IN THE MATTER OF C.S.

PER CURIAM. The respondent, C.S., appeals from an order of civil commitment pursuant to G.L. c. 123, § 16(b), on the grounds that there was insufficient evidence to prove that there was no less restrictive alternative to hospitalization and the court failed to make appropriate findings. We affirm.

Background. Six criminal complaints issued against C.S. in the Peabody District Court, and he was held without bail as a result of his bail being revoked. On January 24, 2020, the court ordered an evaluation of C.S.'s competence at the Worcester Recovery Center and Hospital ("hospital") pursuant to G.L. c. 123, § 15(b). A judge of the Peabody District Court found him incompetent and returned him to the hospital for further evaluation pursuant to G.L. c. 123, § 16(a), and thereafter, on March 12, 2020, the hospital filed a petition pursuant to G.L. c. 123, § 16(b) to commit C.S. involuntarily.

At the hearing on May 13, 2020, Janet Dexter, a social worker assigned to C.S.'s unit at the hospital, and Dr. Elizabeth Low ("Low"), a forensic psychology resident assigned to conduct the evaluations of C.S.'s competence to stand trial and criminal responsibility, testified on behalf of the hospital. C.S.'s mother testified on C.S.'s behalf.

Dr. Low opined that C.S. met criteria for a diagnosis of schizophrenia, a substantial disorder of thought and perception. She testified C.S. held irrational beliefs that others wanted to harm him and that he was being persecuted in some way. She also testified C.S. was experiencing hallucinations and was paranoid, which affected his perception of reality in that C.S. appeared to interpret "others as being hostile or aggressive or instigating altercations." Dr. Low noted that C.S. had demonstrated a pattern of responding aggressively when he believed he was being targeted or harassed.

Dr. Low further noted that C.S. had a history of discontinuing medications in the community; he had acknowledged not taking medications in the recent months while in jail and while seeing his community providers before his admission to the hospital. She observed that C.S. had a history of substance use disorder, which could exacerbate his psychiatric symptoms.

While in the hospital, C.S. was spitting at or near other patients as well as on the

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floor, in trash cans, in his sink, and into cups. C.S. spit toward a peer in a wheelchair and was placed in open door seclusion to maintain safety. Dr. Low opined that this spitting behavior was related to psychosis. C.S. was exhibiting poor hygiene on the unit. Dr. Low particularly noted that C.S. had swallowed a toothbrush and was observed frequently purging, forcing himself to vomit on the floor of his room.

Dr. Low opined that C.S. posed a substantial risk of harm to others as he exhibited a pattern of hostility and aggression and had been threatening and assaultive during his commitment at the hospital on several occasions requiring staff intervention to maintain safety. This behavior ultimately required mechanical restraints. Among several adverse interactions with staff and peers, Dr. Low noted that C.S. became paranoid with staff, charged at staff, and made explicit threats to harm staff including, "I'll f**king punch you, I'll f**k you up" before raising closed fists toward staff. C.S. was observed punching a peer in the face twice.

Dr. Low also took note of two past events C.S. reported, which contributed to her opinion that C.S. posed a risk of harm to others in the community. In 2015, he was involved in a physical altercation with a man whom he described as harassing and disrespecting him, so he used a lock as a weapon. C.S. also revealed a physical altercation he had at sixteen years old when he took a knife from the house and walked towards his cousin, with the knife in hand, with intent to scare him.

Dr. Low opined that C.S. also posed a very substantial risk of harm to himself. She testified C.S. had engaged in behaviors that were potentially harmful to himself. C.S. was overeating to the point of vomiting and was frequently purging in his room. C.S. swallowed a toothbrush while at WRCH and decided on his own to resolve the situation by vomiting it back up instead of waiting for a chest X-ray. C.S. had been placed on constant observation for concerns about his safety, which included concerns that he was drinking out of shampoo bottles and purging with the intent of not taking his medications.

Dr. Low opined that a locked psychiatric facility was the least restrictive placement appropriate for C.S. at the time of the hearing. C.S. continued to be symptomatic and display aggressive, violent, and potentially self-harming behaviors even in the secure and supportive environment of the hospital. Dr. Low opined that C.S.'s risk for violence would increase in a different setting, because, for example, if challenged for his spitting in the community, his behavior could escalate to a physical altercation without available staff intervention, placing both C.S. and others at risk of harm.

Dr. Low noted that at the time of hearing, C.S. was also held without bail and if returned to jail, he would not receive the level of monitoring and staff intervention that would be necessary to mitigate his risk. C.S.'s mother also testified she did not think C.S. should be in jail.

Dr. Low testified that C.S. had a significant history of psychiatric hospitalizations and C.S. had reported as many as seven hospitalizations in the last year alone. She noted that C.S.'s paranoia and hallucinations had contributed to his need for those hospitalizations.

Dr. Low opined that it would not be clinically appropriate for C.S. to live with his mother, the only other alternative placement suggested by respondent. Dr. Low acknowledged C.S.'s mother was highly involved in her son's care and had brought C.S. to the hospital many times when she felt he needed hospitalization. Dr. Low noted, however, that C.S. was repeatedly psychiatrically hospitalized while living

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with his mother, which was acknowledged by her.

C.S.'s mother also testified she did not believe C.S. was getting the help he needed in the community. She further stated that she needed help for him to become stable and was not sure if he was at that point yet. Dr. Low also testified it would not be clinically appropriate for C.S. to live with his mother.

Dr. Low testified C.S. had been threatening and assaultive while at the hospital and required significant staff support, which would not be available at his mother's house. Further, Dr. Low opined that C.S. needed a place separate from others, which he would not have at his mother's house as she testified that she lived in a two-bedroom apartment with her seventeen year old son.

After the hearing, the petition was taken under advisement to allow for the filing of additional exhibits. On May 26, 2020, the Worcester District Court, sitting for the Peabody District Court, allowed the hospital's G.L. c. 123, § 16(b) commitment petition and ordered C.S. committed to the hospital for a period not to exceed six-months. C.S. appealed, asserting (1) the evidence was insufficient to support a finding that there was no less restrictive alternative setting available for C.S., and (2) the court erred by not issuing oral or written findings. [Note 2]

Analysis. The hearing judge is in the best position to weigh the evidence, assess the credibility of witnesses, and make findings of fact; a reviewing court accepts these findings unless they are clearly erroneous. See Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018), citing G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). When considering a challenge to the sufficiency of the evidence at an evidentiary hearing, we "scrutinize without deference the propriety of the legal criteria employed by the [hearing] judge and the manner in which those criteria were applied to the facts." Id., quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005). See Matter of J.B., 2020 Mass. App. Div. 154.

No less restrictive alternative. C.S. argues that the evidence was insufficient to prove that no less restrictive alternative to hospitalization existed for him. It is well settled under Massachusetts law that the trial court must consider whether there is a less restrictive alternative to a locked psychiatric facility prior to issuing an order of commitment. Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980). It is also clear that G.L. c. 123 serves a dual purpose of providing rehabilitation to mentally ill patients as well as protecting the patient and others from harm. Id. at 917-918. Stated another way, to issue an order of commitment, the court must find "that there are no appropriate, less restrictive alternatives that adequately would protect a respondent from a likelihood of imminent and serious harm." Matter of a Minor, 484 Mass. 295, 310 (2020). Thus, "[t]o be appropriate, a less restrictive alternative need not eliminate all risk to a respondent. Rather, the proper focus is on whether there are any viable, plausibly available options that bring the risk of harm below the statutory thresholds that define a likelihood of serious harm ('substantial risk' for prongs one and two, and 'very substantial risk' for prong three)." Id. at 310, citing Matter of G.P., 473 Mass. 112, 128-129 (2015) (discussing "quantum of risk" necessary to meet standards of G.L. c. 123, § 1).

There was ample evidence from which the hearing judge could conclude that the

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hospital met its burden that there was no less restrictive alternative to hospitalization. The testimony at trial, including the uncontroverted expert opinion testimony of Dr. Low, was sufficient for the court to find that there existed no less restrictive alternative to hospitalization for C.S. at the time of the hearing.

The court properly determined that even if jail was not a certainty for C.S. due to his bail revocation (and there was evidence that the jail would not be able to monitor C.S. appropriately), there existed no less restrictive alternative to hospitalization that would "bring the risk of harm below the statutory thresholds that define a likelihood of serious harm." Matter of a Minor, supra at 310. C.S.'s argument on appeal essentially challenges the weight and credibility of the evidence, but the trial judge is in the best position to weigh the evidence and assess witness credibility. Matter of D.K., 95 Mass. App. Ct. 95, 100 (2019). We see no error.

Findings. C.S.'s other appellate ground was that the court erred by not issuing supplemental findings beyond those on the order of commitment. Due process does not require that a judge issue written or oral findings before ordering involuntary commitment pursuant to G.L. c. 123, § 16(b), however, given the other procedural protections afforded to respondents facing commitment. Matter of P.R., 488 Mass. 136 (2021).