In the Matter of D.K. ( 2019 )

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18-P-328 Appeals Court
IN THE MATTER OF D.K.
No. 18-P-328.
Middlesex. January 11, 2019. - March 27, 2019.
Present: Hanlon, Lemire, & Wendlandt, JJ.
Practice, Civil, Commitment of mentally ill person, Moot case.
Moot Question. Words, "Likelihood of serious harm."
Petition for civil commitment filed in the Cambridge
Division of the District Court Department on July 11, 2016.
The case was heard by Janet J. McGuiggan, J.
Karen Owen Talley, Committee for Public Counsel Services,
for the defendant.
Julia E. Kobick, Assistant Attorney General, for Department
of Mental Health.
WENDLANDT, J. This is an appeal from a decision and order
of the Appellate Division of the District Court, affirming an
order of involuntary civil commitment for mental illness issued
by a District Court judge pursuant to G. L. c. 123, § 16 (b).
The question on appeal centers on whether the evidence was
2
sufficient to establish a "likelihood of serious harm," as
defined in G. L. c. 123, § 1. To answer this question, we apply
principles regarding the temporal nature of evidence upon which
this probabilistic assessment may rely.
In particular, the petitioner, Worcester Recovery Center
and Hospital (WRCH), a Department of Mental Health (DMH)
facility, presented evidence that the respondent, D.K., had
required emergency hospitalization nearly two years earlier when
she was found in a life-threatening condition, severely
malnourished, and in a state of squalor, after failing to take
medication to treat her mental illness, schizophrenia. We agree
with D.K. that such evidence alone may be insufficiently
proximate in time to make the requisite showing of imminence and
risk under prong three of the statutory definition of
"likelihood of serious harm." Here, however, WRCH also
presented evidence that, at the time of the civil commitment
hearing, D.K. was suffering from delusions of persecution,
thought and perceptual disturbances, and as had occurred prior
to the aforementioned emergency hospitalization, she was
refusing psychiatric treatment and declining to bathe or change
her clothing despite repeated offers of assistance by WRCH staff
members. Together with the evidence of the extreme state in
which she had presented in her prior hospitalization, this
3
evidence was sufficient to support the legal conclusion required
under prong three. Accordingly, we affirm.
Mootness. We note that the civil commitment order expired
before the Appellate Division decided the appeal. "In the
context of involuntary hospitalization, '[a]lthough an expired
or terminated [commitment] order may no longer have operative
effect, [an] appeal should not be dismissed without considering
the merits of the underlying [commitment] order.'" Matter of
M.C., 481 Mass. 336, 343 (2019), quoting Matter of F.C., 479
Mass. 1029, 1029-1030 (2018). In light of this, D.K.'s "case is
not moot, and we decide [her] claims on the merits." Matter of
M.C., supra.
Background.1 At the time of the civil commitment hearing,
D.K. was thirty-one years old. She was homeless and faced
criminal charges of three counts of trespass, pursuant to G. L.
c. 266, § 120, one count of disorderly conduct, pursuant to
G. L. c. 272, § 53, and one count of assault and battery on a
person age sixty or over or with a disability, pursuant to G. L.
c. 265, § 13K (a 1/2). A District Court judge (trial judge)
ordered a competency evaluation pursuant to G. L. c. 123, § 15,
1 On appeal, D.K. does not dispute the evidence presented by
WRCH at the civil commitment hearing; instead, her challenge
centers on the legal conclusion regarding "likelihood of serious
harm" that this evidence supports.
4
which was done at WRCH. Following the evaluation, D.K. was
found incompetent to stand trial.
WRCH filed the present petition pursuant to G. L. c. 123,
§ 16 (b), seeking to commit D.K. for a period not to exceed six
months. At the civil commitment hearing before a different
District Court judge (hearing judge), WRCH presented evidence
that D.K. suffered from schizophrenia,2 a mental disorder of
thought and perception. John V. Gilmore, Jr., a forensic
psychologist at WRCH, was WRCH's sole witness.3 Dr. Gilmore
testified that D.K. had "delusions of persecution," including a
belief that "she was being targeted." Dr. Gilmore noted that
D.K. had "impairments in the form of her thinking," "apparent
thought-blocking," and "thought disturbance." Over the course
of D.K.'s two-month evaluation at WRCH, she was observed nine
times "appearing internally preoccupied, inappropriate[ly]
laughing as if responding to internal stimuli . . . [and]
complaining of perceptual disturbances." She was unable to care
for her hygiene and grooming, declining to shower and wearing
the same clothes despite repeated offers of assistance from the
2 On appeal, D.K. does not dispute this diagnosis.
3 D.K. refused to allow Dr. Gilmore to examine her during
the two months she was at WRCH, where she had resided since the
trial judge had ordered the competency evaluation. However, Dr.
Gilmore explained that his testimony regarding D.K. was based on
his own observations of D.K., review of her medical records, and
consultation with other professionals involved in her care.
5
staff. Although D.K. was consuming food and fluids while she
was in the WCRH's supervised setting, Dr. Gilmore opined that,
based on her current symptoms and lack of treatment, D.K.'s
judgment was so impaired that she posed a life-threatening risk
to herself unless civilly committed. Dr. Gilmore relied on
D.K.'s medical history -- namely, two other instances when D.K.
lapsed into life-threatening conditions following her refusal to
take medication after her discharge from prior hospitalizations.
Specifically, after her release in May 2013, from an
approximately three-week-long hospitalization at Solomon Carter
Fuller Center, another DMH facility,4 D.K. was arrested on a
default warrant in October 2013, and sent to the house of
correction. She was not taking her medications, went on a
"hunger strike," and had to be hospitalized. The record on
appeal does not contain additional information about D.K.'s
state prior to this hospitalization, which occurred in October
2013 -- nearly three years before the civil commitment hearing.
More recently, after an approximately seven-month-long
hospitalization at WRCH during which D.K. had achieved
stabilization and was taking her medication,5 she was released
4 D.K. had been hospitalized from April to May 2013.
5 D.K. was hospitalized at WRCH from December 2013 to July
2014. She was discharged in July 2014, following evaluation by
Dr. Gilmore in May 2014 in which he opined that she had been
6
into the community in July 2014 and offered continuing
psychiatric services by DMH. Within days or weeks of her
release, D.K. stopped taking her medications and left for New
York to visit a relative. In October 2014, she was found in an
extreme state of uncleanliness and severely malnourished and
dehydrated at a shelter. "She was not getting out of bed. She
was urinating on her linens. She wasn't showering. There were
yellow cups near her bed that she [said were] vomit, because she
had been too weak to get [up]." According to Dr. Gilmore, her
weight loss was so alarming that she was hospitalized on an
emergency basis at Massachusetts General Hospital (MGH) in "a
life-threatening medical condition," and given emergency
intravenous fluids. As discussed supra, this hospitalization
occurred in October 2014 -- nearly two years before the civil
commitment hearing. D.K. was discharged from MGH, and in
February 2015, she was committed overnight pursuant to G. L.
c. 123, § 12, because she was "[e]xperiencing disturbing voices
with suicidal content."6
stabilized due to her medications and was then-competent to
stand trial.
6 During oral argument before the Appellate Division,
counsel for WRCH indicated that D.K. had been hospitalized for
two weeks in "January/February 2015" due to "dehydration and the
potential life-threatening condition she was in." The record
before the hearing judge, however, does not indicate any
reference to this two-week hospitalization. Accordingly, we do
not consider this statement in our analysis.
7
The record is devoid of any information regarding D.K.'s
condition from February 2015 until June 2016, when she was sent
by the trial judge for an evaluation of her competency to stand
trial on the aforementioned charges.7 She was not malnourished;
however, she was not taking any medications8 and refused
psychiatric treatment for her mental illness. She was not
tending to her hygiene for at least a period of two months,
refusing to bathe or change her clothing. Significantly, this
state mirrored the state in which she had been found just prior
to her emergency hospitalization in October 2014.
According to Dr. Gilmore, D.K. lacked insight into her
condition and did not "appear to have insight into her need to
have treatment at all." Although D.K. earlier had spent
approximately seven months at WRCH (from December 2013 to July
2014), she denied that she had previously been at the facility.
D.K. also did not recognize Dr. Gilmore, although he had
evaluated her in May 2014 during her prior hospitalization at
7 D.K. was also hospitalized at a private facility, Arbour-
Fuller, but neither the details of her condition during this
hospitalization nor the timing thereof is in the record.
8 At the time of the hearing, the only medicine prescribed
was "PRN," indicating that D.K. was to take the medication as
needed.
8
WRCH.9 Finally, Dr. Gilmore also opined that a locked recovery
center, like WRCH, was the least restrictive placement
appropriate for D.K. in view of her condition.10
D.K. testified on her own behalf. She stated that she had
been eating "fine" under the supervision of WRCH, she did not
intend to stop eating if transferred to jail, and she hoped to
make bail and live with a friend. She stated that she did not
"remember being on medications in the hospital, but outside in
the community." She acknowledged stopping those medications.
She did not recognize that she had schizophrenia and believed
her prior medications were for depression.
The hearing judge issued an order committing D.K. for a
period not to exceed six months. D.K. appealed to the Appellate
Division. The Appellate Division affirmed the order and
dismissed the appeal, and this appeal followed.
Discussion. WRCH filed the petition pursuant to G. L.
c. 123, § 16 (b), which in turn requires the judge to make
findings required under G. L. c. 123, § 8 (a). Section 8 (a)
permits civil commitment only if the judge finds beyond a
9 In May 2014, Dr. Gilmore opined that, D.K. had been
stabilized due to her medications and was then competent to
stand trial.
10D.K. moved for a required finding at the close of WRCH's
case, which was denied.
9
reasonable doubt11 that the respondent is mentally ill and that
her discharge "would create a likelihood of serious harm."
"Likelihood of serious harm" is defined in G. L. c. 123, § 1,
as:
"(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."
At the hearing, Dr. Gilmore opined that neither prong one or two
applied to D.K. WRCH proceeded on the theory that prong three
was met. Thus, the question on appeal is whether the evidence
supported the legal conclusion that there was an imminent and
"very substantial risk of physical impairment or injury" to D.K.
by virtue of her judgment being so adversely affected by her
mental illness that she could not protect herself from physical
harm. See Matter of G.P., 473 Mass. 112, 128-129 (2015). In
11"A person is not to be committed under the statute unless
the substantial risk is proved by the [petitioner] beyond a
reasonable doubt." Commonwealth v. Nassar, 380 Mass. 908, 916
(1980). See Superintendent of Worcester State Hosp. v. Hagberg,
374 Mass. 271, 276 (1978) (standard of proof for G. L. c. 123,
§§ 7-8, civil commitment proceeding is proof beyond reasonable
doubt).
10
particular, D.K. maintains that the evidence of her prior
hospitalizations was insufficiently proximate in time to make
the requisite showing.
1. Standard of review. We review the hearing judge's
findings of fact for clear error. This is because the judge,
having presided over the hearing, was in the best position to
weigh the evidence and to assess witness credibility. See
G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996), and cases cited.
We "scrutinize without deference the propriety of the legal
criteria employed by the trial 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). See, e.g., Matter of G.P., 473 Mass. at
129-130 (deferring to judge's subsidiary findings in G. L.
c. 123, § 35, civil commitment, but reviewing without deference
legal conclusion that required showing whether "a substantial
risk of serious harm to others" was met); Commonwealth v.
DelVerde, 401 Mass. 447, 450-452 (1988) (applying clear error
standard to judge's subsidiary findings in G. L. c. 123, §§ 8 &
16, proceeding, but reviewing sufficiency challenge without
deference).
2. Evidence of an imminent and "a very substantial risk"
under prong three. Viewed in isolation, D.K.'s prior
hospitalizations -- the most recent of which occurred nearly two
11
years prior to the hearing -- may not have been sufficiently
proximate in time to sustain the showing of an imminent and very
substantial risk of physical impairment or injury. As the court
noted in Matter of G.P., 473 Mass. at 126, in connection with
prong one, "as a matter of experience and logic, the more recent
the evidence of threats or attempts of suicide or infliction of
serious bodily harm, the more weight that evidence should carry
in supporting a determination that there is a significant risk
of self-harm." The corollary, of course, is that evidence from
further back in time carries less weight because "the forecast
of events tends to diminish in reliability as the events are
projected ahead in time." Commonwealth v. Nassar, 380 Mass.
908, 917 (1980).
The value of such remote evidence diminishes even more
rapidly with regard to prong three, where "the imminence of the
risk becomes a factor that is even more important to consider
than it is with respect to the other two prongs." Matter of
G.P., 473 Mass. at 129. This is because, while prongs one and
two require a showing of a "substantial risk" of harm to self or
others, prong three requires "a very substantial risk" of harm
to self and "requires more certainty that the threatened harm
will occur." Id. at 128.
This does not mean, however, that evidence going back in
time is irrelevant in making the assessment of risk required
12
under prong three. As the court stated in Matter of G.P., 473
Mass. at 125, "[i]t is neither possible nor appropriate to try
to establish a set of definite temporal boundaries for such
evidence; the assessment of risk is a probabilistic one, and
necessarily must be made on the basis of the specific facts and
circumstances presented." Moreover, the more serious the
anticipated physical harm, and in particular, as it approaches
death, "some lessening of a requirement of 'imminence' seems
justified." Nassar, 380 Mass. at 917. Here, the evidence was
that two years ago, D.K.'s judgment was so affected by her
mental illness that she was unable to protect herself from a
life-threatening condition. Thus, although this evidence was
from two years prior to the hearing, it nonetheless is
significant "in making a positive risk assessment about
likelihood of harm." Matter of G.P., supra at 126.
Specifically, the evidence of D.K.'s prior condition placed
in context the risk presented by her present condition, which
included that she presently was experiencing thought and
perceptual disturbances, believed she was being persecuted, was
responding inappropriately to internal stimuli, and was unaware
of her diagnosis and need for treatment. D.K. was refusing
psychiatric treatment and was not bathing or changing her
clothes, even though she was offered assistance at least ten
times during the course of her two-month stay at WRCH prior to
13
the hearing. These latter behaviors were significant not in
isolation, but because they echoed some of the conduct D.K. had
exhibited just prior to her emergency hospitalization almost two
years earlier,12 when she was found in a life-threatening
condition. At that time, she was also not taking medications
and not showering, and she was languishing in extremely
unsanitary conditions. So, while she was eating or drinking
during her supervised stay at WCRH, the prior hospitalization
provided evidence relevant to the risk assessment that was
required. See Matter of G.P., 473 Mass. at 125-126. Her
current condition viewed in the context of her prior
hospitalization support the conclusion that there was an
imminent and a very substantial risk of physical impairment or
injury as a result of the impact of D.K.'s mental illness on her
judgment.13
12Because the evidence of D.K.'s present state, coupled
with her hospitalization two years ago, support the legal
conclusion required under prong three, we need not consider
either the hospitalization in 2013 for a "hunger strike" or the
February 2015 hospitalization for hearing voices with suicidal
content. Notably, however, Dr. Gilmore testified that D.K. was
not suicidal and that she was eating.
13On appeal, D.K. contends for the first time that WRCH
failed to show, beyond a reasonable doubt, that reasonable
provision for her protection is not available in the community.
The issue was not raised before the Appellate Division.
Accordingly, D.K. has waived this argument. 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,
14
Decision and order of
Appellate Division
affirmed.
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").