In the Matter of R.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-1008

IN THE MATTER OF R.B.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The respondent, R.B., 1 appeals from a ninety-day commitment

order for treatment of a "substance use disorder" pursuant to

G. L. c. 123, § 35. R.B. argues that (1) the judge did not make

a specific finding that the hearsay statements introduced at the

hearing were reliable; and (2) there was no evidence that R.B.'s

alleged substance use disorder created an imminent likelihood of

serious harm to R.B. or another. Because we agree that there

was no evidence of a causal nexus between R.B.'s alleged

substance use disorder and the likelihood of harm, we conclude

that the commitment order must be vacated.

Background. A judge of the District Court held an

evidentiary hearing on a petition for involuntary commitment

filed by R.B.'s parents on March 14, 2024. The sole witness at

1 We use the respondent's initials to protect his identity.
the commitment hearing was Elizabeth Bienz, LICSW (Bienz), a

court-appointed social worker. Prior to the hearing, Bienz

interviewed R.B., R.B.'s parents, and State police trooper Trot,

and provided an opinion that R.B. should be committed pursuant

to G. L. c. 123, § 35. Bienz's testimony was uncontested. The

judge completed a form that tracks the statutory requirements

without making specific written or oral findings.

Bienz testified that at the end of February 2024, R.B.

voluntarily admitted himself to Swift River, a substance abuse

rehabilitation facility, where he remained until he checked

himself out on March 8 prior to discharge. The following day,

R.B. voluntarily admitted himself to RCA, another rehabilitation

facility, but remained only for twenty-four hours because his

girlfriend was also being treated there and they were not

supposed to be together. Around that date, R.B. and his father

had a physical altercation. The father alleged that R.B.

threatened to commit "suicide by cop" and wrestled a BB gun away

from him. R.B. denied any suicidal ideation or threats.

R.B. acknowledged that five days prior to the hearing, he

consumed one line of cocaine. However, he maintained that he

had not used opioids after he entered Swift River. His mother

found foil and ashes in her car and foil, butane, and a glass

pipe in R.B.'s room during the week leading up to the hearing.

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Based on these circumstances, Bienz opined that R.B. had been

using opioids prior to the hearing.

On March 13, the day before the hearing, police attempted

to arrest R.B., pursuant to a warrant issued in connection with

the § 35 petition. R.B. barricaded himself in his room for two

hours. While in the home, police removed a black powder gun.

R.B. eventually agreed to comply with the warrant and attend the

§ 35 hearing on the condition that he be permitted to spend the

night at home, and that the police would pick him up the

following morning and transport him to the hearing. The police

agreed.

Based on the evidence presented at the hearing, the judge

issued an order involuntarily committing R.B. to a recovery from

addiction program pursuant to G. L. c. 123, § 35, for a period

not to exceed ninety days. R.B. was released on April 29, 2024. 2

R.B. filed a timely notice of appeal with the Appellate Division

of the District Court, which affirmed the § 35 commitment order.

R.B. timely appealed the Appellate Division's decision.

Discussion. 1. Standard of review. On review, "we accept

the findings of fact made by the hearing judge unless clearly

2 "Because individuals committed under G. L. c. 123, § 35,
have a personal stake in litigating a wrongful commitment, even
after release from confinement, . . . appeals from orders of
commitment pursuant to G. L. c. 123, § 35, are not moot."
Matter of a Minor, 484 Mass. 295, 299 (2020).

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erroneous." Matter of J.P., 486 Mass. 117, 121 (2020). In

reviewing the sufficiency of the evidence, "we review without

deference whether the legal standard for civil commitment was

met." Id.

2. Nexus between substance use disorder and risk of harm.

Under G. L. c. 123, § 35, a person may be involuntarily

committed for treatment by petition from a "police officer,

physician, spouse, blood relative, guardian or court official."

G. L. c. 123, § 35. To issue an order for commitment based on

substance use, a judge must find, by clear and convincing

evidence, that (1) the individual has a substance use disorder;

and (2) "there is a likelihood of serious harm as a result" of

the substance use disorder. G. L. c. 123, § 35. See Matter of

a Minor, 484 Mass. 295, 296 (2020). General Laws c. 123, § 1,

defines "likelihood of serious harm" in three alternate ways:

"(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
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."

G. L. c. 123, § 1.

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Furthermore, a judge must find, by clear and convincing

evidence, that the risk of harm is imminent. See Matter of

A.M., 94 Mass. App. Ct. 399, 402 (2018). Finally, the judge

must find a causal "nexus between the harm and [an] underlying

substance or alcohol use disorder." Matter of a Minor, 484

Mass. at 307.

Here, the trial judge found that R.B. posed an imminent

substantial risk of physical harm to himself and a very serious

risk of physical impairment or injury to himself that would

render him unable to protect himself. In support of this

finding, Bienz testified that R.B. threatened to commit suicide

by brandishing a BB gun at police officers four days prior to

the commitment hearing, though R.B. "denied ever making suicidal

statements or attempts, or contemplating suicide in any way,

present or past." Bienz testified that R.B. locked himself in

his room when police came to arrest him, and during that time

they recovered a black powder gun from the home.

Assuming without deciding that this evidence established by

clear and convincing evidence an adequate risk of harm, there

was no evidence of a causal nexus between this risk of harm and

R.B.'s substance use disorder. Specifically, there was no

evidence that R.B. was using substances at the time of the

alleged suicide threat, nor that his history of substance use

caused him to make the threat. Furthermore, there was no

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evidence that R.B.'s comments about suicide stemmed from his

alleged substance use disorder. There was no evidence that R.B.

was using substances when he barricaded himself in his room, nor

that substance use influenced his actions. Finally, there was

no evidence that R.B. ever used or threatened to use the black

powder gun, nor any firearm, while using substances. Therefore,

the evidence did not support a finding that any of the possible

risks of harm were caused by R.B.'s alleged substance use

disorder. See Matter of a Minor, 484 Mass. at 302, 305-306

(holding possibility of link between delinquent behavior and

substance use insufficient to establish causal nexus). 3

Conclusion. Because we cannot conclude that the evidence

here justified R.B.'s involuntary commitment under § 35, the

decision and order of the Appellate Division is reversed. The

matter is remanded for entry of an order that the commitment

order be vacated and that the finding of a substance use

3 Given our decision, we need not address R.B.'s remaining
claims.

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disorder creating an imminent and very substantial risk of harm

be set aside.

So ordered.

By the Court (Vuono, Henry &
Wood, JJ. 4),

Clerk

Entered: July 30, 2025.

4 The panelists are listed in order of seniority.

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