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SJC-11911

IN THE MATTER OF G.P.

Suffolk. September 10, 2015. - November 5, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

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. L. c. 123, § 35 (§ 35), a statute that

authorizes the involuntary civil commitment of a person, for

care and treatment, where there is a likelihood of serious harm 2

as a result of the person's alcoholism or substance abuse, or

both. In May, 2015, a District Court judge ordered G.P., the

petitioner, committed pursuant to § 35 to the Women's Addiction

Treatment Center (WATC), a facility operated by the Department

of Public Health. After an unsuccessful appeal of the

commitment order to the Appellate Division of the District

Court, G.P. filed a petition for relief in the county court

pursuant to G. L. c. 211, § 3, to challenge and vacate the

order. A single justice reserved and reported the case.

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,

(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 Proceedings 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.,

Superintendent

of Worcester State Hosp. v. Hagberg,

(1978)

(Hagberg).1 See also Guardianship of V.V.,

, 591-

592 (2015).

1 Furthermore, "[w]here . . . the single justice has, in [her] discretion, reserved and reported the case to the full 3

Background. 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 District 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

court, we grant full appellate review of the issues reported." Matter of a Grand Jury Investigation,

, 402 n.4 (2015), quoting Martin v. Commonwealth,

(2008). 4

G.P.'s child again if they did not give her enough money, and

she had stolen items from the family in order to obtain money;

that G.P. had tried detoxification on her own the previous week

and had become very sick, followed by daily use of heroin since

then; and that the family was concerned about G.P.'s three year

old child, who had brought a syringe to the child's grandfather

(G.P.'s father), although Dr. Saemann did not know when this

incident had occurred. According to Dr. Saemann, G.P.'s mother

had stated that the previous week G.P. had pushed her, "[a]nd,

that's not the first time that she's pushed her mother when she

doesn't get her way." Dr. Saemann also testified to what G.P.

had told her, including that G.P. admitted having a heroin

problem for the past two years; that she, G.P., recently had

relapsed but had only used heroin twice in the previous week;

that she denied her son had given a syringe to his grandfather;

that she suffered from anxiety and depression but was not

presently taking medication for those conditions, and also had

hepatitis C; and that she was neither homicidal nor suicidal.

Dr. Saemann examined G.P.'s arms and neck for needle marks and

observed puncture marks that looked recent. Dr. Saemann

concluded her testimony by giving her opinion that G.P. met the

requirements of § 35 for commitment, explaining,

"I don't believe, given [G.P.'s] record and her history, that she is capable of stopping this on her own. I think she does need to, . . . that she has lost control 5

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 G. L. c. 211, § 3, on June 1, 2015, naming the

New Bedford District Court as the respondent.4 A single justice

2 The record does not indicate whether the judge specified the length of G.P.'s commitment in the order. 3 Recognizing that G.P.'s commitment likely would end before her appeal could be heard in the normal course, the Appellate Division granted G.P.'s motion to expedite her appeal pursuant to rule 2 of the District/Municipal Court Rules for Appellate Division Appeals. 4 Under S.J.C. Rule 2:22,

(1996), the District Court shall "be treated as a nominal party which may, but need not, appear and be heard" when named as a respondent in a petition for relief pursuant to G. L. c. 211, § 3. 6

reserved and reported the case to the full court without

decision, and directed the parties to address the following

questions:

"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

5 General Laws c. 123, § 1, provides definitions of a number of words and terms used in c. 123, and in particular, defines the term "[l]ikelihood of serious harm," which is used in G. L. c. 123, § 35 (§ 35). We quote this definition in full, infra. 7

"alcoholic"6 or "substance abuser"7 may be filed by a police

officer, physician, spouse, blood relative, guardian, or court

official in any division of the District Court or the Juvenile

Court. G. L. c. 123, § 35, third par. Once the petition is

filed, the court must "immediately" schedule a hearing and cause

a summons to be served on the person (respondent) or, if

appropriate, issue a warrant of apprehension or of arrest.8 Id.

The respondent has the right to counsel, and to have counsel

appointed if indigent. Id.

6 An "alcoholic" is defined as "a person who chronically or habitually consumes alcoholic beverages to the extent that (1) such use substantially injures his health or substantially interferes with his social or economic functioning, or (2) he has lost the power of self-control over the use of such beverages." G. L. c. 123, § 35, first par. 7 A "substance abuser" is defined as "a person who chronically or habitually consumes or ingests controlled substances or who intentionally inhales toxic vapors to the extent that: (i) such use substantially injures his health or substantially interferes with his social or economic functioning; or (ii) he has lost the power of self-control over the use of such controlled substances or toxic vapors." G. L. c. 123, § 35, second par. 8 If the judge determines that there are "reasonable grounds to believe that [the respondent] will not appear and that any further delay in the proceedings would present an immediate danger to the physical well-being of the respondent," the judge may issue "a warrant for the apprehension and appearance of such person," but no arrest of the person may be made unless he or she may be presented immediately before a judge. G. L. c. 123, § 35, third par. The statute also authorizes the judge to issue an arrest warrant if the respondent fails to appear when summoned. Id. 8

When the respondent appears in court, a qualified

physician, psychologist, or social worker must examine her. Id.

Counsel may remain present during the examination. See R.B.

Minehan & R.M. Kantrowitz, Mental Health Law § 13.11 (2007).

The hearing on the petition follows the examination, and it must

include competent medical testimony, but the petitioner may

present additional evidence as well, G. L. c. 123, § 35, fourth

par.; the respondent also may present evidence, including

independent expert testimony, G. L. c. 123, § 35, third par. If

the judge finds, based on the evidence presented, that (1) the

respondent is an "alcoholic" or a "substance abuser" as defined

in § 35, and (2) there is a "likelihood of serious harm" as a

result of the respondent's alcoholism or substance abuse (or

both), the judge may order the respondent committed to a

suitable facility operated by the Department of Public Health

(department) under G. L. c. 111B for a period not to exceed

ninety days, but case management services are to be available

through the department for up to one year; if there is not such

a suitable facility available, commitment may be ordered to a

facility operated by the Department of Correction -- Bridgewater

State Hospital, if the respondent is a man, or the Massachusetts

Correctional Institution in Framingham, if a woman. G. L.

c. 123, § 35, fourth par. Likelihood of serious harm may be

established by a showing of (1) a substantial risk of serious 9

physical harm to the respondent; (2) a substantial risk of

serious physical harm to other persons; or (3) a very

substantial risk of physical "impairment or injury" to the

respondent resulting from an inability to protect himself or

herself in the community. G. L. c. 123, § 1.

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. G. L.

c. 123, § 35, fourth par. The superintendent may release the

respondent before the end of the period of commitment originally

ordered upon a written determination that release "will not

result in a likelihood of serious harm." Id.

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

9 This court's notice of approval of the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse (uniform § 35 rules) referenced the present case and the fact that certain matters addressed by the rules were at issue in this case, and specifically noted that the court's decision might require revisions to the rules. 10

The uniform § 35 rules govern the conduct of commitment

proceedings under § 35 in the District Court, Boston Municipal

Court, and Juvenile Court Departments. See rule 1(a) of the

uniform § 35 rules. The rules address, among other issues, the

standard of proof that applies to § 35 proceedings, the types of

evidence that may be considered, findings to be made by a judge,

and the nature and contents of an order of commitment. See

rules 6(a), 7(a)-(c), 8(a)-(b). In discussing the reported

questions, we consider the particular rules that are pertinent

to them.

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., G. L. c. 123, §§ 7, 8 (mentally

ill person dangerous to self or others), have been interpreted

to require proof beyond a reasonable doubt. 11

Proof beyond a reasonable doubt is a bedrock feature of due

process in criminal trial proceedings. See In re Winship,

(1970). As G.P. points out, we have recognized

that a standard of proof beyond a reasonable doubt also may be

constitutionally required in some types of civil commitment

proceedings, see, e.g., Commonwealth v. Nassar,

(1980) (civil commitment under G. L. c. 123, § 16 [b]);

Hagberg,

(civil commitment under G. L. c. 123,

§§ 7, 8); Andrews, petitioner,

(1975)

(commitment of sexually dangerous person under G. L. c. 123A),

but that this standard is not constitutionally required for all

civil commitment proceedings. See Department of Youth Servs. v.

A Juvenile,

(1981). As a general matter,

outside of criminal trial proceedings, the length of time that

an involuntary commitment may last is key among the factors that

may bear on the determination of what standard applies. See

Abbott A. v. Commonwealth,

(2010); Querubin

v. Commonwealth,

, 120 n.9 (2003); Mendonza v.

Commonwealth,

(1996). Proof beyond a

reasonable doubt of the likelihood of serious harm to oneself or

others is required before a person is committed for mental

illness under G. L. c. 123, §§ 7 and 8, for example, because a

person can be subject to recommitment petitions and hearings 12

indefinitely.10 See Abbott A., supra. In contrast, an

individual committed under § 35 cannot be held for more than

ninety days, and the statute does not allow for extensions.11

Although a § 35 commitment is not a precursor to another type of

commitment or proceeding, nonetheless, we view such a commitment

as more akin to temporary commitments of mentally ill persons

under G. L. c. 123, §§ 12 and 15 (b), or pretrial detentions of

10 The first order of commitment expires after six months, and all subsequent commitments expire after one year. G. L. c. 123, § 8 (d). 11 Other sections of G. L. c. 123 authorizing involuntary civil commitments on account of mental illness contain specific provisions for the extension or renewal of the initial order of commitment, or for seeking a new order of commitment. See G. L. c. 123, §§ 7 (c), 8 (a), (d) (initial orders and renewal of orders of commitment of persons because of risk of serious harm by reason of mental illness); G. L. c. 123, § 12 (d) (authorizing application for commitment under G. L c. 123, §§ 7 and 8, of person initially ordered committed for three-day period on emergency basis on account of risk of serious harm by reason of mental illness). See also G. L. c. 123, §§ 15 (e), 16 (b)-(c), 18 (a) (orders of commitment to hospital on account of mental illness of persons charged with or convicted of crimes or found not guilty by reason of lack of criminal responsibility). Section 35 contains no similar provisions. Particularly in light of the liberty interests at stake, we interpret the absence of any provision for extension or renewal in § 35 to mean that an order of commitment under this section may extend no longer than provided in the order itself -- i.e., no longer than ninety days. G. L. c. 123, § 35, fourth par. See Fernandes v. Attleboro Hous. Auth.,

(2014) ("The omission of particular language from a statute is deemed deliberate where the Legislature included such omitted language in related or similar statutes"). A person may be committed more than once pursuant to § 35, but only as a result of a separate petition for commitment that is independently proved by clear and convincing evidence. 13

dangerous persons under G. L. c. 276, § 58A.12 In each of these

proceedings, a clear and convincing standard of proof applies.

See

at 783 & n.5. Given the limited and

definite time frame involved in a § 35 commitment, we conclude

that a clear and convincing standard is appropriate here as

well. It bears emphasis that the clear and convincing standard

is not without teeth. To meet it, there must be a showing that

the facts establishing the "likelihood of serious harm," see

G. L. c. 123, § 1, are "highly probably true" (citation

omitted). See Callahan v. Westinghouse Broadcasting Co.,

(1977).13

12 Pretrial detentions on the basis of dangerousness may be for 120 days, in the absence of good cause for an extension. G. L. c. 276, § 58A (3). The pretrial detention under § 58A will end no later than the trial, or other disposition of the underlying charge. See Mendonza v. Commonwealth,

(1996). 13 In Callahan v. Westinghouse Broadcasting Co.,

(1977), this court explained the standard of proof by clear and convincing evidence by quoting with approval Dacey v. Connecticut Bar Ass'n,

, 537 n.5 (1976):

"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."

See

at 588 n.3, quoting McBaine, Burden of Proof: Degrees of Belief,

, 263-264 (1944): 14

b. Question 2: rules of evidence. 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." G. L. c. 123, § 35,

fourth par. The statute, however, is silent with respect both

to whether the rules of evidence apply to § 35 commitment

proceedings and to the issue of the admissibility of hearsay

evidence. Id. Rule 7(a) of the uniform § 35 rules provides

that the rules of evidence shall not apply to § 35 commitment

proceedings, except for privileges14 and statutory

disqualifications; this rule also states that hearsay evidence

is admissible and may be relied upon if the judge finds it to be

"substantially reliable." G.P. asserts that there is no support

"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 false or do 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." 14 The commentary to rule 7 of the uniform § 35 rules indicates that the privileges at issue include constitutional, statutory, and common-law privileges. Although not constitutionally required, rule 7(b) prohibits a judge in a § 35 proceeding from drawing an adverse inference from a respondent's refusal to testify. See rule 7(b) & commentary. 15

for "suspending" the rules of evidence; that the rules of

evidence apply in other civil commitment proceedings such as

those held under G. L. c. 123, § 8; and that where the

Legislature has intended the rules of evidence not to apply, it

has explicitly so provided, citing G. L. c. 276, § 58A (4),

which expressly states that the rules concerning admissibility

of evidence in criminal trials do not apply to pretrial

detention hearings for allegedly dangerous persons.

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,

(1990) (rules of evidence need not apply in

probation revocation proceedings; probation revocation

determination may be based on substantially reliable hearsay

evidence). See also Commonwealth v. Bukin,

, 519-

520 (2014); Abbott A.,

. 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,

(1973). The uniform

§ 35 rules afford the respondent -- who is entitled under § 35

to be represented by counsel and to have counsel immediately 16

appointed if indigent -- the right to cross-examine witnesses,

to call witnesses (and therefore to testify), and to present

independent expert and other types of evidence.15 See rule 6(c).

As for hearsay evidence, rule 7(a) specifies that it is

admissible "only if the judge finds that it is substantially

reliable." See Commonwealth v. Patton,

(2010) (discussing criteria relevant to determination of hearsay

reliability).

In Durling,

, 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,

15 With respect to experts, § 35 states that the respondent may present independent expert testimony; rule 6(c) speaks more generally of the right to present independent expert evidence. The right to present expert testimony is likely to be difficult to actualize, given the emergency nature of § 35 proceedings and the reality that, in most cases, the hearing on the § 35 petition is likely to be held on the same day the petition is filed. See R.B. Minehan & R.M. Kantrowitz, Mental Health Law § 13.12 (2007). Nonetheless, in order to ensure that a respondent's right to present independent expert testimony is not chimerical, if a respondent seeks a continuance in order to present such evidence, a judge should give careful consideration to the request in light of the circumstances presented. Even if the emergency nature of those circumstances would make a continuance inappropriate, it may make sense for the judge to deny the continuance request but invite a later motion for reconsideration of a commitment order supported by expert testimony. Moreover, whether or not a respondent seeks or is able to present expert testimony, rule 6(c) entitles the respondent to present expert opinion evidence that might be contained in a medical or other type of record. 17

coupled with the need to consider "all reliable evidence." Id.

at 114. Commitment hearings under § 35 are similar in that the

most reliable and important information supporting or opposing

commitment may only be available as hearsay, given the extremely

short time frame in which the proceeding is to take place. See

G. L. c. 123, § 35, third par. Moreover, as in this case, the

petitioner may be a parent or other close family member of the

respondent, and appearing without counsel. The flexible nature

of due process permits accommodation of these circumstances by

not requiring strict adherence to the rules of evidence, so long

as there is fairness in the proceeding. Cf. Frizado v. Frizado,

(1995) (proceedings under G. L. c. 209A).

Allowing hearsay if it is credible preserves the "due process

touchstone of an accurate and reliable determination,"

, while accounting for practical considerations

of § 35 hearings. But precisely because hearsay evidence may

well play an extremely significant role in these hearings, the

judge's obligation to ensure that any hearsay on which he or she

relies is "substantially reliable," as required by rule 7(a), is

critical, particularly in light of the clear and convincing

evidence standard of proof required by rule 6(a).

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 18

rules. In the District Court and the Boston Municipal Court,

the first stage of appeal is to the Appellate Division of the

respective courts. With respect to the District Court, see

G. L. c. 123, § 9 (a) ("Matters of law arising in commitment

hearings . . . in a district court may be reviewed by the

appellate division of the district courts in the same manner as

civil cases generally"). As for the Boston Municipal Court (as

well as the District Court), see G. L. c. 231, § 108 ("Any party

to a cause brought in the municipal court of the city of Boston,

or in any other district court, aggrieved by any ruling on a

matter of law by a trial court justice, may as of right, appeal

the ruling for determination by the appellate division pursuant

to the applicable rules of court"). Rule 11(a) of the uniform

§ 35 rules essentially incorporates these provisions, but

further specifies that, on request, the Appellate Division is to

"expedite" consideration of any § 35 appeal."16,17

A party aggrieved by a decision of the Appellate Division

of the District Court or the Boston Municipal Court has a

16 Rule 11(a) of the uniform § 35 rules provides: "Any person aggrieved by a decision of the District Court Department or the Boston Municipal Court Department may appeal to the Appellate Division of such Department within seven days. Upon request, the Appellate Division shall expedite consideration of any appeal." 17 The Juvenile Court does not have an appellate division. An aggrieved party is entitled to appeal a decision of a Juvenile Court judge in a § 35 proceeding to the Appeals Court. See rule 11(b) of the uniform § 35 rules. 19

statutory right of appeal to the Appeals Court. See G. L.

c. 231, § 109 ("An appeal to the appeals court shall lie from

the final decision of the appellate division of any division of

the district court department including appeals taken hereunder

from the appellate division of the Boston municipal court

department"). G.P. argues that the appellate remedy purportedly

available under this statute is illusory, because the generally

applicable procedural rules do not provide an avenue for relief

in a timely manner, and, she claims, the statutory authority of

the Appeals Court to provide relief under § 109 does not include

the power to vacate an order of commitment. As a result, G.P.

asserts that the only appropriate avenue of appeal is a petition

for extraordinary relief filed in this court pursuant to G. L.

c. 211, § 3.

G.P.'s argument fails. Relief under c. 211, § 3, is a

"truly extraordinary" remedy. McMenimen v. Passatempo,

(2008). "Parties seeking review must demonstrate

that they have no other legal remedy to pursue and, therefore, a

petition under c. 211, § 3, is the only alternative."

McGuinness v. Commonwealth,

(1995). Here,

there is another alternative under G. L. c. 231, § 109. Under

that statute, the Appeals Court is authorized to vacate an order

of commitment. Cf. Vrusho v. Vrusho,

(1927)

(discussing power of Supreme Judicial Court, as sole appellate 20

court before creation of Appeals Court, to "enter any order

which the Appellate Division ought to have made"). Cf. also

Baker,

(direct appellate review of

commitment order entered in District Court, upheld by that

court's Appellate Division; order of commitment vacated).

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,

, 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. G. L. c. 123, § 35, fourth par. This reported

question concerns § 35's second required finding, and the

specifics of the question are taken from the definition of

"[l]ikelihood of serious harm" in G. L. c. 123, § 1: 21

"'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 22

"substantial risk" of physical harm must be shown to be a risk

of "imminent" harm. We address the issue of imminence infra,

but first consider the question's direct concern, namely, the

proximity in time of the past conduct relied on to demonstrate a

substantial risk of harm.

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 G. L. c. 123, § 1. This evidence is

essential because it forms the basis on which the assessment of

whether there is a "substantial risk" of harm to the respondent

is to be made. Id. It 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. Cf. Commonwealth v. Boucher,

(2002) (determination whether sex offender is "likely"

18 Contrary to the suggestion by the New Bedford Division of the District Court Department that "a finding of 'substantial risk' [of causing bodily injury] . . . may be based on any activity that evinces a genuine possibility of future harm" (emphasis in original), citing Commonwealth v. Rosenberg,

(1991), quoting United States v. Sahhar,

(9th Cir. 1990), the Legislature's use of the terms "threats" and "attempts," G. L. c. 123, § 1 -- terms often used in our criminal law and denoting actual conduct, see, e.g., Commonwealth v. Hamilton,

(2011) (threat); Commonwealth v. Marzilli,

(2010) (attempt) -- suggests that evidence of specific threats or attempts at serious self-harm is required. 23

to reoffend must be made "in the context of the particular facts

and circumstances at hand"). But 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. It would also seem to

be the case that the more serious or the more numerous that

previous attempts or threats of suicide or self-harm are shown

by the evidence to be, the more significance they would carry in

making a positive risk assessment about likelihood of harm. It

is important to keep in mind the context in which this risk

assessment is being made. An order of commitment under § 35

results in a substantial curtailment of liberty for a period of

time that, although limited, is hardly momentary. The context

underscores the need of the judge to weigh carefully the

substantiality of the specific evidence of threats or attempts

that is offered.19

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

19 In the present case, there was no evidence of attempts at suicide by the respondent, and the evidence presented concerning the respondent's previous threats to harm herself did not include any indication as to when those threats were made. The absence of a specific time reference significantly weakened the weight of this evidence. 24

definition of the "likelihood of serious harm," which requires

evidence of past conduct to establish a substantial risk of

serious physical harm to others going forward. G. L. c. 123,

§ 1. To prove this prong, there must be "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." Id. In terms of the character of the evidence

presented, the Legislature's use of the word "homicidal," and

phrases such as "violent behavior" and "serious physical harm"

signifies an intent that evidence of conduct reflecting a

substantial level of force and intensity be presented.20

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,

-

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

20 Again, in this case, evidence indicating that the respondent had pushed her mother on more than one occasion, with no further description of what the "push" entailed and no specific time frames, appears inadequate to satisfy the second definitional prong of "likelihood of serious harm." 25

be committed involuntarily pursuant to G. L. c. 123, § 16 (b).

We concluded that proof of "likelihood of serious harm"

necessary for a commitment order demanded proof that the danger

or risk of harm at issue was "imminent."

at 912-

913, 915-917. G.P. argues that the Nassar decision controls

here, and that the imminence of the anticipated harm is a

required element of proof. The District Court contends that

imminence is a relevant and important factor to weigh in

assessing the risk of harm, but only one of several, and that

proof of imminent harm or imminent risk of harm is not required.

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." G. L. c. 123, § 1.

But the general point in Nassar applies with equal force here:

the reliability of an assessment of a substantial risk of harm

diminishes the farther out one projects as to when the harm is

likely to materialize. See Nassar,

(proof of

imminence of likely harm is required and "is linked to the

requirement of an enhanced standard of proof in the sense that

the forecast of events tends to diminish in reliability as the

events are projected ahead in time").21 Accordingly, we conclude

21 Commonwealth v. Nassar,

(1980), concerned a potentially indefinite commitment under G. L. c. 123, § 16 (b), and consequently proof beyond a reasonable doubt was the required standard. See Commonwealth v. Querubin, 26

that to establish a likelihood of serious harm under the first

or second definitional prong, a showing of imminence is required

-- that is, the petitioner must demonstrate a substantial and

imminent risk of serious injury to the respondent or to others

on account of the respondent's alcohol or substance abuse, or

both.

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

("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

, 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,

(1979). The heightened burden increases the need for greater reliability of the evidence. See generally

. 27

the third prong of "likelihood of serious harm," which defines

the term as "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." G. L. c. 123, § 1. The fifth

question asks how much risk must be shown to make it "very

substantial."

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,

, 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.

22 In Nassar,

, the court agreed with the trial judge that no evidence had been presented establishing the third prong, stating that "it was enough to say evidence was lacking that the respondents were unable to protect themselves in the community; they had, after all, managed to sustain themselves, however marginally, over a period of years." 28

But under the third prong, the threatened harm is not, as G.P.

contends, an inability to sustain oneself in the community. The

harm is, rather, "physical impairment or injury" to the

respondent, and the "very substantial risk" of such harm is to

be shown by evidence that (1) the respondent's judgment is so

adversely affected by the abuse of alcohol or drugs that the

respondent cannot protect himself or herself from physical harm,

and (2) the respondent's community does not include any

reasonably available external source of adequate protection.

G. L. c. 123, § 1. The focus of the evidence, then, must be on

the respondent's degree of impaired judgment due to alcohol or

drug abuse (or both); the degree of likelihood that, as a direct

consequence, the respondent will sustain or inflict injury (for

example, by failing to take care of an existing medical

condition that is exacerbated by continued abuse of alcohol or

drugs, or by lengthy exposure to extreme weather conditions);

and the inability of any other person or persons in the

respondent's community to provide protection against such risks.

Finally, because a "very substantial" risk of harm must be shown

in connection with this third prong, G. L. c. 123, § 1, 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.23,24

23 A very substantial risk of overdosing, in and of itself, 29

4. Order of commitment in this case. 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

from 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. 24 G.P. adds an argument that, as a matter of constitutionally required due process, before a judge may enter an order of commitment under § 35, the judge must find that there is no less restrictive alternative available. The single justice did not report a question concerning this issue, and we decline to address it. 30

risk, however, was very weak. There was no specific evidence of

when G.P. allegedly "pushed" or "shoved" her mother or how often

this had occurred, no evidence concerning the actual nature of

the contact, and certainly no evidence that it was violent.25

The essential basis of the judge's order appears to have been

that G.P. was addicted to heroin and had not been able

successfully to control the addiction. As unfortunate as G.P.'s

condition was, the evidence presented did not appear to satisfy

the requirements of § 35 for an order of commitment.

5. Conclusion. The petition for relief is dismissed as

moot.

So ordered.

25 It is not clear whether the judge also found that G.P. presented a likelihood of serious harm because she presented a substantial risk of physical harm to herself. If the judge did make such a finding, again, the evidence presented was likely insufficient. There was no time frame presented as to G.P.'s statements about wanting to die, and no evidence of actual attempts at suicide or self-harm.

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.