In the Matter of S.B. ( 2024 )


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  • 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).
    OMMONWEALTH OF MASSACHUSETTS
    APPEALS COURT
    23-P-779
    IN THE MATTER OF S.B.
    MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
    The respondent juvenile (S.B.) appeals from a ninety-day
    commitment order entered under G. L. c. 123, § 35, which sets
    forth the requirements and procedures by which an individual may
    be committed involuntarily for treatment for a substance use
    disorder.
    For a person to be involuntarily committed for ninety days
    due to their substance use, the judge must find by clear and
    convincing evidence that the person has a substance use disorder
    and that, as a result, there is a likelihood of imminent serious
    harm.   G. L. c. 123, § 35, third par.        Matter of G.P., 
    473 Mass. 112
    , 118, 127 (2015) (abrogated on other grounds, Matter of a
    Minor, 
    484 Mass. 295
    , 299 (2020)).        Substance use disorder is
    defined as "the chronic or habitual consumption or ingestion of
    controlled substances . . . by a person to the extent that:            (i)
    such use substantially injures the person's health or
    substantially interferes with the person's social or economic
    functioning; or (ii) the person has lost the power of self-
    control over the use of such controlled substances."     G. L.
    c. 123, § 35.    Likelihood of serious harm is defined, in part,
    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 and that reasonable provision for his protection
    is not available in the community."     G. L. c. 123, § 1.   As a
    matter of due process, before an individual may be committed
    under the statute there must also be no appropriate, less
    restrictive alternative.    See Matter of a Minor, 484 Mass. at
    310.
    Before a judge can rely on hearsay evidence in imposing an
    order under G. L. c. 123, § 35, they must make explicit written
    or oral findings that that hearsay is reliable, and why.     Matter
    of a Minor, supra, at 307.     Because no such written or oral
    findings were made in the trial court with respect to the
    reliability of hearsay evidence essential to the juvenile's
    commitment, we vacate the order of commitment.
    Background.   The petitioner in this case was the child's
    mother.    The first hearing in this matter was conducted on May
    2
    3, 2023, less than two weeks before the juvenile's eighteenth
    birthday.   The juvenile was represented by appointed counsel.
    There were two witnesses, Dr. Betsy Sheppard, the court
    clinician, and the mother.   Both were cross-examined by the
    juvenile's counsel.
    In the affidavit in support of her petition, the mother
    stated that the juvenile had overdosed in the past year.    She
    described that, on the night before filing the petition, she had
    gone into the juvenile's room and found him "passed out" and not
    responding.   She wrote that she immediately gave him Narcan,
    that it took him approximately ten minutes to "come to" but he
    did and was brought to the hospital, and that the doctor on call
    said he did not think that the juvenile had overdosed but that
    she, the mother, believed that he had.   The petitioner indicated
    that the juvenile had been in two "substance centers," from June
    or July through September of 2021 and from February through
    April of 2022.   She said that the juvenile had a long history of
    noncompliance when help was offered, that "[h]e is not agreeable
    to any services and denies he has a problem," and that "[h]e has
    physical injuries to his body due to the recent events."
    At the May 3rd hearing, Dr. Sheppard testified to her
    opinion that the juvenile "does have a history of a substance
    abuse disorder; that there is a risk of imminent harm; that the
    3
    substance abuse continues to date; and that there is substantial
    risk of ongoing harm if steps are not taken to address those
    risks."
    The mother testified that the family discovered the
    juvenile's use of opioids through a positive drug screen.       She
    testified that the doctor who saw the juvenile the night before
    had concluded that the juvenile had not overdosed because after
    responding to the administration of Narcan, he had not exhibited
    any symptoms of withdrawal.
    The rest of the factual information provided to the judge
    at the hearing was introduced through hearsay to which Sheppard
    testified.   She testified that she had spoken to the mother, the
    juvenile's stepfather, a person from the Department of Children
    and Families (DCF), and the juvenile's outpatient substance
    abuse therapist.
    Her hearsay testimony included the details of what had
    happened the night before (through hearsay of the stepfather):
    the stepfather reported that he arrived home at approximately 10
    P.M.    The stepfather then noticed that the juvenile's light was
    still on, and that he was sleeping in an unusual posture.     The
    stepfather attempted to wake the juvenile, but he was
    unresponsive, even when the stepfather threw water on him and
    performed a sternum rub.    At that point, the stepfather
    4
    administered Narcan to the juvenile.    The juvenile did not
    respond until approximately ten minutes after the Narcan was
    administered.    Dr. Sheppard testified on the basis of hearsay
    that although the doctor at the emergency department had
    concluded the juvenile had not overdosed, there was no
    toxicology screen performed while the juvenile was at the
    hospital the previous night.
    Dr. Sheppard also testified regarding a previous incident
    in which the juvenile was suspected to have overdosed.       She
    stated that, according to "all the parties previously mentioned"
    (apparently meaning the mother, the stepfather, the DCF worker,
    and the outpatient therapist), around February 2023, the
    juvenile had a conflict with his family and left the family
    home.   The mother could not find the juvenile for about a week
    and a half.     Dr. Sheppard testified that the previously
    mentioned parties told her that the juvenile used substances
    during that period, but there were no medical records to support
    this.
    Dr. Sheppard's testimony, however, also included details
    about the incident from the outpatient therapist.     Dr. Sheppard
    stated that according to the outpatient therapist, the juvenile
    had tested positive for fentanyl around that time period.
    During that week and a half, the juvenile sought refuge in a
    5
    trailer owned by a family member.    When the family found him
    there, he was unresponsive.   Due to the extreme temperatures, he
    had developed frostbite on his foot, and part of his foot was
    later amputated.   He was hospitalized from February 4, 2023,
    until April 9, 2023.   Dr. Sheppard, who was testifying remotely,
    testified that she had not herself seen the amputation.
    The juvenile's substance use history and the possible
    efficacy of treatments other than the proposed commitment were
    also included in hearsay from the outpatient therapist to which
    Dr. Sheppard testified:
    "I know there have been positive tests for fentanyl and
    that was on or around that time period. That was directly
    reported to me by his outpatient therapist . . . . His
    current outpatient therapist told me . . . that outpatient
    therapy is not appropriate; at this point, it’s not getting
    the job done. She told me that DCF involvement and
    oversight is not adequate, it’s not getting the job done.
    And she told me, reminded me that he turns eighteen in
    twelve days and will have a lot more autonomy at that point
    regarding services that he may or may not choose to engage
    in. Regarding a least restrictive setting, he currently has
    outpatient substance abuse services yet continues to use
    substances, so that appears inadequate. The outpatient
    therapist [told] me and described to me numerous other
    attempts at outpatient substance abuse services that have
    not been effective. She relayed to me that there have been
    other services recommended that have not been followed
    through on."1
    Dr. Sheppard also testified that her opinion that the
    juvenile had substance abuse disorder was based on the
    1 Of course, that the juvenile was about to age out of his
    minority has no bearing on the propriety of an order under
    GG. L. c. 123, § 35.
    6
    conversations about which she testified.    She stated that in
    forming her opinion about imminent serious harm, she relied on
    the juvenile's history, "which Mother provided to me in part, as
    did DCF in part, as [did] the Stepfather and the outpatient
    clinician in part."
    The juvenile's attorney objected to the introduction of the
    hearsay evidence multiple times.     Near the outset of the
    hearing, when there was an early hearsay objection to Dr.
    Sheppard's testimony, the judge said, "what the Court has to
    consider is reliable hearsay." And he asked Dr. Sheppard, "[i]s
    there anything that would indicate to you that that statement
    that was made by Mother to you about [the juvenile’s] substance
    use was unreliable?"   But the judge never issued any oral or
    written order explaining that she found the hearsay from any
    individual reliable, or why.2   In ruling on the petition, she
    concluded that the juvenile
    "is an individual with a substance use disorder and that
    there's [a] likelihood of serious harm as a result of his
    substance use disorder. The Court bases that opinion on
    Mother's testimony of her account of [his] substance use
    previously; also the fact that the family last night needed
    to Narcan him; also the fact that the family needed to call
    911 in light of the fact that he was unresponsive; and also
    base this finding on Dr. Sheppard's testimony today. In
    addition, there was also testimony on behalf of Mother that
    2 In light of our disposition of this issue, we need not
    address the issues raised by the juvenile with respect to two
    previous Court clinic reports upon which Dr. Sheppard initially
    stated she wanted to rely.
    7
    [the juvenile] needed to be hospitalized for at least two
    months due to his substance use previously. The Court does
    have some serious concerns with regards to his substance
    use . . . . [H]e . . . doesn't have the ability to walk,
    doesn't have the ability to get these substances but
    somehow last night was unresponsive to both of his parents
    trying to wake him and the need for Narcan was necessary
    . . . and so with that, the Court does order that [the
    juvenile] be committed for a period of not to exceed ninety
    days."
    Discussion.   Of course, we recognize that hearings under
    this section are undertaken in emergency circumstances and that
    the statute envisions that there will be expert testimony.
    G. L. c. 123, § 35, third par.   The court clinician's testimony
    will often contain hearsay, as may a pro se petitioner's, and
    our case law makes clear that such hearsay evidence may be
    admitted at these hearings if it is reliable.   Matter of G.P.,
    
    473 Mass. at 121-122
     (hearsay is admissible in commitment
    hearings but it is "the judge's obligation to ensure that any
    hearsay on which he or she relies is 'substantially reliable'"
    [citation omitted]).
    In this case, the testimony of the mother in her sworn
    affidavit and on the stand are together insufficient to support
    a finding by clear and convincing evidence that the juvenile had
    a substance abuse disorder and faced an imminent threat of
    serious physical harm.   In addition, Dr. Sheppard's opinions,
    essential to the judge's legal conclusion, were not based on
    that evidence alone, but on the hearsay the clinician testified
    8
    to.   Hearsay evidence was thus essential to any showing by clear
    and convincing evidence that the standard for commitment had
    been met.     Likewise, only the hearsay evidence supported the
    finding that there was no less restrictive alternative to
    commitment.
    Due process principles impose minimum requirements relating
    to reliance on hearsay in imposition of an order of commitment
    on the basis of substance abuse disorder.     They are set out in
    the relatively recent decision in Matter of a Minor, 484 Mass.
    at 306-308.    There, the Supreme Judicial Court said,
    "where a judge relies on hearsay, the judge's written or
    oral findings should indicate why the judge found that
    hearsay reliable . . . . In Matter of G.P., 
    473 Mass. at 121-122
    , we allowed the use of hearsay evidence at
    hearings on commitments for substance disorder
    treatment, only so long as the judge found that evidence
    to be substantially reliable. For probation revocation
    hearings, in which substantially reliable hearsay
    likewise is admissible, we have required judges to state
    explicitly the reasons supporting the reliability of
    hearsay they rely upon . . . .
    The same conclusion is compelled here. As part of the
    more detailed findings that due process requires, a
    judge relying on hearsay evidence at substance use
    disorder commitment hearings should make clear, in
    writing or on the record, what specific indicia of
    reliability led him or her to conclude that the hearsay
    evidence supporting the determination that commitment
    was necessary is substantially reliable.
    The requirement that a judge make explicit those
    findings the judge necessarily must have made implicitly
    need not impose a significant burden on the hearing
    judge. In Matter of G.P., 
    473 Mass. at 122
    , we
    recognized, 'the extremely short time frame' in which
    9
    hearings under G. L. c. 123, § 35, take place. By
    allowing these findings to be made orally on the record,
    and therefore to be made relatively quickly, we continue
    to acknowledge the 'practical considerations' faced by
    judges and all parties in hearings under G. L. c. 123,
    § 35. See Matter of G.P., 
    supra.
    "
    Matter of a Minor, 484 Mass. at 307-308 (some citations
    omitted).
    In this case, Dr. Sheppard testified and provided hearsay
    from several sources:   the mother, the stepfather, the DCF
    worker, and the outpatient therapist.      Of these, only the mother
    testified, and she did not repeat any of the essential facts
    from the hearsay testimony.   None of the three other individuals
    even testified.
    It may well be that the judge implicitly found all the
    hearsay reliable, although she only ever mentioned the
    reliability of mother's hearsay.      But as Matter of a Minor now
    makes clear, such an implicit finding is not sufficient.
    Nothing that judge said or wrote indicates why she concluded the
    hearsay evidence was reliable -– or, indeed, even that she did
    conclude that it was reliable.
    We need go no further than this, because the absence of
    such findings is inconsistent with the due process requirement
    10
    articulated in Matter of a Minor.     Consequently, the order of
    commitment must be vacated.3
    So ordered.
    By the Court (Vuono, Rubin &
    Walsh, JJ.4),
    Clerk
    Entered:    October 4, 2024.
    3 In light of this disposition, we need not and do not reach
    any other arguments raised by the juvenile.
    4   The panelists are listed in order of seniority.
    11
    

Document Info

Docket Number: 23-P-0779

Filed Date: 10/4/2024

Precedential Status: Non-Precedential

Modified Date: 10/4/2024