IN THE MATTER OF R.F.

PETERSON, J. This appeal follows an order of commitment pursuant to G.L. c. 123, §§ 7 and 8. The appellant, R.F., challenges the commitment order on three grounds. First, he claims that the judge who allowed the petition did so without making specific factual findings, depriving him of due process. Second, R.F. asserts that the petitioner failed to prove beyond a reasonable doubt that his discharge would result in a likelihood of serious harm. Finally, R.F. maintains that there was a "less restrictive alternative," namely, R.F.'s request to remain hospitalized "voluntarily" pursuant to G.L. c. 123, §§ 10 and 11. For the reasons discussed below, we affirm the commitment order. [Note 1]

The commitment hearing. R.F. suffers from a mental illness, specifically bipolar disorder with episodic mania and psychosis. On July 27, 2017, he was transferred from a hospital to the Worcester Recovery Center and Hospital ("WRCH"), where he has been committed annually pursuant to G.L. c. 123, §§ 7 and 8.

R.F.'s commitment was scheduled to expire on June 3, 2020. Consequently, on May 26, 2020, the chief executive officer of WRCH filed a petition to extend R.F.'s commitment for another year. A judge conducted an evidentiary hearing relative to the petition on July 14, 2020. [Note 2]

At the hearing on the petition, WRCH called Dr. Paul Noroian ("Noroian"), R.F.'s attending psychiatrist at WRCH, as its expert. [Note 3] WRCH also called Julie Reardon ("Reardon"), an attorney and R.F.'s legal guardian, as a witness at the hearing.

Dr. Noroian described R.F.'s mental illness as "a form of bipolar disorder that is associated with rapid cycling of moods and psychosis that involve paranoia" and that he posed a substantial risk of harm to others because of his "mood disorder." [Note 4]

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When asked for examples of R.F.'s assaultive behavior, Dr. Noroian recounted that R.F. grabbed a female nurse by her hair and sprayed her in the face and eyes with deodorant spray; pushed another patient, knocking him out of a chair; and punched a staff member who was administering medication. Dr. Noroian testified that R.F. required physical restraints on at least four occasions during the month prior to the hearing and continues to require a locked psychiatric facility. He opined that, if released to the community, R.F. would pose a very substantial risk of harm to himself because he is incapable of caring for or protecting himself. Finally, Dr. Noroian opined that R.F. cannot be safely managed at a residential program because "his medications do not remit his manic symptoms entirely." Dr. Noroian noted that R.F. was previously discharged to a residential program but decompensated and was ultimately returned to WRCH.

During cross-examination, Dr. Noroian acknowledged that R.F. had previously been committed on a voluntary basis and had made at least two oral requests to "sign into the hospital on a conditional voluntary" basis. [Note 5] Dr. Noroian also confirmed that R.F. understood both how voluntary commitments work and that if he elected to self-discharge by signing a three-day notice, the hospital could simply file an involuntary commitment petition. On redirect examination, however, Dr. Noroian opined that a voluntary commitment was not appropriate in R.F.'s case because his acceptance of treatment, especially oral medications, has been erratic. [Note 6]

Attorney Reardon testified that she has known R.F. since 2009, when she first became his legal guardian. She testified that, as his guardian, she makes decisions and consents to medical treatment and medications on his behalf because he lacks the capacity to do so on his own. Attorney Reardon testified that in 2015 or 2016, R.F. was discharged from WRCH to New Beginnings, a group home, for about eight to nine months. Attorney Reardon testified that when he resided in the group home, R.F. resisted taking some of his medications, became depressed, abused alcohol, and stopped functioning to the point that he stayed in bed twenty-four hours a day. Attorney Reardon further testified that when R.F. became manic, he was sent to a hospital for emergent care, then returned to the group home, then hospitalized again, and then transferred and committed to WRCH. When asked whether in her capacity as R.F.'s guardian she would support his discharge, she testified that she would not. When asked why, Attorney Reardon testified that based on her observations of and conversations with R.F., she believed he had entered a depressive state and that he had yet to reach his baseline nadir.

During closing arguments, R.F.'s attorney asked the judge to honor R.F.'s request to remain at WRCH on a voluntary basis. The judge took the petition under advisement. One week later, the judge declined to do so and instead allowed the petition for involuntary commitment. This appeal followed.

Discussion. As a threshold matter, R.F. contends "due process requires specific detailed findings" and that "their absence is constitutional error." In support of his

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position, R.F. relies on Matter of a Minor, 484 Mass. 295, 307 (2020). There, the Supreme Judicial Court held that commitments under G.L. c. 123, § 35 require that "judges make written or oral findings on the record to satisfy due process." R.F. analogizes findings relative to petitions for commitment pursuant to § 35 with those pursuant to §§ 7 and 8 because both unmistakably involve the loss of liberty.

R.F.'s first contention is easily dispatched. As R.F. conceded at oral argument, the Supreme Judicial Court flatly rejected the analogy between §§ 7 and 8 and § 35 in a case decided after R.F. submitted his brief. [Note 7] Specifically, in Matter of P.R., 488 Mass. 136 (2021), the Supreme Judicial Court held that a judge hearing a petition for commitment under G.L. c. 123, §§ 7 and 8 is not required to make detailed findings, either in writing or on the record, and that the failure to do so does not abridge the respondent's due process rights. Id. at 148. The Court explained that specific factual findings are not required because individuals facing commitment under §§ 7 and 8 "are already afforded sufficient procedural safeguards," which include, inter alia, the right to notice and a hearing, the right to counsel, the right to an independent medical evaluation, and the benefit of the "proof beyond a reasonable doubt" standard. [Note 8] Id. at 148.

While R.F. cannot argue that the commitment order should be vacated because the judge did not make detailed factual findings, he can, of course, challenge the sufficiency of the evidence offered by WRCH. While detailed factual findings are not required, the judge's findings must obviously square with the evidence and satisfy the "proof beyond a reasonable doubt" standard. Matter of a Minor, supra at 148; Guardianship of Roe, 383 Mass. 415, 423-424 (1981). In other words, each box on the order that the judge checks off must be supported by the evidence in the record.

Before reviewing the sufficiency of the evidence, we first address R.F.'s subsidiary argument that the judge erred by possibly considering evidence that she obtained from previous hearings involving R.F., resulting in a miscarriage of justice. [Note 9] We find R.F.'s argument unpersuasive for two reasons. [Note 10] First, the judge simply noted on the record that she presided over a number of commitment hearings involving R.F. and that she recalled that at one time R.F. may have accepted electroconvulsive therapy

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("ECT") and asked Dr. Noroian about such treatment. [Note 11] There is nothing perverse about the judge's inquiry. Second, we are hard-pressed to find that the judge's prior interactions with R.F. influenced her decision to allow the petition. As we discuss below, there was sufficient evidence in the record to support the judge's findings. Therefore, we conclude that neither the judge's prior interactions with R.F. nor her possible familiarity with his prior treatment, including ECT, resulted in a "substantial miscarriage of justice."

We now turn to the crux of R.F.'s appeal, the alleged insufficiency of the evidence. The statutory framework for committing a mentally ill individual to a facility is set forth in G.L. c. 123, §§ 7 and 8. Before ordering a commitment, a judge must find that the individual is mentally ill, that discharge from the facility would create a likelihood of serious harm, and, finally, that there is no less restrictive alternative to hospitalization. Matter of P.R., supra at 140; Matter of A.E., 2019 Mass. App. Div. 5, 8.

It is undisputed that R.F. was mentally ill at the time of the hearing per the definition of "mental illness" set forth in 104 Code Mass. Regs. 27.05. [Note 12] The issue we must decide then is whether the evidence proffered at the commitment hearing satisfied the remaining criteria.

"There are three prongs to the definition of likelihood of serious harm, . . . which are, in sum, harm to oneself, harm to others, or inability to protect oneself in the community." Matter of P.B., 2020 Mass. App. Div. 9, 10, citing Matter of J.P., 486 Mass. 117, 118-119 (2020). As confirmed by the "Order of Civil Commitment," the judge made a finding that "failure to retain [R.F.] in a facility would create a likelihood of serious harm." Because the record before us does not delineate the prong(s) on which the judge found "a likelihood of serious harm," we must ensure that at least one of the grounds set forth in the petition is satisfied by the evidence. Matter of S.S., 2016 Mass. App. Div. 101, 103 (respondent's right to procedural due process was violated because the ground supported by the evidence was not alleged in the petition).

As set forth in the petition, WRCH proceeded on the second and third prongs of "likelihood of serious harm." [Note 13] Upon review of the record, we find that there

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was ample evidence supporting commitment under either prong. As to the second prong, Dr. Noroian testified that R.F.'s mood disorder, with a clinical presentation that includes psychosis and paranoia, posed a substantial risk of harm to others. Dr. Noroian backed up his opinion with examples of recent assaults, including spraying a female nurse in her face and eyes with deodorant spray. Moreover, R.F.'s guardian's testimony reinforced Dr. Noroian's opinion. Attorney Reardon, who is well familiar with the respondent, advocated against a discharge because R.F.'s symptoms had not yet stabilized and she was legitimately concerned that R.F. would further decompensate.

We reach the same result as to the quantum of proof for the third prong. Dr. Noroian testified that R.F., if released into the community, would pose a substantial risk of harm to himself. To be sure, Dr. Noroian's testimony supports this opinion. For her part, Attorney Reardon echoed Dr. Noroian's opinion. When asked why she could not support R.F.'s discharge, she testified that when manic, R.F. becomes "completely non-functional." See Matter of S.J., 2018 Mass. App. Div. 128, 130 (evidence of prior hospitalizations, subsequent rapid decompensations, and risk of failing to take care of existing medical condition provided sufficient grounds to show that respondent posed very substantial risk of physical impairment or injury from respondent's inability to protect himself in community).

Having found sufficient evidence in the record to support the judge's finding that R.F. posed both a substantial risk of harm to others as well as a very substantial risk of physical impairment or injury to himself, we are left with the issue of whether WRCH sustained its burden that there was "no less restrictive alternative." We conclude that it did.

While the statutory scheme does not include a definition of "less restrictive alternative," the controlling decisional law enunciates a standard. Simply put, petitioners must consider "all possible alternatives to continued hospitalization." Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980), citing G.L. c. 123, § 4. See Gallup v. Alden, 57 Mass. App. Dec. 41 (1975). It is important to note that the petitioner is not required to develop as part of its case the factual basis for any opinion its expert offers about the alternatives to hospitalization, if any. Siddell v. Marshall, 1987 Mass. App. Div. 3. This should be vetted during cross examination. Id. Nonetheless, WRCH offered evidence in its case in chief that the typical alternatives to a locked psychiatric facility were contraindicated in R.F.'s case.

Dr. Noroian opined that R.F. required a locked psychiatric facility and could not be safely managed in a residential program. To that end, the doctor testified that R.F.'s "medications do not remit his manic symptoms entirely" and that his previous discharge to a residential program failed miserably. Attorney Reardon's testimony supports this same conclusion. She described R.F.'s discharge from WRCH and placement in New Beginnings, a group home, in 2015 or 2016. She testified that R.F. did not adhere to his medications, drank excessively, became depressed, and eventually decompensated to the point that he was unwilling or unable to get out of bed. Attorney Reardon testified that R.F. went back and forth between hospitalizations for emergent treatment and New Beginnings and was ultimately transferred back to WRCH.

R.F.'s counsel did not challenge the opinions offered by Dr. Noroian that R.F. continues to require psychiatric hospitalization. Instead, R.F. submits that his

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willingness to accept a "voluntary" commitment pursuant to G.L. c. 123, §§ 10 and 11 in lieu of an involuntary commitment qualifies as a "less restrictive alternative."

In support of his argument, R.F. cites Matter of J.T., 2020 Mass. App. Div. 142. In Matter of J.T., the Appellate Division vacated the commitment order because WRCH did not allow the respondent, J.T., to rescind her three-day notice to leave WRCH and continue to remain hospitalized on a conditional voluntary basis. [Note 14] There are at least two consequential factual distinctions between Matter of J.T. and the case before us. First, J.T. was initially hospitalized at WRCH after agreeing to a conditional voluntary commitment pursuant to G.L. c. 123, §§ 10 and 11 and 104 Code Mass. Regs. § 27.06. Here, although he may have been subject to a voluntary commitment in the past, R.F. was already involuntarily committed and a petition for recommitment was pending when he discussed with Dr. Noroian remaining at WRCH on a conditional voluntary basis. Second, the statutory and regulatory scheme for voluntary admissions presupposes a written application. G.L. c. 123, § 10(a). See also Matter of J.B., 2015 Mass. App. Div. 144. Here, R.F. never submitted an application. Instead, he simply expressed his preference for converting his commitment to a voluntary one when speaking with Dr. Noroian during the weeks leading up to the hearing. Therefore, we find that Matter of J.T. is not controlling.

We are not aware of any appellate cases that stand for the proposition that a respondent who is already involuntarily committed under G.L. c. 123, §§ 7 and 8 has the right to even apply for voluntary hospitalization. To be sure, aside from perverting G.L. c. 123, §§ 10 and 11, such a practice would likely frustrate the purpose of the statutory scheme, which is to protect a respondent's safety as well as the safety of the community, by burdening hospitals with unnecessary administrative and evidentiary hurdles. [Note 15] As a result, we decline to adopt R.F.'s novel argument that a voluntary commitment under G.L. c. 123, §§ 10 and 11 constitutes a "less restrictive alternative" to an involuntary commitment. A conditional voluntary commitment, just like an involuntary one, results in the same loss of liberty -- hospitalization in a locked psychiatric facility. Although an individual who agrees to a voluntary commitment retains the right to self-discharge upon giving three days written notice, this is trumped by the facility's right under G.L. c. 123, § 11 to file a petition for involuntary commitment.

For the foregoing reasons, the commitment order is affirmed.