented very substantial risk of physical impairment); Matter of C.R., 2019 Mass. App. Div. 111 (commitment appropriate where there was reliable testimony that respondent received Vivitrol shot and continued to drink, which can be fatal mix).

For all the foregoing reasons, M.O.D.'s order of commitment is vacated.


[Note 1] The Honorable Cathleen E. Campbell participated in the deliberation of this case and authored this opinion prior to her appointment to the Superior Court.

[Note 2] M.O.D. filed for expedited review by the Appellate Division, which was allowed. See Rule 11 of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders. See Matter of G.P., 473 Mass. 112, 123-124 (2015). After oral argument, the Appellate Division issued an interim decision and order vacating the order of commitment and indicated that a full opinion would follow.

[Note 3] In his petition, M.O.D.'s father stated that his son was "using heroin, meth, crack cocaine, benzos and alcohol with increased frequency." Further, he said M.O.D. made a recent statement that he was "hanging on by a thread, maybe I can just die." Petitioner interpreted that statement as a suicide threat. M.O.D. voluntarily sought treatment on April 6, 2021, but left the next day. Preceding the hearing, counsel on behalf of M.O.D. sought dismissal of the petition. The judge denied this motion. After review of the affidavit in support of the petition, we discern no error in that initial ruling.

[Note 4] Prior to the examination, a clinician must provide the respondent with warnings regarding the unprivileged nature of communications made during the examination. See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974).

[Note 5] There was no challenge, at any time during the hearing, to Razza's professional qualifications to render such an opinion.

[Note 6] Petitioner testified that M.O.D. told him he would "put enough in the spoon [to] endit all."