IN THE MATTER OF R.E.

SPRING, J. R.E. was committed to Meadowbrook-Men's Addiction Treatment Center following a hearing conducted pursuant to G.L. c. 123, § 35 in the Lowell District Court on May 14, 2021. R.E. appealed from that order to this Appellate Division pursuant to G.L. c. 123, § 9(a).

On May 13, 2021, R.E.'s sister ("the petitioner") filed a petition under G.L. c. 123, § 35. After R.E. did not appear on a summons, a warrant of apprehension issued on May 14. Later that day, R.E. was brought to the Lowell District Court on that warrant. A hearing was held in which the court heard testimony from Dr. Andrea Buonaugurio ("the clinician"). The petitioner did not appear.

The clinician testified she spoke with the petitioner and with R.E.'s father. The clinician also testified that she spoke with a social worker at the Lowell General Hospital. Based on those conversations, the clinician told the court that the family had concerns about R.E.'s crack cocaine and Klonopin use, specifically, that R.E. smokes crack cocaine daily and uses Klonopin several times a month. The clinician further testified that the family indicated when R.E. takes both, he starts to make threats to hurt himself. The petitioner told the clinician that R.E. said a week before the hearing that he was going to "jump off of a bridge" and when R.E. learned of the summons in the instant matter, R.E. said that he wanted to be shot dead. The clinician testified that R.E. had taken the petitioner's car without permission two days before the hearing, had called the petitioner the next day in excess of fifty times at work demanding money, and had shown up at R.E.'s father's workplace that same day also demanding money. R.E.'s father also relayed that R.E. had threatened to kill himself multiple times and that he believed a car accident sometime "over the past winter" was a result of R.E. being under the influence.

The clinician also testified to her conversation with the social worker. The social worker stated that R.E. had arrived at Lowell General Hospital on October 23, 2020, after an overdose. At that time, R.E. tested positive for cocaine, benzodiazepines, fentanyl, and methadone. R.E. returned to the hospital a couple of days later suffering from seizures and other symptoms consistent with substance abuse. The clinician indicated that R.E.'s family believed this overdose happened in February, not October, and that R.E. denied being suicidal when meeting with the social worker.

Finally, the clinician testified to her conversation with R.E. R.E. said that he uses crack cocaine a couple of times a week and benzodiazepines when he smokes. R.E. denied using heroin or fentanyl, despite testing positive for it previously. R.E. denied

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suicidality due to his religion. R.E. presented to the clinician during the interview as logical, pleasant, and cooperative.

The clinician told the judge that the family had filed several petitions previously. Some of those warrants expired, and one resulted in a hearing held in October of 2020, where the commitment petition was denied.

The clinician opined that R.E. suffers from a substance use disorder and that he is at risk for overdose, withdrawal seizures, and a risk to others if driving while under the influence. In order to commit a person under G.L. c. 123, § 35, a court must find that "such person 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." Id. Under the statute, a "substance use disorder" is defined as "the chronic or habitual consumption or ingestion of controlled substances .. . 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." Id. "Likelihood of serious harm" is defined in G.L. c. 123, § I 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." See Matter of G.P, 4 73 Mass. 112, 124­125 (2015).

In addition, the Supreme Judicial Court has determined that there must also be a showing under the first and second prongs that the harm is imminent. Id. at 127. The petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent's substance use disorder. Id. "Imminent" is not immediate. The petitioner does not need to establish that the harm will occur immediately, but rather that it will occur in the reasonably short term. A finding that the harm will materialize in days or weeks is sufficient. Id. at 128. The burden of proof in establishing a respondent suffers from a "substance use disorder" and that there exists a "likelihood of serious harm" is clear and convincing evidence. Id. at 120.

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 use disorder and that the disorder placed the respondent in imminent likelihood of serious harm. Matter of a Minor, 484 Mass. 295,307 (2020). 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. A judge must also find by clear and convincing evidence that there were no appropriate, less restrictive alternatives to commitment. Id. at 308-310.

In the instant matter, there was substantial evidence upon which the hearing judge based both his findings regarding a substance use disorder and the imminent likelihood of serious harm. Specifically, testimony at the hearing supports the finding that

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R.E. suffers from a substance use disorder. R.E. admitted to having a problem with Percocet and a history of crack cocaine use since the age of eighteen. The hearing judge would have been permitted not to credit R.E.'s statement that he never used heroin or fentanyl based on the statements from the social worker saying there was a positive test in R.E.'s system at the hospital. The social worker further stated to the clinician that the reason she had occasion to evaluate R.E. was due to an overdose that required Narcan. At that hospitalization, R.E. admitted only to using cocaine and Xanax, consistent with his admissions and denials during his evaluation by the clinician. The testimony regarding R.E.'s readmission to the hospital only two days later experiencing ten to fifteen seizures is consistent with someone suffering from a substance use disorder. Upon return to the hospital, R.E. admitted to opiate use and buying benzodiazepines on the street. In addition, testimony from the clinician regarding R.E. demanding money from his family, unauthorized use of a family motor vehicle, and possible driving under the influence all support the hearing judge's finding of a substance use disorder.

R.E. also argues that the hearing judge's findings regarding the "likelihood of serious harm" were insufficient. We disagree. The facts regarding the overdose, the seizures, the alleged driving under the influence, the statements regarding shooting himself made on the day R.E. learned of the summons, and R.E.'s minimization and incredible statements regarding his substance use all give rise to a proper finding of likelihood of serious harm. Matter of a Minor, supra at 306-307.

R.E.'s argument that the trial judge's findings were based on unreliable hearsay also fails. In Matter of G.P., supra at 122, the Supreme Judicial Court cited to Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010), in which the Court identified a nonexclusive list of factors for judges to consider in determining whether hearsay is reliable, namely, the level of factual detail (rather than generalized and conclusory assertions); whether the statements were made based on personal knowledge and direct observation; whether the statements were corroborated; whether the statements were made under circumstances that support the veracity of the source; and whether the statements were made by disinterested witnesses. See Commonwealth v. Durling, 407 Mass. 108, 121 (1990). Applying the Durling factors to the hearsay credited in this case, we conclude there was no error in the trial judge finding the hearsay to have been reliable. The judge heard from the clinician who relied on the information from the social worker at the Lowell General Hospital. The social worker was a disinterested witness who was merely reporting on her conversation with R.E. in her professional capacity, and there was no evidence to suggest that the witness was other than disinterested. The social worker's testimony is corroborated by records of admission and tests performed on R.E. contemporaneous to his hospitalization and are uncontroverted. The hearsay evidence provided by R.E.'s family about his drug use was corroborated by the information from the social worker. Even if the family's uncorroborated information regarding the possible operation under the influence was discounted by the judge, there was more than enough reliable hearsay regarding the likelihood of harm borne out through the testimony regarding the hospitalization for an overdose and subsequent trip to the hospital as a result of multiple seizures tied to his substance use disorder.

For the reasons stated above, the order of commitment of R.E. under G.L. c. 123, § 35 is affirmed.

So ordered.