IN THE MATTER OF S.V.

MURPHY, J. S.V. appeals an order authorizing medical treatment that issued pursuant to G.L. c. 123, § 8B ("§ 8B") on March 20, 2019. [Note 1] He does not appeal the judge's § 8B findings regarding competency. He claims that the § 8B order is unlawful because the trial judge: failed to properly apply the substituted judgment standard; lacked sufficient evidence to satisfy that standard as to each proposed medication; and considered "improper factors" in reaching her decision. In support of his claims, S.V.'s record appendix includes only a transcript of the substituted judgment portion of the § 8B hearing. Worcester Recovery Center and Hospital ("WRCH") claims the record appendix is not complete and argues this Appellate Division cannot, on the basis of the record presented, find that the trial judge's findings were clearly erroneous. Because we find the record appendix insufficient, we do not reach the merits of this case and dismiss the appeal.

Background. S.V. was admitted to WRCH on February 11, 2019. On March 8, 2019, WRCH filed a G.L. c. 123, § 8B petition for treatment. The § 8B hearing began on March 13, 2019, on which date the judge heard evidence regarding S.V.'s competency. On March 19, 2019, the trial judge found S.V. incompetent based on the March 13th proceeding. On March 20, 2019, the same judge heard additional evidence related to the substituted judgment portion of the § 8B petition and allowed the treatment order after completing the hearing. The § 8B order expired on September 18, 2019. [Note 2]

On March 27, 2019, S.V. filed a timely notice of appeal and thereafter an appeal on

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the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C. He challenges the trial judge's findings and rulings solely as they relate to substituted judgement. In compiling the transcript, the parties noticed, corrected, and obtained court approval to amend certain errors in the transcript of the March 20, 2019, hearing. On or before May, 2020, WRCH attempted to obtain an audio recording of the March 13, 2019, portion of the § 8B hearing related to competency but did not obtain the recording. WRCH asked for additional time to obtain and transcribe the recording. It is unclear whether either party ever obtained a recording of the March 13, 2019, hearing. It is uncontested that S.V. failed to include a transcript of the March 13, 2019, competency hearing in the record appendix. He did not request additional time to obtain and file a transcript of the March 13, 2019, hearing or attempt to replicate the hearing or supplement the record appendix as provided in Rule 8C.

Discussion. As previously stated, neither patty provided this Appellate Division with a transcript of the March 13, 2019, § 8B hearing. S.V. filed a motion to strike the portion of WRCH's brief addressing the lack of the competency hearing transcript. He claims the transcript regarding competency is not relevant to the trial judge's decision and is unnecessary to decide the substituted judgment issues. We disagree.

A trial judge, after a hearing, may not authorize antipsychotic medication treatment unless she "(i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." G.L. c. 123, § 8B(d). In the substituted judgment portion of the hearing, the "court dons the mental mantle of the incompetent and substitutes itself as nearly as possible for the individual in the decision-making process. . . . [T]he court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent" (internal quotations and citations omitted). Guardianship of Roe, 411 Mass. 666, 673 (1992). In addition to the six factors laid out in Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 505-506 (1983), "[T]he judge may review any other factors which appear relevant." Id. at 506. In order to "don the mental mantle of the incompetent," a judge may consider the evidence presented during the competency phase of the § 8B hearing. "How a hearing judge weighs the evidence and gauges the credibility of witnesses is entitled to deference by appellate courts." Matter of A.E., 2019 Mass. App. Div. 5, 9, citing Custody of Eleanor, 414 Mass. 795, 800 (1993).

Here, the judge, after referencing her finding of incompetence, recommenced the § 8B hearing by stating it was a continuation of the prior hearing. [Note 3] The record is clear that Dr. Daou, the first and only witness during the substituted judgment portion of the hearing, had previously testified. The testimony of Dr. Daou and perhaps others, as offered on March 13, 2019, could have included evidence relevant to the trial judge's findings and rulings on substituted judgement. As such, at a minimum, the transcript from the entire § 8B hearing should have been part of the record in this

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appeal because the issues of competency and substituted judgement are inextricably intertwined. A trial judge is free to draw on evidence offered during the competency portion of the hearing when applying substituted judgment as it may include "any other factors" as referenced in Rogers. Without it, we cannot discern to what degree, if any, the trial judge considered the testimony from the competency portion of the § 8B hearing. Additionally, in a recent case that was decided after this appeal was argued, the Appeals Court held that a trial judge may consider evidence presented at a G.L. c. 123, §§ 7 and 8 commitment hearing when ruling on a § 8B treatment petition. See Matter of MS., 99 Mass. App. Ct. 247, 251 (2021). Such evidence may also have been pertinent to the trial judge's substituted judgment analysis, and were there any indication it was considered, then the transcript from the underlying §§ 7 and 8 hearing should also have been included in the record on appeal. [Note 4]

"It is elementary that the burden is on the appellant to prepare and furnish an adequate trial court record for review on appeal." Donovan v. Mahoney, 2012 Mass. App. Div. 4. Appellate Division Rules 8C(b) and 18 specifically govern the procedures to be followed when compiling the record appendix. The appellant is required to "prepare and file an appendix to the briefs .... The appendix shall contain: (1) the notice of appeal; (2) a copy of the docket entries in the trial court proceedings; (3) the findings, if any, and relevant portions of the pleadings; (4) the judgment, order, decision or rulings in question; (5) the transcript or relevant portions thereof; and (6) any other parts of the record for appeal which are necessary for the full understanding of the issues presented." Rule 18(a). A commonsense reading of this rule in conjunction with Rule 8C requires an appellant challenging a § 8B order to, at a minimum, include a complete transcript of the entire § 8B hearing, or a stipulation by both parties that portions of the record are unnecessary. [Note 5] Applying these rules, we find S.V.'s record appendix to be deficient. [Note 6]

We determine that the failure of S.V. to provide a complete transcript of both parts of the § 8B hearing is a serious misstep. Lashus v. Slater, 2009 Mass. App. Div. 89, 91-92; Frankston v. Ferme, 2007 Mass. App. Div. 203, 205. "Failure to adhere to these requirements [of Rule 18(a)] manifestly puts the appellee materially at a disadvantage. . . . It is neither appropriate nor conducive to a rational appellate practice to expect any appellate court to delve into a raw transcript to cull out possible error unaided by the refining process of an appendix which is the distillation of the contentions

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appellant wishes to raise and the focus for the briefs and promotes orderly presentation and determination of the issues." Rosenthal v. Colonna, 1996 Mass. App. Div. 111, 112. A substantive review of the approval of the treatment petition cannot be undertaken on the basis of the inadequate record appendix prepared and filed by S.V. See Oakwood Living Ctrs. v. Saquet, 2003 Mass. App. Div. 98, 99. In this case, we are left to speculate about the evidence offered during the competency portion of the § 8B hearing, which the trial judge was entitled to draw from in making her decision. This serious misstep also applies to S.V.'s other claims of error because this Appellate Division cannot properly reach those arguments without a complete transcript of the treatment petition hearing.

Based on the foregoing, S.V.'s motion to strike is denied and his appeal is dismissed.