Heard: October 6, 2017.
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.
Present: Wolohojian, Maldonado, & Wendlandt, JJ.
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 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. 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
Statutory framework and standard of proof.
35 authorizes a "blood relative," among others,
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 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.
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. It 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).
Standard of review.
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.
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. See G.E.B.
v. 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.
Likelihood of serious harm.
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