IN THE MATTER OF C.N.

FINIGAN, J. Bridgewater State Hospital, a psychiatric facility (the "petitioner" or "hospital"), petitioned for the civil commitment of the respondent, C.N., pursuant to G.L. c. 123, § 16(c). After a hearing before a District Court judge, the petition was allowed, and this appeal followed. [Note 1] The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

Constitutional claim. In April of 2018 in the Middlesex Superior Court, C.N. was found not guilty by reason of mental illness or defect for several crimes, including armed robbery with intent to murder and assault and battery with a dangerous weapon resulting in serious bodily injuries. C.N. was then committed to the hospital pursuant to G.L. c. 123, § 16.

On March 11, 2020, the hospital filed a petition to further commit C.N. to the hospital for a one-year period. Pursuant to G.L. c. 123, § 7(c), that hearing was to take place no later than March 25, 2020, absent any continuances sought or assented to by C.N. [Note 2] C.N. did seek or assent to several continuances to allow time to procure an independent medical exam to assist in his defense. The last continuance scheduled the hearing on April 15, 2020, which was then rescheduled to May 6, 2020, as discussed further below.

Against this backdrop, the Supreme Judicial Court was grappling with limits on gatherings because of the COVID-19 pandemic. In March of 2020, the Court directed each department of the trial court to issue standing orders to determine which matters should be deemed emergencies and could be heard either in person or virtually, by video or telephonic conferencing. On April 6, 2020, the Chief Justice of the District Court issued Standing Order 3-20, which took effect the following day. In that order, the Chief Justice designated mental health proceedings of the type at issue here as emergency orders that could be held virtually. The standing order, however, distinguished between initial petitions for commitment and subsequent petitions of the sort C.N faced. Under the standing order, the former were deemed emergency matters, but the latter were included in the general category of court events and postponed to after May 4, 2020, a date that was further postponed to June 1, 2020 by a subsequent standing order.

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On May 5, 2020, the trial judge contacted the parties and informed them that C.N.'s matter would be continued in accordance with the standing order. C.N. objected and filed a motion to dismiss, which was denied. The hearing on the hospital's petition was finally heard on May 20, 2020, and the judge committed C.N. for one year.

In his appeal, C.N. argues the trial judge erred by not exercising his discretion to hear C.N.'s matter virtually, as permitted by the standing order. Further, C.N. argues the standing order's treatment of one-year commitment petitions differently from initial six-month commitment petitions was a violation of his equal protection rights. Even though the trial court's order has since expired, we acknowledge that C.N. has a continuing interest in the propriety of the order as discussed further below. As to his constitutional challenge, however, we take a different view.

As a general rule, courts decide actual controversies and will not decide moot cases. Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 816 (2019). Where an appellate decision would be of little or no practical guidance, or the factual underpinnings of the dispute have changed or are likely to change as to make an appellate decision "a useless and inappropriate exercise," courts have declined to decide the issue in a moot case. Lockhart v. Attorney General, 390 Mass. 780, 784 (1984).

In Avila v. Boston Bd. of Pub. Health, Mass. App. Ct., No. 22-P-118 (June 22, 2022), the Appeals Court rejected a challenge to the eviction moratorium enacted in response to the pandemic, reasoning the issue was moot because the moratorium had expired and the issue was not likely to rise again. In its decision, the court noted the eviction moratorium was issued in the context of specific conditions and exigencies existing at the time due to the pandemic and were no longer present. Id. Because emergency measures taken by the trial court in response to the pandemic have long since ended, we reach the same conclusion here, and decline to decide C.N.'s constitutional challenge to the standing order. See also Lynn v. Murrell, 489 Mass. 579, 588 (2022) (challenge to since rescinded emergency orders requiring masks deemed moot); Thaddeus v. Secretary of Executive Office of Health and Human Servs., 101 Mass. App. Ct. 413, 418-419 (2022) (court considered challenge to expired Department of Children and Families COVID-19 policy requiring virtual visitation because, while moot, some families still remained subject to policy).

Order of commitment. After the delays described above, a hearing on the petition was held via Zoom videoconference on May 20, 2020, where C.N. appeared with counsel. The petitioner presented one witness, Dr. Anita Avakian ("Avakian"), a licensed clinical psychologist. Dr. Avakian testified she had recently interviewed C.N., evaluated him in the past under G.L. c. 123, § 16(c), reviewed his medical records, and consulted with his treatment team members. Dr. Avakian testified she was aware C.N. had been found not guilty by reason of lack of criminal responsibility for an incident that had occurred in June of 2016, where C.N. had stabbed his two sisters, one critically, following a disagreement over the volume of a radio. That incident, according to Dr. Avakian, had occurred the day following C.N.'s discharge from a Department of Mental Health facility. In Dr. Avakian's clinical opinion, C.N. suffered from schizoaffective disorder, bipolar type, and was actively symptomatic. When symptomatic, according to Dr. Avakian, C.N. experienced persecutory and grandiose delusions, visual and auditory hallucinations, and negative symptoms of

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schizophrenia with a tendency to not engage in treatment. Dr. Avakian testified further that C.N. lacked insight to his mental illness, had been a behavioral problem while at the hospital, and posed a risk of harm to others. In Dr. Avakian's view, C.N. required the strict security of the hospital and was not a suitable candidate for a transfer to a Department of Mental Health facility.

Following Dr. Avakian's testimony, C.N. called Tina Adams ("Adams"), a licensed clinical psychologist retained to conduct an independent medical examination of C.N. Prior to her testimony, Dr. Adams had reviewed C.N.'s medical records, three prior forensic evaluations, and had interviewed C.N. by videoconference on two occasions. Dr. Adams agreed that C.N. suffered from a mental illness and required ongoing inpatient hospitalization. Dr. Adams's testimony differed from that of Dr. Avakian, however, in that Dr. Adams testified C.N. could be properly managed at a Department of Mental Health facility.

The order of commitment has now expired. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (appeal from expired or terminated commitment and treatment orders should not be dismissed without considering merits of appeal in light of party's surviving interest in establishing order not lawfully issued).

Beyond the constitutional argument discussed above, C.N.'s sole challenge to his commitment is that the hospital failed to establish he required the strict security of the hospital, versus a Department of Mental Health facility. General Laws c. 123, § 8(b)(2), applicable here, provides a judge shall not order the commitment of a person to the Bridgewater State Hospital unless he or she finds "such person is not a proper subject for commitment to any facility of the department [of mental health]." In this case, the trial judge heard extensive testimony from both experts, subject to vigorous cross-examination, on C.N.'s history of aggression, assaultive behavior toward other patients and staff, and lack of insight.

The general principles governing the admissibility and scope of expert testimony are well established. See Mass. G. Evid. §§ 702-706 (2022). Expert testimony is ordinarily required when the subject of the testimony is beyond the common knowledge and understanding of the fact finder, whether judge or jury. See Commonwealth v. Sands, 424 Mass. 184, 186 (1997). The fact finder remains free to accept or reject the expert's opinion. Higgins v. Delta Elevator Serv. Corp., 45 Mass. App. Ct. 643, 648 (1998). Here, the experts differed in their opinion of where C.N. should reside for the reasons each stated, and it was the role of the fact finder to reconcile that conflict. Commonwealth v. Husband, 82 Mass. App. Ct. 1, 10 (2012), quoting M.S. Brodin & M. Avery, Massachusetts Evidence § 7.4.3 (8th ed. 2007) ("[W]here testimony from various experts is conflicting, it is for the trier of fact to determine which expert's testimony to accept, if any.") In the end, the trial judge accepted the opinion of the hospital's expert regarding the proper placement for C.N. We find no error in that decision.

The order of commitment is affirmed.