IN THE MATTER OF F.A.

PETERSON, J. This is the second of two appeals involving a challenge to the constitutionality of the "buildings and grounds" restriction that a judge may impose under G.L. c. 123, § 16(e). See Matter of D.G., Nos. 21-ADMH-90WE and 21-ADMH-91WE. The material facts, procedural history, and arguments bear remarkable similarities. Just like in Matter of D.G., we need not resolve the constitutional challenge because F.A. is entitled to relief on due process grounds.

1. Prior proceedings. F.A. was charged with raping his mother in 1995. F.A. suffers from chronic schizophrenia. At the time of the index offense, he was unmedicated and was acutely psychotic. F.A. was hospitalized at Bridgewater State Hospital ("Bridgewater") for eighteen years. F.A. was committed annually pursuant to G.L. c. 123, § 16. [Note 3] He was initially hospitalized after being found incompetent to stand trial. On April 7, 1999, F.A. was found not guilty by reason of mental illness or mental defect. F.A. remained hospitalized at Bridgewater until 2013, at which time he was stepped-down to the Department of Mental Health ("DMH") and transferred to a less secure facility, Worcester Recovery Center and Hospital ("WRCH"). [Note 4]

On April 8, 2020, the chief executive officer of WRCH filed an annual petition to recommit F.A. pursuant to G.L. c. 123, § 16(c). The petition was heard by a judge from the Worcester District Court on July 7, 2020. F.A. did not contest the commitment. Instead, he executed a waiver pursuant to § 6(b), agreeing to a commitment to WRCH for another year. The judge accepted F.A.'s waiver and thus did not hold

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any type of evidentiary hearing on the commitment itself. [Note 5]

The Plymouth County District Attorney ("Commonwealth"), as is its statutory right, moved for a "buildings and grounds" restriction pursuant to G.L. c. 123, § 16(e). [Note 6] F.A. opposed the motion. While the judge did not have to conduct a hearing on the petition itself because of the § 6(b) waiver, she did hold an evidentiary hearing on the Commonwealth's motion. [Note 7]

The judge heard testimony from two expert witnesses. Dr. Eric Huttenbach ("Huttenbach"), F.A.'s treating psychiatrist at WRCH, and Dr. Renee Sorrentino ("Sorrentino"), an independent medical expert, testified at the hearing.

Dr. Huttenbach served as F.A.'s treating clinician at WRCH since 2015. Dr. Huttenbach testified that F.A. suffers from schizophrenia and, as of the date of the hearing, remained "actively delusional." Dr. Huttenbach described F.A.'s "significant history of sexual violence," including the index offense, in which he raped his elderly mother. [Note 8] The doctor testified that F.A. has experienced a long-standing delusion since at least the index offense that "The Director" forces him to do things against his will, including committing sexual offenses. Dr. Huttenbach noted that F.A.'s most recent problematic behavior occurred back in 2005, when he groped a mental health worker, but conceded that he continues to make sexually inappropriate comments. Dr. Huttenbach related that F.A.'s insight into his mental illness continues to remain impaired, as he is "not fully invested in his treatment." The doctor testified, for example, that F.A.'s medication adherence is limited to only one of his two prescribed antipsychotic medications, that he has only superficially participated in sex offender treatment, and, finally, that he is appealing his "Level 3" Sex Offender Registration Board ("SORB") classification because he is in denial as to committing sex offenses.

Notwithstanding his acknowledgement that F.A. "is nowhere near ready for discharge," Dr. Huttenbach testified F.A.'s "buildings and grounds" restriction should

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be lifted. Dr. Huttenbach testified that F.A. had the maximum level of privileges within the constraint of a "buildings and grounds" restriction and requires an increase in off-grounds privileges up to and including unsupervised privileges. The doctor added that hospital administrators supported removal of the restriction so WRCH would not need to send a police officer with F.A. for his medical appointments.

To bolster his opinion, Dr. Huttenbach testified that F.A. has done well with supervised privileges, including working in the greenhouse, and that his privileges have never been revoked or even curtailed due to behavioral issues. The doctor also noted that F.A. had never attempted to elope from WRCH. Finally, Dr. Huttenbach testified that if F.A. was not restricted to the buildings and grounds of WRCH, any increase in off-grounds privileges would be granted incrementally and in full compliance with DMH regulations. [Note 9]

Dr. Sorrentino, a forensic psychiatrist who specializes in treating individuals with "sexually problematic behaviors," similarly testified that F.A. does not require a "buildings and grounds" restriction. In fact, Dr. Sorrentino went so far as to opine that imposing a restriction was contraindicated in F.A.'s case because it would impede his treatment. Like Dr. Huttenbach, Dr. Sorrentino testified that F.A. last acted on a sexualized impulse in 2005 (that is, groping a mental health worker) and that he has not acted on any delusions since he has been medicated. However, Dr. Sorrentino advocated for off-grounds privileges on behalf of F.A. with the caveat that any such privileges be supervised because, as she conceded, F.A. is still at "an elevated risk of re-offense."

At the conclusion of the hearing, the judge imposed a "buildings and grounds" restriction," [Note 10] albeit without prejudice. On June 18, 2021, shortly before F.A.'s one-year commitment was set to expire, the judge issued a detailed "Memorandum and Order" in which she allowed the Commonwealth's motion for a "buildings and grounds" restriction. [Note 11] "[I]n light of [F.A.'s] mental illness, clinical presentation, and likelihood of serious harm, the Court finds that [F.A.] poses a serious risk to the community and, in order to carry out the Court's finding and order pursuant to § 16(c), hereby exercises its statutorily proscribed [sic] discretion to impose a 'buildings and grounds' restriction." [Note 12]

In allowing the Commonwealth's motion, the judge made subsidiary findings that F.A. "is still delusional and still endorses that he could be taken over by an outside force to commit a sexually violent offense, is a Level 3 sex offender, has a history of violent sexual assaults, and his insight and judgment continue to be impaired." In

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addition, the judge was unable to square Dr. Sorrentino's opinion that F.A. does not need a "buildings and grounds" restriction with the doctor's own qualifier that F.A. is only appropriate for supervised off-grounds privileges.

Claiming that his liberty interests were violated, F.A. filed a timely notice of appeal to this Appellate Division challenging only the "buildings and grounds" restriction. [Note 13] In addition, F.A. requested relief from the Supreme Judicial Court pursuant to G.L. c. 211, § 3.

On June 23, 2021, the chief executive officer of WRCH filed another petition pursuant to G.L. c. 123, § 16(c) to recommit F.A. for another year. The Commonwealth once again sought a "buildings and grounds" restriction for F.A. The petition was heard by a different judge from the Worcester District Court on July 7, 2021. As he did a year prior, F.A. did not contest continued commitment and instead executed a § 6(b) waiver, agreeing to commitment to WRCH for another year. The judge accepted D.G.'s waiver, obviating a hearing. The judge kept the "buildings and grounds" restriction from the prior commitment in place pending a hearing on F.A.'s motion to dismiss the Commonwealth's motion for a "buildings and grounds" restriction. [Note 14]

On July 14, 2021, the second judge conducted a non-evidentiary hearing on F.A.'s motion. Unlike the hearing before the first judge, no expert witnesses testified in support of or against continuing the restriction. The scope of the hearing was restricted to counsels' arguments on F.A.'s motion to dismiss the Commonwealth's motion.

On the one hand, F.A.'s counsel argued that G.L. c. 123, § 16(e) is unconstitutional. Relying on the Supreme Judicial Court's holding in Garcia v. Commonwealth, 487 Mass. 97 (2021), in which Massachusetts' highest court oppugned § 16(a), F.A.'s counsel argued that § 16(e) similarly did not pass constitutional muster because it too lacked any type of standard. [Note 15]

On the other hand, the Commonwealth criticized F.A.'s reliance on Garcia, suggesting that case was factually distinguishable and therefore not dispositive. The Commonwealth suggested that there was a marked distinction between hospitalizing an untried defendant and imposing a "buildings and grounds" restriction on an individual already committed to a DMH facility. She additionally argued that a "buildings and grounds" restriction was warranted because "he is currently a danger." [Note 16] Next, the Commonwealth suggested that because F.A. waived his right

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to a hearing on the petition pursuant to § 6(b), he concomitantly waived his right to a hearing on the "buildings and grounds" restriction. Finally, the Commonwealth suggested that a judge is empowered to impose a restriction based on the petition itself and/or "the court's view of the case."

At the conclusion of the non-evidentiary hearing, the judge allowed the Commonwealth's motion. Unlike the first judge, the second judge did not issue a written Memorandum and Order and instead simply endorsed the motion "Allowed." [Note 17] F.A.'s second appeal followed.

2. Constitutional challenge. General Laws c. 123, § 16(e) states in pertinent part: "Any person committed to a facility under the provisions of this section may be restricted in his movement to the buildings and grounds of the facility at which he is committed by the court which ordered the commitment." [Note 18] Just like the appellant in Matter of D.G., Nos. 21-ADMH-90WE and 21-ADMH-91WE, F.A. maintains that this statute is unconstitutional on its face. Like D.G., F.A. argues that because § 16(e) contains neither a standard of review (i.e., a criteria) for a judge to apply before imposing the restriction nor an evidentiary standard (e.g., "proof beyond a reasonable doubt") that must be satisfied, the statute must be struck down because the current iteration accords a judge unlimited discretion to impose a "buildings and grounds" restriction -- or not.

Like the respondent in Matter of D.G., F.A. relies on Garcia v. Commonwealth, 487 Mass. 97 (2021) in support of his argument that G.L. c. 123, § 16(e) is unconstitutional. [Note 19] There, the Supreme Judicial Court considered a challenge to the constitutionality of G.L. c. 123, § 16(a). [Note 20] F.A. argues that the commitment of a nondangerous person under § 16(a) and the imposition of a "buildings and grounds" restriction under § 16(e) are substantially equivalent and that the holding in Garcia

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compels us to reach the same result here. [Note 21]

As was the case with D.G.'s appeal, we are equally skeptical of the merits of F.A.'s contention that G.L. c. 123, § 16(e) is per se unconstitutional. However, it is unnecessary for us to decide this issue today. "If a case can be decided on nonconstitutional grounds, the better course is to decide it by not reaching the constitutional issue." Commonwealth v. Loretta, 386 Mass. 794, 797 (1982), citing Commonwealth v. Knowlton, 378 Mass. 479, 483 n.4 (1979). Instead, we find that F.A.'s due process rights were violated.

3. Due process rights. Like D.G. in his appeal, F.A. maintains that the same two judges violated his due process rights when they imposed "buildings and grounds" restrictions. F.A. contends that the first judge imposed a "buildings and grounds" restriction "despite the absence of evidence that would support a finding that such a restriction is necessary to protect the public." F.A. maintains that the second judge completely ignored his due process rights when he renewed the restriction "without hearing any evidence regarding whether the restriction was necessary to protect public safety."

As a threshold matter, we find no merit in the Commonwealth's supposition that both judges were justified in imposing a "buildings and grounds" restriction without hearing any evidence simply because they found beyond a reasonable doubt that F.A. met the criteria for commitment. While the Commonwealth's argument might be compelling if the judges here imposed a "buildings and grounds" restriction after conducting a full evidentiary hearing in conjunction with the underlying commitment petition, that did not happen in this case. Here, neither judge conducted an evidentiary hearing related to F.A.'s successive commitments because F.A. agreed to further hospitalization pursuant to § 6(b) waivers. [Note 22]

While it is true that neither judge heard any evidence in connection with the commitment petitions themselves because of F.A.'s G.L. c. 123, § 6(b) waivers, the first judge conducted an evidentiary hearing on the Commonwealth's motion for a "buildings and grounds" restriction during which she heard testimony from two experts. Therefore, there was no affront to F.A.'s due process rights. The issue, then, is whether the first judge's order imposing the restriction was supported by the evidence.

We disagree with F.A.'s position. We find that there was more than ample evidence in the record to support the judge's finding that "the level of risk to the community if he were off grounds without supervision is significant" and thus support

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the restriction.

As a preliminary matter, it was appropriate for the judge to accord considerable weight to the index offense in assessing F.A.'s risk to the community if allowed outside access. Here, F.A. allegedly raped his elderly mother, as well as sexually assaulted a minor when he was nineteen years old. "'[T]he more serious or more numerous' the prior bad acts or harmful conduct, 'the more significance they would carry in making a positive risk assessment about the likelihood of harm.'" Matter of J.D., 97 Mass. App. Ct. 15, 21 (2020), quoting Matter of G.P., 473 Mass. 112, 126 (2015).

As detailed in her "Memorandum and Order," the judge acknowledged Dr. Huttenbach's opinion that "the 'buildings and grounds' restriction should be lifted in order to permit a gradual increase in the respondent's off grounds privileges up to and including unsupervised off grounds privileges." However, the judge was unable to reconcile this opinion with F.A.'s mental illness and clinical presentation as chronicled by Dr. Huttenbach. The judge underscored the following testimony offered by Dr. Huttenbach in her Order: F.A. remains "actively delusional"; F.A. "is not fully invested in his treatment"; F.A. only takes one of his two prescribed antipsychotic medications; F.A.'s "insight into his mental illness and need for medications is impaired"; F.A. has only superficially participated in sex offender treatment and is appealing his Level 3 SORB classification; and, perhaps most significantly, F.A. "is nowhere near ready for discharge."

The judge was equally unpersuaded by Dr. Sorrentino's opinion that it was appropriate if not imperative to remove F.A.'s "buildings and grounds" restriction because the restriction was impeding his treatment. Although Dr. Sorrentino advocated for off-grounds privileges for F.A., she acknowledged that any such privileges should be "supervised" because, in her words, F.A. was still at "an elevated risk of re-offense." The judge stated that "the difficulty with Dr. Sorrentino's opinion is that, on the one hand, she states that it is absolutely necessary to lift the buildings and grounds restriction in order to advance treatment by testing how [F.A.] does with less supervision, and, on the other hand, she limited the scope of her opinion to endorse only supervised off grounds privileges." As the judge noted, Dr. Sorrentino's endorsement of "only supervised off grounds privileges" is paradoxical. "A buildings and grounds restriction under § 16(e) is an all or nothing proposition, and, once lifted, the Court cannot impose limits or conditions." Matter of J.R., 2016 Mass. App. Div. 47 (2016), citing Commonwealth v. Carrara, 58 Mass. App. Ct. 86 (2003). See also Taunton State Hosp. v. Carrara, 2000 Mass. App. Div. 274 (2000). [Note 23]

The fact finder is free to accept an expert's opinion in its entirety, only some of it, or none of it at all. We may only set aside a judge's factual findings if they are clearly erroneous. "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

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of the witnesses." First Nat'l Bank of Boston v. Brink, 372 Mass. 257 , 264 (1977), quoting Mass. R. Civ. P. 52(a). See Matter of a Minor, 484 Mass. 295 (2020) (factual findings are reviewed deferentially for clear error).

F.A. suggests that we are compelled to reverse the first judge's order preserving the "buildings and grounds" restriction because the judge imposed the restriction "despite uncontradicted expert testimony that confining [F.A.] was unnecessary to protect the safety of F.A. or others." F.A.'s position simply does not comport with Massachusetts jurisprudence. "[T]he law does not give the opinion of experts . . . the benefit of conclusiveness, even if there is no contrary opinion introduced at the trial." Matter of J.D., 97 Mass. App. Ct. 15, 21 (2020). In the end, risk assessment is "ultimately for the judge to make after considering all of the evidence." Id.

F.A.'s reliance on Garcia v. Commonwealth in support of his argument that the first judge violated his due process rights is misplaced. The underpinning of the Court's decision in Garcia was the fact that "the Commonwealth's own expert testified that the defendant presented no risk of imminent harm." Id. at 104. That was certainly not the case here. Following an evidentiary hearing solely addressing the Commonwealth's motion for a restriction in which she heard from two expert witnesses trained in forensic risk assessments involving mentally ill individuals, the judge expressly found that F.A. posed "a serious risk to the community" and that "the level of risk to the community if [F.A.] were off grounds without supervision was significant."

In the end, the judge, by conducting a full evidentiary hearing, accorded F.A. his due process rights. Although the two experts who testified at the hearing did not support the imposition of a "buildings and grounds" restriction, it was ultimately for the judge to decide whether a restriction was necessary based on her own assessment of F.A.'s risk to the community. After reviewing the record before the judge, we see no basis in fact or law to vacate her order.

We are unable to reach the same result relative to the second judge's order for a "buildings and grounds" restriction. It is true that the second judge had the benefit of the first judge's written decision approving the "buildings and grounds" restriction, and, consequently, her assessment of F.A.'s clinical presentation. The decision, however, that issued on June 18, 2021, was based on evidence and expert testimony dating back to July 7, 2020, a year earlier. Both our statutory and decisional law have long recognized that mental illness is fluid and, in the case of civil commitments, must be assessed periodically. This precept applies equally to the potential risk of harm that a mentally ill individual poses to himself or herself or to the community. This is presumably why commitments pursuant to § 8(d), § 16(c), and § 18(a) are only valid for one year.

There is nothing in the record before us that the Commonwealth offered any evidence (e.g., troubling conduct/behavior; incidents at WRCH; concerning clinical presentation) that might be a reliable indicator that a restriction was still required. Unlike the first judge, the second judge did not hear any expert testimony as to D.G.'s potential risk of harm to others if his movement was not restricted at WRCH. In fact, the second judge did not conduct any type of evidentiary hearing. Instead, the judge confined his deliberations as to whether to continue the "buildings and grounds" restriction to counsels' arguments on F.A.'s motion to dismiss the restriction. As a result, we find that the judge's failure to conduct an evidentiary hearing,

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relying instead on the Commonwealth's motion and argument, violated F.A.'s due process rights.

Conclusion. Before imposing a "buildings and grounds" restriction, the first judge conducted an evidentiary hearing in which she received evidence and made an informed finding that a restriction was appropriate. Therefore, there was no violation of F.A.'s due process rights, and the first judge's order is affirmed. In contrast, perhaps because the Commonwealth did not plan to offer any expert opinion, the second judge did not conduct any type of evidentiary hearing before keeping the restriction in place. Because no evidence justifying the continuation of the restriction was offered, we find this violated F.A.'s due process rights. The order by the second judge imposing a "buildings and grounds" restriction is vacated.