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25-P-103 Appeals Court
IN THE MATTER OF A.H.
No. 25-P-103.
Worcester. May 4, 2026. – July 13, 2026.
Present: Walsh, Hershfang, & D'Angelo, JJ.
Practice, Civil, Civil commitment, Commitment of mentally ill
person. Witness, Expert, Physician. Regulation.
Petition for civil commitment filed in the Worcester Division of the District Court Department on January 13, 2021.
The case was heard by Robert J. Pellegrini, J.
Susan F. Ennis for the respondent.
Alexander Weiss, Assistant Attorney General, for the petitioner.
D'ANGELO, J. This case turns on whether the record
sufficiently established that A.H.'s diagnosis of intermittent
explosive disorder (IED) qualified as a "mental illness" for
purposes of 104 Code Mass. Regs. § 27.05(1) (2019), the
Department of Mental Health (department) regulation applicable
to involuntary civil commitments under G. L. c. 123, §§ 7 and 8.
2
A.H. appeals from a decision and order of the Appellate Division
of the District Court (Appellate Division) affirming a District
Court judge's order granting the petition for involuntary civil
commitment filed by Worcester Recovery Center and Hospital
(petitioner). We conclude that there was sufficient evidence
for the judge to find that A.H.'s IED diagnosis constituted a
mental illness as defined by 104 Code Mass. Regs. § 27.05(1), in
accordance with G. L. c. 123, § 2. We further conclude that the
judge did not err in finding that there was no less restrictive
alternative to A.H.'s commitment. We therefore affirm the
decision and order of the Appellate Division.
1. Background. We recite the facts in the light most
favorable to the petitioner. See Fazio v. Fazio, 375 Mass. 394,
402 (1978). On January 13, 2021, the petitioner filed a
petition pursuant to G. L. c. 123, §§ 7 and 8, to civilly commit
A.H. Testimony at the hearing established that A.H. had a
significant history of struggling to independently conduct the
activities of daily life, of aggressive and assaultive behavior
toward others, and of accosting others with inflammatory and
threatening racial slurs. In the year prior to the hearing,
A.H. punched a nurse with such force that it caused a fracture
to the nurse's orbital bone. The petitioner's expert, who was
A.H.'s treating psychiatrist, also testified that A.H. required
observation while eating due to a risk of choking.
3
The petitioner's expert further testified that A.H.
suffered from IED, which is a "substantial disorder" included in
both the department's regulations and the American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) (DSM-V). The petitioner's expert
opined that IED manifested itself in A.H. as a substantial
disorder of mood. The petitioner's expert explained that
although IED is not characterized as a mood disorder by the DSMV, "in [A.H.'s] case, it can be a mood disorder because it
affect[ed] his mood."
The petitioner's expert further opined that IED caused a
gross impairment of A.H.'s behavior and that he could become
extremely agitated and angry, and without warning. She also
testified that the disorder manifested in unpredictable angry
outbursts arising from minor provocations (such as someone's
changing the television channel or A.H.'s being frustrated by a
peer sitting nearby) or without any apparent provocation. She
stated that the disorder grossly impaired A.H.'s judgment, as
"he continue[d] to lash out and strike out at staff" members
despite desiring to be discharged.
The petitioner's expert also opined that because of his
mental illness, A.H. posed a substantial risk of harm to himself
and to others. A.H. had committed at least twenty-five
4
attempted assaults, including six assaults after which
mechanical restraints had to be applied.
The petitioner's expert stated that IED caused A.H. to be
unable to live independently and to meet the ordinary demands of
life, such that he would not change his clothes without
prompting, would not take care of his health or appearance, and
had difficulty swallowing, creating a risk of choking and
necessitating supervision while eating. She also opined that
there was no less restrictive alternative available for A.H.
She testified that A.H. required assistance with his daily
tasks, and although the petitioner had looked for an alternative
group living environment for A.H. through the Department of
Developmental Services (DDS), A.H. was not eligible for those
services because he needed to be restraint free for three months
(a requirement that he had been unable to meet).
A.H. called an expert psychiatrist to testify. A.H.'s
expert agreed with the petitioner's expert that A.H. suffered
from IED, that A.H. was dangerous and posed a risk of harm if
released into the community, and that there was no less
restrictive placement presently available to A.H. However,
A.H.'s expert opined that A.H. did not meet the criteria for
commitment because IED is not a "disorder of mood" for purposes
of 104 Code Mass. Regs. § 27.05(1), nor is it characterized as
such in the DSM-V.
5
The judge committed A.H. for a period not to exceed one
year. A.H. appealed to the Appellate Division, which affirmed
the commitment order. A.H. thereafter appealed to this court.
2. Discussion. a. 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). To support a civil commitment under G. L. c. 123, §§ 7
and 8, a petitioner must prove beyond a reasonable doubt that
(1) a person is suffering from a mental illness, (2) discharge
from a facility would create a likelihood of serious harm, and
(3) no less restrictive alternative to hospitalization is
available. See Matter of J.P., 486 Mass. 117, 118-119 (2020).
Although commitments are not criminal, the "proof beyond a
reasonable doubt" standard, universally applicable to criminal
cases, applies. Id. at 118.
We "scrutinize without deference the propriety of the legal
criteria employed by the [hearing] judge and the manner in which
those criteria were applied to the facts." Matter of A.M., 94
Mass. App. Ct. 399, 401 (2018), quoting Iamele v. Asselin, 444
Mass. 734, 741 (2005). We review the hearing judge's findings
of fact for clear error. See Matter of a Minor, 484 Mass. 295,
302 (2020) ("The hearing judge is in the best position to weigh
the evidence, assess the credibility of witnesses, and make
findings of fact"). Clear error exists when a reviewing court,
6
after considering the entire record, is left "with the definite
and firm conviction that a mistake has been committed" (citation
omitted). Marlow v. New Bedford, 369 Mass. 501, 508 (1976).
b. Mental illness. A.H. contends that IED does not
constitute a mental illness permitting involuntary commitment
under G. L. c. 123, §§ 7 and 8. We disagree.
The definition for mental illness is not set forth in the
statute, see G. L. c. 123, § 2, but rather is set forth in
regulations promulgated pursuant to c. 123. See 104 Code Mass.
Regs. § 27.05(1). Per the department's regulation,
"For the purpose of involuntary commitment, mental illness
is defined as a substantial disorder of thought, mood,
perception, orientation, or memory which grossly impairs
judgment, behavior, capacity to recognize reality or
ability to meet the ordinary demands of life, but shall not
include intellectual or developmental disabilities, autism
spectrum disorder, traumatic brain injury or psychiatric or
behavioral disorders or symptoms due to another medical
condition as provided in the [DSM-V] . . . ."
104 Code Mass. Regs. § 27.05(1).
Both experts diagnosed A.H. with IED. Sufficient evidence
existed for the judge to conclude that IED was a mental illness
pursuant to G. L. c. 123 and 104 Code Mass. Regs. § 27.05(1).
The petitioner's expert opined that IED is a substantial
disorder of mood and that the disorder grossly impaired A.H.'s
judgment and behavior and prevented him from meeting the
ordinary demands of life. She also opined that IED is a mental
illness that meets the criteria for commitment under 104 Code
7
Mass. Regs. § 27.05(1). A.H.'s expert opined that IED is not
categorized as a mood disorder in the DSM-V and is not a
"disorder of mood" qualifying as a mental illness for purposes
of 104 Code Mass. Regs. § 27.05(1). The judge properly
considered the testimony of the experts and the information in
the DSM-V presented to him in concluding that IED was a mental
illness.
The categorizations detailed in the DSM-V may inform but do
not bind a hearing judge or this court in concluding whether a
particular mental illness is contemplated by 104 Code Mass.
Regs. § 27.05(1). See Commonwealth v. DelVerde, 401 Mass. 447,
450 & n.5 (1988). We see no requirement that the judge be
constrained by the DSM-V's categorization of disorders. There
is no such limitation on the definition of mental illness in
G. L. c. 123, § 2, or 104 Code Mass. Regs. § 27.05(1), and we
will not read such a limitation into the definition. See
Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 672
(2014).
A "substantial disorder of . . . mood" that "grossly
impairs" a person's judgment can be a mental illness pursuant to
104 Code Mass. Regs. § 27.05(1). See DelVerde, 401 Mass. at
450. The judge was permitted to credit the petitioner's
expert's testimony that A.H. could not care for himself and had
angry outbursts -- sometimes unprovoked -- that caused him on
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occasion to assault staff. This evidence demonstrated A.H.'s
grossly impaired judgment and sufficiently supported the judge's
conclusion that IED severely affected A.H.'s behavior and mood
and that, as a result, A.H.'s mental condition fell within the
regulatory definition of mental illness.
The judge permissibly credited the petitioner's expert's
opinion, and other evidence, demonstrating that IED as
manifested in A.H. constituted a substantial disorder of mood.
That the experts did not agree is "irrelevant," as "[t]he law
does not give the opinion of experts . . . the benefit of
conclusiveness, even if there are no contrary opinions
introduced at the trial" (quotation and citation omitted).
DelVerde, 401 Mass. at 450. It was the judge's role to assess
the weight and credibility of the evidence, including the
experts' testimony. He did so, and we discern no clear error in
his findings.1
c. Less restrictive alternative. Ordering hospitalization
under G. L. c. 123, §§ 7 and 8, requires the absence of "any
viable, plausibly available options that bring the risk of harm
below . . . [a] 'very substantial risk.'" Matter of a Minor,
1 In light of our conclusion, we are unpersuaded by A.H.'s contention that the petitioner, by purportedly failing to make the threshold showing of a mental illness under 104 Code Mass. Regs. § 27.05(1), also failed to meet its burden of demonstrating a likelihood of serious harm caused by such a mental illness.
9
484 Mass. at 310, quoting Matter of G.P., 473 Mass. 112, 128-129
(2015). This is commonly referred to as the "least restrictive
alternative" doctrine. Commonwealth v. Nassar, 380 Mass. 908,
917-918 (1980) (in context of civil commitment proceedings, all
parties should aim "to find the least burdensome or oppressive
controls over the individual that are compatible with the
fulfilment of the dual purposes of our statute, namely,
protection of the person and others from physical harm and
rehabilitation of the person").
The burden was on the petitioner to prove, beyond a
reasonable doubt, that there was no less restrictive alternative
to hospitalization. See Matter of J.P., 494 Mass. 654, 661
(2024). The absence of such an alternative may be shown through
expert opinion testimony or other types of evidence, including a
respondent's conduct within the facility and the absence of
plausible alternatives. See id. at 667, quoting Commonwealth v
A.Z., 493 Mass. 427, 432-433 (2024).
There was ample evidence to support the judge's conclusion
that there was no less restrictive alternative. A.H. required
assistance with his daily tasks, including basic grooming,
caring for his health, and eating. The petitioner had looked
for alternative group living housing for A.H. through DDS and
found that A.H. was not eligible for those services because he
had not been restraint free for three months. There was,
10
therefore, sufficient proof beyond a reasonable doubt that there
was no less restrictive alternative.
Decision and order of the
Appellate Division
affirmed.