MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
T.M. appeals from a Superior Court judgment granting a petition for involuntary civil commitment filed by Bridgewater State Hospital (Bridgewater) pursuant to G. L. c. 123, § 16 (b). T.M. contends that Bridgewater failed to present sufficient evidence at the commitment hearing that he “would create a likelihood of serious harm” if not placed in strict custody. G. L. c. 123, § 8 (b).
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We agree and reverse.
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Background. 1. Procedural history. In September 2019, T.M. was charged with various firearm-related crimes.
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On October 31, 2019, a Superior Court judge ordered T.M. committed to Bridgewater for twenty days for observation and further evaluation of his competency to stand trial and to represent himself at trial, pursuant to G. L. c. 123, § 15 (b). On December 9, 2019, Bridgewater filed a petition for civil commitment, pursuant to G. L. c. 123, § 16 (b), alleging that T.M. posed a substantial risk of harm to others. The judge held T.M.’s competency hearing on December 13 and 20, 2019, found T.M. incompetent to stand trial, and immediately segued into the commitment hearing. See G. L. c. 123, § 16 (b). At the commitment hearing, the judge incorporated testimony presented by Dr. David Holtzen, a forensic psychologist from Bridgewater, from the competency hearing.
2. The hearings. During the competency hearing, Bridgewater called its expert, Dr. Holtzen, to testify. T.M. had chosen to not speak with Dr. Holtzen, so Dr. Holtzen based his opinion on information from other sources. The doctor spoke with T.M.’s father
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and sister, reviewed e-mails that T.M. sent to his relatives, reviewed a letter that he sent to the Washington Post on June 24, 2019, reviewed his medical records, spoke with his treatment team, and observed T.M. during the hearings. Dr. Holtzen provisionally diagnosed T.M. with “a delusion disorder” and noted that he could also have “[p]aranoid personality disorder.” Dr. Holtzen explained that even though T.M. had likely had this condition for at least three years and had not exhibited violent behavior, the risk of his perpetrating violence toward others was increased because of “his active paranoid beliefs that seem to be very persistent and pervasive and could include almost anyone.”
The doctor further opined that T.M. “presents as someone who misperceives reality in a paranoid manner such that he believes that there are threats against him which do not exist and he believes that there are forces against him ․ without having a basis in reality.” Dr. Holtzen testified that “a failure to hospitalize [T.M.] at this point would create a likelihood of serious harm to others,” and explained that T.M. had no insight into his mental illness and required psychiatric hospitalization to treat his mental illness. Additionally, Dr. Holtzen expressed concern “about someones ability to be safe if they have access to firearms when theyre also paranoid.”
The judge sought Dr. Holtzens view about two statements T.M. made in pro se filings. The first was a statement in a filing that he addressed to the court: “The moment you convict me, incarcerate me or otherwise deny me my freedom, you are finished.” Dr. Holtzen believed that this was a “veiled threat.” The second was a statement in T.M.’s will that he addressed to his daughter: “At the very least, through your review you will find out why I am not with you. I am sorry; I could not have foreseen what has happened.” Dr. Holtzen responded that the judge should be concerned.
The record also revealed that the firearms charges represented T.M.’s only criminal record and he had no history of violent behavior. Aside from the provisional diagnosis, T.M. also had no history of any other mental health diagnoses. T.M. did not present a major behavioral disruptive problem at Bridgewater and was staying in a minimum-security unit, where he had been “isolating himself from others,” had appeared angry to his treatment team, and was prone to conflict due to his delusions. T.M. also had a “couple of incidents” related to his ability to abide by the rules and regulations at Bridgewater.
The hearing judge concluded beyond a reasonable doubt that Bridgewater “met its burden of establishing that [T.M.] present[s] a likelihood of serious harm since there is ‘a substantial risk of physical harm to other persons, which has been manifested by homicidal or other violent behavior, or by others being placed in reasonable fear of both violent behavior and serious physical harm to them’ ” and ordered T.M. committed to Bridgewater for up to six months. T.M. appeals.
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, 19 (2020). Section 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 department; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm.”
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G. L. c. 123, § 8 (b).
As relevant, G. L. c. 123, § 1, defines “likelihood of serious harm” as “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.” Pembroke Hosp. v. D.L., 482 Mass. 346, 348 n.2 (2019). “To 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. 117, 121 (2020), quoting G. L. c. 123, § 1. “As to the likelihood of serious harm to others, ‘the Legislatures use of the word “homicidal,” and phrases such as “violent behavior” and “serious physical harm” signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented.’ ” Matter of J.D., supra at 19, quoting Matter of G.P., 473 Mass. 112, 126 (2015). “Each of the statutory requirements must be demonstrated beyond a reasonable doubt.” Matter of J.P., supra at 119, citing Matter of G.P., supra at 119.
2. Evidence of a likelihood of serious harm. We review the sufficiency of the evidence that, if released, T.M. posed a likelihood of serious harm as defined by the statute.
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“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.
Here, Bridgewaters evidence was insufficient to prove beyond a reasonable doubt that T.M. placed another in reasonable and actual fear of violent behavior and serious physical harm to them. “A showing of ‘evidence that others are placed in reasonable fear of violent behavior and serious physical harm’ means presenting evidence that, in the circumstances, a reasonable person would fear violent behavior and serious physical harm, and that someone actually did fear violent behavior and serious physical harm” (emphasis added). Matter of J.P., 486 Mass. at 123. At no point during either of the hearings was a specific person identified whom the judge could conclude was “placed in reasonable fear of violent behavior and serious physical harm,” G. L. c. 123, § 1, and who actually did fear such an outcome. Contrast Matter of J.P., supra (testimony from witness that he feared violent behavior and serious physical harm by defendant supported finding of likelihood of serious harm).
In her decision, the hearing judge states that T.M. “appeared to be making a threat to a sitting Superior Court Judge” in the pro se filing described above.
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But the record is devoid of evidence that the judge actually did fear violent behavior and serious harm by T.M. Contrast Matter of J.D., 97 Mass. App. Ct. at 21 (evidence that defendant made multiple threats of harm to his ex-wife, her child, and her childs father, who testified he feared for their safety, supported finding of likelihood of serious harm).
Because we cannot affirm on this record, we reverse the order committing T.M. to Bridgewater.
So ordered.
reversed
FOOTNOTES
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. T.M. also claims that the judge violated his due process rights by incorporating into his civil commitment hearing some testimony from his immediately preceding competence hearing, and that the judge impermissibly considered “extraneous matters” as evidence. T.M. failed to preserve these issues for appellate review, so they are waived. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983).
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. Although T.M. was released in the spring of last year, the parties agree -- and we concur -- that the appeal is not moot. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018).
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. The charges include unlicensed possession of an assault weapon (six counts); unlawful possession of a rifle or shotgun (fourteen counts); possession of ammunition (eight counts); and unlawful possession of large capacity feeding device (forty-four counts).
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. T.M. and his father had not communicated in over twenty years.
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. In this case, a Superior Court judge heard Bridgewaters petition because that court had jurisdiction of T.M.’s criminal case. See G. L. c. 123, § 16 (b).
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. T.M. also contests the finding of mental illness, but because we reverse on the grounds that there was insufficient evidence of likelihood of serious harm, we need not address this argument.
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. We are mindful of the real risks confronting trial court judges. Our decision should not be read to suggest that the judges concern here was misplaced, only that the record supporting it failed to demonstrate that T.M.’s statements satisfied the statutory requirements justifying involuntary commitment.