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In re D.K.

Appeals Court of Massachusetts, Middlesex

March 27, 2019

IN THE MATTER OF D.K.

          Heard: January 11, 2019.

         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.

          Present: Hanlon, Lemire, & Wendlandt, JJ.

          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 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 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, 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 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 ...


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