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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
