IN THE MATTER OF H.N.

PRINCE, J. The respondent, H.N., now appeals a commitment order under G.L. c. 123, §§ 7 and 8. For the following reasons, the order of commitment is affirmed.

Background. On July 15, 2020, Tara Vista Behavioral Health Center ("the hospital" or "Tara Vista") petitioned for the commitment of H.N. under G.L. c. 123, §§ 7 and 8. The hospital alleged that the failure to hospitalize H.N. would create a likelihood of serious harm as defined in G.L. c. 123, § 1, namely, that the respondent's mental illness posed either a substantial risk of harm to the respondent herself as evidenced by threats or attempts of suicide or serious bodily harm, or a very substantial risk of physical impairment or injury to the respondent herself as manifested by evidence that H.N.'s judgment was so affected that she was unable to care for herself in the community. [Note 2]

The hearing took place on July 30, 2020, via Zoom. Before the hearing started, the respondent moved to dismiss based on Foster v. Commissioner of Correction, 484 Mass. 698 (2020) (any commitment order requires finding that danger posed by reason for commitment outweighs risk of transmission of COVID-19 in congregate settings, and that commitment is necessary notwithstanding any treatment limitations imposed by quarantine protocols). At that time, counsel for the hospital stated that there were no COVID-19 positive patients on the unit, so there was no increased risk. The judge took the motion under advisement.

The hospital called one witness, Susan Eagleson ("expert"), a nurse practitioner specializing in psychiatry. She testified that she knew H.N. through two psychiatric hospitalizations at Tara Vista. The two hospitalizations occurred in rapid succession, the second occurring only a few weeks after the first. She testified that H.N. was eighteen years old and had repeatedly presented at emergency rooms with complaints of impending suicide. H.N.'s counsel objected based on hearsay and noted that her medical records were not in evidence. The judge overruled the objection. The expert opined that the respondent suffered from an unspecified mood disorder, considered a major mental illness. She observed that H.N. had mood instability,

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including rapid mood changes that quickly escalated to episodes of agitation. Examples included threatening to kill a particular staff member and threatening to cut his head off. The hospital had to respond to H.N. with chemical restraints two or three times.

The expert testified over objection that H.N. engaged in self-harm involving injury to her genitalia. The judge overruled the objection after confirming that the information was contained in the unadmitted medical record. The expert believed that H.N. was a substantial threat of harm to herself and others based on her mental illness. She formed her opinion based on H.N.'s conduct on the unit, including her threats of suicide, threats to staff, and her sexually provocative behavior. That behavior included disrobing, shouting out invitations to others for sex, and constantly referring to inserting objects in her vagina. Regarding the least restrictive alternative, the expert testified that H.N. was an appropriate candidate for residential care, but no such program was available at the present time. On cross-examination, H.N.'s counsel suggested that H.N. could live with her parents and noted that H.N.'s sister lived next door. The expert disagreed that living with her parents would mitigate the risk of H.N.'s discharge. When asked by the hospital on redirect examination why residing with her parents was not an acceptable alternative, the expert, over the objection of H.N., testified that H.N.'s parents were the subject of two neglect investigations by the Department of Children and Families ("DCF"). At the close of the hearing, the court ordered the commitment of H.N. under prongs one and three of G.L. c 123, § 1's definition of "likelihood of serious harm."

Analysis. An order of commitment may be based only on the grounds pleaded in the petition. Matter of S.S., 2016 Mass. App. Div. 101 (2016) (unpleaded grounds may not be basis for commitment). Therefore, the question here is whether there was sufficient admissible evidence to commit H.N. under either a theory of substantial risk of harm to the person herself as manifested by evidence of threats of, or attempts at, suicide or serious bodily injury, or on a theory of a very substantial risk of physical impairment or injury to the person herself as manifested by evidence that such person's judgment is so affected that she is unable to protect herself in the community and that reasonable protection is not available in the community. While we agree with the respondent that some evidence was not properly admitted, we nonetheless find sufficient admissible evidence to satisfy both prongs.

The respondent correctly argues that any of the expert's testimony about the information contained in H.N.'s medical records was inadmissible hearsay unless it was based on 1) facts within his or her personal knowledge, 2) evidence already in the record, or 3) facts or data not in evidence if the facts and data were independently admissible in evidence and were a permissible basis for an expert to consider in forming an opinion. Matter of P.R., 488 Mass. 136, 142 (2021). When relying on unadmitted but independently admissible evidence, the expert may testify about it only if asked about it on cross-examination. Id. In this case, the expert's testimony stemming from the review of H.N.'s medical records should have been excluded during direct examination. Specifically, her testimony that H.N. presented multiple times at various emergency rooms with suicidal ideation and any testimony regarding a physical injury to her genitalia should have been excluded.

The remaining admissible evidence, however, provided a sufficient basis for the commitment order under either the first prong or the third prong. Though the

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evidence of multiple visits to various emergency rooms gleaned from the medical records should have been excluded, the expert was able to testify from her personal knowledge that she witnessed repeated verbal threats of suicide by H.N. during her two most recent admissions. Therefore, the court could conclude based on properly admitted evidence that H.N. posed a substantial risk of harm to herself. Similarly, there was also ample admissible evidence to support commitment under the third prong, which requires a showing that H.N.'s judgment was so impaired that she could not protect herself in the community. The evidence included but was not limited to (1) a second psychiatric hospitalization in "rapid succession" to the first; (2) multiple threats of suicide; (3) the necessity for chemical restraints two or three times; (4) threats to kill and behead staff members; (5) hypersexuality including disrobing and shouting sexual invitations to others; (6) inability to provide for her own sexual safety; and (7) threats to place objects in her vagina. See Matter of E.M., 2021 Mass. App. Div. 21, 23-24 (present inability to follow societal norms, assaultive behavior, and level of disorganization placed respondent at risk of victimization outside of hospital setting).

The respondent further argues that the commitment order fails because there was a less restrictive alternative to hospitalization, living at home with her parents. Commonwealth v. Nassar, 380 Mass. 908 (1980). The expert testified that H.N. wanted to live with her parents and that her sister lived next door.

On redirect, the expert expressed concern about H.N. being released to her parents because of ongoing DCF investigations involving neglect of H.N. by the parents. Though H.N. objected to the DCF evidence coming in on hearsay grounds, the evidence was properly admitted as H.N. had raised an inference during cross-examination that there was no barrier to her going home. Commonwealth v. Garcia, 470 Mass. 24, 36 (2014) (discussing trial judge's "considerable discretion" over scope of redirect examination). For those reasons, the judge's finding that no less restrictive alternative to hospitalization existed at the time of the hearing was supported by the evidence.

The final issue concerns whether there was sufficient evidence to satisfy the Foster requirements in effect on June 2, 2020. Foster v. Commissioner of Correction, 484 Mass. 698 (2020). The judge's determination that the danger posed by the mood disorder outweighed the risk of transmission of COVID-19 and that the commitment was necessary despite any treatment limitations was likewise supported: (1) the respondent was eighteen years old with no known health risks; (2) there were no cases of COVID-19 on the unit; and (3) there were no restrictions on the hospital's ability to provide necessary treatment.

For these reasons, the order of commitment is affirmed.