NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
16-P-1182 Appeals Court
IN THE MATTER OF A.M.
No. 16-P-1182.
Suffolk. October 6, 2017. - November 2, 2018.
Present: Wolohojian, Maldonado, & Wendlandt, JJ.
Practice, Civil, Civil commitment. Words, "Likelihood of serious harm."
Petition for commitment for alcohol or substance use disorder filed in the Chelsea Division of the District Court Department on June 1, 2016.
The case was heard by Michael A. Patten, J.
Jessica C. Gallagher, Committee for Public Counsel Services, for the respondent.
MALDONADO, J. Fearful that her adult son, the respondent
A.M., faced grave harm due to his drug addiction, A.M.'s mother
filed a petition in the District Court requesting that the court
order his involuntary commitment to a treatment facility,
pursuant to G. L. c. 123, § 35 (§ 35). On June 6, 2016, after
an evidentiary hearing that included expert testimony, a judge 2
issued a commitment order based on a finding that A.M. suffered
from a substance use disorder that was likely to cause serious
harm. A.M. appealed to the Appellate Division of the District
Court, which affirmed the § 35 commitment order.1 Concluding
that the evidence does not support a finding of imminent risk of
serious harm, we reverse the decision and order of the Appellate
Division. A new order shall enter vacating the § 35 commitment
order.2
1. Statutory framework and standard of proof. Section 35
authorizes a "blood relative," among others,3 to file a written
petition requesting the involuntary "commitment of a person whom
[the petitioner] has reason to believe" has a "substance use
disorder." G. L. c. 123, § 35, second par. If, after due
1 For rules implementing § 35, see Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse Disorders (2016).
2 Because A.M. is no longer committed, his challenge to the commitment order is technically moot. Matter of G.P., 473 Mass. 112, 113 (2015). "Nevertheless, we decide the case because it raises important issues concerning" appellate review of § 35 commitments, "and these issues are likely to evade review on account of the relatively short duration of the involuntary commitment under § 35." Id. Cf. Matter of F.C., 479 Mass. 1029, 1029-1030 (2018), quoting Seney v. Morhy, 467 Mass. 58, 62 (2014) ("a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record'").
3 "Any police officer, physician, spouse, blood relative, guardian or court official" may file a § 35 petition for a civil commitment order. G. L. c. 123, § 35, second par. 3
notice to the respondent and an evidentiary hearing with expert
testimony, a judge finds that the respondent "is an individual
with [a] . . . substance use disorder and there is a likelihood
of serious harm as a result of the [respondent's] . . .
substance use disorder," the judge may order the individual
involuntarily committed for up to, but not more than, ninety
days, to a facility licensed or otherwise approved by the
Department of Public Health. G. L. c. 123, § 35, third par.
To protect the fundamental liberty interests of an
individual in a civil commitment proceeding, see Addington v.
Texas, 441 U.S. 418, 425-426 (1979), a judge's order of
involuntary commitment under § 35 must be based on clear and
convincing evidence. Matter of G.P., 473 Mass. 112, 120 (2015).
See Mass. G. Evid. § 1118 (a) (2018). "Clear and convincing
evidence involves a degree of belief greater than the usually
imposed burden of proof by a fair preponderance of the evidence,
but less than the burden of proof beyond a reasonable doubt
imposed in criminal cases." Callahan v. Westinghouse
Broadcasting Co., 372 Mass. 582, 584 (1977). This heightened
evidentiary standard not only demonstrates the importance of the
decision ordering the involuntary commitment, but it also
safeguards against the chance of inappropriate commitments.4 It
4 "The function of a standard of proof, as that concept is embodied in the Due Process Clause [of the Fourteenth Amendment 4
is necessary to ensure that a respondent's "potential for doing
harm, to himself or to others, is great enough to justify such a
massive curtailment of liberty." Commonwealth v. Nassar, 380
Mass. 908, 917 (1980), quoting Lessard v. Schmidt, 349 F. Supp.
1078, 1093 (E.D. Wis. 1972), vacated and remanded on other
grounds, 414 U.S. 473 (1974).
2. Standard of review. In this case, A.M. does not
challenge the judge's subsidiary findings. Rather, he
challenges the sufficiency of the evidence in support of the
judge's conclusion that A.M. suffered from a substance use
disorder that resulted in the "likelihood of serious harm."
G. L. c. 123, § 35, third par.
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.5 See G.E.B. v.
to the United States Constitution] and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication." Addington, 441 U.S. at 423, quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring).
5 A finding of fact 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." Marlow v. New Bedford, 369 Mass. 501, 508 (1976), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See 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 5
S.R.W., 422 Mass. 158, 172 (1996), and cases collected.
However, we generally "scrutinize without deference the
propriety of the legal criteria employed by the trial judge and
the manner in which those criteria were applied to the facts."
Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v.
M.M., 442 Mass. 648, 655 (2004). This standard of review has
been previously applied in the context of § 35 commitments. See
Matter of G.P., 473 Mass. at 129-130. See also Greenberg v.
Commonwealth, 442 Mass. 1024, 1024 (2004) ("expert's affidavit
supporting the commitment petition was wholly insufficient").
Accordingly, it is the standard we employ in our review here of
the judge's order under § 35.
3. Likelihood of serious harm.
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
16-P-1182 Appeals Court
IN THE MATTER OF A.M.
No. 16-P-1182.
Suffolk. October 6, 2017. - November 2, 2018.
Present: Wolohojian, Maldonado, & Wendlandt, JJ.
Practice, Civil, Civil commitment. Words, "Likelihood of serious harm."
Petition for commitment for alcohol or substance use disorder filed in the Chelsea Division of the District Court Department on June 1, 2016.
The case was heard by Michael A. Patten, J.
Jessica C. Gallagher, Committee for Public Counsel Services, for the respondent.
MALDONADO, J. Fearful that her adult son, the respondent
A.M., faced grave harm due to his drug addiction, A.M.'s mother
filed a petition in the District Court requesting that the court
order his involuntary commitment to a treatment facility,
pursuant to G. L. c. 123, § 35 (§ 35). On June 6, 2016, after
an evidentiary hearing that included expert testimony, a judge 2
issued a commitment order based on a finding that A.M. suffered
from a substance use disorder that was likely to cause serious
harm. A.M. appealed to the Appellate Division of the District
Court, which affirmed the § 35 commitment order.1 Concluding
that the evidence does not support a finding of imminent risk of
serious harm, we reverse the decision and order of the Appellate
Division. A new order shall enter vacating the § 35 commitment
order.2
1. Statutory framework and standard of proof. Section 35
authorizes a "blood relative," among others,3 to file a written
petition requesting the involuntary "commitment of a person whom
[the petitioner] has reason to believe" has a "substance use
disorder." G. L. c. 123, § 35, second par. If, after due
1 For rules implementing § 35, see Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse Disorders (2016).
2 Because A.M. is no longer committed, his challenge to the commitment order is technically moot. Matter of G.P., 473 Mass. 112, 113 (2015). "Nevertheless, we decide the case because it raises important issues concerning" appellate review of § 35 commitments, "and these issues are likely to evade review on account of the relatively short duration of the involuntary commitment under § 35." Id. Cf. Matter of F.C., 479 Mass. 1029, 1029-1030 (2018), quoting Seney v. Morhy, 467 Mass. 58, 62 (2014) ("a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record'").
3 "Any police officer, physician, spouse, blood relative, guardian or court official" may file a § 35 petition for a civil commitment order. G. L. c. 123, § 35, second par. 3
notice to the respondent and an evidentiary hearing with expert
testimony, a judge finds that the respondent "is an individual
with [a] . . . substance use disorder and there is a likelihood
of serious harm as a result of the [respondent's] . . .
substance use disorder," the judge may order the individual
involuntarily committed for up to, but not more than, ninety
days, to a facility licensed or otherwise approved by the
Department of Public Health. G. L. c. 123, § 35, third par.
To protect the fundamental liberty interests of an
individual in a civil commitment proceeding, see Addington v.
Texas, 441 U.S. 418, 425-426 (1979), a judge's order of
involuntary commitment under § 35 must be based on clear and
convincing evidence. Matter of G.P., 473 Mass. 112, 120 (2015).
See Mass. G. Evid. § 1118 (a) (2018). "Clear and convincing
evidence involves a degree of belief greater than the usually
imposed burden of proof by a fair preponderance of the evidence,
but less than the burden of proof beyond a reasonable doubt
imposed in criminal cases." Callahan v. Westinghouse
Broadcasting Co., 372 Mass. 582, 584 (1977). This heightened
evidentiary standard not only demonstrates the importance of the
decision ordering the involuntary commitment, but it also
safeguards against the chance of inappropriate commitments.4 It
4 "The function of a standard of proof, as that concept is embodied in the Due Process Clause [of the Fourteenth Amendment 4
is necessary to ensure that a respondent's "potential for doing
harm, to himself or to others, is great enough to justify such a
massive curtailment of liberty." Commonwealth v. Nassar, 380
Mass. 908, 917 (1980), quoting Lessard v. Schmidt, 349 F. Supp.
1078, 1093 (E.D. Wis. 1972), vacated and remanded on other
grounds, 414 U.S. 473 (1974).
2. Standard of review. In this case, A.M. does not
challenge the judge's subsidiary findings. Rather, he
challenges the sufficiency of the evidence in support of the
judge's conclusion that A.M. suffered from a substance use
disorder that resulted in the "likelihood of serious harm."
G. L. c. 123, § 35, third par.
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.5 See G.E.B. v.
to the United States Constitution] and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication." Addington, 441 U.S. at 423, quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring).
5 A finding of fact 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." Marlow v. New Bedford, 369 Mass. 501, 508 (1976), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). See 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 5
S.R.W., 422 Mass. 158, 172 (1996), and cases collected.
However, we generally "scrutinize without deference the
propriety of the legal criteria employed by the trial judge and
the manner in which those criteria were applied to the facts."
Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v.
M.M., 442 Mass. 648, 655 (2004). This standard of review has
been previously applied in the context of § 35 commitments. See
Matter of G.P., 473 Mass. at 129-130. See also Greenberg v.
Commonwealth, 442 Mass. 1024, 1024 (2004) ("expert's affidavit
supporting the commitment petition was wholly insufficient").
Accordingly, it is the standard we employ in our review here of
the judge's order under § 35.
3. Likelihood of serious harm. In the context of § 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
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. New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). 6
reasonable provision for his protection is not available in the
community."6 G. L. c. 123, § 1.
Both the court clinician and A.M.'s mother testified to
A.M.'s long-standing battle with an addiction to crystal
methamphetamine. However, chronic substance abuse, "by itself,
is insufficient to establish a 'very substantial risk' of harm."
Matter of G.P., 473 Mass. at 128.
Instead, there must be an element of imminent risk of
serious harm. Id. at 127. The evidence must support a
conclusion that the imminent harm will materialize "in the
reasonably short term -- in days or weeks rather than in
months." Id. at 128. "We may accept . . . that in the degree
that the anticipated physical harm is serious -- approaches
death -- some lessening of a requirement of 'imminence' seems
justified." Id., quoting Nassar, 380 Mass. at 917.
Here, A.M.'s mother reported rescuing A.M., while he was
living on his own in New York, from unhealthy and unsanitary
conditions that resulted from his substance use disorder. She
also reported that A.M.'s drug use induced lethargy,
6 "Likelihood of serious harm" is also defined as "(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; [or] (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 . . . ." G. L. c. 123, § 1. 7
hyperactivity, and hallucinations. On the question of the
likelihood of serious harm, the court clinician opined only that
"[A.M. has a] very serious medical condition and his mother's report that when he's using, which has been -- she's reporting almost daily -- that he's not taking care of himself. . . . [and] although he's taking the medication for the serious medical condition, that that combination can be potentially life-threatening as well . . . ."
However, neither A.M.'s failure to take his prescribed
medication consistently nor the possibility that his illicit
drug use in combination with an unspecified prescribed
medication regimen that has mere potential to be life
threatening rises to "imminent serious harm." Accordingly, the
evidence before the judge did not justify A.M.'s involuntary
commitment under § 35. See Matter of G.P., 473 Mass. at 129.7
4. Conclusion. We sympathize with a mother's concern over
her child's substance use disorder, and we recognize that risk
factors in cases under § 35 are fluid and can change over time.
These cases are not amenable to bright lines. Cf. Commonwealth
v. Boucher, 438 Mass. 274, 276 (2002) (assessing risk of
reoffending under G. L. c. 123A is determined "case-by-case").
Nevertheless, we cannot conclude that the evidence here
justified A.M.'s involuntary commitment under the statute.
7 The judge appears to have also found that A.M.'s substance use disorder could present a likelihood of serious harm to others. We discern no evidence in the record that supports this alternative basis for commitment. 8
Accordingly, we reverse the decision and order of the Appellate
Division, and a new order shall enter vacating the order of
involuntary commitment pursuant to G. L. c. 123, § 35.
So ordered.
MS