IN THE MATTER OF J.C.

KARSTETTER, J. Cambridge Hospital (the "hospital") petitioned to commit J.C. pursuant to G.L. c. 123, §§ 7 and 8 and for an order authorizing medical treatment pursuant to G.L. c. 123, § 8B. The hospital alleged that J.C. was a danger to both herself and to others. It did not allege that she was "a very substantial risk of physical impairment or injury to [herself]" such that she was "unable to protect [herself] in the community," the third type of harm found in the definition of "likelihood of serious harm." G.L. c. 123, § 1. After hearing, the judge granted the petition and ordered treatment, finding that J.C. presented a substantial risk of harm to others and a very substantial risk of harm to herself in the community. J.C. appealed on the basis that the petition was allowed on grounds that were not pleaded, on the basis that the evidence was insufficient to conclude that J.C. was a danger to others, and finally on the basis that the evidence was insufficient to conclude that there was no less restrictive alternative to commitment. We affirm.

Facts. On March 25, 2021, police brought J.C. to the hospital pursuant to G.L. c. 123, § 12 after a physical altercation with her fifteen year old son. There was evidence that J.C. attacked her son with a broomstick. Her attending psychiatrist saw her the next day, and thereafter on every day except weekend days. The hospital filed its petition to commit J.C. on March 29, 2021, alleging that J.C. was a danger to herself and to others, but not alleging that she was a very substantial risk of physical impairment or injury to herself. The hearing occurred on April 5, 2021. J.C. had previously been at the hospital from March 4 to March 15, 2021, as a result of her mental health condition, but was released when her symptoms substantially resolved.

While at the hospital, J.C. displayed paranoid delusions, and she became "very, very verbally aggressive towards [her] roommate," which resulted in the hospital separating them. Her psychiatrist diagnosed her with schizoaffective disorder, which was not contested on appeal. When asked for her opinion as to whether there was a substantial risk of physical harm to other persons, J.C.'s psychiatrist answered, "Yeah, absolutely." She was asked if there was any less restrictive setting where she could receive treatment, and the psychiatrist testified that she did not think so. J.C.'s husband also testified, as did J.C.

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In addition to finding beyond a reasonable doubt that J.C. suffered from a mental illness (schizoaffective disorder), [Note 2] the judge stated, "The Court further finds that there's a substantial risk of physical harm to others is [sic] manifest by evidence of violent behavior." The judge went on to find that there was a very substantial risk to J.C. of physical impairment or injury "as manifest[ed] by evidence that she's -- her judgment is affected and she's unable to protect herself in the community and that reasonable provisions for her protection in the community are not available at this time." Finally, the judge found that "there are no less restrictive alternatives to hospitalization."

Analysis. To prevail in a commitment hearing, the petitioner is required to prove beyond a reasonable doubt that 1) the patient suffers from a mental illness; 2) there is a likelihood of serious harm if the patient is not committed; and 3) there is no less restrictive alternative to the commitment. G.L. c. 123, §§ 7 and 8; Commonwealth v. Nassar, 380 Mass. 908 (1980). See Matter of G.P., 473 Mass. 112 (2015). There are three definitions of a likelihood of serious harm: 1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; 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; and 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. G.L. c. 123, § 1. Due process requires that the type of harm on which the petitioner seeks to commit a respondent be pleaded. Matter of S.S., 2016 Mass. App. Div. 101 (2016).

We agree that it was improper to commit J.C. based on a finding of the third type of harm, which was not pleaded. We find sufficient evidence, however, to support a finding of the second type of harm, which was properly pleaded.

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Mass. R. Civ. P. 52(c). It is within the purview of the judge to weigh evidence, assess the credibility of witnesses, and make findings of fact, which we must accept unless clearly erroneous. See G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See Marlow v. City of New Bedford, 369 Mass. 501, 508 (1976); Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 125 (2009).

"The hearing judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because 'it is the trial judge who, by virtue of his [or her] firsthand view of the presentation of evidence, is in the best position to judge the weight' and materiality of the evidence and credibility of the witnesses at trial." Matter of A.M., 94 Mass. App. Ct. 399, 401 n.5 (2018), quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). "We do, however, scrutinize without

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deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." C.O. v. M.M., 442 Mass. 648, 655 (2004). See also Iamele v. Asselin, 444 Mass. 734, 741 (2005).

We cannot say that the judge's finding that J.C. was dangerous to others was either clearly erroneous or inconsistent with the relevant legal standards. There was evidence of both assaultive behavior toward J.C.'s son and of threatening, aggressive behavior (which by inference could have created a reasonable fear of violent behavior and serious physical harm) toward J.C.'s roommate. We note that it is up to the fact finder to resolve any conflicts in the testimony and to decide where the truth lies. Inconsistencies in testimony are a matter for the fact finder, who is free to accept or reject testimony in whole or in part. Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978).

As to the sufficiency of the evidence regarding there being no less restrictive alternative to commitment, there was an opinion from the hospital's expert that there was no such alternative, despite J.C.'s claim that there was no evidence of the unavailability of less-restrictive alternatives. The doctor's opinion was consistent with the testimony that J.C. had little or no insight into her illness; she had been hospitalized just prior to the present hospitalization; she had refused to take antipsychotics when released from the prior hospitalization; she had refused to see a psychiatrist outside of the hospital setting; she had been under fifteen-minute safety checks during the present hospitalization; and she could not go home based on safety concerns of her husband for both himself and the children. See Matter of E.M., 2021 Mass. App. Div. 21, 24. There was sufficient evidence from which the hearing judge could conclude that there was no less restrictive alternative to commitment.

The order of commitment is affirmed.