In the Matter of C.B.

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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-898

IN THE MATTER OF C.B.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

C.B. appeals from a decision and order of the Appellate

Division of the District Court, which affirmed a District Court

order granting a petition for involuntary civil commitment filed

by Bridgewater State Hospital (BSH) pursuant to G. L. c. 123,

§ 16 (b). C.B. contends that BSH failed to prove, beyond a

reasonable doubt, that (1) he would pose a "likelihood of

serious harm" if not placed in the strict security of BSH, G. L.

c. 123, § 8 (b), and that (2) if he would pose such a risk, he

"is not a proper subject for commitment" to any other Department

of Mental Health (DMH) facilities. C.B. also argues that BSH

failed to prove that there is "no less restrictive alternative"

to the strict security at BSH.1 Matter of E.C., 479 Mass. 113,

1 C.B. also initially argued that the District Court lacked
subject matter jurisdiction to grant the BSH petition because
the initial order committing C.B. to BSH for a competency
121 (2018). We conclude that BSH failed to provide sufficient

evidence to support a finding beyond a reasonable doubt that

C.B. posed a likelihood of serious harm if not placed in the

strict security of BSH, and therefore we reverse.2

Background. 1. Procedural history. On January 23, 2020,

C.B. was charged with four offenses in the Orange District

Court.3 On January 24, 2020, a judge of that District Court

(criminal court) granted a motion filed by C.B.'s defense

attorney for evaluation of C.B.'s mental competency by a

clinician pursuant to G. L. c. 123, § 15 (a). On February 7,

2020, based on the recommendation of the clinician and over

C.B.'s objection, the criminal court judge ordered an

evaluation, at BSH, of C.B.'s competency to stand trial and

capacity for criminal responsibility, pursuant to G. L. c. 123,

§ 15 (b). On February 25, 2020, the judge issued an order for

C.B.'s hospitalization and examination at BSH pursuant to G. L.

evaluation, which entered in a different District Court pursuant
to G. L. c. 123, § 15 (b), was unlawful for not considering
less restrictive alternatives. See Commonwealth v. A.Z., 493
Mass. 427, 432 (2023). He withdrew this argument in his reply
brief.

2 Although C.B. is no longer subject to commitment, this
appeal is not moot. See Matter of F.C., 479 Mass. 1029, 1029-
1030 (2018).

3 The charges were assault and battery on a person sixty
years of age or older, G. L. c. 265, § 13K (a 1/2);
strangulation or suffocation, G. L. c. 265, § 15D (b); assault
to kill, G. L. c. 265, § 18 (a); and assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (a).

2
c. 123, § 15 (b). C.B. was admitted to BSH on February 26,

2020. On March 3, 2020, the criminal court judge granted a

request by BSH for an extension of the evaluation to April 3,

2020. On April 3, 2020, the criminal court issued an order

finding C.B. incompetent to stand trial.

On the same day, the medical director for BSH filed a

petition with a different District Court, the Brockton District

Court (civil court), for C.B.'s commitment to BSH pursuant to

G. L. c. 123, § 16 (b), alleging that C.B. posed a substantial

risk of physical harm to other persons. On May 27, 2020, a

judge of the civil court granted the petition after conducting a

virtual hearing.

On June 5, 2020, C.B. appealed from the commitment order,

arguing the evidence was insufficient to establish that (1) C.B.

requires the strict security of BSH, and (2) failure to

hospitalize him would "create a likelihood of serious harm."

G. L. c. 123, § 8 (b). The Appellate Division affirmed the

commitment order on March 22, 2024, ruling that the civil court

had jurisdiction to issue the commitment order and BSH had

offered sufficient evidence to support commitment. On April 19,

2024, C.B. filed a notice of appeal to this court.

2. The long-term commitment hearing. During the May 27,

2020, commitment hearing in the civil court, only C.B. and Dr.

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Kelley, BSH's expert witness, testified. No exhibits were

entered in evidence at the hearing.

Dr. Kelley first opined that C.B. was incompetent to stand

trial in the criminal court, because he was "exhibiting

significant deficits in those abilities associated with

competence to stand trial." She specified that C.B. held

"delusional beliefs that he is connecting to aspects of his

legal charges." C.B. was also "suspicious of his current

attorney" in the criminal case, and his communication with that

lawyer was "guarded" and "defensive." As a result, Dr. Kelley

stated that C.B.'s abilities to "weigh alternatives and make a

rational choice" and "work with his current defense attorney"

were impaired. The civil court judge made a finding that C.B.

remained incompetent to stand trial in the criminal court.

Dr. Kelley then proceeded to testify to C.B.'s mental

health conditions. She stated that C.B. met the DMH criteria

for mental disorder "consistent with a diagnosis of an other

specified schizophrenia spectrum and other psychotic disorder,

with specific symptoms of delusional persecutory thinking." She

opined that C.B.'s mental illness "has been going on for

decades" and was first diagnosed in 2018, during an initial

hospitalization of C.B. Dr. Kelley described C.B.'s symptoms to

include being "highly sensitive to perceived threats,"

"heightened suspiciousness, guardedness and evidence of

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continued delusional and persecutory thinking." According to

Dr. Kelley, C.B. also had a "history of emotional instability,"

though he was "not currently exhibiting symptoms of a mood

disorder."

Dr. Kelley concluded that C.B. required psychiatric

hospitalization under the strict security of BSH. She opined

that failure to hospitalize C.B. at BSH "would create a serious

risk of harm to others by reason of mental illness." She based

her opinion on C.B.'s continuing "symptoms of heightened

suspiciousness" and "heightened sensitivity to threats," as well

as C.B.'s unwillingness to acknowledge and manage his "mental

health problems" or his "risk factors for violence." Another

basis of Dr. Kelley's opinion was that C.B. "does not currently

agree that he has mental health problems" and refused to take

"any psychiatric medication." She supported her opinion by

stating "[C.B.] had been (inaudible) of serious allegations of

violence in connection with symptoms of mental illness." Dr.

Kelley concluded that it was inappropriate to hospitalize C.B.

to a DMH facility, since he required "close monitoring and

supervision, in the event of acting out erratically against

others."

During cross-examination, Dr. Kelley testified that C.B.

was "currently exhibiting psychotic symptoms" and "disturbances

in his thought processes." She admitted that C.B. had not been

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"assaultive" or "threatening," or had any "behavioral write-

ups," since he had been admitted to BSH. According to Dr.

Kelley, C.B. was "sensitive to perceived threats" and was

"easily unnerved by people asking about his mental health and

his legal situation,"4 but had not made any threats himself or

assaulted anyone he perceived to be threatening since he came to

BSH. Dr. Kelley testified she was informed by a nurse on C.B.'s

treatment team that C.B. was "behaviorally stable" in the

nurse's opinion, with "no current evidence of an active

psychotic process or mood disturbance that would justify

pursuing a Rogers order or treatment over --."5 Dr. Kelley also

reviewed records of C.B.'s previous hospitalizations at BSH and

two other DMH facilities in 2018, and she testified that C.B.

had no behavioral issue at one of those DMH facilities.

C.B. testified after Dr. Kelley. He testified that he had

been committed to BSH since the end of February 2020, after he

was incarcerated in a county jail for about a month. C.B.

stated that while he was at BSH, he was allowed approximately

two hours per day outside of his room due to restrictions from

the COVID-19 pandemic. He had discussions with the treatment

staff from both his room and elsewhere in the facility. He

testified that he had not assaulted, threatened, or wanted to be

4 Dr. Kelley made this statement during direct examination.

5 Counsel's question was interrupted by an objection.

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violent toward anyone at BSH. C.B stated that he had been

verbally assaulted and threatened by other patients, and he

"scooted" when other patients threatened him. C.B. then

testified that he preferred not to go to a DMH hospital or get

treatment because he "prefer[s] some more freedom that makes

sense to people." C.B. recalled his previous commitment to BSH

for approximately three months in 2018 for evaluation, and his

subsequent transfer to two other DMH facilities.6 He testified

that he did not have any incidents of violence while receiving

treatment in these facilities.

On cross-examination, C.B. stated that he was aware that

there are allegations against him about assaulting his mother in

January 2020. C.B. admitted that he had not been taking

antipsychotic medications since his hospitalization at BSH.

C.B. acknowledged that he was involved in a land dispute.

After both C.B. and Dr. Kelley testified, the civil court

judge credited Dr. Kelley's testimony. The judge found that

C.B. was mentally ill as defined under the statute and required

commitment under the strict security of BSH. The judge ordered

C.B.'s commitment to BSH for a period not longer than six

months.

6 C.B.'s and Dr. Kelley's testimony differed as to the
second facility at which he was hospitalized. This difference
is not material to our decision.

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Discussion. 1. Legal framework. "General Laws c. 123,

§§ 7 and 8, address the long-term commitment of persons with

mental illness." Matter of J.D., 97 Mass. App. Ct. 15, 18

(2020). General Laws c. 123, § 8 (b), states that

"the district court . . . shall not order the commitment of
a person at the Bridgewater state hospital . . . unless it
finds that (1) such person is mentally ill; (2) such person
is not a proper subject for commitment to any facility of
the [DMH]; and (3) the failure to retain such person in
strict custody would create a likelihood of serious harm."

All three elements must be demonstrated beyond a reasonable

doubt. Matter of J.P., 486 Mass. 117, 119 (2020), citing Matter

of G.P., 473 Mass. 112, 119 (2015).

Specifically, G. L. c. 123, § 1, defines "likelihood of

serious harm" to include "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." Thus, "[t]o conclude that a person poses a substantial

risk of physical harm to others, a judge must find either '[1]

evidence of homicidal or other violent behavior or [2] evidence

that others are placed in reasonable fear of violent behavior

and serious physical harm to them.'" Matter of J.P., 486 Mass.

at 121, quoting G. L. c. 123, § 1. "As to the likelihood of

serious harm to others, 'the Legislature's use of the word

"homicidal," and phrases such as "violent behavior" and "serious

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physical harm" signifies an intent that evidence of conduct

reflecting a substantial level of force and intensity be

presented.'" Matter of J.D., 97 Mass. App. Ct. at 19, quoting

Matter of G.P., 473 Mass. at 126. The petitioner must show that

the risk of harm is imminent, "that the harm will materialize in

the reasonably short term -- in days or weeks rather than in

months." Matter of G.P., supra at 128. See Commonwealth v.

Nassar, 380 Mass. 908, 916-917 (1980).

2. Evidence demonstrating likelihood of serious harm.

First, C.B. argues that BSH did not present sufficient evidence

to support a finding beyond a reasonable doubt he posed a

"likelihood of serious harm" if not confined to the strict

security of BSH. G. L. c. 123, § 8 (b). "In our review of the

sufficiency of the evidence, we accept the findings of fact made

by the hearing judge unless clearly erroneous; however, we

review without deference whether the legal standard for civil

commitment was met." Matter of J.P., 486 Mass. at 121. Upon

review, we agree with C.B. and conclude that the evidence was

insufficient to show beyond a reasonable doubt that C.B. posed a

"likelihood of serious harm." G. L. c. 123, § 8 (b).

BSH primarily relied on Dr. Kelley's expert testimony,

credited by the judge hearing the petition, in establishing the

"likelihood of serious harm." G. L. c. 123, § 8 (b). In her

expert testimony, Dr. Kelley opined that failure to hospitalize

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C.B. at BSH "would create a serious risk of harm to others by

reason of mental illness." The only basis in her testimony,

however, for her conclusion that there was a risk of violence

from C.B. was the fact that he had been charged with violent

crimes. Her testimony about his mental health condition and its

symptoms included information about delusion, suspiciousness,

defensiveness, guardedness, persecutory thinking, a heightened

sensitivity to threats, and that he was unnerved by discussion

of certain topics. None of this, nor anything she testified was

inherent to his diagnosis, provides any basis for concluding

that C.B. presented any danger to others. Nor does the evidence

of C.B.'s refusal to acknowledge or treat those symptoms provide

such a basis.

Rather, Dr. Kelley relied solely on the criminal charges

against C.B. as evidence of C.B.'s violent behavior, and thus as

evidence supporting her conclusion that C.B. presented a

substantial risk of physical harm to others. Although criminal

charges can be considered, such charges must be supported only

by probable cause, see Commonwealth v. Stirlacci, 483 Mass. 775,

780 (2020); standing alone, in the absence of other evidence,

they are insufficient to prove beyond a reasonable doubt

commission of the acts alleged. Where that is the only evidence

of violence or even a risk of violence, the evidence was

insufficient to prove beyond a reasonable doubt that "the

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failure to retain [C.B.] in strict custody would create a

likelihood of serious harm." G. L. c. 123, § 8 (b). The

problem is not, as BSH would have it, an absence of sufficient

evidence of "recent overt acts of violence." It is the absence

of sufficient evidence of violence altogether, or even a risk of

violence.

Because we conclude that BSH did not present sufficient

evidence to show C.B. posed a "likelihood of serious harm,"

G. L. c. 123, § 8 (b), the decision and order of the Appellate

Division is reversed. The order dated May 27, 2020, committing

C.B. to BSH, is vacated.7

So ordered.

By the Court (Rubin, Shin &
Singh, JJ.8),

Clerk

Entered: April 15, 2026.

7 We In light of our conclusion, we need not and do not
address C.B.'s other claims of error.

8 The panelists are listed in order of seniority.

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