IN THE MATTER OF J.L.

GINSBURG, P.J. On June 8, 2022, after a hearing pursuant to G.L. c. 123, § 35, a Springfield District Court judge committed the respondent, J.L., to the Stonybrook Stabilization & Treatment Center in Ludlow, Massachusetts. On appeal, the respondent argues that the evidence at the hearing was insufficient to meet the criteria for commitment under the statute. We expedited the appeal and, after oral argument, issued an interim decision and order affirming the commitment order and indicated that a full opinion would follow. For the reasons set forth below, we affirm the commitment order.

Background. Dr. Amber Robinson Green ("Green"), a licensed psychologist, testified after talking to the petitioner, J.L.'s father. Dr. Green testified that according to J.L.'s father, J.L. smokes crack cocaine and drinks on a daily basis. The father tried to let J.L. live with him, but it was not possible because of the rampant substance and alcohol use. J.L. gets so intoxicated and high that he rants and acts in a belligerent manner and gets beat up almost weekly. The father relayed that "this past week" J.L. got hit in the head, was injured, went to the hospital, and is "always" going to the hospital because of injuries sustained when he is under the influence. J.L. refused to talk to the clinician. The petitioner testified at the hearing as discussed in detail below. Based on the information from the petitioner, Dr. Green recommended commitment.

Discussion. General Laws c. 123, § 35 "authorizes the involuntary civil commitment of a person, for care and treatment, where there is a likelihood of serious harm as a result of the person's alcoholism or substance abuse, or both." Matter of G.P., 473 Mass. 112, 113 (2015). A petition for commitment may be filed by a police officer, physician, spouse, blood relative, guardian, or court official. Id.at 116. A hearing is held on the petition after the person appears in court, is appointed an attorney, and is examined by a qualified physician, psychologist, or social worker. Id. at 116-117. After the examination, the court then must hold a hearing at which the expert must

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testify, and "other evidence "may be introduced. G.L. c. 123, § 35. See Matter of G.P., supra at 117. The rules of evidence do not apply to the commitment hearing, and the court may rely on hearsay, so long as the hearsay is substantially reliable. Rule 7(a) of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Use Disorders. See Matter of G.P., supra at 121-122; Matter of A.M., 94 Mass. App. Ct. 399, 400 (2018).

The evidence at the hearing must be sufficient for the judge to find that (1) the respondent suffers from an alcohol or substance use disorder, and that (2) he or she faces a "likelihood of serious harm" as a result of that disorder if the petition were not allowed. G.L. c. 123, § 35. See Matter of G.P., supra at 117. The burden of proof that applies is clear and convincing evidence. Id. at 120. An "alcohol use disorder" is defined as "the chronic or habitual consumption of alcoholic beverages by a person to the extent that (1) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning, or (2) the person has lost the power of self-control over the use of such beverages." G.L. c. 123, § 35. A "substance use disorder" is defined as "the chronic or habitual consumption or ingestion of controlled substances or intentional inhalation of toxic vapors by a person to the extent that: (i) such use substantially injures the person's health or substantially interferes with the person's social or economic functioning; or (ii) the person has lost the power of self-control over the use of such controlled substances or toxic vapors." Id.

"In the context of G.L. c. 123, § 35, the 'likelihood of serious harm' means, among other definitions not applicable here, 'a very substantial risk of physical impairment or injury to the [respondent] himself as manifested by evidence that [the respondent'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." Matter of A.M., supra at 402. The "very substantial risk" of harm is demonstrated by evidence that "(1) the respondent's judgment is so adversely affected by [alcohol or substance abuse] that the respondent cannot protect himself or herself from physical harm, and (2) the respondent's community does not include any reasonably available external source of adequate protection." Matter of G.P., supra at 128-129. A showing of imminence is also required. Id. at 129. To establish a substantial risk of physical harm required for the first two definitional prongs of "likelihood of serious harm" under the statute, the evidence must support a conclusion that the harm will materialize "in the reasonably short term -- in days or weeks rather than in months." Id. at 128. To establish a very substantial risk of physical harm required by prong three of the statute, which is applicable here, "the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129.

"It is within the purview of the [trial] judge to weigh evidence, assess the credibility of witnesses, and make findings of fact, which [a reviewing court] must accept unless clearly erroneous." Matter of AM., supra at 401, citing G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). The hearing judge appropriately questioned the petitioner to clarify his testimony. We accept the findings of fact of the hearing judge and defer to her assessment of the credibility of the petitioner, J.L.'s father. "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

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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.L. 2019 Mass. App. Div. 131, 133, quoting Matter of A.M., supra at 401 n.5.

Here, there was sufficient evidence to support the judge's determination that J.L. suffered from an alcohol use disorder. J.L.'s father testified to seeing J.L. highly intoxicated repeatedly and close in time to the hearing. The petitioner believed J.L. was abusing crack and alcohol. There was less evidence to support the petitioner's suspicion of crack use. Numerous people had reported to him that his son was using crack, and when he saw his son with a crack pipe and confronted him about it, J.L. did not deny it. This alone would not support a finding of substance use disorder. There was, however, overwhelming evidence of alcohol use disorder. The father had daily contact with J.L. and reported that J.L. wakes up in the morning and starts drinking and drinks all day. The petitioner reported that when J.L. stayed overnight at his house, as he had recently done, he would wake up, walk down to the liquor store, buy alcohol, and then drink the alcohol outside his father's house. The petitioner knew that J.L had been banned from area package stores, because he would go in drunk and "raise[] sin with all the people." Recent to the hearing, when J.L. was living with his father, J.L. would come home every night in the middle of the night intoxicated by alcohol, acting in a belligerent manner. The petitioner reported that J.L. had been evicted from his apartment and numerous other hotels due to his alcohol intoxication. The petitioner could not let J.L. live with him due to his excessive alcohol use and related behavior. There was a sufficient basis for the hearing judge to find an alcohol use disorder.

There was also sufficient evidence of a likelihood of serious harm to J.L. due his alcohol use disorder. J.L.'s father, who had daily contact with his son, reported that J.L. got beat up every week. The petitioner had to hold J.L.'s money so that J.L. would not get beat up for his money. The petitioner received numerous calls about J.L. getting beat up. The petitioner reported that the police had to frequently bring J.L. to the hospital for his injuries. When showing the judge J.L.'s black eye at the hearing, the petitioner said, "This happens every week." J.L.'s behavior when intoxicated caused him to be evicted from his apartment, numerous hotels, and made it impossible for him to live with his father. There was no evidence of any alternative support or treatment in the community for J.L.

While some of the evidence regarding risk of harm to J.L. was hearsay, it was sufficiently reliable to serve as the basis for the judge's findings. While hearsay evidence is admissible in proceedings pursuant to G.L. c. 123, § 35, it may be relied upon by the judge only if the judge finds it to be substantially reliable. Matter of G.P., supra at 121-122, citing Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). Reliability criteria include the level of factual detail (rather than generalized and conclusory assertions), statements made based on personal knowledge and direct observation, corroboration, statements made under circumstances that support the veracity of the source, and statements made by disinterested witnesses. See Commonwealth v. Durling, 407 Mass. 108, 121 (1990); Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 932 n.4 (1994).

Here, the petitioner, J.L's father, saw J.L. every day as he held J.L.'s money. J.L. had stayed overnight with his father numerous times recent to the hearing. The petitioner was able to make his own observations about J.L.'s injuries. He also was aware

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that police had been bringing J.L. to the hospital for his injuries on a weekly basis. Numerous people reported to the petitioner their observations of J.L. highly intoxicated and "raising holy sin." These reports were corroborated by the petitioner's own experience with J.L. where he would drink all day, then come to the petitioner's home in the middle of the night intoxicated and acting in a belligerent manner. The petitioner was not able to even talk to J.L. due to his level of intoxication and belligerent manner. J.L.'s belligerent manner when intoxicated had caused him to get evicted from numerous housing situations and banned from local package stores. J.L. had a black eye at the hearing, which was observed by the judge. All these surrounding circumstances help to corroborate the hearsay evidence regarding risk of harm to J.L. The judge, who was in a position to see the petitioner at the hearing, credited the petitioner's testimony and found a likelihood of serious harm to J.L. The hearing judge's decision was supported by the evidence.

For all these reasons, there was sufficient evidence to demonstrate that the respondent suffered from an alcohol use disorder that created a likelihood of serious harm to J.L. Therefore, we affirm the order of commitment.