IN THE MATTER OF G.R.

GINSBURG, P.J. On June 3, 2020, an evidentiary hearing was held in the Gardner District Court after G.R.'s mother filed a petition pursuant to G.L. c. 123, § 35, seeking the involuntary commitment of G.R. for alcohol and substance use disorder treatment. After a hearing, the trial judge ordered G.R. committed to the Stonybrook Stabilization & Treatment Center in Ludlow, Massachusetts. The respondent appeals that order. Because the findings as required by the case of Foster v. Commissioner of Correction, 484 Mass. 698 (2020) were not made, we vacate the commitment order.

At a commitment hearing pursuant to G.L. c. 123, § 35, the petitioner must prove by clear and convincing evidence that the respondent "is an individual with an alcohol or substance use disorder and there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder." G.L. c.123, § 35.

In the case of Foster v. Commissioner of Correction, which was issued the day before this civil commitment hearing, the Supreme Judicial Court held that in light of the COVID-19 pandemic, a judge "shall not commit an individual under G.L. c. 123, § 35, unless the judge finds that the danger posed by the individual's substance use disorder outweighs the risk of transmission of COVID-19 in congregate settings." Id. at 730. The judge must also find "that commitment is necessary notwithstanding the treatment limitations imposed by quarantine protocols." Id. The judge's findings may be made in writing or orally on the record, and such requirements are in effect for the duration of the COVID-19 state of emergency unless altered by further order of the Supreme Judicial Court. Id. Here, no such written or oral findings were made, and therefore the order must be vacated. [Note 1] We recognize the trial judge here may not have had the opportunity to review the Foster decision as it was issued the day before this hearing; however, we are constrained to follow the requirements set out in that case.

Accordingly, the commitment order of the Gardner District Court is vacated.