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18-P-328                                            Appeals Court

                       IN THE MATTER OF D.K.


                           No. 18-P-328.

       Middlesex.       January 11, 2019. - March 27, 2019.

           Present:    Hanlon, Lemire, & Wendlandt, JJ.


Practice, Civil, Commitment of mentally ill person, Moot case.
     Moot Question. Words, "Likelihood of serious harm."



     Petition for civil commitment filed in the Cambridge
Division of the District Court Department on July 11, 2016.

    The case was heard by Janet J. McGuiggan, J.


     Karen Owen Talley, Committee for Public Counsel Services,
for the defendant.
     Julia E. Kobick, Assistant Attorney General, for Department
of Mental Health.


    WENDLANDT, J.     This is an appeal from a decision and order

of the Appellate Division of the District Court, affirming an

order of involuntary civil commitment for mental illness issued

by a District Court judge pursuant to G. L. c. 123, § 16 (b).

The question on appeal centers on whether the evidence was
                                                                      2


sufficient to establish a "likelihood of serious harm," as

defined in G. L. c. 123, § 1.   To answer this question, we apply

principles regarding the temporal nature of evidence upon which

this probabilistic assessment may rely.

    In particular, the petitioner, Worcester Recovery Center

and Hospital (WRCH), a Department of Mental Health (DMH)

facility, presented evidence that the respondent, D.K., had

required emergency hospitalization nearly two years earlier when

she was found in a life-threatening condition, severely

malnourished, and in a state of squalor, after failing to take

medication to treat her mental illness, schizophrenia.     We agree

with D.K. that such evidence alone may be insufficiently

proximate in time to make the requisite showing of imminence and

risk under prong three of the statutory definition of

"likelihood of serious harm."   Here, however, WRCH also

presented evidence that, at the time of the civil commitment

hearing, D.K. was suffering from delusions of persecution,

thought and perceptual disturbances, and as had occurred prior

to the aforementioned emergency hospitalization, she was

refusing psychiatric treatment and declining to bathe or change

her clothing despite repeated offers of assistance by WRCH staff

members.   Together with the evidence of the extreme state in

which she had presented in her prior hospitalization, this
                                                                     3


evidence was sufficient to support the legal conclusion required

under prong three.    Accordingly, we affirm.

     Mootness.   We note that the civil commitment order expired

before the Appellate Division decided the appeal.    "In the

context of involuntary hospitalization, '[a]lthough an expired

or terminated [commitment] order may no longer have operative

effect, [an] appeal should not be dismissed without considering

the merits of the underlying [commitment] order.'"     Matter of

M.C., 481 Mass. 336, 343 (2019), quoting Matter of F.C., 479

Mass. 1029, 1029-1030 (2018).    In light of this, D.K.'s "case is

not moot, and we decide [her] claims on the merits."    Matter of

M.C., supra.

     Background.1    At the time of the civil commitment hearing,

D.K. was thirty-one years old.    She was homeless and faced

criminal charges of three counts of trespass, pursuant to G. L.

c. 266, § 120, one count of disorderly conduct, pursuant to

G. L. c. 272, § 53, and one count of assault and battery on a

person age sixty or over or with a disability, pursuant to G. L.

c. 265, § 13K (a 1/2).    A District Court judge (trial judge)

ordered a competency evaluation pursuant to G. L. c. 123, § 15,




     1 On appeal, D.K. does not dispute the evidence presented by
WRCH at the civil commitment hearing; instead, her challenge
centers on the legal conclusion regarding "likelihood of serious
harm" that this evidence supports.
                                                                     4


which was done at WRCH.    Following the evaluation, D.K. was

found incompetent to stand trial.

     WRCH filed the present petition pursuant to G. L. c. 123,

§ 16 (b), seeking to commit D.K. for a period not to exceed six

months.    At the civil commitment hearing before a different

District Court judge (hearing judge), WRCH presented evidence

that D.K. suffered from schizophrenia,2 a mental disorder of

thought and perception.    John V. Gilmore, Jr., a forensic

psychologist at WRCH, was WRCH's sole witness.3    Dr. Gilmore

testified that D.K. had "delusions of persecution," including a

belief that "she was being targeted."    Dr. Gilmore noted that

D.K. had "impairments in the form of her thinking," "apparent

thought-blocking," and "thought disturbance."     Over the course

of D.K.'s two-month evaluation at WRCH, she was observed nine

times "appearing internally preoccupied, inappropriate[ly]

laughing as if responding to internal stimuli . . . [and]

complaining of perceptual disturbances."    She was unable to care

for her hygiene and grooming, declining to shower and wearing

the same clothes despite repeated offers of assistance from the


     2   On appeal, D.K. does not dispute this diagnosis.

     3 D.K. refused to allow Dr. Gilmore to examine her during
the two months she was at WRCH, where she had resided since the
trial judge had ordered the competency evaluation. However, Dr.
Gilmore explained that his testimony regarding D.K. was based on
his own observations of D.K., review of her medical records, and
consultation with other professionals involved in her care.
                                                                   5


staff.    Although D.K. was consuming food and fluids while she

was in the WCRH's supervised setting, Dr. Gilmore opined that,

based on her current symptoms and lack of treatment, D.K.'s

judgment was so impaired that she posed a life-threatening risk

to herself unless civilly committed.    Dr. Gilmore relied on

D.K.'s medical history -- namely, two other instances when D.K.

lapsed into life-threatening conditions following her refusal to

take medication after her discharge from prior hospitalizations.

     Specifically, after her release in May 2013, from an

approximately three-week-long hospitalization at Solomon Carter

Fuller Center, another DMH facility,4 D.K. was arrested on a

default warrant in October 2013, and sent to the house of

correction.    She was not taking her medications, went on a

"hunger strike," and had to be hospitalized.    The record on

appeal does not contain additional information about D.K.'s

state prior to this hospitalization, which occurred in October

2013 -- nearly three years before the civil commitment hearing.

     More recently, after an approximately seven-month-long

hospitalization at WRCH during which D.K. had achieved

stabilization and was taking her medication,5 she was released




     4   D.K. had been hospitalized from April to May 2013.

     5 D.K. was hospitalized at WRCH from December 2013 to July
2014. She was discharged in July 2014, following evaluation by
Dr. Gilmore in May 2014 in which he opined that she had been
                                                                     6


into the community in July 2014 and offered continuing

psychiatric services by DMH.   Within days or weeks of her

release, D.K. stopped taking her medications and left for New

York to visit a relative.   In October 2014, she was found in an

extreme state of uncleanliness and severely malnourished and

dehydrated at a shelter.    "She was not getting out of bed.   She

was urinating on her linens.   She wasn't showering.   There were

yellow cups near her bed that she [said were] vomit, because she

had been too weak to get [up]."   According to Dr. Gilmore, her

weight loss was so alarming that she was hospitalized on an

emergency basis at Massachusetts General Hospital (MGH) in "a

life-threatening medical condition," and given emergency

intravenous fluids.   As discussed supra, this hospitalization

occurred in October 2014 -- nearly two years before the civil

commitment hearing.   D.K. was discharged from MGH, and in

February 2015, she was committed overnight pursuant to G. L.

c. 123, § 12, because she was "[e]xperiencing disturbing voices

with suicidal content."6



stabilized due to her medications and was then-competent to
stand trial.

     6 During oral argument before the Appellate Division,
counsel for WRCH indicated that D.K. had been hospitalized for
two weeks in "January/February 2015" due to "dehydration and the
potential life-threatening condition she was in." The record
before the hearing judge, however, does not indicate any
reference to this two-week hospitalization. Accordingly, we do
not consider this statement in our analysis.
                                                                    7


     The record is devoid of any information regarding D.K.'s

condition from February 2015 until June 2016, when she was sent

by the trial judge for an evaluation of her competency to stand

trial on the aforementioned charges.7   She was not malnourished;

however, she was not taking any medications8 and refused

psychiatric treatment for her mental illness.   She was not

tending to her hygiene for at least a period of two months,

refusing to bathe or change her clothing.   Significantly, this

state mirrored the state in which she had been found just prior

to her emergency hospitalization in October 2014.

     According to Dr. Gilmore, D.K. lacked insight into her

condition and did not "appear to have insight into her need to

have treatment at all."   Although D.K. earlier had spent

approximately seven months at WRCH (from December 2013 to July

2014), she denied that she had previously been at the facility.

D.K. also did not recognize Dr. Gilmore, although he had

evaluated her in May 2014 during her prior hospitalization at




     7 D.K. was also hospitalized at a private facility, Arbour-
Fuller, but neither the details of her condition during this
hospitalization nor the timing thereof is in the record.

     8 At the time of the hearing, the only medicine prescribed
was "PRN," indicating that D.K. was to take the medication as
needed.
                                                                     8


WRCH.9    Finally, Dr. Gilmore also opined that a locked recovery

center, like WRCH, was the least restrictive placement

appropriate for D.K. in view of her condition.10

     D.K. testified on her own behalf.    She stated that she had

been eating "fine" under the supervision of WRCH, she did not

intend to stop eating if transferred to jail, and she hoped to

make bail and live with a friend.    She stated that she did not

"remember being on medications in the hospital, but outside in

the community."    She acknowledged stopping those medications.

She did not recognize that she had schizophrenia and believed

her prior medications were for depression.

     The hearing judge issued an order committing D.K. for a

period not to exceed six months.    D.K. appealed to the Appellate

Division.    The Appellate Division affirmed the order and

dismissed the appeal, and this appeal followed.

     Discussion.    WRCH filed the petition pursuant to G. L.

c. 123, § 16 (b), which in turn requires the judge to make

findings required under G. L. c. 123, § 8 (a).     Section 8 (a)

permits civil commitment only if the judge finds beyond a




     9 In May 2014, Dr. Gilmore opined that, D.K. had been
stabilized due to her medications and was then competent to
stand trial.

     10D.K. moved for a required finding at the close of WRCH's
case, which was denied.
                                                                     9


reasonable doubt11 that the respondent is mentally ill and that

her discharge "would create a likelihood of serious harm."

"Likelihood of serious harm" is defined in G. L. c. 123, § 1,

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; (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;
      or (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."

At the hearing, Dr. Gilmore opined that neither prong one or two

applied to D.K.     WRCH proceeded on the theory that prong three

was met.     Thus, the question on appeal is whether the evidence

supported the legal conclusion that there was an imminent and

"very substantial risk of physical impairment or injury" to D.K.

by virtue of her judgment being so adversely affected by her

mental illness that she could not protect herself from physical

harm.      See Matter of G.P., 473 Mass. 112, 128-129 (2015).   In




      11"A person is not to be committed under the statute unless
the substantial risk is proved by the [petitioner] beyond a
reasonable doubt." Commonwealth v. Nassar, 380 Mass. 908, 916
(1980). See Superintendent of Worcester State Hosp. v. Hagberg,
374 Mass. 271, 276 (1978) (standard of proof for G. L. c. 123,
§§ 7-8, civil commitment proceeding is proof beyond reasonable
doubt).
                                                                  10


particular, D.K. maintains that the evidence of her prior

hospitalizations was insufficiently proximate in time to make

the requisite showing.

    1.   Standard of review.   We review the hearing judge's

findings of fact for clear error.   This is because the judge,

having presided over the hearing, was in the best position to

weigh the evidence and to assess witness credibility.    See

G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996), and cases cited.

We "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."   Matter of A.M., 94

Mass. App. Ct. 399, 401 (2018), quoting Iamele v. Asselin, 444

Mass. 734, 741 (2005).   See, e.g., Matter of G.P., 473 Mass. at

129-130 (deferring to judge's subsidiary findings in G. L.

c. 123, § 35, civil commitment, but reviewing without deference

legal conclusion that required showing whether "a substantial

risk of serious harm to others" was met); Commonwealth v.

DelVerde, 401 Mass. 447, 450-452 (1988) (applying clear error

standard to judge's subsidiary findings in G. L. c. 123, §§ 8 &

16, proceeding, but reviewing sufficiency challenge without

deference).

    2.   Evidence of an imminent and "a very substantial risk"

under prong three.   Viewed in isolation, D.K.'s prior

hospitalizations -- the most recent of which occurred nearly two
                                                                       11


years prior to the hearing -- may not have been sufficiently

proximate in time to sustain the showing of an imminent and very

substantial risk of physical impairment or injury.        As the court

noted in Matter of G.P., 473 Mass. at 126, in connection with

prong one, "as a matter of experience and logic, the more recent

the evidence of threats or attempts of suicide or infliction of

serious bodily harm, the more weight that evidence should carry

in supporting a determination that there is a significant risk

of self-harm."    The corollary, of course, is that evidence from

further back in time carries less weight because "the forecast

of events tends to diminish in reliability as the events are

projected ahead in time."        Commonwealth v. Nassar, 380 Mass.

908, 917 (1980).

    The value of such remote evidence diminishes even more

rapidly with regard to prong three, where "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."        Matter of

G.P., 473 Mass. at 129.        This is because, while prongs one and

two require a showing of a "substantial risk" of harm to self or

others, prong three requires "a very substantial risk" of harm

to self and "requires more certainty that the threatened harm

will occur."     Id. at 128.

    This does not mean, however, that evidence going back in

time is irrelevant in making the assessment of risk required
                                                                   12


under prong three.   As the court stated in Matter of G.P., 473

Mass. at 125, "[i]t is neither possible nor appropriate to try

to establish a set of definite temporal boundaries for such

evidence; the assessment of risk is a probabilistic one, and

necessarily must be made on the basis of the specific facts and

circumstances presented."   Moreover, the more serious the

anticipated physical harm, and in particular, as it approaches

death, "some lessening of a requirement of 'imminence' seems

justified."   Nassar, 380 Mass. at 917.   Here, the evidence was

that two years ago, D.K.'s judgment was so affected by her

mental illness that she was unable to protect herself from a

life-threatening condition.   Thus, although this evidence was

from two years prior to the hearing, it nonetheless is

significant "in making a positive risk assessment about

likelihood of harm."   Matter of G.P., supra at 126.

    Specifically, the evidence of D.K.'s prior condition placed

in context the risk presented by her present condition, which

included that she presently was experiencing thought and

perceptual disturbances, believed she was being persecuted, was

responding inappropriately to internal stimuli, and was unaware

of her diagnosis and need for treatment.   D.K. was refusing

psychiatric treatment and was not bathing or changing her

clothes, even though she was offered assistance at least ten

times during the course of her two-month stay at WRCH prior to
                                                                   13


the hearing.    These latter behaviors were significant not in

isolation, but because they echoed some of the conduct D.K. had

exhibited just prior to her emergency hospitalization almost two

years earlier,12 when she was found in a life-threatening

condition.     At that time, she was also not taking medications

and not showering, and she was languishing in extremely

unsanitary conditions.     So, while she was eating or drinking

during her supervised stay at WCRH, the prior hospitalization

provided evidence relevant to the risk assessment that was

required.     See Matter of G.P., 473 Mass. at 125-126.   Her

current condition viewed in the context of her prior

hospitalization support the conclusion that there was an

imminent and a very substantial risk of physical impairment or

injury as a result of the impact of D.K.'s mental illness on her

judgment.13




     12Because the evidence of D.K.'s present state, coupled
with her hospitalization two years ago, support the legal
conclusion required under prong three, we need not consider
either the hospitalization in 2013 for a "hunger strike" or the
February 2015 hospitalization for hearing voices with suicidal
content. Notably, however, Dr. Gilmore testified that D.K. was
not suicidal and that she was eating.

     13On appeal, D.K. contends for the first time that WRCH
failed to show, beyond a reasonable doubt, that reasonable
provision for her protection is not available in the community.
The issue was not raised before the Appellate Division.
Accordingly, D.K. has waived this argument. See Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century
Fire & Marine Ins. Corp. v. Bank of New England-Bristol County,
                                                                 14


                                   Decision and order of
                                     Appellate Division
                                     affirmed.




N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or
argued below may not be argued for the first time on appeal").
