IN THE MATTER OF G.P.
SJC-11911
Supreme Judicial Court of Massachusetts
September 10, 2015. - November 5, 2015.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
Suffоlk. Practice, Civil, Civil commitment, Standard of proof, Hearsay, Appeal, Moot case. Uniform Trial Court Rules for Civil Commitment Proceedings. Moot Question. Words, “Likelihood of serious harm,” “Very substantial risk.”
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 1, 2015.
The case was reported by Lenk, J.
Ann Grant (Robert H. Weber with her) for the petitioner.
Julia Kobick, Assistant Attorney General, for the respondent.
Sandra J. Staub & Robert D. Fleischner, for Mental Health Legal Advisors & others, amici curiae, submitted a brief.
BOTSFORD, J. We consider here questions concerning proceedings under
G.P. is no longer committed to the facility, rendering moot her challenge to the order of commitment. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000) (Baker). Nevertheless, we decide the case because it raises important issues concerning the operation of § 35 as well as the Uniform Trial Court Rules for Civil Commitment Proсeedings for Alcohol and Substance Abuse (uniform § 35 rules) scheduled to go into effect on February 1, 2016, and these issues are likely to evade review on account of the relatively short duration of a commitment under § 35. See, e.g., Baker, supra; Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978) (Hagberg).1 See also Guardianship of V.V., 470 Mass. 590, 591-592 (2015).
On May 4, 2015, G.P‘s mother petitioned the New Bedford Division of the District Court Department (New Bedford District Court) to have her daughter committed pursuant to § 35. The petition alleged in relevant part that G.P.‘s mother had observed G.P. abusing heroin and that G.P. was using about two grams per day; that G.P. had stated that she would kill herself with heroin if she could obtain enough to do so; that G.P. was refusing to eat because she stated she wanted to die; that G.P. had hit her mother “before” and “pushed” and “shoved” her many times; that G.P. had been abusing drugs for two years; and that she had had two “detox hospitalizations” in the past, the most recent having taken place eight to nine months previously.
A Distriсt Court judge held a hearing on the petition the day it was filed. Prior to the hearing, Dr. Ruth Saemann, a designated forensic psychologist, had examined G.P. and also had met with G.P.‘s sister. Dr. Saemann testified at the hearing that the family believed G.P. had been using heroin for the past two years; that G.P. was feeling “very despondent” and had stated she would kill herself if she could get enough heroin; that G.P. had threatened the family that they would never see
“I don‘t believe, given [G.P.‘s] record and her history, that she is capable of stopping this on her own. I think shе does need to, . . . that she has lost control
of the use of heroin and will need . . . a commitment. I do find that she is a danger to herself by use of her heroin. . . . I also think that . . . if indeed the child is finding syringes . . . and [G.P.]‘s Hep[atitis] C positive, that is putting the child in serious harm‘s way.”
The judge credited as fact Dr. Saemann‘s testimony recounting what G.P.‘s sister and G.P. had told her. The judge further noted that G.P. had “pushed her mother the other day,” and concluded that all he had heard “mitigates in favor . . . of a commitment. I‘m not saying [G.P.] didn‘t try. . . . She failed. She couldn‘t dry herself out. She tried to detox. She‘s got recent track marks. . . . [S]he can‘t do it on her own.” The judge ordered G.P. committed to WATC.2
G.P. appealed the commitment order to the Appellate Division of the District Court,3 which denied relief and dismissed the appeal on May 21, 2015. G.P. filed her petition for relief under
“1) The standard of proof required at a commitment hearing under
G. L. c. 123, § 35 ;“2) whether the rules of evidence apply [in] a hearing on a petition for commitment pursuant to
G. L. c. 123, § 35 ;“3) [t]he route of appeal from a decision ordering civil commitment under
G. L. c. 123, § 35 ;“4) the proximity in time of the ‘evidence of, threats of, or attempts at, suicide or serious bodily harm’ to the respondent, and the proximity in time of the ‘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’ necessary to establish a ‘likelihood of serious harm,’
G. L. c. 123, § 1 ,5 to the respondent or others, for an order of commitment to issue; and“5) the quantum of risk necessary to establish ‘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.’ See
G. L. c. 123, §§ 1, 35 .”
Discussion.
We consider each of the reported questions infra, but first summarize § 35‘s provisions and the provisions of the trial court‘s uniform § 35 rules.
1. Commitment proceedings under § 35.
A petition for an order of commitment under § 35 of a person believed to be an
Following a respondent‘s commitment, the superintendent of the public or private facility to which the commitment was ordered must review the necessity of the commitment on the thirtieth day and every fifteen days thereafter for as long as the commitment continues, up to the ninety-day limit.
2. Uniform § 35 rules.
In 2014, the Trial Court published for public comment a proposed set of uniform rules to govern proceedings under § 35. Following a public comment period, a final version of the proposed uniform § 35 rules was submitted to this court for approval on June 1, 2015, and approved on July 22, 2015. The rules will take effect February 1, 2016.9
3. Reported questions.
a. Question 1: standard of proof.
Section 35 does not specify the standard of proof applicable to § 35 commitment proceedings. The uniform § 35 rules mandate use of a “clear and convincing” standard of proof, i.e., that the judge must find proved by clear and convincing evidence the facts supporting determinations that the respondent is an alcoholic or substance abuser and that there is a likelihood of serious harm directly resulting from his or her alcoholism or substance abuse. See rule 6(a). G.P. argues that proof beyond a reasonable doubt is the required standard of proof for a commitment under § 35, pointing out that other types of civil commitments, see, e.g.,
Section 35 requires that a judge base his or her determination to order a respondent committed “upon competent testimony, which shall include, but not be limited to, medical testimony.”
“The burden [of persuasion] is not a burden of convincing you that the facts which are asserted are certainly true or that they are almost certainly true, or are true beyond a reasonable doubt. It is, however, greater than a burden of convincing you that the facts are more probably true than false. The burden imposed is to convince you that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are not exist. If then you believe upon consideration and comparison of all the evidence in the case that there is a high degree of probability that the facts are true you must find that the fact[s] have been proved.”
We disagree that strict adherence to the rules of evidence is required. In certain types of proceedings, the court has recognized that formal rules of evidence may not apply, even where liberty interests are at stake and even where no specific statutory authority exists. See Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990) (rules of evidence need not apply in probation revocation рroceedings; probation revocation determination may be based on substantially reliable hearsay evidence). See also Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014); Abbott A., 458 Mass. at 34-35. We have explained that, where a deprivation of liberty is involved, due process protections require “notice and opportunity for a hearing appropriate to the nature of the case” (emphasis in original). Myers v. Commonwealth, 363 Mass. 843, 854 (1973). The uniform § 35 rules afford the respondent -- who is entitled under § 35 to be represented by counsel and to have counsel immediately
In Durling, 407 Mass. at 114-118, this court discussed in some detail the admissibility of hearsay in the context of probation revocation hearings. We explained that reliable hearsay has always been allowed in probation revocation proceedings because of the “flexible” nature of the proceedings,
c. Question 3: proper route of appeal of a commitment order.
The route of appeal of a § 35 commitment order is defined by applicable statutes and also by the uniform § 35
A party aggrieved by a decision of the Appellate Division of the District Court or the Boston Municipal Court has a
G.P.‘s argument fails. Relief under
With respect to expedition of the appeals, as this case demonstrates -- and as the uniform § 35 rules provide, see rule 11(a) -- an appeal to the appropriate Appellate Division may be expedited on request. Similarly, the Appeals Court has the authority to handle appeals on an expedited basis when expedition is called for, and there is no reason to believe that court will not do so. See Kordis v. Appeals Court, 434 Mass. 662, 669 n.13 (2001).
d. Question 4: proximity in time of evidence necessary to establish a “likelihood of serious harm” to the respondent or others for an order of commitment to issue.
Section 35 provides that an order of commitment only may be entered if the judge finds, based on the evidence presented, both that the respondent is an “alcoholic” or “substance abuser” (as defined in § 35) and that there is “a likelihood of serious harm” as a result of that condition.
“‘Likelihood of serious harm‘, (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.”
As its words and structure reflect, this definition has three prongs -- that is, it defines “likelihood of serious harm” in terms of three separate types of risk, any one of which, if found, independently qualifies as presenting a likelihood of serious harm. The reported question addresses the definition‘s first two prongs, and focuses on the evidence of the respondent‘s past conduct that can be used as the basis for finding the requisite “substantial risk” that the respondent hereafter will inflict serious physical harm on himself or herself (first prong), or another person (second prong), as a result of the respondent‘s alcoholism or substance abuse. More particularly, the question asks, in substance, how recent in time must the evidence of the respondent‘s past conduct have occurred for it to serve as a basis on which to find a substantial risk of physical harm to herself or to others. In responding to the question, however, G.P. does not directly discuss past conduct, but focuses more on whether the
i. Evidence of past conduct.
The first prong of the definition of “likelihood of serious harm” requires “evidence of, threats of, or attempts at, suicide or serious bodily harm” to the respondent.18
Our observations about the temporal relationship between the evidence of prior conduct and the necessary assessment of the risk of harm equally apply to the second prong of the
ii. Risk of harm.
We consider the point on which G.P. has focused, namely, whether, in order to meet the definition of “likelihood of serious harm” under the definition‘s first or second prong, it is necessary to show a substantial risk of imminent harm to self or others. In Nassar, 380 Mass. at 908-909, 912-917, this court considered the statutory definition of “likelihood of serious harm” in the context of determining whether the respondents, who had been found not guilty by reason of lack of criminal responsibility on charges of abandonment and manslaughter in connection with the death of their child, should
It is true that the Legislature did not include the word “imminent” or specify any “immediacy” requirement in the definition of “likelihood of serious harm.”
The question remains as to what “imminent” means in this context. In our view, “imminent” here does not mean “immediate” -- the petitioner need not establish a substantial risk that the anticipated harm will occur immediately. Rather, what must be shown is a substantial risk that the harm will materialize in the reasonably short term -- in days or weeks rather than in months. But again, the court‘s discussion of “imminence” in Nassar is pertinent. See 380 Mass. at 917 (“We may accept, further, that in the degree that the anticipated physical harm is serious -- approaches death -- some lessening of a requirement of ‘imminence’ seems justified“).
e. Question 5: quantum of risk necessary to satisfy “a very substantial risk.”
The final reported question concerns
440 Mass. 108, 120 n.9 (2003). Here, although we have concluded that proof by clear and convincing evidence is the appropriate standard of proof in a § 35 proceeding, it is itself a heightened one in relation to the usual preponderance of the evidence standard applicable in civil cases. See Addington v. Texas, 441 U.S. 418, 423-424 (1979). The heightened burden increases the need for greater reliability of the evidence. See generally id. at 425-427.
Both parties agree that proof that the respondent is a chronic alcoholic or substance abuser, by itself, is insufficient to establish a “very substantial risk” of harm under the third prong. G.P. argues that proof of the third prong is particularly stringent and more demanding than that of the first two prongs. Citing Nassar, 380 Mass. at 913, she contends that there must be proof that an individual is unable to sustain himself or herself even marginally in society.22 We take a different view. Clearly the degree of risk that the third prong requires to be proved is greater than that required by the first or second prong: by definition, a “very substantial” risk is not the same as a “substantial” risk, and requires more certainty that the threatened harm will occur.
G.P. is no longer committed to WATC pursuant to the order that was the subject of her petition for relief from the single justice, and therefore it is no longer necessary to review the validity of that order. We have discussed briefly some of the evidence presented in connection with our responses to the reported questions, see notes 19 and 20, supra, and add the following with the goal of offering some guidance for future cases. As indicated at the outset of this opinion, the judge accepted as fact the testimony of the forensic psychologist who was a witness at the § 35 commitment hearing and, based on those facts, issued the order of commitment, finding, at least implicitly, that G.P. was a substance abuser and that a likelihood of serious harm resulting frоm her substance abuse had been established. It appears from his brief comments that the judge concluded that G.P. at least presented a substantial risk of serious harm to others, including specifically G.P.‘s mother. The evidence of such a
may qualify under this prong, but presumably any person who meets § 35‘s definition of an alcoholic or substance abuser presents a significant risk of overdosing. Accordingly, there must be strong and specific evidence presented that the risk of the respondent‘s overdosing is indeed imminent, and that the degree of probability that he or she will do so is high.
5. Conclusion.
The petition for relief is dismissed as moot.
So ordered.
Notes
See Callahan, supra at 588 n.3, quoting McBaine, Burden of Proof: Degrees of Belief, 32 Cal. L. Rev. 242, 263-264 (1944):“The burden of persuasion . . . in those cases requiring a showing of clear and convincing proof is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”
There is no suggestion in the record -- and the parties do not suggest -- that the judge found the third prong of likelihood of serious harm to have been established.