In the Matter of a Minor

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReportersjc.state.ma.us
SJC-12747
IN THE MATTER OF A MINOR.
Middlesex. November 4, 2019. - March 17, 2020.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
JJ.
Practice, Civil, Civil commitment, Standard of proof, Appeal,
Moot case, Findings by judge. Moot Question. Due Process
of Law, Commitment.
Petition for commitment for alcohol or substance use
disorder filed in the Middlesex County Division of the Juvenile
Court Department on February 19, 2019.
The case was heard by Susan V. Oker, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Eva G. Jellison for the juvenile.
Maura Healey, Attorney General, & Jesse M. Boodoo,
Assistant Attorney General, for the Attorney General, amicus
curiae, submitted a brief.
Karen Owen Talley & Afton M. Templin, Committee for Public
Counsel Services, for Committee for Public Counsel Services &
others, amici curiae, submitted a brief.
2
GAZIANO, J. In this case, a sixteen year old high school
student (juvenile) claims error in a Juvenile Court judge's
decision to commit him for substance use disorder treatment
pursuant to G. L. c. 123, § 35. His case requires us to decide
whether and how the science of adolescent brain development
recognized in Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655, 667–668 (2013), S.C., 471 Mass. 12 (2015),
bears on a judge's decision to order commitment of juveniles for
treatment. Additionally, the juvenile challenges whether
appeals from commitment under this provision are moot after a
respondent has been released; whether the evidence presented was
sufficient in this case; and whether a judge deciding a petition
for commitment under G. L. c. 123, § 35, must consider less
restrictive alternatives to commitment.
For the reasons to be discussed, we conclude that the
juvenile's order of commitment must be vacated.
Background. 1. Standards for commitment under G. L.
c. 123, § 35. General Laws c. 123, § 35, sets forth the
requirements and procedures by which an individual may be
committed involuntarily for treatment of a substance use
disorder. See Matter of G.P., 473 Mass. 112, 116-118 (2015). A
"police officer, physician, spouse, blood relative, guardian or
court official" may petition for an order of commitment under
this provision. G. L. c. 123, § 35. Upon receipt of a
3
petition, the court shall schedule an immediate hearing and
shall issue a summons to the person sought to be committed. Id.
"[I]f there are reasonable grounds to believe that such person
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 court may issue warrants of apprehension,
as necessary, to secure the individual's appearance for a
hearing. Id. When the person appears, he or she has a right to
counsel, and must be examined by a qualified physician,
psychologist, or social worker. Id. See Matter of G.P., supra
at 117.
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. The statutory scheme presents three distinct paths
by which a judge may find a "likelihood of serious harm." G. L.
c. 123, § 1. 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
4
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. See Matter of G.P., 473 Mass. at 124-125. This harm must
be "imminent," which in this context means "a substantial risk
that the harm will materialize in the reasonably short term --
in days or weeks rather than in months." Id. at 128.
Because the Appellate Division of the District Court does
not have jurisdiction to consider appeals in Juvenile Court
cases, appeals from commitment orders issued by the Juvenile
Court are heard by the Appeals Court. See Matter of G.P., 473
Mass. at 123 n.17; Rule 11(b) of the Uniform Trial Court Rules
for Civil Commitment Proceedings for Alcohol and Substance Use
Disorders, Mass. Ann. Laws Court Rules, Trial Court Rules, at
997 (LexisNexis 2018) (uniform rules). Upon request, the
Appeals Court "shall expedite consideration of any appeal."
Rule 11(b) of the uniform rules.
2. The juvenile's commitment hearing. In February 2019,
the juvenile's mother petitioned the Juvenile Court under G. L.
c. 123, § 35, to commit her son for involuntary treatment. Her
affidavit asserted that the juvenile was putting himself in
danger by using and selling Xanax. When he was apprehended
5
pursuant to a warrant, the juvenile was found with a large
bottle of Xanax pills, and a second bottle of crushed Xanax, on
his person.
Prior to the issuance of the warrant, the mother testified
that she recently had discovered that the juvenile was still
using Xanax (notwithstanding his participation in earlier
treatment programs). By reading her son's text messages, she
gleaned that, on at least one recent occasion, he had been
unable to remember events of the previous evening due to drug
use. The mother sketched for the court the juvenile's treatment
history, which included multiple placements in residential
treatment, one prior commitment under G. L. c. 123, § 35, and
January enrollment in a recovery high school, a school specially
designed for youth with substance use disorders. She stated
that, on some unspecified date, the juvenile had been found
sleeping on a bench at 2 A.M., and that he sometimes turned off
his cellular telephone to avoid being found by his mother. On
this evidence, the judge ordered a warrant of apprehension.
When the juvenile arrived at court, Janice Hrabovszky, a
Juvenile Court clinician, interviewed him and his mother. She
also contacted the juvenile's school clinician by telephone.
Hrabovszky concluded that the juvenile had a substance use
disorder. She based this determination on her interview with
6
his mother, his history of drug treatment, and his multiple
positive drug tests, as reported by the school clinician.
Additionally, Hrabovszky opined that the juvenile's
substance use disorder put him at risk of harm. She pointed to
accounts by his mother that the juvenile had ridden in
automobiles with unlicensed drivers who were driving while under
the influence, an instance where the juvenile became verbally
aggressive toward school staff over confiscated property, and an
overdose that had occurred "a number of years ago" as a result
of mixing Xanax and alcohol. Hrabovszky viewed that overdose as
relevant to the need for commitment because the juvenile's
mother had found open bottles of alcohol in his room and he had
been carrying a large bottle of Xanax on his person when he was
arrested. Hrabovszky also noted the concern, conveyed by the
juvenile's mother, that the Xanax the juvenile had had in his
possession was not pharmaceutically produced, and that it
potentially could be laced with toxic substances. The basis for
the mother's knowledge about the producer of the Xanax was
unclear from Hrabovszky's testimony.
The juvenile's mother stated that she generally was able to
tell when her son was using drugs (she estimated her own
accuracy at ninety-five percent certainty), and that she had had
him drug tested repeatedly, either at home, at school, or
through the court. When asked what behaviors derived from his
7
substance use put the juvenile at risk of harm, the mother
pointed to his increased verbal aggression and missed curfews.
She also noted that the pills were "not actual Xanax . . . not
the legit ones." When the judge inquired further about this
concern, the mother mentioned a newspaper article she had read
that indicated that "pressed" (not legitimately manufactured)
pills might be laced with other substances. The mother also
repeated her concern that the juvenile had mixed Xanax with
alcohol, but did not specify a particular occasion on which she
knew he had done so, apart from the overdose several years
earlier. On cross-examination, the mother explained that, while
she had not seen her son use Xanax and alcohol together (or
either of them separately), she had found open beer bottles in
his room. She inferred the mixing of substances because, "I
know that he's admitted that he's drinking, and then he's also
admitted that he's taken the Xanax. So . . . ."
The juvenile denied currently mixing drugs and alcohol.
On this evidence, the judge ordered the juvenile committed
for ninety days for treatment.
Discussion. We address three sets of issues. First, we
consider whether appeals from commitment orders under G. L.
c. 123, § 35, become moot when a committed individual is
released. We then turn to the question of the evidence in this
case, and examine both how the science of adolescent brain
8
development should inform a judge's consideration of a petition
to commit a juvenile, and whether there was sufficient evidence
to order commitment here. Finally, we consider the juvenile's
due process arguments.
1. Mootness. "Ordinarily, litigation is considered moot
when the party who claimed to be aggrieved ceases to have a
personal stake in its outcome." Commonwealth v. Dotson, 462
Mass. 96, 98 (2012), quoting Blake v. Massachusetts Parole Bd.,
369 Mass. 701, 703 (1976). Because individuals committed under
G. L. c. 123, § 35, have a personal stake in litigating a
wrongful commitment, even after release from confinement, we
conclude that appeals from an order of commitment pursuant to
G. L. c. 123, § 35, are not moot.1
When considering other statutory provisions that allow
involuntary civil commitment, we have determined that the
continuing stigma of a potentially wrongful commitment alone
sufficed to defeat a claim of mootness. See Matter of F.C., 479
Mass. 1029, 1029-1030 (2018) (appeals from expired or terminated
involuntary commitment and treatment orders under G. L. c. 123,
§§ 7, 8, and 8B, not moot because "[a]t the very least, a person
who has been wrongfully committed or treated involuntarily has a
1 To the extent we previously have indicated that an appeal
from an order of commitment became moot upon the individual's
release, see, e.g., Matter of G.P., 473 Mass. 112, 113 (2015),
we now conclude otherwise.
9
surviving interest in establishing that the orders were not
lawfully issued, thereby, to a limited extent, removing a stigma
from his name and record" [quotation and citation omitted]).
See Pembroke Hosp. v. D.L., 482 Mass. 346, 351 (2019) (same for
appeals from commitment under G. L. c. 123, § 12); Matter of
M.C., 481 Mass. 336, 343 (2019) (same for involuntary commitment
under G. L. c. 123, § 16).
In addition to any continuing stigma, involuntary
commitment for substance use disorder treatment implicates other
legal interests. For example, as was the case here, a previous
commitment has been considered evidence of a substance use
disorder, potentially making it easier for an individual to be
recommitted for a subsequent period of treatment, sometimes
months or years later. Moreover, under G. L. c. 123, § 35, the
court is required to submit the individual's personally
identifiable information, including name, Social Security
number, and date of birth to the Department of Criminal Justice
Information Services. For an adult, absences from work due to
commitment may result in the loss of employment, leading to
ongoing economic detriment and potentially increasing the risk
of homelessness. For a student, absences from class may have an
impact on the student's academic achievement, advancement to the
next grade level, likelihood of dropping out of school, or
chance of admission to postsecondary school programs -- harms
10
that continue beyond commitment. Just as with other civil
mental health commitments, an individual wrongfully committed
for involuntary substance use treatment and then released also
retains an interest "in establishing, after discharge, that the
order[] by which [he or she was] committed [was] unlawful,
thereby, to a limited extent, removing a stigma from [his or
her] name and record" (quotation and citation omitted). See
Pembroke Hosp., 482 Mass. at 351.2
Because these ongoing consequences implicate an
individual's privacy, reputation, and future liberty, they also
support the conclusion that an individual has a personal stake
in the outcome of litigating an appeal from an order of
commitment, even after the individual is released. Therefore,
appeals from an order of commitment pursuant to G. L. c. 123,
§ 35, are not moot solely because the individual is no longer
committed.
2. Evidence necessary for commitment. a. The role of
youth in substance use disorder commitment hearings. The
juvenile argues that if a judge does not take into account the
lower "baseline" for impulsiveness, self-control, and judgment
that is developmentally typical for juvenile brains, the judge
2 In addition, commitment under G. L. c. 123, § 35, makes an
individual ineligible to hold a license to possess a firearm for
a minimum of five years, and possibly longer, as the individual
must petition successfully for relief from ineligibility.
11
erroneously may order a juvenile committed for youthful
misbehavior alone. The juvenile asserts that impulsiveness,
incomplete self-control, and lack of judgment -- known hallmarks
of youth brain development -- may be confused with symptoms of
substance use disorder, resulting, as he argues happened here,
in improper commitments.
As the United States Supreme Court and this court have
recognized, the science of adolescent brain development attests
to the ways in which a "transient rashness, proclivity for risk,
and inability to assess consequences" are hallmarks of young,
developing brains. Miller v. Alabama, 567 U.S. 460, 472 (2012).
See Diatchenko, 466 Mass. at 667–668. This research is relevant
to petitions to commit a juvenile under G. L. c. 123, § 35,
because, in determining whether an individual meets the relevant
statutory definitions, a judge is required to assess an
individual's judgment, self-control, and social functioning,
precisely those areas of juvenile brains that are recognized as
underdeveloped. See G. L. c. 123, § 1 (defining third prong of
"likelihood of serious harm" with reference to whether very
substantial risk is created because "[a] person's judgment is so
affected" by substance use disorder); G. L. c. 123, § 35
(defining alcohol and substance use disorder, in part, by
reference to whether use substantially interferes with
12
individual's social functioning and whether that individual has
lost power of self-control over substance).
In this case, the juvenile contends that the judge, without
finding any nexus with the juvenile's substance use disorder,
impermissibly relied on the fact that the juvenile missed
curfew, spent time with reckless peers, sold Xanax, and yelled
at school staff in support of a finding of substance use
disorder. This behavior, the juvenile argues, may be grounds
for parental or school discipline. It possibly could support a
petition for a child in need of services, or even delinquency
proceedings. Without a nexus to the likelihood of serious harm
resulting from a substance use disorder, however, rebellious or
difficult teenage misbehavior cannot support a petition for
commitment under G. L. c. 123, § 35.
Considering the implications of teenage brain science in
determining whether commitment is necessary for substance use
treatment does not create two different standards for the
commitment of adults and the commitment of juveniles. See G. L.
c. 123, § 35 (no distinctions in standards for juveniles and
adults). Rather, taking into account a juvenile's youth
necessarily is required as part of the fact-intensive,
individualized assessment these petitions demand. See Matter of
G.P., 473 Mass. at 125 ("the assessment of risk is a
probabilistic one, and necessarily must be made on the basis of
13
the specific facts and circumstances presented"). We agree with
the juvenile, however, that, in some cases, difficulties in
distinguishing typical adolescent lapses in judgment or self-
control from those driven by substance use disorder may make a
judge's already difficult task more challenging in juvenile
commitment proceedings. In those cases, a judge should make
clear that his or her decision was founded on a causal nexus
between a likelihood of serious harm and substance use disorder,
rather than developmentally typical adolescent misbehavior.
b. Sufficiency of the evidence. The juvenile maintains
that, even had the judge properly focused her inquiry on the
causal relationship between an alleged substance use disorder
and the possible resulting likelihood of serious harm, the
evidence here was insufficient to sustain his commitment. We
agree.
i. Standard of review. The hearing judge is in the best
position to weigh the evidence, assess the credibility of
witnesses, and make findings of fact; a reviewing court accepts
these findings unless they are clearly erroneous. See Matter of
A.M., 94 Mass. App. Ct. 399, 401 (2018), citing G.E.B. v.
S.R.W., 422 Mass. 158, 172 (1996). 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
14
those criteria were applied to the facts." Matter of A.M.,
supra, quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005).
See Matter of G.P., 473 Mass. at 129-130 (deferring to judge's
subsidiary findings, but reviewing without deference legal
conclusion as to whether "a substantial risk of serious harm to
others" was met).
ii. Substance use disorder. In order to commit an
individual under G. L. c. 123, § 35, a judge first must find
that the individual has a substance use disorder, an alcohol use
disorder, or both. Both disorders are marked by "chronic or
habitual consumption" to the extent that using the substance
either "substantially injures" the individual's health or
"substantially interferes with the person's social or economic
functioning," or results in the individual having "lost the
power of self-control over the use" of the substance. See G. L.
c. 123, § 35.
The judge found that the juvenile here had both a substance
use disorder and an alcohol use disorder. While no court
condones underage drinking, it is essential for judges to
distinguish between a juvenile's illicit alcohol use or
experimentation, on the one hand, and alcohol use disorder, on
the other. The key to that distinction, as indicated in the
statutory definition, is chronic or habitual use to such an
extent that it results in a "substantial injury" to the
15
juvenile's health or social functioning, or a loss of the power
of self-control over his or her consumption of alcohol. See
G. L. c. 123, § 35. At the hearing, the evidence of the
juvenile's alcohol use came from his mother. She testified,
"It's been numerous times, now, that I've found alcohol in his
room. . . . Open beers, right next to his bed." While this
situation understandably is concerning, finding open beer
bottles in a teenager's room, even in circumstances indicating
consumption on week nights, does not suffice to demonstrate that
the juvenile has an alcohol use disorder.3 The fact that the
juvenile consumed beer, by itself,4 does not show substantial
injury to the juvenile's health or social functioning stemming
directly from chronic or habitual alcohol consumption, or that
the juvenile attempted to stop drinking but could not do so.
"Most teens do not escalate from trying drugs to developing an
addiction or other substance use disorder . . . ." National
Institute on Drug Abuse, Principles of Adolescent Substance Use
Disorder Treatment: A Research-Based Guide, at 4 (Jan. 2014).
3 Contrast Matter of A.R., Mass. App. Div., No. 18-ADMH-
124SO (Dist. Ct. Dec. 18, 2018) (alcohol use disorder found,
where respondent recently had been fired for drinking at work,
and testimony indicated that he consumed between two and ten
drinks every day).
4 The mother testified at one point that she had seen two
bottles of beer in the juvenile's room, and at other points that
she had seen beer in the juvenile's room on multiple occasions.
16
We conclude that the record is inadequate to support a finding
of an alcohol use disorder.
The judge's finding of a substance use disorder is on
firmer footing. While evidence of treatment history must be
evaluated carefully to ensure that it bears upon an individual's
current condition, treatment history often may be relevant in
these proceedings. Compare Matter of R.G., Mass. App. Div., No.
19-ADMH-30NO (Dist. Ct. Sept. 25, 2019) (long treatment history
was considered and properly combined with recent evidence to
find ongoing alcohol use disorder), with Matter of I.M., Mass.
App. Div., No. 19-ADMH-36NO (Dist. Ct. June 5, 2019) (commitment
under G. L. c. 123, § 35, from two years earlier properly was
disregarded when unconnected to evidence of continuing alcohol
use disorder). Here, Hrabovszky, the court clinician,
interviewed the juvenile and his mother, and spoke with a school
clinician by telephone; on this evidence, she concluded that the
juvenile had a substance use disorder. Although much of her
stated reasoning was based on the fact of the juvenile's prior
treatment, Hrabovszky did conduct her own independent
evaluation. Moreover, the juvenile's voluntary treatment
history, September commitment under G. L. c. 123, § 35, and
recent enrollment at a specialty school for juveniles with
substance use disorders support the inference that other
17
clinicians previously had evaluated him and also had come to the
conclusion that he had a substance use disorder.
Granted, on this record, the presence of a substance use
disorder is not beyond dispute. Apart from the incident his
mother learned of from the text messages, there was little
direct evidence that the juvenile's consumption of Xanax was
threatening his health or impairing his social functioning at
work or at school.5 Nevertheless, it was not clearly erroneous
to find, based on his treatment history and continuing drug use,
that the juvenile had a substance use disorder.
iii. Likelihood of serious harm. The judge did not
specify which of the three disjunctive definitions she used in
finding a likelihood of serious harm. See G. L. c. 123, § 1.
There was no evidence that the juvenile was suicidal (first
prong); nor was there any evidence that the juvenile was
homicidal or exhibiting other violent behavior (second prong).
Thus, the judge must have made her finding based on the third
prong, which requires "a very substantial risk of physical
5 The juvenile was attending school, where he had friends,
and had a job at a grocery store, where his supervisor reported
only one unexcused absence. His mother stated that this absence
was on a Saturday when the juvenile was at home and said that he
did not feel like going to work. The conflicts at school, which
were of serious concern to his mother, appear to have derived
from the juvenile's alleged drug distribution and, specifically,
a conflict involving a particular transaction with another
student, rather than from his own drug use.
18
impairment or injury . . . as manifested by evidence that [a
respondent'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. In this case, the only evidence in the record that
might support a finding of very substantial and imminent harm
are two concerns of the juvenile's mother: the evidence
suggesting (1) that the Xanax in the juvenile's possession was
adulterated with a dangerous additive, and (2) that the juvenile
was consuming alcohol and Xanax together.
As to the possibly adulterated Xanax, the mother testified
that, when she had had the juvenile's Xanax tested at some prior
point, she had learned it was not pharmaceutically produced; she
did not indicate that this testing revealed the presence of
dangerous additives. Instead, she mentioned a newspaper article
discussing cases of tainted pills in Stoneham. While
adulterated drugs might pose a significant risk to drug users,
mere reports of tainted drugs somewhere in the Commonwealth,
without any specific nexus to the case before the court, are
insufficient to support the legal conclusion that there was an
imminent and "very substantial risk of physical impairment" to
the juvenile. See G. L. c. 123, § 1.
As to the concern that the juvenile was mixing alcohol and
Xanax, the mother stated that, although she had not observed him
19
doing so, the juvenile had admitted to having mixed alcohol and
Xanax on some unspecified prior occasion. She could not
remember the last time he had admitted to having mixed these
substances. While there was evidence that the juvenile was
consuming both substances (open beer bottles in his room, and a
positive drug test for benzodiazepines from the school), when
the mother was pressed on cross-examination, it became clear
that the asserted mixing essentially was an inference by her.
Hrabovszky testified that the juvenile denied to her that he was
consuming beer and Xanax at the same time. The judge of course
was free to discredit the juvenile's reported statement.
Nonetheless, the mere possibility that the juvenile was mixing
the substances does not rise to the level of an imminent and
"very substantial risk of physical impairment or injury." G. L.
c. 123, § 1. Compare Matter of A.M., 94 Mass. App. Ct. at 402–
403 ("the possibility that [A.M.'s] illicit drug use in
combination with an unspecified prescribed medication regimen
that has mere potential to be life threatening [does not rise]
to 'imminent serious harm'"), with Matter of C.R., Mass. App.
Div., No. 19-ADMH-48SO (Dist. Ct. Sept. 25, 2019) (commitment
was appropriate where there was reliable testimony that
individual had received Vivitrol shot, that she had continued to
drink heavily on Vivitrol as recently as three days prior to
hearing, and that Vivitrol and alcohol can be fatal when mixed).
20
Setting aside the evidence of youthful recklessness
unrelated to a substance use disorder, we conclude that the
evidence in the record that properly could have shown a
connection between the juvenile's substance use disorder and a
likelihood of imminent serious harm -- evidence that the Xanax
was tainted or that the juvenile had consumed it with alcohol --
was insufficient to support a finding of imminent and "very
substantial risk of physical impairment or injury." G. L.
c. 123, § 1. The finding therefore must be reversed, and the
order of commitment vacated and set aside.
3. Due process constraints in substance use disorder
commitment hearings. In addition to challenging the sufficiency
of the evidence in his case, the juvenile argues that due
process requires additional safeguards at hearings pursuant to
G. L. c. 123, § 35. He maintains that a judge must make more
specific and substantial subsidiary findings than the judge made
here and that, at all commitment hearings under G. L. c. 123,
§ 35, a judge must consider less restrictive alternatives to
commitment.
a. Sufficiency of factual findings. The judge's findings
at the end of the hearing were terse: "I do find, by clear and
convincing evidence, . . . that you are an individual with an
alcohol and substance abuse disorder. And that the failure to
commit you would create a likelihood of serious harm. And that
21
there is no less restrictive alternative." The juvenile
contends that these limited findings were insufficiently
detailed to comport with the requirements of due process. While
the findings met all that is required by the explicit statutory
language,6 we agree that due process mandates something more.
"[T]he constitutional demands of due process" dictate that
a "statement of findings and reasons, either in writing or
orally on the record, is a minimum requirement where a defendant
faces a loss of liberty." Brangan v. Commonwealth, 477 Mass.
691, 708 (2017). See id. at 707 (due process requires factual
findings demonstrating consideration of relevant bail factors);
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016), citing
Commonwealth v. Durling, 407 Mass. 108, 113 (1990) (due process
requires written or oral statement that illuminates "the
evidence relied upon and the reasons for revoking probation");
Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 539
6 The language of G. L. c. 123, § 35, places minimal
requirements on a judge's findings. A judge must find "that
such person is an individual with an alcohol or substance use
disorder and there is a likelihood of serious harm as a result
of the person's alcohol or substance use disorder." G. L.
c. 123, § 35. Second, "[t]he court, in its order, shall specify
whether such commitment is based upon a finding that the person
is a person with an alcohol use disorder, substance use
disorder, or both." Id. The uniform rules do not require more
elaborate factual findings. See Rules 6(a), 8(a) of the uniform
rules, supra at 992, 994-995. Rule 7(a) of the uniform rules,
supra at 993, contains the only other required finding: that a
judge may rely on hearsay evidence "only if the judge finds that
it is substantially reliable."
22
(2014) (same for revocation of parole). Cf. Mendonza v.
Commonwealth, 423 Mass. 771, 775 (1996) (indicating that written
findings of fact and reasons for detention are statutorily
mandated by G. L. c. 276, § 58A [4], in order to detain
individual before trial on grounds of dangerousness).7
This minimum requirement applies here, for "[a]n order of
commitment under [G. L. c. 123, § 35,] results in a substantial
curtailment of liberty." Matter of G.P., 473 Mass. at 126. The
judge's recitation of statutory standards, while meeting the
minimum explicitly stated requirements in the statute, does not
set forth findings sufficient to elucidate which subsidiary
facts she relied upon in reaching her conclusions.
Therefore, in hearings pursuant to G. L. c. 123, § 35, a
judge must make clear, in writing or orally on the record, the
evidence he or she credited in support of the legal conclusion
that the respondent had a substance or alcohol use disorder, as
well as the evidence supporting an imminent likelihood of
7 When other fundamental rights similarly are burdened, we
have required that judges make clear the evidence they relied
upon and the reasoning they undertook to reach their
conclusions. See Doe, Sex Offender Registry Bd. No. 496501 v.
Sex Offender Registry Bd., 482 Mass. 643, 657 (2019) (requiring
express findings by Sex Offender Registry Board that support
assigned sex offender classification level); Adoption of Yale,
65 Mass. App. Ct. 236, 239 (2005), quoting Custody of Eleanor,
414 Mass. 795, 799 (1993) (for termination of parental rights,
"[c]areful factual inspection and specific and detailed
findings" by trial judge are required in order to "demonstrate
that close attention has been given the evidence").
23
serious harm stemming from that disorder. Relevant facts tend
to show the reasons for a finding of the existence of a
disorder, as opposed to use of a substance, as well as the
likelihood of the harm, its imminence, its seriousness, and the
nexus between the harm and the underlying substance or alcohol
use disorder.
Additionally, where a judge relies on hearsay, the judge's
written or oral findings should indicate why the judge found
that hearsay reliable. See rule 7 of the uniform rules, supra
at 993 (in proceedings under G. L, c. 123, § 35, where hearsay
may be admissible, it "may be relied upon only if the judge
finds that it is substantially reliable"). In Matter of G.P.,
473 Mass. at 121-122, we allowed the use of hearsay evidence at
hearings on commitments for substance use disorder treatment,
only so long as the judge found that evidence to be
substantially reliable. See id. at 122 (because "hearsay
evidence may well play an extremely significant role in these
hearings," it is critical that judge "ensure[s] that any hearsay
on which he or she relies is '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 any hearsay
they rely upon. See Hartfield, 474 Mass. at 485 ("Even if not
required by court rule, we conclude that, where a judge relies
24
on hearsay evidence in finding a violation of probation, the
judge should set forth in writing or on the record why the judge
found the hearsay evidence to be reliable").
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.8
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 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
8 In Matter of G.P., 473 Mass. at 122, we pointed to
Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010), in which
we identified a nonexclusive list of factors for judges to
consider in determining whether hearsay is reliable, namely, the
level of factual detail (rather than generalized and conclusory
assertions); whether the statements were made based on personal
knowledge and direct observation; whether the statements were
corroborated; whether the statements were made under
circumstances that support the veracity of the source; and
whether the statements were made by disinterested witnesses.
See Commonwealth v. Durling, 407 Mass. 108, 121 (1990).
25
acknowledge the "practical considerations" faced by judges and
all parties in hearings under G. L. c. 123, § 35. See Matter of
G.P., supra.
b. Consideration of less restrictive alternatives. In
Matter of G.P., 473 Mass. at 129 n.24, we left open the question
whether, as the juvenile contends, due process requires a judge
to consider less restrictive alternatives in all commitment
hearings for substance use disorder treatment. Faced squarely
with that question here, we answer affirmatively.
"The Fourteenth Amendment to the United States Constitution
and arts. 1, 10, and 12 of the Massachusetts Declaration of
Rights establish a fundamental right to liberty and freedom from
physical restraint that cannot be curtailed without due process
of law." Brangan, 477 Mass. at 702. See Pembroke Hosp., 482
Mass. at 347; Matter of E.C., 479 Mass. at 119 ("The right of an
individual to be free from physical restraint is a paradigmatic
fundamental right" [citation omitted]). Laws that directly
infringe on fundamental rights, such as liberty from constraint,
are subject to strict scrutiny. See Brangan, supra at 703;
Commonwealth v. Libby, 472 Mass. 93, 96-97 (2015); Commonwealth
v. Weston W., 455 Mass. 24, 30 (2009). "To pass the strict
scrutiny standard, the [law] must be narrowly tailored to
further a legitimate and compelling governmental interest and be
26
the least restrictive means available to vindicate that
interest." Weston W., supra at 35.
The juvenile argues that only after less restrictive
alternatives have been considered may commitment be deemed the
least restrictive means by which to vindicate the government's
interest.9 The argument has merit. Because these cases are
intensely fact-specific, there is no way to ensure that
commitment is the least restrictive means of vindicating the
government's interest, unless and until a judge has considered
less restrictive alternatives in each case. For the statute to
survive strict scrutiny, this inquiry must be undertaken.
We reached a similar conclusion in Commonwealth v. Nassar,
380 Mass. 908, 917-918 (1980). There, we required judges to
find that no less restrictive alternatives to civil commitment
were appropriate before authorizing commitment pursuant to G. L.
c. 123, §§ 7-8 (civil commitment of mentally ill person whose
release would create likelihood of serious harm to individual or
others). While that holding did not rest explicitly on grounds
of substantive due process, its reasoning closely mirrored
strict scrutiny principles. Nassar, supra ("we think it natural
9 The parties do not dispute that the government has a
compelling and legitimate interest in protecting its residents
from the often tragic consequences of substance use disorder.
In addition, because it is not contested here, we assume without
deciding that G. L. c. 123, § 35, is narrowly tailored.
27
and right that all concerned in the law and its administration
should strive to find the least burdensome or oppressive
controls over the individual that are compatible with the
fulfilment of the dual purposes of our statute, namely,
protection of the person and others from physical harm and
rehabilitation of the person").
While Nassar, 380 Mass. at 917-918, was decided on
statutory grounds, here we reach the constitutional question.
For G. L. c. 123, § 35, to 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.
To be appropriate, a less restrictive alternative need not
eliminate all risk to a respondent. Rather, the proper focus is
on whether there are any viable, plausibly available options
that bring the risk of harm below the statutory thresholds that
define a likelihood of serious harm ("substantial risk" for
prongs one and two, and "very substantial risk" for prong
three). See Matter of G.P., 473 Mass. at 128-129 (discussing
"quantum of risk" necessary to meet standards of G. L. c. 123,
§ 1).
For example, in this case the judge found a likelihood of
serious harm. She then weighed commitment against the voluntary
28
program that the juvenile had been scheduled to start within one
week. She concluded that, because she did not have confidence
the juvenile actually would attend that program, it did not
serve adequately to reduce the risk of harm. This determination
was within her discretion and satisfies the requirement that due
process imposes.
As a practical matter, in evaluating less restrictive
alternatives, judges may seek guidance from the qualified
physicians, psychologists, and social workers who already are
required to testify in these cases. Where, as here, the
respondent is accessing, or may soon access, various forms of
treatment and services, the respondent's counsel may argue their
sufficiency to mitigate risk. In such cases, consideration of
less restrictive alternatives should evaluate the ways in which
involuntary commitment can disrupt ongoing treatment efforts, as
well as connections to the community and familial relationships.
Particularly for juveniles, supportive relationships with family
and community have been deemed protective against future
substance use. See Section 35 Commission Report, at 6 (July 1,
2019).10 Ultimately, in crafting this requirement, our intention
10The Section 35 Commission was established in 2018, see
St. 2018, c. 208, § 104, to study "the efficacy of involuntary
inpatient treatment for non-court involved individuals diagnosed
with a substance use disorder." It is chaired by the Secretary
of Health and Human Services, and is staffed by representatives
from numerous specifically identified private entities and
29
is to ensure, in accordance with the principle of due process,
that involuntary commitment remains a viable, but carefully
circumscribed, tool of last resort. See id. (recommending
expansion of easily accessed, "low-threshold," community-based
treatment models and reservation of commitment for most severe
cases).11
Conclusion. Because the juvenile was committed on
insufficient evidence, the finding of a substance use disorder
creating an imminent and very substantial risk of harm must be
reversed, and the order of commitment must be vacated and set
aside. The matter is remanded to the Juvenile Court for entry
of an order consistent with this opinion.
So ordered.
professional groups involved in substance use treatment or
public health, as well as representatives from a number of State
agencies and members of the Legislature. See Section 35 Report,
at 35 (July 1, 2019) (Appendix A).
11In its July 2019 report, the Section 35 Commission
presented seventeen recommendations to the Commonwealth. Its
top recommendation was that the Commonwealth
"should expand development of low-threshold, treatment on
demand models, including harm reduction interventions in
community-based settings, immediate access to medication-
assisted treatment (MAT) and expansion of bridge clinics,
addiction consult services, outreach and engagement
programs, post-overdose intervention programs, syringe
services programs, and family intervention programs."
Section 35 Commission Report, supra at 6. Thirteen of the
recommendations were adopted. Id.