In the Matter of C.S.

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-282

IN THE MATTER OF C.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The respondent, C.S., appeals from a June 2021 order of a

District Court judge committing her to Worcester Recovery Center

and Hospital (Worcester) for a period of one year, pursuant to

G. L. c. 123, §§ 7 and 8. At the time she was committed C.S.

was diagnosed with schizophrenia, which caused, among other

symptoms, delusional thinking. C.S. had been previously civilly

committed in 2020, after she was hospitalized in 2019 because

she was suffering from a whole-body lice infestation that caused

her to pull out her hair and scratch her skin. While committed,

C.S. needed staff support to complete her activities of daily

living.

On appeal C.S. argues that the evidence adduced in the 2021

hearing was insufficient as to two required findings, (1) that

there would be an imminent "likelihood of serious harm" if C.S.
were discharged, G. L. c. 123, § 8 (a), and (2) that there were

no less restrictive alternatives to her commitment. See Matter

of J.P., 486 Mass. 117, 118-119 (2020). C.S. also argues that

Worcester failed to prove that C.S. had been subject to a prior

commitment under chapter 123. For the reasons that follow, we

affirm the order of commitment.

Background. Based on the record before her, the judge

could have found the following facts. The respondent, C.S., had

been without housing intermittently for over twenty years. In

October of 2019, C.S. was admitted to a hospital emergency room;

at that time C.S. had an infestation of lice covering her body,

and she had scabs from scratching at the lice. She was pulling

out her hair and keeping it in a plastic bag. She was also very

thin.1

Following her stay in the emergency room, C.S. was admitted

to Pembroke Hospital (Pembroke), and from Pembroke, C.S. was

transferred to Worcester.2 At some point, Worcester obtained a

1 While in the emergency room, C.S. claimed that she did not
need health insurance, because she was covered by pet insurance
in Maine.

2 C.S.'s Pembroke record includes an admission form, with a
box checked that she was "well developed," "well-nourished," and
"does not appear to be acutely or chronically ill." This was
contradicted by the testimony of C.S.'s sister as to the lice
infestation.

2
civil commitment order over C.S., prior to the pendency of this

case.

In May of 2021, Worcester filed the instant petition

pursuant to G. L. c. 123, §§ 7 and 8, seeking a one-year

commitment. In its petition Worcester stated that C.S. was, at

that time, under an order of commitment expiring on June 2,

2021. In June of 2021, the District Court held two hearings, at

which C.S.'s sister and Dr. Caussade, C.S.'s attending

psychiatrist at Worcester, testified. Dr. Caussade testified at

length regarding his observations of C.S., and his clinical

opinions in this case.

In Dr. Caussade's clinical opinion, C.S. was suffering from

schizophrenia; this opinion was based on C.S.'s delusional

thinking and distorted perception, causing her to respond to

stimuli that only she could perceive.3 Among C.S.'s delusions

were that she had an apartment she could live in if discharged,

that Worcester was planning to force feed her with a feeding

tube, and that she did not have a brain (and thus, she did not

have a mental illness). C.S. also stated that as she did not

have a mental illness, she did not need treatment or medication;

she would only take medication if ordered to do so by the court.

3 Dr. Caussade testified that "[C.S.] is often seen
responding to voices that only she can hear, stimuli that only
she can hear. So she is constantly seen as internally
preoccupied."

3
Dr. Caussade opined that C.S.'s schizophrenia rendered her

unable to meet the ordinary demands of life. In Dr. Caussade's

opinion, "[C.S] would not be able to find medical care, seek

resources, [would have] difficulty seeking shelter, medical

care, food, income, resources in general. She's seen as not

being able to achieve these things at this time."4 While at

Worcester, C.S. engaged in her activities of daily living with

staff support, but in Dr. Caussade's opinion, she would not be

able to complete such activities without staff support.

Furthermore, Dr. Caussade opined that C.S. is "unable to fully

grasp the risks and benefits or the reality of any treatment

planning and discharge planning or life in the community," and

that C.S. would not engage in psychiatric care in the community.

To the best of Dr. Caussade's knowledge, there was no homeless

shelter available to C.S., nor was there any less-restrictive

alternative available in the community.5 A locked psychiatric

4 C.S.'s sister further testified that C.S. lacks attention
to medical issues. C.S.'s teeth are discolored and one is
cracked; she refuses to go to the dentist. Furthermore, she
refused to have an electrocardiogram performed, despite a
history of cardiac issues in the family. C.S. had received her
COVID-19 vaccine, however. At the time of the hearing, C.S.'s
sister had a temporary guardianship over her.

5 For some period of time, Worcester's discharge plan for
C.S. was for C.S. to be discharged to a live-in shelter.
However, Worcester reconsidered its discharge plan after
observing the extent of C.S.'s delusional thinking.

4
facility was the least restrictive placement available at the

time of the hearing, Dr. Caussade testified, because "[e]ven

with treatment right now, she still needs staff support to

maintain her [activities of daily living], as well as receiving

medication. Steps to find the least-restrictive alternative

have not been fruitful thus far. Therefore, anything less than

what she's getting now would lead to her decompensating."

Following the second hearing, the judge ordered that C.S.

be committed to Worcester for one year.6 The judge found that

C.S. was "[m]entally ill as defined by [104 Code Mass. Regs.

§ 27.05] in accordance with G. L. c. 123, § 2," that "[f]ailure

to retain [C.S.] in a facility would create a likelihood of

serious harm," and that "[t]here is no less restrictive

alternative for [C.S.]." C.S. appealed to the Appellate

Division of the District Court, which affirmed.

Discussion. 1. Sufficiency of the evidence. C.S. first

challenges the sufficiency of the evidence justifying her

commitment. "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

6 This commitment order has now expired. The matter is not
moot, however, as "[a]n individual has a personal stake in the
outcome of litigating an appeal from an order of civil
commitment, even after the individual is released." Matter of
J.P., 486 Mass. at 120 n.7, quoting Matter of a Minor, 484 Mass.
295, 300 (2020).

5
the legal standard for civil commitment was met." Matter of

J.P., 486 Mass. at 121. An order of civil commitment pursuant

to G. L. c. 123, §§ 7 and 8, must be supported by findings that

"(1) such person is mentally ill, and (2) the discharge of such

person from a facility would create a likelihood of serious

harm." Matter of J.P., supra at 118, quoting G. L. c. 123,

§ 8 (a). "The harm must be shown to be imminent, that is, it

will materialize 'in days or weeks rather than in months.'"

Matter of J.P., supra at 119, quoting Matter of G.P., 473 Mass.

112, 128 (2015). The judge must also find "that there is no

alternative that is less restrictive than hospitalization."

Matter of J.P., supra at 118. The standard of proof is beyond a

reasonable doubt. Pembroke Hosp. v. D.L., 482 Mass. 346, 348-

349 (2019). C.S. challenges the "likelihood of serious harm"

and "least restrictive alternative" findings; we take each in

turn.

a. Likelihood of serious harm. Pursuant to G. L. c. 123,

§ 1, "likelihood of serious harm" can be proven three ways; we

are concerned with the third of these -- whether the evidence

showed "[(1)] a very substantial risk of physical impairment or

injury to [C.S.] 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 [(2)] that reasonable provision

6
for [her] protection is not available in the community."7 G. L.

c. 123, § 1. See Matter of P.R., 488 Mass. 136, 140 (2021). In

conducting the "very substantial risk" analysis, "[t]he focus of

the evidence . . . must be on [C.S.'s] degree of impaired

judgment due to mental illness and the degree of likelihood

that, as a direct consequence, [C.S.] will sustain or inflict

injury" (alteration omitted). Id. at 141, quoting Matter of

G.P., 473 Mass. at 129.

C.S. argues that the evidence failed to meet the very

substantial risk of harm standard. In particular, C.S. asks us

to discount the evidence of her lice infestation and weight loss

when she was first committed in 2019, noting that her intake

form at Pembroke did not list those conditions; she also

emphasizes that she had lived in the community for twenty years

prior to her hospitalization, and that if she were discharged

she would have support in the community from her sister and the

Department of Mental Health.8

7 The Supreme Judicial Court has treated the unavailability
of "reasonable provision for [her] protection . . . in the
community" standard as equivalent to the "least restrictive
alternative" standard. G. L. c. 123, § 1. See Matter of P.R.,
488 Mass. 136, 140 n.7 (2021). We analyze C.S.'s challenge
under the "least restrictive alternative" standard, infra.

8 C.S. also argues that lack of housing alone is not enough
to support a finding of a very substantial risk of harm, see
Matter of J.P., 486 Mass. at 124-125. Here, however, the
findings were not based on lack of housing, but on C.S.'s
inability to care for herself and to avoid harm.

7
C.S.'s arguments, however, go to the weight of the

evidence, not to its sufficiency. The fact finder was not

required to credit the Pembroke intake form, where C.S. had just

been hospitalized and C.S.'s sister testified to the seriousness

of C.S.'s condition at the time. Nor was the judge required to

balance the evidence in the way C.S. would prefer. Here, the

evidence included testimony that C.S.'s judgment was grossly

impaired as a result of her delusional beliefs, that C.S.

resisted taking medication, and that without her medication,

C.S.'s condition would deteriorate to her state in 2019 -- when

she suffered from a whole-body lice infestation, was pulling her

hair out, and had become very thin, such that hospitalization

was required. Additionally, C.S.'s treating psychiatrist

testified that C.S. was not able to accomplish her activities of

daily living on her own, but could only do so with staff

support.

Our review here is informed by the Supreme Judicial Court's

decision in Matter of P.R., in which a respondent, who had

paranoid schizophrenia, increased the flow from his prescribed

oxygen tank to harmful levels, believing that such levels were

necessary, and refused medication, believing such to be

poisoned. Matter of P.R., 488 Mass. at 138, 141. Though the

respondent in P.R. was no longer prescribed oxygen, and thus

could no longer harm himself with his oxygen tank, "the

8
underlying issues that created the 'very substantial risk of

physical impairment or injury' . . . still were present," and

the judge accordingly could properly find a very substantial

risk of harm. Id. at 141, quoting G. L. c. 123, § 1.

Similarly, C.S.'s impaired judgment by result of mental illness

had previously led to injury -- namely the severe lice

infestation, malnourishment, tooth decay, etc. -- and this

impaired judgment was still present at the time of the hearing.

See Matter of P.R., supra. See also Matter of D.K., 95 Mass.

App. Ct. 95, 101-102 (2019) (evidence regarding respondent's

life-threatening condition from two years prior relevant to

"very substantial risk" analysis, where respondent exhibited

similar behaviors both two years prior and immediately prior to

hearing).

b. Least restrictive alternative. In conducting the

"least restrictive alternative" analysis, "the proper focus is

on whether there are any viable, plausibly available options

that bring the risk of harm below [a very substantial risk]."

Matter of a Minor, 484 Mass. 295, 310 (2020).

C.S.'s primary argument as to this prong is that Worcester

needed to introduce the records from its required periodic

review of C.S.'s case, see G. L. c. 123, § 4, and to

specifically show that Worcester had considered as part of that

9
review "all possible alternatives to continued hospitalization."9

We disagree, however, that Worcester was required to present

these particular documents. Rather, Worcester needed to show

that it had considered whether less restrictive alternatives

existed, and if so, why they had not been employed. Here

Worcester carried its burden. Dr. Caussade testified that

Worcester had explored discharging C.S. to a live-in shelter,

but decided against doing so after observing the extent of

C.S.'s delusions. The evidence reflected that C.S. needed staff

support to maintain her activities of daily living and to

receive medication. See Matter of J.D., 97 Mass. App. Ct. 15,

22 (2020) ("[respondent's] amenability to treatment is essential

to whether [she] could have been placed in a less restrictive

setting"). Dr. Caussade also testified that there were no

facilities available that could accommodate C.S.'s needs at the

time of the hearing. Accordingly, there was sufficient evidence

that there were no less restrictive alternatives to commitment

at Worcester.

9 C.S. points out that, in Commonwealth v. Nassar, 380 Mass.
908 (1980), the court stated "[t]he Department [of Mental
Health] is to consider and reconsider . . . 'all possible
alternatives to continued hospitalization' . . ., and this
should enter also into the judicial reviews." Id. at 918,
quoting G. L. c. 123, § 4. But while the Nassar court stated
that the court should consider "all possible alternatives," the
court did not impose an evidentiary requirement that petitioners
introduce particular records.

10
2. Proof of prior commitment. C.S. also asserts that

because Worcester was seeking a one-year commitment, Worcester

was required to introduce evidence at the hearing that C.S. had

previously been committed. See G. L. c. 123, § 8 (d) (first

order of commitment under § 8 valid for six months; subsequent

commitments valid for one year). This, C.S. asserts, was an

element of Worcester's case; furthermore, C.S. asserts that

Worcester's failure to prove a prior commitment divested the

trial court of "jurisdiction."

We perceive no error. To begin, we note that this argument

was not raised at the commitment hearing. Indeed, Worcester's

petition itself stated that C.S. was then committed to Worcester

pursuant to a commitment order that expired June 2, 2021. That

assertion was unchallenged throughout the proceedings below.

The argument that prior commitment was not shown is accordingly

waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285

(2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New

England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An

issue not raised or argued below may not be argued for the first

time on appeal"). Moreover, we do not agree that proof of a

prior commitment is an "element" of the petitioner's case, or

that a failure to demonstrate a prior commitment is

11
"jurisdictional."10 Whether the respondent has been previously

committed defines aspects of the process to be employed, namely,

the time by which the hearing must be commenced and the

permissible period of commitment. See G. L. c. 123, §§ 7 (c),

8 (d). In that sense, whether the respondent had been

previously committed is a matter of proper process, like the

adequacy of venue or the sufficiency of service of process; it

is not an element of the petitioner's case, nor a matter of

subject matter jurisdiction. Cf. M.B. v. J.B., 86 Mass. App.

Ct. 108, 115 (2014), quoting Paige v. Sinclair, 237 Mass. 482,

484 (1921) (venue is "commonly matter of abatement and does not

go to the jurisdiction of the court," and may be waived); Raposo

v. Evans, 71 Mass. App. Ct. 379, 385-386 (2008) ("A defendant

who challenges service of process in his answer must move to

dismiss within a reasonable time, prior to substantially

participating in discovery and litigating the merits of the

10"Subject matter jurisdiction concerns the power of the
court to entertain a particular category of case." Commonwealth
v. Doughty, 491 Mass. 788, 805 (2023). In this case, there can
be no question that the petition was properly before the
District Court. Put differently, C.S. does not argue that the
court was without power to commit her; she argues that the
commitment was unlawful because the Commonwealth needed to put
in additional proof to justify the use of the one-year
commitment procedure. This argument does not implicate the
court's subject matter jurisdiction.

12
case," or defense will be waived). The judge did not err in

ordering a one-year commitment based on the evidence before her.

Order of civil commitment
affirmed.

By the Court (Englander,
Hodgens & Smyth, JJ.11),

Clerk

Entered: May 22, 2025.

11 The panelists are listed in order of seniority.

13