IN THE MATTER OF M.C.

GOBOURNE, J. On August 27, 2020, after a hearing before a Justice of the Marlborough District Court, the appellant ("M.C.") was committed to the Massachusetts Alcohol and Substance Abuse Center pursuant to G.L. c. 123, § 35. Police Officer Keith Moro ("Moro") of the Marlborough police department was the sole petitioner in the original commitment request at the court. Officer Moro's petition and affidavit were filed with the court on the same day of the subsequent hearing at issue. Upon review of Officer Moro's affidavit and supporting documentation, the court signed a warrant of apprehension for M.C. [Note 2] He was apprehended and brought before the court that same day. He was appointed an attorney, and a mental health hearing pursuant to G.L. c. 123, § 35 was held; as a result of that hearing, M.C. was involuntarily committed. M.C. is appealing his involuntary commitment.

Dr. Novak, the court's designated forensic psychologist, was the only witness at M.C.'s commitment hearing. M.C. declined to speak with her, as was his right. However, to complete her evaluation, she reviewed the petitioner's affidavit, several police reports that were provided by the Marlborough police department that involved incidences related to M.C., and papers that had been filed in a previous "section 35" hearing, petitioning for M.C.'s commitment, that had been heard in Marlborough District Court in 2018.

Officer Moro was familiar with the appellant due to many recent "medical calls" involving M.C. He averred in the affidavit in support of his petition that "[M.C.] consumes alcohol on a daily basis. Oftentimes, he is found passed out on the ground. On August 23rd [2020], [M.C.] stated to Officer McCarthy that he cannot stay sober. He stated he has tried but is unable to stop drinking." [Note 3]

Dr. Novak testified that the police had been called on fifteen separate occasions between May 15, 2020, and August 23, 2020, for medical complaints related to M.C., and that on five of those occasions he was located "passed out, intoxicated on the ground." One time he was found lying in mulch, another time in a stranger's yard, and three times in Steven's Park, the park in which M.C. was living at the time. The

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doctor further opined that that the record of his prior commitment showed that M.C. had a history of multiple prior withdrawal seizures. She added that he suffers from several medical complaints, including chronic obstructive pulmonary disease ("COPD") -- an inflammatory lung disease -- hypertension, and liver cirrhosis, and that these illnesses can be "exacerbated by ongoing alcohol use."

The doctor went on to explain that the police reported that they had contact with M.C. multiple times a week, sometimes daily, and they believed he drank every day. The police had offered him rides to detox, but M.C. refused each time. Dr. Novak stated that there were concerns for M.C.'s ability to take care of himself because he was homeless and was living in a park in the area.

Dr. Novak continued that in reviewing the police reports, it came to her attention that M.C. was facing allegations of an indecent assault and battery on a person over fourteen years of age and that those allegations stemmed from an incident that took place on June 28, 2020. She noted that there were some "differing opinions about what happened on the day in question." However, the police did report that all the parties involved, including M.C, appeared intoxicated. The police report stated that M.C. called the police to allege that he had been assaulted in the park, for no reason, by two to three people. Upon arriving at the park to investigate the incident, a "female party" reported that she had been sexually assaulted by M.C.

Based on the reports of the incident involving M.C. being assaulted and/or sexually assaulting a woman in the park, the doctor testified that it was "certainly concerning" that M.C. "has been at risk of victimization and being assaulted while being intoxicated in the community or is placing others at risk due to this alleged sexual assault in the community." The doctor also referenced an incident that occurred on June 14, 2020, at the park in which M.C. was living at that time. According to the police report relating to that incident, M.C. was wrapped in a white blanket (no suggestion of nudity) and approached a child who was in the playground -- there were no further allegations suggesting that M.C. attempted to harm the child in any way. When the police arrived at the park to investigate the call, they found M.C. asleep "[lying] next to the tree line approximately twenty feet from the playground." The doctor expressed some concern that the incident was so close in time to the alleged sexual assault incident on June 28, 2020.

The doctor summarized that the numerous contacts with the police and being found passed out on the ground (both in the park and in private yards) placed M.C. at risk of victimization in the community. She stated that M.C. has multiple medical conditions, including cirrhosis of the liver, which are worsened by the continued use of alcohol, and that he possessed "a general inability to care for himself. He is homeless and unemployed." Dr. Novak recommended commitment based on "all of these factors."

1. The law. General Laws c. 123, § 35, classifies the persons who may petition the court for commitment of another person pursuant to the statute -- police officers are among those listed. The statute reads in part:

"Any police officer, physician, spouse, blood relative, guardian or court official may petition in writing any district court or any division of the juvenile court department for an order of commitment of a person whom he has reason to believe has an alcohol or substance use disorder. Upon

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receipt of a petition for an order of commitment of a person and any sworn statements the court may request from the petitioner, the court shall immediately schedule a hearing on the petition and shall cause a summons and a copy of the application to be served upon the person in the manner provided by section twenty-five of chapter two hundred and seventy-six. . . . Upon presentation of such a petition, if there are reasonable grounds to believe that such person will not appear and that any further delay in the proceedings would present an immediate danger to the physical well-being of the respondent, said court may issue a warrant for the apprehension and appearance of such person before it. . . . The person shall have the right to be represented by legal counsel and may present independent expert or other testimony. If the court finds the person indigent, it shall immediately appoint counsel. The court shall order examination by a qualified physician, a qualified psychologist or a qualified social worker.

"If, after a hearing which shall include expert testimony and may include other evidence, the court finds 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, the court may order such person to be committed for a period not to exceed 90 days to a facility designated by the department of public health . . . ."

How a court must proceed pursuant to a G.L. c. 123, § 35 petition is governed by Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders. Among other things, Rule 6(a) prescribes that the judge shall determine whether there is clear and convincing evidence that (1) the respondent is an individual with an alcohol or a substance use disorder as defined in G.L. c. 123, § 35; and (2) there is a likelihood of serious harm, as defined in G.L. c. 123, § 1, to the respondent, the petitioner, or any other person as a result of the respondent's alcohol or substance use disorder. Rule 7(a) and (b), respectively, state that the rules of evidence do not apply in § 35 hearings, and that hearsay evidence is admissible and may be relied upon if the judge finds that it is substantially reliable. Rule 7(a). Further, despite the respondent's refusal to testify or speak with the clinician, the court clinician may offer an opinion about the respondent's condition to the court, and the court shall not draw any adverse inference from the respondent's refusal to participate. Rule 7(b).

General Laws c. 123, § 35, defines alcohol use disorder as: "the chronic or habitual consumption of alcoholic beverages by a person to the extent that (1) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning, or (2) the person has lost the power of self-control over the use of such beverages." 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." General Laws c. 123 § 1, defines a likelihood of serious harm as:

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"(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."

2. Analysis.

A. M.C. is able to care for himself in the community. Appellant correctly contends that, based on the evidence, the third prong found in the definition of likelihood of serious harm would have been the only feasible controlling classification that the court could have used to analyze the evidence and determine that M.C. should be committed to treatment. As indicated previously, prong three defines likelihood of serious harm as: "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 [by an alcohol or substance use disorder] that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community." Appellant's main argument is that "M.C. has the ability to care for himself in the community. . . . [And] [h]e has the judgment required to protect himself in the community. As a result, he does not meet the criteria necessary to be involuntarily committed."

However, under the third prong, the sole question is not whether a respondent can sustain himself, even marginally, in the community. The more pertinent questions are that of the anticipated harm -- the physical impairment or injury to the respondent, and the "very substantial risk" of such harm; and whether it can be proved by evidence that the respondent's judgment is so adversely affected by his alcohol use disorder that (1) he can no longer protect himself from physical harm, and (2) that the respondent's community does not have any reasonably available external source of adequate protection for the respondent. See Matter of G.P., 473 Mass. 112, 128-129 (2015). Therefore, the focus of the evidence in this matter was not on whether M.C. could sustain himself (by himself) in the community. Rather, the focus was on M.C.'s degree of impaired judgment due to his alcohol use disorder and the degree of likelihood that, as a direct consequence of his impaired judgment, he would sustain or inflict injury upon himself; and whether there was any other person in M.C.'s community that had the ability to provide protection against such risk to M.C. Id. at 129.

B. Sufficiency of the evidence. Dr. Novak's findings as reported to the court, and moreover the supporting material in the petition and submitted police reports, [Note 4] clearly and convincingly showed that the appellant not only suffered from an alcohol use disorder, but also that there was a risk that he would inflict imminent injury upon himself due to impaired judgment cause by his disorder.

In at least two documented instances (2018 and 2020), M.C. self-reported to a court

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clinician and a police officer, respectively, that he did not want to stop drinking, and that he was unable to stop drinking long enough to get temporary housing or to receive treatment for his serious medical maladies. On August 23, 2020, M.C. stated to a police officer that he cannot stay sober; he stated he has tried but is unable to stop drinking. In addition, contrary to M.C.'s argument, he was not always the person that called the police or the EMTs for assistance. Several times, the police had responded to a call for "a person laying [sic] on the ground." On May 25, 2020, the police received a call at 5:50 A.M. reporting that a man was unable to walk; M.C. was that man. Moreover, he was highly intoxicated each time he was assisted, and at least five times he was described as "passed out drunk." Two months prior to this current petition, a police officer responding to a call for a suspicious man approaching a child at a playground found M.C. sleeping "next to the tree line" near the playground. At that time, M.C. had an outstanding arrest warrant for charges that included operating under the influence of intoxicating liquor ("OUI").

M.C.'s alcohol use disorder had been ongoing for years. In February, 2018, M.C.'s father petitioned the court for his G.L. c. 123, § 35 commitment, but it was denied. However, the father's petition stated that M.C. had been abusing alcohol for the past seven years, but by that time in February, 2018, his abuse had increased in the "past six months." His father also stated that at that time, M.C. suffered from an aneurysm (an excessive localized enlargement of an artery caused by a weakening of the artery wall) that the doctors diagnosed eighteen months prior to that date, and that they would have liked to operate, but could not do so unless M.C. remained at least three months sober; M.C. was unable to do so.

On September 11, 2018, M.C. voluntarily submitted to a G.L. c. 123, § 35 commitment; at that time, he "self-reported" a history of alcohol withdrawals and delirium tremens, five hospitalizations in the past month (from September 11, 2018) for alcohol-related issues, and six alcohol-related seizures. In addition, he had also recently been arrested and charged with OUI and with operating negligently.

Between May 15, 2020, and August 23, 2020, M.C. had been the focus of fifteen medical responses while living in a local community park. According to the petitioner, Officer Moro, "A majority of the time, M.C. [was] intoxicated and unable to care for himself. The police [department] has responded to reports of a 'man lying on the ground' several times. . . . [M.C.] was found passed out drunk 5 times." Further, "Officers have tried to offer [him] rides to detox centers, which he has refused."

As pointed out in Dr. Novack's testimony and the petition by his father, the appellant suffers from several significant medical issues, each of which are exacerbated or not being treated due to his inability to stop drinking. Thus, the threat to M.C.'s life is indeed imminent; if he does not stop drinking, then he will continue to live in a park and continue to get sicker and eventually succumb to his illnesses.

Finally, we are not persuaded by the respondent's argument that the commitment order must be vacated because his attorney was prevented from making an offer of proof regarding a less restrictive alternative following his closing argument, in view of the attorney's failure to make an oral request to make such a proffer or object to the court's decision to end the hearing after allowing the petition, and of the overwhelming evidence supporting commitment in the record.

The order committing M.C. is affirmed.