Opinion
20-P-491
07-21-2020
MATTER OF A JUVENILE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from a ninety-day commitment order pursuant to G. L. c. 123, § 35. Although she does not challenge her alcohol use disorder, the juvenile argues that there was insufficient evidence of the requisite likelihood of serious harm, and that any such evidence was based on hearsay for which the judge did not make the required findings of reliability. She further argues that her commitment was unconstitutional because the judge did not adequately consider alternatives to commitment. We affirm.
Background. Pursuant to G. L. c. 123, § 35, the juvenile's mother petitioned to have the juvenile committed. In support of her petition, the mother submitted an affidavit in which she stated that the juvenile suffered from mental health and substance abuse issues that cause her to make "the wrong choices and place[] herself at risk." The mother stated that the juvenile had overdosed on several occasions from alcohol and drugs, that she blacks out from excessive alcohol in her system, that although she has been found to have cocaine in her system, the juvenile cannot remember ingesting cocaine, that Narcan has been administered to revive the juvenile, and that the juvenile had threatened to commit suicide the week before and had tried to grab a kitchen knife for that purpose. The mother further stated that the juvenile was a danger, and that the juvenile had been kicked out of a previous commitment because she got into an altercation with another patient. Further, the juvenile "constantly end[s] up in the hospital due to alcohol and drugs." The mother expressed concern that, although the juvenile had been voluntarily admitted to several mental health facilities in the past, those admissions had not been productive because the juvenile "chooses to get discharged and does not stay long enough for treatment." The mother averred that she was afraid for the juvenile's safety and wellbeing.
The same day (i.e., March 18, 2020), the Juvenile Court judge conducted a hearing on the mother's petition, at which the following additional details emerged. The day before the mother's petition, the juvenile was found unresponsive and a friend administered Narcan, to which she responded. The juvenile was taken to the hospital, where she denied substance use. However, she tested positive for alcohol (blood alcohol level of .213), cocaine, and cannabis. The juvenile said she did not know that she had ingested cocaine.
The hearing was conducted telephonically given the state of emergency declared by the Governor on March 10, 2020, in response to the coronavirus (COV-19) pandemic. See https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency-to-respond-to-covid-19.
The mother testified that the juvenile had been hospitalized due to alcohol use approximately ten times over the past several months, that the juvenile had had alcohol poisoning three times, and that the juvenile had blacked out on several occasions. The mother did not have first-hand knowledge of all of these hospitalizations because at times the juvenile had been in the custody of the Department of Children and Families (DCF). However, she had personal knowledge of two recent hospitalizations (March 17, 2020, and March 8, 2020) and of one several months earlier (September or October 2019). The mother also testified that the juvenile has attempted to harm herself, including the week before the hearing when, after stating she did not want to live anymore, the juvenile attempted to grab a knife from the kitchen, threatening to kill herself. On that occasion, the mother restrained the juvenile to prevent her from obtaining the knife. During this episode, the juvenile was intoxicated. The mother had seen the juvenile come home drunk multiple times (two to four) during the previous three weeks.
The Juvenile Court clinician, Kathleen McCollum, who had interviewed the juvenile briefly prior to the hearing, had contacted the mother and the juvenile's social worker from DCF, and had reviewed the juvenile's hospital records for the most recent hospitalization, opined to a reasonable degree of medical certainty that the juvenile met the criteria for commitment. Namely, she testified that the juvenile "definitely meets the first prong and the second prong" criteria.
The juvenile testified that she has been diagnosed with anxiety, depression, and anger, and that she uses marijuana and alcohol to deal with her emotions. The juvenile acknowledged that she had recently been hospitalized on March 8, 2020, and March 17, 2020, for alcohol use. The juvenile stated that she did not wish to be committed, and that she had felt trapped when previously committed. The juvenile wished instead to participate in group counseling at her school and in individual therapy, and she stated that she remained in contact with school staff and her therapeutic mentor. The judge noted for the record that the juvenile's school had been closed down as a result of the pandemic.
Discussion. "To issue an order of commitment, the judge must find, by clear and convincing evidence, that (1) the person whose commitment is sought is an individual with an alcohol or substance use disorder, as defined by G. L. c. 123, § 35; and (2) there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder, as defined in G. L. c. 123, § 1." Matter of a Minor, 484 Mass. 295, 296 (2020). The juvenile accepts that she has an alcohol use disorder. The remaining question, therefore, is whether there was clear and convincing proof that it created a likelihood of serious harm.
"A 'likelihood of serious harm' exists if a judge finds: '(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 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.'" Id. at 296-297, citing G. L. c. 123, § 1. To meet the clear and convincing evidence standard, "there must be a showing that the facts establishing the 'likelihood of serious harm' . . . are 'highly probably true'" (citations omitted). Matter of G.P., 473 Mass. 112, 120 (2015).
The judge did not specifically state which of the three types of serious harm she concluded was present. However, there was no evidence that the juvenile was homicidal or exhibiting other violent behavior, see Matter of a Minor, 484 Mass. at 304, and thus the judge's conclusion must have rested on either the first or the second type of harm. We conclude that the evidence was sufficient as to both.
As to the first, the judge found that the juvenile had attempted self-harm within the previous ten days while intoxicated. See Matter of a Minor, 484 Mass. at 296. This occurred during a three-week stretch of time during which the juvenile had several times been seriously intoxicated. See Matter of G.P., 473 Mass. at 127 (imminence requirement under first prong). The juvenile herself admitted that she used alcohol to deal with her mental health issues, including depression. In a short period of time, the juvenile had had several episodes of alcohol relapse, combined with a serious episode of threatened self-harm, and she continued to suffer from mental health issues. Together, these facts were sufficient to satisfy the mother's burden to prove that there was "a substantial risk that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Id. at 128.
"When considering a challenge to the sufficiency of the evidence at an evidentiary hearing, we 'scrutinize without deference the propriety of the legal criteria employed by the [motion] judge and the manner in which those criteria were applied to the facts.'" Matter of a Minor, 484 Mass. at 302, quoting Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018). However, unless they are clearly erroneous, we accept the judge's findings because "[t]he hearing judge is in the best position to weigh the evidence, assess the credibility of witnesses, and make findings of fact. . . ." Matter of a Minor, supra.
The third form of serious harm requires proof of "a very substantial risk of physical 'impairment or injury' to the [juvenile] resulting from an inability to protect [herself] in the community." Matter of G.P., 473 Mass. at 117, quoting G. L. c. 123, § 1. This "requires more certainty that the threatened harm will occur. . . . The harm is . . . '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." Id. at 128-129, quoting 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." Id. at 129.
The juvenile argues that the mother's testimony that the juvenile had been hospitalized about ten times in the previous months was unreliable hearsay and therefore should not have been considered in connection with whether there was "a very substantial risk of physical 'impairment or injury' to the [juvenile] resulting from an inability to protect [herself] in the community." This claim as to the reliability of the evidence is waived because the juvenile failed to preserve it for appeal. Camerlin v. Marshall, 411 Mass. 394, 398 (1991) ("[B]y failing to object the [juvenile] has waived [her] right to appellate review of the issue"). Even if the issue had been preserved, we are not persuaded that the mother's testimony was hearsay. The mother did not testify to any out-of-court statement offered for the truth of the matter asserted. Instead, she testified to what appeared to be her direct knowledge or experience of the juvenile's history of hospitalizations. See Commonwealth v. Bradshaw, 94 Mass. App. Ct. 477, 481 (2018); Mass. G. Evid. § 801 (2019). In an effort to undermine the mother's testimony on this topic, counsel for the juvenile cross-examined the mother about the fact that she did not have first-hand knowledge of all of the hospitalizations because details had been reported to DCF. This line of cross-examination went to foundation; it did not make the mother's testimony on direct examination hearsay.
In addition to the juvenile's history of hospitalizations, the evidence showed that the juvenile frequently becomes intoxicated to the point where her judgment is severely impaired and she is unable to care for herself in the community. Matter of G.P., 473 Mass. at 129. The juvenile has a history of blacking out from intoxication; she cannot then remember what she has done -- including that she has ingested cocaine, an illegal drug. She mixes alcohol with drugs. She most recently consumed alcohol, cannabis, and cocaine to the point of unconsciousness; a friend administered Narcan to revive her and had her taken to a hospital. On that occasion, she had an extremely high blood alcohol level of .213. The judge noted the safety concerns associated with the juvenile's inability to take care of herself, and being at the mercy of others, on the streets of Lawrence, where "there's a lot going on." The juvenile uses alcohol to deal with her mental health issues, which has not only been ineffective, but has also led her to think of suicide. She has a history of being unwilling or unable to stay in voluntary commitments, where she could presumably be safe, or at least safer. The juvenile has on several occasions had alcohol poisoning. Finally, she has a history of hospitalizations resulting from her alcohol use disorder. Contrast Matter of a Minor, 484 Mass. at 305 (possibility of combination of illicit drugs and medication did not rise to imminent serious harm).
The juvenile did not test positive for opioids.
Lastly, the juvenile argues that the commitment order was unconstitutional because the judge erred in rejecting viable and plausibly available less restrictive alternatives, specifically access to a therapeutic mentor, school staff, and individual therapy. Due process requires a judge to consider less restrictive alternatives in all commitment hearings. Matter of a Minor, 484 Mass. at 309. "[T]o be constitutional as applied, the hearing judge must find, by clear and convincing evidence, that there are no appropriate, less restrictive alternatives that adequately would protect a respondent from a likelihood of imminent and serious harm." Id. at 310. However, even if a lesser restrictive alternative exists, if a judge determines not to impose such alternative because it will not reduce the risk of harm to the juvenile, that determination is within the judge's discretion and satisfies due process. Id.
Foster v. Commissioner of Correction (No. 1), 484 Mass. 698 (2020), decided after the order at issue in this case, does not apply. Foster made a prospective ruling regarding § 35 commitments in light of the COVID-19 pandemic that "[g]oing forward, a judge shall not commit an individual under G. L. c. 123, § 35, unless the judge finds that the danger posed by the individual's substance use disorder outweighs the risk of transmission of COVID-19 in congregate settings." Id. at 730. Foster also requires a judge to make additional findings regarding whether "commitment is necessary notwithstanding the treatment limitations imposed by quarantine protocols." Id.
The judge found there were no less restrictive alternatives because the juvenile had previously run away from her treatment placement. The judge also considered the juvenile's participation in therapy, but was concerned about it, as well as the lack of services available in the community due to the pandemic. It is clear that the judge considered whether less restrictive alternatives existed and that she concluded they did not. Matter of a Minor, 484 Mass. at 309 (in weighing alternative program against commitment, judge concluded "she did not have confidence the juvenile actually would attend that program [and] it did not serve adequately to reduce the risk of harm"). The juvenile has failed to show that the judge abused her discretion in concluding that less restrictive alternatives were inadequate to reduce the risk of harm to the juvenile. Id.
Judgment affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 21, 2020.