IN THE MATTER OF G.N.

NESTOR, P.J. The respondent, G.N., appeals from a commitment order pursuant to G.L. c. 123, § 16(b), arguing that (1) the trial court erred by failing to make oral or written findings on the record, and (2) there was insufficient evidence to prove, beyond a reasonable doubt, that the respondent would present a likelihood of serious harm if he were discharged. We affirm.

Background. G.N. was sent to Worcester Recovery Center and Hospital ("WRCH") on October 25, 2019, for a competency evaluation pursuant to G.L. c. 123, § 15(b), following his arraignment in the Malden District Court on charges of trespassing, disorderly conduct, and resisting arrest. On November 14, 2019, G.N. was found incompetent to stand trial. WRCH filed a petition for civil commitment pursuant to G.L. c. 123, § 16(b). A hearing was held on the commitment petition on November 27, 2019, at WRCH. G.N.'s treating psychiatrist, Ashley MacLean ("MacLean"), testified at the hearing. The hearing judge allowed the petition, and G.N. was involuntarily committed to WRCH for a period not to exceed six months.

G.N. was thirty-one years old at the time he was admitted to WRCH. Dr. MacLean testified that G.N. was suffering from bipolar disorder with psychotic features. He had flights of ideas, tangential thoughts, paranoid delusions, grandiosity, fixed thoughts and irritability, and would become hostile at times due to his bipolar disorder. G.N. was homeless with no source of income and recently traveled to Massachusetts from New York to have sex with strangers from dating apps. Upon admission to WRCH, a blood test revealed that G.N. had HIV and an untreated syphilis infection. [Note 2] Despite being diagnosed with HIV in 2012, G.N. was not taking any medication at the time he was admitted and denied that he had any medical conditions. Dr. MacLean testified that G.N. did not believe he had a mental illness and would not engage in treatment or discussions about developing a treatment plan if discharged.

While hospitalized, G.N. had six incidents that led to his restraint and seclusion and had to be placed on restriction from groups for his own safety due to his sexually provocative and impulsive behavior. Other instances leading to these restraint and seclusion events included making threats of violence toward staff, being combative,

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making inappropriate sexual comments and gestures to staff and other patients, exposing his genitals to staff, refusing medication, making unfounded rape claims, spitting at staff, throwing water and wet socks at staff and other patients, slamming doors, throwing liquids on the floor to attempt to have staff slip, and using racial slurs. Dr. MacLean testified that without intervention from staff, G.N. could assault someone if he were out in the community.

Dr. MacLean also testified that G.N. presented a risk of spreading HIV or other STDs if he continued to engage in risky sexual behavior. G.N. stated that he lied to his sexual partners about his HIV status and told them he was on PrEP [Note 3] when he was not. He also expressed apathy about exposing others to HIV, saying that "it doesn't really matter much" if he transmits HIV to someone. Dr. MacLean opined that G.N. did not understand the risk that having casual sex with strangers posed to himself and others and believed he would continue to have unprotected sex with strangers if discharged.

Dr. MacLean testified that she believed G.N. presented a risk of harming others due to his threatening and combative behavior while at WRCH and the possibility that he may transmit HIV or other STDs while out in the community. The doctor also opined that G.N.'s judgment was so impaired by his mental illness that he would present a very substantial risk of harm to himself due to his inability to care for and protect himself if he were out in the community. She again referenced G.N.'s lack of care for his HIV diagnosis and syphilis infection and the likelihood that he could acquire further STDs due to his risky sexual behavior. She also noted that G.N. was homeless without any source of income, did not believe he had a mental illness, would not engage in psychiatric treatment, and behaved in a manner that put him at risk of being assaulted.

Discussion. Before an individual may be committed involuntarily, the petitioner is required to prove beyond a reasonable doubt that (1) such person is mentally ill; (2) the discharge of such person from a facility would create a likelihood of serious harm; and (3) there is no less restrictive alternative. G.L. c. 123, §§ 8(a), 16(b). As relevant, G.L. c. 123, § 1, defines likelihood of serious harm as: "(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." Id. The evidence must establish that the risk of serious harm is imminent, meaning that it will materialize in the reasonably short term -- in days or weeks rather than months. Matter of J.D., 97 Mass. App. Ct. 15, 19 (2020), citing Matter of G.P., 473 Mass. 112, 128 (2015). The petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Matter of G.P., supra at 119, citing Abbot A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

Written or oral findings on record. G.N. relies on Matter of a Minor, 484 Mass. 295 (2020) to support his contention that the commitment order must be vacated because the trial court did not point to evidence on the record to support its finding

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that there would be a likelihood of serious harm if the respondent were discharged. Id. at 307 (stating that judge must make clear, in writing or orally on record, evidence supporting conclusion of likelihood of serious harm in ordering commitment under G.L. c. 123, § 35). However, the findings requirement set forth in Matter of a Minor applies to civil commitments for substance use disorders under § 35. The Supreme Judicial Court has since found that it is not applicable to other commitment proceedings under G.L. c. 123. See Matter of P.R., 488 Mass. 136, 148-149 (2021) (written and oral findings on record are not necessary because there are more procedural protections in longer-term commitment proceedings than § 35 proceedings). The judge did not err in failing to issue written or oral findings on the record.

Risk of Harm to Others. In reviewing the sufficiency of the evidence, "[W]e accept the findings of fact made by the hearing judge unless clearly erroneous; however, we review without deference whether the legal standard for civil commitment was met." Matter of J.P., 486 Mass. 117, 121 (2020).

Here, the hospital's evidence was sufficient to prove beyond a reasonable doubt that G.N. presented a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior. The Legislature's use of the word "homicidal" and phrases such as "violent behavior" and "serious physical harm" signifies an intent that the evidence reflect a substantial level of force and intensity. Matter of G.P., supra at 126. The risk of harm must be imminent, meaning that the harm "has a real prospect of occurring; it cannot be speculative; and it cannot be far into the future." Matter of L.G., 2018 Mass. App. Div. 164, 165. In evaluating the weight of evidence of past conduct as it pertains to the future risk to others, the remoteness, seriousness, and number of acts guide the analysis. Matter of C.C., 2022 Mass. App. Div. 51, 56. There is no established set of definite temporal boundaries, but the more recent the evidence of past violent behavior, the more weight that evidence carries in the assessment. See Matter of G.P., supra at 128. Contrast Matter of C.C., supra (evidence of physical assault fourteen years before commitment hearing without additional timely evidence insufficient to support finding under prong two). In terms of seriousness, behavior that is merely disconcerting or disruptive to others has been found to be insufficient. Matter of F.P., 2020 Mass. App. Div. 48, 51 (2020) (no evidence of any acts, attempts, or threats of physical violence, just minor mischief and some agitation); Matter of S.J., 2018 Mass. App. Div. 128, 129 (evidence that respondent would become agitated, yell, pace, and wave his arms in public insufficient).

In this case, there were multiple instances where G.N. exhibited violent and threatening behavior at WRCH, resulting in both chemical and mechanical restraints. G.N. threw water and wet socks at staff and other patients, spit at staff, threatened staff and other patients, and was generally combative. The threats he made were violent in nature, such as threatening to hurt staff and their families and telling Dr. MacLean that she was "going to die." See Matter of J.P., supra (respondent appeared to be bordering on lashing out, made threatening comments, and had a threatening demeanor); Matter of S.L., 2020 Mass. App. Div. 64, 67 (respondent was easily agitated, would swear and yell racially derogatory comments at staff, spit at staff, and destroyed hospital property).

Further, the hospital's evidence was sufficient to prove beyond a reasonable doubt that G.N. also posed a very substantial risk of harm to himself in the community

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because he would not be able to protect or care for himself. In determining whether an individual presents a very substantial likelihood of harm under prong three, the focus of the evidence must be on the respondent's degree of impaired judgment due to his mental illness and the degree of likelihood that as a direct consequence, he will sustain or inflict injury. Matter of P.R., supra at 141. See Matter of S.J., 2018 Mass. App. Div. 128, 130 (noting that Supreme Judicial Court in Matter of G.P. provided as example for prong 3 the risk that respondent would fail to take care of existing medical condition). The degree of risk that the third prong requires is greater than the other two prongs; a "very substantial" risk is not the same as a "substantial risk." Matter of G.P., supra at 128. "On the one hand, mental illness, by itself, is insufficient; on the other hand, it is not required that a commitment order be based upon 'proof that an individual is unable to sustain himself or herself even marginally in society.'" Matter of R.H., 2019 Mass. App. Div. 16, 18, quoting Matter of G.P., supra at 128.

Here, the hospital presented evidence that G.N. suffers from bipolar disorder with psychotic features that caused erratic and impulsive behavior and impaired his judgment at the time of the hearing. He presented to WRCH with a new, untreated syphilis infection and was not taking medication for a longstanding HIV diagnosis -- both serious health conditions that could potentially lead to death if left untreated. See Matter of S.J., supra at 130 (sufficient evidence for finding of harm under prong three where judge could reasonably conclude that upon discharge respondent would stop taking medication and treating his diabetes). The hearing judge could have properly considered G.N.'s untreated medical conditions, disbelief in his medical conditions or mental illness, and absence of engagement in treatment or discussions about developing a treatment plan, and could have reasonably concluded that upon discharge, G.N. would expose himself to an imminent and very substantial risk of physical impairment caused by his untreated conditions.

The order of commitment is affirmed.