Opinion
21-P-177
03-07-2022
In the MATTER OF B.E.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
B.E. appeals from a July 28, 2020 District Court order that committed her to an addiction treatment center involuntarily, pursuant to G. L. c. 123, § 35. On appeal, B.E. argues, among other things, that (1) there was insufficient evidence to support involuntary commitment; (2) the judge's findings were insufficiently detailed to comport with due process; and (3) she received ineffective assistance of counsel because her attorney failed to argue that the judge must assess the potential COVID-19 risks from any commitment, and make the findings required by Foster v. Commissioner of Correction, 484 Mass. 698 (2020). We affirm.
Background. On July 27, 2020, B.E.’s daughter filed a G. L. c. 123, § 35, petition, which sought to have B.E. committed to an addiction treatment center. At a hearing the following day, the judge heard testimony from a court clinician who had evaluated whether B.E. met the criteria for commitment. The clinician testified that B.E. had been released from a detoxication program (rehab) just six days prior to the hearing. The clinician also testified that B.E.’s two daughters, B.E.’s mother, and B.E.’s close friend all told the clinician that they had spoken to B.E. on the phone since B.E.’s release from rehab, and that B.E. had been intoxicated during those conversations. During one such conversation, B.E. admitted to one of her daughters that she had been drinking all weekend.
As the court clinician was the only witness at the hearing, all the facts herein are drawn from her testimony.
In another conversation shortly before the commitment hearing, B.E. told her mother that she wanted to "go the route of her ... father"; her father had committed suicide. B.E.’s daughter also noted that B.E. had a history of drunk driving, and that B.E. had driven home from the liquor store while intoxicated approximately one month before the commitment proceeding. Police officers -- who brought B.E. to the commitment hearing -- reported that when they went to pick up B.E. at her home, she had a bottle of liquor in her lap and smelled like alcohol. The clinician opined that B.E. was at imminent risk of harming herself and others, and that no less restrictive remedy than commitment would keep B.E. safe from such harm.
The judge ordered that B.E. be committed to the Women's Addiction Treatment Center in New Bedford. The judge made oral findings, including that B.E. did not have control over her substance abuse. The judge concluded that commitment was necessary because B.E. was endangering herself.
B.E. appealed to the Appellate Division of the District Court, which affirmed the order of commitment. B.E. has since been released from the Women's Addiction Treatment Center.
An appeal from an order of commitment is not rendered moot by the individual's release. Matter of a Minor, 484 Mass. 295, 299-300 (2020).
Discussion. 1. Sufficiency of the evidence. B.E. argues that there was insufficient evidence to meet the standard for a § 35 commitment -- which is that B.E. posed an "imminent likelihood of serious harm" to herself or others. Matter of a Minor, 484 Mass. 295, 307 (2020). On review, we accept the judge's findings of fact in the absence of clear error, and review the judge's legal conclusions de novo. Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018). There was sufficient evidence here to support commitment.
Due to the fundamental liberty interests at stake in civil commitment proceedings, an order of commitment must be supported by "clear and convincing evidence." Matter of A.M., 94 Mass. App. Ct. at 400. A judge may issue an order of commitment if he or she finds that the person has "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. A showing of imminence -- "that the harm will materialize in the reasonably short term" -- is also required. Matter of G.P., 473 Mass. 112, 126-128 (2015). Here, B.E. does not contest that she has an alcohol use disorder, only that there was an imminent likelihood of serious harm.
General Laws c. 123, § 1, provides a three-prong definition of "[l]ikelihood of serious harm." Although the judge did not specify which prong she relied upon when issuing her order, we conclude that there was sufficient evidence here as to the third prong -- "a very substantial risk of physical impairment or injury to the person [her]self as manifested by evidence that such person's judgment is so affected that [s]he is unable to protect [her]self in the community and that reasonable provision for [her] protection is not available in the community." G. L. c. 123, § 1. To satisfy the third prong, the person's judgment must be "so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect ... herself from physical harm," and has no "reasonably available external source of adequate protection." Matter of G.P., 473 Mass. at 128-129.
The evidence presented showed that B.E. could not control her drinking, and that she was drinking, persistently and heavily, to the point of endangering herself and others. This evidence was introduced through the clinician's testimony, but it came from multiple family members, as well as from the officers who brought B.E. to court. B.E.’s drinking occurred only days after her release from rehab. Moreover, although commitment requires a showing that the risk of serious harm is imminent, when "the anticipated physical harm is serious -- approaches death -- some lessening of a requirement of imminence seems justified" (quotation and citation omitted). Matter of A.M., 94 Mass. App. Ct. at 402. Such is the case here. B.E. told her mother days before the hearing that she wanted to "go the route of her father"-- who had killed himself. Roughly one month before her commitment, B.E.’s daughters had called the police because B.E. was expressing suicidal ideation, and B.E. was taken to the hospital by police. Furthermore, around the same time as the suicidal ideation, B.E.’s daughters had observed B.E. driving while intoxicated, in order to go to the liquor store. Taken in toto, there was clear and convincing evidence that B.E. posed an imminent, very substantial risk of physical impairment or injury to herself.
B.E. argues that the judge failed to make an explicit finding that the hearsay introduced during the hearing was reliable, as required by Matter of a Minor, 484 Mass. at 307. Here the judge specifically found that the statements the clinician recounted from B.E.’s family members had "quite a bit of credibility," because "numerous family members ... made similar statements." These findings meet the requirements of Matter of a Minor.
2. Due process. B.E. also argues that the judge did not satisfy the requirements of due process because (1) she failed to specify what prong of the definition of "likelihood of serious harm" she relied upon, and (2) she did not make any explicit findings regarding imminence, or of a nexus between the anticipated harm and B.E.’s alcohol use. Due process does not require this level of specificity in findings, however. Rather, what is required is that the judge identify 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 serious harm stemming from that disorder." Matter of a Minor, 484 Mass. at 307.
Here, the judge identified the evidence as to the likelihood that B.E. would cause herself significant harm -- her failure to maintain sobriety immediately after being released from rehab, her suicidal ideation, and her driving while intoxicated to obtain liquor. Although the judge did not use the word "imminent" in her findings, she did note that these events occurred "in a very brief period of time," and that police officers had observed that B.E. was intoxicated the morning of the hearing. Recognizing that there are " ‘practical considerations’ faced by judges" in § 35 proceedings where they must make decisions in an "extremely short time frame," Matter of a Minor, 484 Mass. at 308, quoting Matter of G.P., 473 Mass. at 122, we believe the judge's findings on the record comport with due process.
3. Ineffective assistance of counsel. B.E. next argues that she received ineffective assistance of counsel because her attorney failed to request that the judge engage in an analysis about COVID-19 risks to B.E., as required by Foster, 484 Mass. at 730, prior to committing her. Assuming without deciding that the failure to request Foster findings fell measurably below what we would expect from an ordinary fallible lawyer, B.E. has failed to establish prejudice.
As this proceeding involved a fundamental liberty interest, B.E. was entitled to effective assistance of counsel. See Matter of A.M., 94 Mass. App. Ct. at 400 ; Guardianship of L.H., 84 Mass. App. Ct. 711, 718 (2014). Here, B.E. presents her ineffective assistance claim for the first time on appeal. An ineffective assistance claim is at its "weakest form" on direct appeal, because the record has not been developed by a motion for new trial. Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Therefore, direct appellate review of an ineffective assistance claim is only appropriate "when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by" the fact finder. Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 620-621 (2012), quoting Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). To prevail on an ineffective assistance claim, B.E. must show first that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," and second that the errors were prejudicial. Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812-813 (2010), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In civil cases, ineffective assistance is prejudicial if there was a "reasonable probability" that "the result of the proceeding would have been different" but for counsel's errors. Id. at 813, quoting Commonwealth v. Mahar, 442 Mass. 11, 15 (2004).
In Foster, the Supreme Judicial Court held that "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." 484 Mass. at 730. This is an "additional, temporary requirement[ ]" for civil commitment proceedings during the COVID-19 pandemic, "beyond those imposed by G. L. c. 123, § 35, due process principles, and any other applicable law." Id. B.E.’s counsel did not raise Foster in the District Court, nor did counsel object to the judge's failure to consider potential COVID-19 risks before ordering commitment.
Nevertheless, on this appeal, B.E. has not shown a "reasonable probability" that the outcome would have been different if the judge had engaged in the analysis required by Foster. See Poe, 456 Mass. at 813. Because Foster was not raised at the commitment hearing, there is no information in the record that would bear on whether committing B.E. in July of 2020 would have resulted in significantly increased COVID-19 risks. For example, there is no record evidence regarding (1) the COVID-19 conditions at the treatment facility at the time of the hearing, (2) any quarantine protocols at the treatment facility, or (3) B.E.’s health or medical history as it relates to risks from COVID-19. The record accordingly does not establish that B.E. was prejudiced by counsel's failure to raise the Foster issue. In July of 2020, COVID-19 conditions in the Commonwealth were not acute, and by law, B.E. would only have been committed for ninety days. G. L. c. 123, § 35. There is thus no direct evidence that committing B.E. posed undue risk, while on the other hand, the clinician testified that B.E.’s current situation posed an acute risk to her safety -- and that there was "no less restrictive alternative" that would keep B.E. "safe in the community." We cannot say that, had the Foster issue been raised, the judge likely would have chosen instead not to commit B.E.
B.E. waived her Foster argument by not raising it during the commitment hearing. Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014).
We take judicial notice of the Massachusetts Department of Public Health's (DPH) publicly accessible reports regarding COVID-19 conditions. Foster, 484 Mass. at 729 n.20. The DPH's Weekly COVID-19 Public Health Report issued the week prior to B.E.’s commitment shows that COVID-19 cases were decreasing, and that at the time, the COVID-19 positivity rate in New Bedford -- the location of B.E.’s commitment -- was less than three percent. DPH, Weekly COVID-19 Public Health Report (July 22, 2020), https://www.mass.gov/doc/weekly-covid-19-public-healthreport-july-22-2020/download.
Decision and order of the Appellate Division affirmed.