In the Matter of S.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).

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

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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

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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

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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

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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.

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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.

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[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

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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

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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

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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.

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