In the Matter of a Minor

NOTICE: All slip opinions and orders are subject to formal

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SJC-12747

IN THE MATTER OF A MINOR.

Middlesex. November 4, 2019. - March 17, 2020.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,

JJ.

Practice, Civil, Civil commitment, Standard of proof, Appeal,

Moot case, Findings by judge. Moot Question. Due Process

of Law, Commitment.

Petition for commitment for alcohol or substance use

disorder filed in the Middlesex County Division of the Juvenile

Court Department on February 19, 2019.

The case was heard by Susan V. Oker, J.

The Supreme Judicial Court granted an application for

direct appellate review.

Eva G. Jellison for the juvenile.

Maura Healey, Attorney General, & Jesse M. Boodoo,

Assistant Attorney General, for the Attorney General, amicus

curiae, submitted a brief.

Karen Owen Talley & Afton M. Templin, Committee for Public

Counsel Services, for Committee for Public Counsel Services &

others, amici curiae, submitted a brief.

2

GAZIANO, J. In this case, a sixteen year old high school

student (juvenile) claims error in a Juvenile Court judge's

decision to commit him for substance use disorder treatment

pursuant to G. L. c. 123, § 35. His case requires us to decide

whether and how the science of adolescent brain development

recognized in Diatchenko v. District Attorney for the Suffolk

Dist., 466 Mass. 655, 667–668 (2013), S.C., 471 Mass. 12 (2015),

bears on a judge's decision to order commitment of juveniles for

treatment. Additionally, the juvenile challenges whether

appeals from commitment under this provision are moot after a

respondent has been released; whether the evidence presented was

sufficient in this case; and whether a judge deciding a petition

for commitment under G. L. c. 123, § 35, must consider less

restrictive alternatives to commitment.

For the reasons to be discussed, we conclude that the

juvenile's order of commitment must be vacated.

Background. 1. Standards for commitment under G. L.

c. 123, § 35. General Laws c. 123, § 35, sets forth the

requirements and procedures by which an individual may be

committed involuntarily for treatment of a substance use

disorder. See Matter of G.P., 473 Mass. 112, 116-118 (2015). A

"police officer, physician, spouse, blood relative, guardian or

court official" may petition for an order of commitment under

this provision. G. L. c. 123, § 35. Upon receipt of a

3

petition, the court shall schedule an immediate hearing and

shall issue a summons to the person sought to be committed. Id.

"[I]f there are reasonable grounds to believe that such person

will not appear and that any further delay in the proceedings

would present an immediate danger to the physical well-being of

the respondent," the court may issue warrants of apprehension,

as necessary, to secure the individual's appearance for a

hearing. Id. When the person appears, he or she has a right to

counsel, and must be examined by a qualified physician,

psychologist, or social worker. Id. See Matter of G.P., supra

at 117.

To issue an order of commitment, the judge must find, by

clear and convincing evidence, that (1) the person whose

commitment is sought is an individual with an alcohol or

substance use disorder, as defined by G. L. c. 123, § 35; and

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

person's alcohol or substance use disorder, as defined in G. L.

c. 123, § 1. The statutory scheme presents three distinct paths

by which a judge may find a "likelihood of serious harm." G. L.

c. 123, § 1. A "likelihood of serious harm" exists if a judge

finds:

"(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

4

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."

Id. See Matter of G.P., 473 Mass. at 124-125. This harm must

be "imminent," which in this context means "a substantial risk

that the harm will materialize in the reasonably short term --

in days or weeks rather than in months." Id. at 128.

Because the Appellate Division of the District Court does

not have jurisdiction to consider appeals in Juvenile Court

cases, appeals from commitment orders issued by the Juvenile

Court are heard by the Appeals Court. See Matter of G.P., 473

Mass. at 123 n.17; Rule 11(b) of the Uniform Trial Court Rules

for Civil Commitment Proceedings for Alcohol and Substance Use

Disorders, Mass. Ann. Laws Court Rules, Trial Court Rules, at

997 (LexisNexis 2018) (uniform rules). Upon request, the

Appeals Court "shall expedite consideration of any appeal."

Rule 11(b) of the uniform rules.

2. The juvenile's commitment hearing. In February 2019,

the juvenile's mother petitioned the Juvenile Court under G. L.

c. 123, § 35, to commit her son for involuntary treatment. Her

affidavit asserted that the juvenile was putting himself in

danger by using and selling Xanax. When he was apprehended

5

pursuant to a warrant, the juvenile was found with a large

bottle of Xanax pills, and a second bottle of crushed Xanax, on

his person.

Prior to the issuance of the warrant, the mother testified

that she recently had discovered that the juvenile was still

using Xanax (notwithstanding his participation in earlier

treatment programs). By reading her son's text messages, she

gleaned that, on at least one recent occasion, he had been

unable to remember events of the previous evening due to drug

use. The mother sketched for the court the juvenile's treatment

history, which included multiple placements in residential

treatment, one prior commitment under G. L. c. 123, § 35, and

January enrollment in a recovery high school, a school specially

designed for youth with substance use disorders. She stated

that, on some unspecified date, the juvenile had been found

sleeping on a bench at 2 A.M., and that he sometimes turned off

his cellular telephone to avoid being found by his mother. On

this evidence, the judge ordered a warrant of apprehension.

When the juvenile arrived at court, Janice Hrabovszky, a

Juvenile Court clinician, interviewed him and his mother. She

also contacted the juvenile's school clinician by telephone.

Hrabovszky concluded that the juvenile had a substance use

disorder. She based this determination on her interview with

6

his mother, his history of drug treatment, and his multiple

positive drug tests, as reported by the school clinician.

Additionally, Hrabovszky opined that the juvenile's

substance use disorder put him at risk of harm. She pointed to

accounts by his mother that the juvenile had ridden in

automobiles with unlicensed drivers who were driving while under

the influence, an instance where the juvenile became verbally

aggressive toward school staff over confiscated property, and an

overdose that had occurred "a number of years ago" as a result

of mixing Xanax and alcohol. Hrabovszky viewed that overdose as

relevant to the need for commitment because the juvenile's

mother had found open bottles of alcohol in his room and he had

been carrying a large bottle of Xanax on his person when he was

arrested. Hrabovszky also noted the concern, conveyed by the

juvenile's mother, that the Xanax the juvenile had had in his

possession was not pharmaceutically produced, and that it

potentially could be laced with toxic substances. The basis for

the mother's knowledge about the producer of the Xanax was

unclear from Hrabovszky's testimony.

The juvenile's mother stated that she generally was able to

tell when her son was using drugs (she estimated her own

accuracy at ninety-five percent certainty), and that she had had

him drug tested repeatedly, either at home, at school, or

through the court. When asked what behaviors derived from his

7

substance use put the juvenile at risk of harm, the mother

pointed to his increased verbal aggression and missed curfews.

She also noted that the pills were "not actual Xanax . . . not

the legit ones." When the judge inquired further about this

concern, the mother mentioned a newspaper article she had read

that indicated that "pressed" (not legitimately manufactured)

pills might be laced with other substances. The mother also

repeated her concern that the juvenile had mixed Xanax with

alcohol, but did not specify a particular occasion on which she

knew he had done so, apart from the overdose several years

earlier. On cross-examination, the mother explained that, while

she had not seen her son use Xanax and alcohol together (or

either of them separately), she had found open beer bottles in

his room. She inferred the mixing of substances because, "I

know that he's admitted that he's drinking, and then he's also

admitted that he's taken the Xanax. So . . . ."

The juvenile denied currently mixing drugs and alcohol.

On this evidence, the judge ordered the juvenile committed

for ninety days for treatment.

Discussion. We address three sets of issues. First, we

consider whether appeals from commitment orders under G. L.

c. 123, § 35, become moot when a committed individual is

released. We then turn to the question of the evidence in this

case, and examine both how the science of adolescent brain

8

development should inform a judge's consideration of a petition

to commit a juvenile, and whether there was sufficient evidence

to order commitment here. Finally, we consider the juvenile's

due process arguments.

1. Mootness. "Ordinarily, litigation is considered moot

when the party who claimed to be aggrieved ceases to have a

personal stake in its outcome." Commonwealth v. Dotson, 462

Mass. 96, 98 (2012), quoting Blake v. Massachusetts Parole Bd.,

369 Mass. 701, 703 (1976). Because individuals committed under

G. L. c. 123, § 35, have a personal stake in litigating a

wrongful commitment, even after release from confinement, we

conclude that appeals from an order of commitment pursuant to

G. L. c. 123, § 35, are not moot.1

When considering other statutory provisions that allow

involuntary civil commitment, we have determined that the

continuing stigma of a potentially wrongful commitment alone

sufficed to defeat a claim of mootness. See Matter of F.C., 479

Mass. 1029, 1029-1030 (2018) (appeals from expired or terminated

involuntary commitment and treatment orders under G. L. c. 123,

§§ 7, 8, and 8B, not moot because "[a]t the very least, a person

who has been wrongfully committed or treated involuntarily has a

1 To the extent we previously have indicated that an appeal

from an order of commitment became moot upon the individual's

release, see, e.g., Matter of G.P., 473 Mass. 112, 113 (2015),

we now conclude otherwise.

9

surviving interest in establishing that the orders were not

lawfully issued, thereby, to a limited extent, removing a stigma

from his name and record" [quotation and citation omitted]).

See Pembroke Hosp. v. D.L., 482 Mass. 346, 351 (2019) (same for

appeals from commitment under G. L. c. 123, § 12); Matter of

M.C., 481 Mass. 336, 343 (2019) (same for involuntary commitment

under G. L. c. 123, § 16).

In addition to any continuing stigma, involuntary

commitment for substance use disorder treatment implicates other

legal interests. For example, as was the case here, a previous

commitment has been considered evidence of a substance use

disorder, potentially making it easier for an individual to be

recommitted for a subsequent period of treatment, sometimes

months or years later. Moreover, under G. L. c. 123, § 35, the

court is required to submit the individual's personally

identifiable information, including name, Social Security

number, and date of birth to the Department of Criminal Justice

Information Services. For an adult, absences from work due to

commitment may result in the loss of employment, leading to

ongoing economic detriment and potentially increasing the risk

of homelessness. For a student, absences from class may have an

impact on the student's academic achievement, advancement to the

next grade level, likelihood of dropping out of school, or

chance of admission to postsecondary school programs -- harms

10

that continue beyond commitment. Just as with other civil

mental health commitments, an individual wrongfully committed

for involuntary substance use treatment and then released also

retains an interest "in establishing, after discharge, that the

order[] by which [he or she was] committed [was] unlawful,

thereby, to a limited extent, removing a stigma from [his or

her] name and record" (quotation and citation omitted). See

Pembroke Hosp., 482 Mass. at 351.2

Because these ongoing consequences implicate an

individual's privacy, reputation, and future liberty, they also

support the conclusion that an individual has a personal stake

in the outcome of litigating an appeal from an order of

commitment, even after the individual is released. Therefore,

appeals from an order of commitment pursuant to G. L. c. 123,

§ 35, are not moot solely because the individual is no longer

committed.

2. Evidence necessary for commitment. a. The role of

youth in substance use disorder commitment hearings. The

juvenile argues that if a judge does not take into account the

lower "baseline" for impulsiveness, self-control, and judgment

that is developmentally typical for juvenile brains, the judge

2 In addition, commitment under G. L. c. 123, § 35, makes an

individual ineligible to hold a license to possess a firearm for

a minimum of five years, and possibly longer, as the individual

must petition successfully for relief from ineligibility.

11

erroneously may order a juvenile committed for youthful

misbehavior alone. The juvenile asserts that impulsiveness,

incomplete self-control, and lack of judgment -- known hallmarks

of youth brain development -- may be confused with symptoms of

substance use disorder, resulting, as he argues happened here,

in improper commitments.

As the United States Supreme Court and this court have

recognized, the science of adolescent brain development attests

to the ways in which a "transient rashness, proclivity for risk,

and inability to assess consequences" are hallmarks of young,

developing brains. Miller v. Alabama, 567 U.S. 460, 472 (2012).

See Diatchenko, 466 Mass. at 667–668. This research is relevant

to petitions to commit a juvenile under G. L. c. 123, § 35,

because, in determining whether an individual meets the relevant

statutory definitions, a judge is required to assess an

individual's judgment, self-control, and social functioning,

precisely those areas of juvenile brains that are recognized as

underdeveloped. See G. L. c. 123, § 1 (defining third prong of

"likelihood of serious harm" with reference to whether very

substantial risk is created because "[a] person's judgment is so

affected" by substance use disorder); G. L. c. 123, § 35

(defining alcohol and substance use disorder, in part, by

reference to whether use substantially interferes with

12

individual's social functioning and whether that individual has

lost power of self-control over substance).

In this case, the juvenile contends that the judge, without

finding any nexus with the juvenile's substance use disorder,

impermissibly relied on the fact that the juvenile missed

curfew, spent time with reckless peers, sold Xanax, and yelled

at school staff in support of a finding of substance use

disorder. This behavior, the juvenile argues, may be grounds

for parental or school discipline. It possibly could support a

petition for a child in need of services, or even delinquency

proceedings. Without a nexus to the likelihood of serious harm

resulting from a substance use disorder, however, rebellious or

difficult teenage misbehavior cannot support a petition for

commitment under G. L. c. 123, § 35.

Considering the implications of teenage brain science in

determining whether commitment is necessary for substance use

treatment does not create two different standards for the

commitment of adults and the commitment of juveniles. See G. L.

c. 123, § 35 (no distinctions in standards for juveniles and

adults). Rather, taking into account a juvenile's youth

necessarily is required as part of the fact-intensive,

individualized assessment these petitions demand. See Matter of

G.P., 473 Mass. at 125 ("the assessment of risk is a

probabilistic one, and necessarily must be made on the basis of

13

the specific facts and circumstances presented"). We agree with

the juvenile, however, that, in some cases, difficulties in

distinguishing typical adolescent lapses in judgment or self-

control from those driven by substance use disorder may make a

judge's already difficult task more challenging in juvenile

commitment proceedings. In those cases, a judge should make

clear that his or her decision was founded on a causal nexus

between a likelihood of serious harm and substance use disorder,

rather than developmentally typical adolescent misbehavior.

b. Sufficiency of the evidence. The juvenile maintains

that, even had the judge properly focused her inquiry on the

causal relationship between an alleged substance use disorder

and the possible resulting likelihood of serious harm, the

evidence here was insufficient to sustain his commitment. We

agree.

i. Standard of review. The hearing judge is in the best

position to weigh the evidence, assess the credibility of

witnesses, and make findings of fact; a reviewing court accepts

these findings unless they are clearly erroneous. See Matter of

A.M., 94 Mass. App. Ct. 399, 401 (2018), citing G.E.B. v.

S.R.W., 422 Mass. 158, 172 (1996). When considering a challenge

to the sufficiency of the evidence at an evidentiary hearing, we

"scrutinize without deference the propriety of the legal

criteria employed by the [motion] judge and the manner in which

14

those criteria were applied to the facts." Matter of A.M.,

supra, quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005).

See Matter of G.P., 473 Mass. at 129-130 (deferring to judge's

subsidiary findings, but reviewing without deference legal

conclusion as to whether "a substantial risk of serious harm to

others" was met).

ii. Substance use disorder. In order to commit an

individual under G. L. c. 123, § 35, a judge first must find

that the individual has a substance use disorder, an alcohol use

disorder, or both. Both disorders are marked by "chronic or

habitual consumption" to the extent that using the substance

either "substantially injures" the individual's health or

"substantially interferes with the person's social or economic

functioning," or results in the individual having "lost the

power of self-control over the use" of the substance. See G. L.

c. 123, § 35.

The judge found that the juvenile here had both a substance

use disorder and an alcohol use disorder. While no court

condones underage drinking, it is essential for judges to

distinguish between a juvenile's illicit alcohol use or

experimentation, on the one hand, and alcohol use disorder, on

the other. The key to that distinction, as indicated in the

statutory definition, is chronic or habitual use to such an

extent that it results in a "substantial injury" to the

15

juvenile's health or social functioning, or a loss of the power

of self-control over his or her consumption of alcohol. See

G. L. c. 123, § 35. At the hearing, the evidence of the

juvenile's alcohol use came from his mother. She testified,

"It's been numerous times, now, that I've found alcohol in his

room. . . . Open beers, right next to his bed." While this

situation understandably is concerning, finding open beer

bottles in a teenager's room, even in circumstances indicating

consumption on week nights, does not suffice to demonstrate that

the juvenile has an alcohol use disorder.3 The fact that the

juvenile consumed beer, by itself,4 does not show substantial

injury to the juvenile's health or social functioning stemming

directly from chronic or habitual alcohol consumption, or that

the juvenile attempted to stop drinking but could not do so.

"Most teens do not escalate from trying drugs to developing an

addiction or other substance use disorder . . . ." National

Institute on Drug Abuse, Principles of Adolescent Substance Use

Disorder Treatment: A Research-Based Guide, at 4 (Jan. 2014).

3 Contrast Matter of A.R., Mass. App. Div., No. 18-ADMH-

124SO (Dist. Ct. Dec. 18, 2018) (alcohol use disorder found,

where respondent recently had been fired for drinking at work,

and testimony indicated that he consumed between two and ten

drinks every day).

4 The mother testified at one point that she had seen two

bottles of beer in the juvenile's room, and at other points that

she had seen beer in the juvenile's room on multiple occasions.

16

We conclude that the record is inadequate to support a finding

of an alcohol use disorder.

The judge's finding of a substance use disorder is on

firmer footing. While evidence of treatment history must be

evaluated carefully to ensure that it bears upon an individual's

current condition, treatment history often may be relevant in

these proceedings. Compare Matter of R.G., Mass. App. Div., No.

19-ADMH-30NO (Dist. Ct. Sept. 25, 2019) (long treatment history

was considered and properly combined with recent evidence to

find ongoing alcohol use disorder), with Matter of I.M., Mass.

App. Div., No. 19-ADMH-36NO (Dist. Ct. June 5, 2019) (commitment

under G. L. c. 123, § 35, from two years earlier properly was

disregarded when unconnected to evidence of continuing alcohol

use disorder). Here, Hrabovszky, the court clinician,

interviewed the juvenile and his mother, and spoke with a school

clinician by telephone; on this evidence, she concluded that the

juvenile had a substance use disorder. Although much of her

stated reasoning was based on the fact of the juvenile's prior

treatment, Hrabovszky did conduct her own independent

evaluation. Moreover, the juvenile's voluntary treatment

history, September commitment under G. L. c. 123, § 35, and

recent enrollment at a specialty school for juveniles with

substance use disorders support the inference that other

17

clinicians previously had evaluated him and also had come to the

conclusion that he had a substance use disorder.

Granted, on this record, the presence of a substance use

disorder is not beyond dispute. Apart from the incident his

mother learned of from the text messages, there was little

direct evidence that the juvenile's consumption of Xanax was

threatening his health or impairing his social functioning at

work or at school.5 Nevertheless, it was not clearly erroneous

to find, based on his treatment history and continuing drug use,

that the juvenile had a substance use disorder.

iii. Likelihood of serious harm. The judge did not

specify which of the three disjunctive definitions she used in

finding a likelihood of serious harm. See G. L. c. 123, § 1.

There was no evidence that the juvenile was suicidal (first

prong); nor was there any evidence that the juvenile was

homicidal or exhibiting other violent behavior (second prong).

Thus, the judge must have made her finding based on the third

prong, which requires "a very substantial risk of physical

5 The juvenile was attending school, where he had friends,

and had a job at a grocery store, where his supervisor reported

only one unexcused absence. His mother stated that this absence

was on a Saturday when the juvenile was at home and said that he

did not feel like going to work. The conflicts at school, which

were of serious concern to his mother, appear to have derived

from the juvenile's alleged drug distribution and, specifically,

a conflict involving a particular transaction with another

student, rather than from his own drug use.

18

impairment or injury . . . as manifested by evidence that [a

respondent'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. In this case, the only evidence in the record that

might support a finding of very substantial and imminent harm

are two concerns of the juvenile's mother: the evidence

suggesting (1) that the Xanax in the juvenile's possession was

adulterated with a dangerous additive, and (2) that the juvenile

was consuming alcohol and Xanax together.

As to the possibly adulterated Xanax, the mother testified

that, when she had had the juvenile's Xanax tested at some prior

point, she had learned it was not pharmaceutically produced; she

did not indicate that this testing revealed the presence of

dangerous additives. Instead, she mentioned a newspaper article

discussing cases of tainted pills in Stoneham. While

adulterated drugs might pose a significant risk to drug users,

mere reports of tainted drugs somewhere in the Commonwealth,

without any specific nexus to the case before the court, are

insufficient to support the legal conclusion that there was an

imminent and "very substantial risk of physical impairment" to

the juvenile. See G. L. c. 123, § 1.

As to the concern that the juvenile was mixing alcohol and

Xanax, the mother stated that, although she had not observed him

19

doing so, the juvenile had admitted to having mixed alcohol and

Xanax on some unspecified prior occasion. She could not

remember the last time he had admitted to having mixed these

substances. While there was evidence that the juvenile was

consuming both substances (open beer bottles in his room, and a

positive drug test for benzodiazepines from the school), when

the mother was pressed on cross-examination, it became clear

that the asserted mixing essentially was an inference by her.

Hrabovszky testified that the juvenile denied to her that he was

consuming beer and Xanax at the same time. The judge of course

was free to discredit the juvenile's reported statement.

Nonetheless, the mere possibility that the juvenile was mixing

the substances does not rise to the level of an imminent and

"very substantial risk of physical impairment or injury." G. L.

c. 123, § 1. Compare Matter of A.M., 94 Mass. App. Ct. at 402–

403 ("the possibility that [A.M.'s] illicit drug use in

combination with an unspecified prescribed medication regimen

that has mere potential to be life threatening [does not rise]

to 'imminent serious harm'"), with Matter of C.R., Mass. App.

Div., No. 19-ADMH-48SO (Dist. Ct. Sept. 25, 2019) (commitment

was appropriate where there was reliable testimony that

individual had received Vivitrol shot, that she had continued to

drink heavily on Vivitrol as recently as three days prior to

hearing, and that Vivitrol and alcohol can be fatal when mixed).

20

Setting aside the evidence of youthful recklessness

unrelated to a substance use disorder, we conclude that the

evidence in the record that properly could have shown a

connection between the juvenile's substance use disorder and a

likelihood of imminent serious harm -- evidence that the Xanax

was tainted or that the juvenile had consumed it with alcohol --

was insufficient to support a finding of imminent and "very

substantial risk of physical impairment or injury." G. L.

c. 123, § 1. The finding therefore must be reversed, and the

order of commitment vacated and set aside.

3. Due process constraints in substance use disorder

commitment hearings. In addition to challenging the sufficiency

of the evidence in his case, the juvenile argues that due

process requires additional safeguards at hearings pursuant to

G. L. c. 123, § 35. He maintains that a judge must make more

specific and substantial subsidiary findings than the judge made

here and that, at all commitment hearings under G. L. c. 123,

§ 35, a judge must consider less restrictive alternatives to

commitment.

a. Sufficiency of factual findings. The judge's findings

at the end of the hearing were terse: "I do find, by clear and

convincing evidence, . . . that you are an individual with an

alcohol and substance abuse disorder. And that the failure to

commit you would create a likelihood of serious harm. And that

21

there is no less restrictive alternative." The juvenile

contends that these limited findings were insufficiently

detailed to comport with the requirements of due process. While

the findings met all that is required by the explicit statutory

language,6 we agree that due process mandates something more.

"[T]he constitutional demands of due process" dictate that

a "statement of findings and reasons, either in writing or

orally on the record, is a minimum requirement where a defendant

faces a loss of liberty." Brangan v. Commonwealth, 477 Mass.

691, 708 (2017). See id. at 707 (due process requires factual

findings demonstrating consideration of relevant bail factors);

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016), citing

Commonwealth v. Durling, 407 Mass. 108, 113 (1990) (due process

requires written or oral statement that illuminates "the

evidence relied upon and the reasons for revoking probation");

Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 539

6 The language of G. L. c. 123, § 35, places minimal

requirements on a judge's findings. A judge must find "that

such person is an individual with an alcohol or substance use

disorder and there is a likelihood of serious harm as a result

of the person's alcohol or substance use disorder." G. L.

c. 123, § 35. Second, "[t]he court, in its order, shall specify

whether such commitment is based upon a finding that the person

is a person with an alcohol use disorder, substance use

disorder, or both." Id. The uniform rules do not require more

elaborate factual findings. See Rules 6(a), 8(a) of the uniform

rules, supra at 992, 994-995. Rule 7(a) of the uniform rules,

supra at 993, contains the only other required finding: that a

judge may rely on hearsay evidence "only if the judge finds that

it is substantially reliable."

22

(2014) (same for revocation of parole). Cf. Mendonza v.

Commonwealth, 423 Mass. 771, 775 (1996) (indicating that written

findings of fact and reasons for detention are statutorily

mandated by G. L. c. 276, § 58A [4], in order to detain

individual before trial on grounds of dangerousness).7

This minimum requirement applies here, for "[a]n order of

commitment under [G. L. c. 123, § 35,] results in a substantial

curtailment of liberty." Matter of G.P., 473 Mass. at 126. The

judge's recitation of statutory standards, while meeting the

minimum explicitly stated requirements in the statute, does not

set forth findings sufficient to elucidate which subsidiary

facts she relied upon in reaching her conclusions.

Therefore, in hearings pursuant to G. L. c. 123, § 35, a

judge must make clear, in writing or orally on the record, the

evidence he or she credited in support of the legal conclusion

that the respondent had a substance or alcohol use disorder, as

well as the evidence supporting an imminent likelihood of

7 When other fundamental rights similarly are burdened, we

have required that judges make clear the evidence they relied

upon and the reasoning they undertook to reach their

conclusions. See Doe, Sex Offender Registry Bd. No. 496501 v.

Sex Offender Registry Bd., 482 Mass. 643, 657 (2019) (requiring

express findings by Sex Offender Registry Board that support

assigned sex offender classification level); Adoption of Yale,

65 Mass. App. Ct. 236, 239 (2005), quoting Custody of Eleanor,

414 Mass. 795, 799 (1993) (for termination of parental rights,

"[c]areful factual inspection and specific and detailed

findings" by trial judge are required in order to "demonstrate

that close attention has been given the evidence").

23

serious harm stemming from that disorder. Relevant facts tend

to show the reasons for a finding of the existence of a

disorder, as opposed to use of a substance, as well as the

likelihood of the harm, its imminence, its seriousness, and the

nexus between the harm and the underlying substance or alcohol

use disorder.

Additionally, where a judge relies on hearsay, the judge's

written or oral findings should indicate why the judge found

that hearsay reliable. See rule 7 of the uniform rules, supra

at 993 (in proceedings under G. L, c. 123, § 35, where hearsay

may be admissible, it "may be relied upon only if the judge

finds that it is substantially reliable"). In Matter of G.P.,

473 Mass. at 121-122, we allowed the use of hearsay evidence at

hearings on commitments for substance use disorder treatment,

only so long as the judge found that evidence to be

substantially reliable. See id. at 122 (because "hearsay

evidence may well play an extremely significant role in these

hearings," it is critical that judge "ensure[s] that any hearsay

on which he or she relies is '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 any hearsay

they rely upon. See Hartfield, 474 Mass. at 485 ("Even if not

required by court rule, we conclude that, where a judge relies

24

on hearsay evidence in finding a violation of probation, the

judge should set forth in writing or on the record why the judge

found the hearsay evidence to be reliable").

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.8

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 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

8 In Matter of G.P., 473 Mass. at 122, we pointed to

Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010), in which

we identified a nonexclusive list of factors for judges to

consider in determining whether hearsay is reliable, namely, the

level of factual detail (rather than generalized and conclusory

assertions); whether the statements were made based on personal

knowledge and direct observation; whether the statements were

corroborated; whether the statements were made under

circumstances that support the veracity of the source; and

whether the statements were made by disinterested witnesses.

See Commonwealth v. Durling, 407 Mass. 108, 121 (1990).

25

acknowledge the "practical considerations" faced by judges and

all parties in hearings under G. L. c. 123, § 35. See Matter of

G.P., supra.

b. Consideration of less restrictive alternatives. In

Matter of G.P., 473 Mass. at 129 n.24, we left open the question

whether, as the juvenile contends, due process requires a judge

to consider less restrictive alternatives in all commitment

hearings for substance use disorder treatment. Faced squarely

with that question here, we answer affirmatively.

"The Fourteenth Amendment to the United States Constitution

and arts. 1, 10, and 12 of the Massachusetts Declaration of

Rights establish a fundamental right to liberty and freedom from

physical restraint that cannot be curtailed without due process

of law." Brangan, 477 Mass. at 702. See Pembroke Hosp., 482

Mass. at 347; Matter of E.C., 479 Mass. at 119 ("The right of an

individual to be free from physical restraint is a paradigmatic

fundamental right" [citation omitted]). Laws that directly

infringe on fundamental rights, such as liberty from constraint,

are subject to strict scrutiny. See Brangan, supra at 703;

Commonwealth v. Libby, 472 Mass. 93, 96-97 (2015); Commonwealth

v. Weston W., 455 Mass. 24, 30 (2009). "To pass the strict

scrutiny standard, the [law] must be narrowly tailored to

further a legitimate and compelling governmental interest and be

26

the least restrictive means available to vindicate that

interest." Weston W., supra at 35.

The juvenile argues that only after less restrictive

alternatives have been considered may commitment be deemed the

least restrictive means by which to vindicate the government's

interest.9 The argument has merit. Because these cases are

intensely fact-specific, there is no way to ensure that

commitment is the least restrictive means of vindicating the

government's interest, unless and until a judge has considered

less restrictive alternatives in each case. For the statute to

survive strict scrutiny, this inquiry must be undertaken.

We reached a similar conclusion in Commonwealth v. Nassar,

380 Mass. 908, 917-918 (1980). There, we required judges to

find that no less restrictive alternatives to civil commitment

were appropriate before authorizing commitment pursuant to G. L.

c. 123, §§ 7-8 (civil commitment of mentally ill person whose

release would create likelihood of serious harm to individual or

others). While that holding did not rest explicitly on grounds

of substantive due process, its reasoning closely mirrored

strict scrutiny principles. Nassar, supra ("we think it natural

9 The parties do not dispute that the government has a

compelling and legitimate interest in protecting its residents

from the often tragic consequences of substance use disorder.

In addition, because it is not contested here, we assume without

deciding that G. L. c. 123, § 35, is narrowly tailored.

27

and right that all concerned in the law and its administration

should strive 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").

While Nassar, 380 Mass. at 917-918, was decided on

statutory grounds, here we reach the constitutional question.

For G. L. c. 123, § 35, to be constitutional as applied, the

hearing judge must find, by clear and convincing evidence, that

there are no appropriate, less restrictive alternatives that

adequately would protect a respondent from a likelihood of

imminent and serious harm.

To be appropriate, a less restrictive alternative need not

eliminate all risk to a respondent. Rather, the proper focus is

on whether there are any viable, plausibly available options

that bring the risk of harm below the statutory thresholds that

define a likelihood of serious harm ("substantial risk" for

prongs one and two, and "very substantial risk" for prong

three). See Matter of G.P., 473 Mass. at 128-129 (discussing

"quantum of risk" necessary to meet standards of G. L. c. 123,

§ 1).

For example, in this case the judge found a likelihood of

serious harm. She then weighed commitment against the voluntary

28

program that the juvenile had been scheduled to start within one

week. She concluded that, because she did not have confidence

the juvenile actually would attend that program, it did not

serve adequately to reduce the risk of harm. This determination

was within her discretion and satisfies the requirement that due

process imposes.

As a practical matter, in evaluating less restrictive

alternatives, judges may seek guidance from the qualified

physicians, psychologists, and social workers who already are

required to testify in these cases. Where, as here, the

respondent is accessing, or may soon access, various forms of

treatment and services, the respondent's counsel may argue their

sufficiency to mitigate risk. In such cases, consideration of

less restrictive alternatives should evaluate the ways in which

involuntary commitment can disrupt ongoing treatment efforts, as

well as connections to the community and familial relationships.

Particularly for juveniles, supportive relationships with family

and community have been deemed protective against future

substance use. See Section 35 Commission Report, at 6 (July 1,

2019).10 Ultimately, in crafting this requirement, our intention

10The Section 35 Commission was established in 2018, see

St. 2018, c. 208, § 104, to study "the efficacy of involuntary

inpatient treatment for non-court involved individuals diagnosed

with a substance use disorder." It is chaired by the Secretary

of Health and Human Services, and is staffed by representatives

from numerous specifically identified private entities and

29

is to ensure, in accordance with the principle of due process,

that involuntary commitment remains a viable, but carefully

circumscribed, tool of last resort. See id. (recommending

expansion of easily accessed, "low-threshold," community-based

treatment models and reservation of commitment for most severe

cases).11

Conclusion. Because the juvenile was committed on

insufficient evidence, the finding of a substance use disorder

creating an imminent and very substantial risk of harm must be

reversed, and the order of commitment must be vacated and set

aside. The matter is remanded to the Juvenile Court for entry

of an order consistent with this opinion.

So ordered.

professional groups involved in substance use treatment or

public health, as well as representatives from a number of State

agencies and members of the Legislature. See Section 35 Report,

at 35 (July 1, 2019) (Appendix A).

11In its July 2019 report, the Section 35 Commission

presented seventeen recommendations to the Commonwealth. Its

top recommendation was that the Commonwealth

"should expand development of low-threshold, treatment on

demand models, including harm reduction interventions in

community-based settings, immediate access to medication-

assisted treatment (MAT) and expansion of bridge clinics,

addiction consult services, outreach and engagement

programs, post-overdose intervention programs, syringe

services programs, and family intervention programs."

Section 35 Commission Report, supra at 6. Thirteen of the

recommendations were adopted. Id.