In the Matter of Ulmer.

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

23-P-1100

IN THE MATTER OF ULMER.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The respondent minor (Ulmer) appeals from a ninety-day

commitment order entered under G. L. c. 123, § 35, which sets

forth the requirements and procedures by which an individual may

be committed involuntarily for treatment for a substance use

disorder. On appeal, Ulmer asserts that there was insufficient

evidence to support the conclusion that he suffered from a

substance use disorder resulting in a likelihood of serious

harm. We agree, and therefore reverse the order finding such

and vacate the order of commitment.

Background. On July 14, 2023, Ulmer's probation officer

petitioned the Suffolk County Juvenile Court to have him

committed under G. L. c. 123, § 35. Ulmer had been brought to

1 A pseudonym.
the court that morning by police, who apprehended him on a

protective custody warrant after it was alleged that he ran away

from his Department of Children and Families (DCF) placement.2

In support of the petition, the probation officer submitted an

affidavit in which she asserted that Ulmer, who was thirteen

years old, had a heart condition and "smoke[d] weed daily." The

probation officer averred that Ulmer was "repeatedly missing

overnight" and "has been found in stairwells." She also

described an incident where he "was found by Heath St.

Facilities intoxicated in [a] stairway." The probation officer

further noted that DCF "made repeated efforts to place [Ulmer]

in [a] safe place to receive outpatient assessment and

treatment" but has "been unable to keep him safe."

Before the commitment hearing commenced, the court assigned

a court clinician, Dr. Alyssa Frederique, to evaluate whether

Ulmer met the criteria for commitment. Ulmer declined to submit

to an evaluation, but Frederique spoke with his mother, aunt,

nurse, and doctor.3

At the outset of the hearing, Ulmer objected to a hearing

on the merits of the petition by arguing that the petition

2 Ulmer was in the custody of DCF because he had been the
subject of a child requiring assistance petition.

3 Ulmer's mother was present at the hearing but did not
testify.

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failed to allege either any imminent danger to him or personal

observations of him under the influence of substances; the judge

denied the oral motion.4 The probation officer later informed

the judge that, although she had not "spent very much time with

[Ulmer] since the case was transferred to [her] in the beginning

of May," she filed the petition because Ulmer's mother "fear[ed]

for her son" and believed he was "in danger."

During the hearing, Dr. Frederique opined that Ulmer had

cannabis use disorder. Frederique based this opinion on

information from "[m]ultiple sources" that he "use[d] marijuana

on a regular" basis, broke into his cousin's vehicle once for

marijuana, stole from businesses, was "aggressive at times when

he didn't have substances," had not attended school in two

months, and was found intoxicated after urinating on himself at

an unknown time. Frederique also testified that Ulmer had a

complex congenital heart disease for which his doctor previously

recommended he discontinue smoking. Based on her conversation

with Ulmer's nurse and doctor, Dr. Frederique further testified

that he presented as high risk because of gaps in his care and

the uncertainty about whether he was consistently taking

4 The minor also appealed from the denial of his motion to
dismiss, but he has not briefed the issue, thereby waiving it.
See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628
(2019); Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188,
194 n.10 (2005).

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aspirin, which was required to prevent "clots that would

complicate his circulation." Although Frederique concluded that

"[i]t does seem that there is a lot of risk involved just in

general with his smoking," she conceded that she "wasn't able to

get a solid answer" on whether Ulmer's marijuana use created an

imminent risk to his heart condition. Dr. Frederique also noted

Ulmer was scheduled for surgery in September and that there were

"other situations and circumstances surrounding [the minor],

just in terms of trauma," including that "[h]e saw a friend of

his g[e]t shot last summer."

Based on the evidence presented at the hearing, the judge

ordered Ulmer committed to Motivating Youth Recovery in

Worcester.

Discussion. 1. Substance use disorder. Ulmer first

contends that there was insufficient evidence to prove he had a

substance use disorder and, relatedly, that any such evidence

was based on hearsay for which the judge failed to make the

required findings of reliability. To commit an individual under

G. L. c. 123, § 35, a judge must initially determine, by clear

and convincing evidence, that the individual has an alcohol or

substance use disorder. See Matter of a Minor, 484 Mass. 295,

296 (2020). Here, the determination that Ulmer had a substance

use disorder was based exclusively on hearsay from "multiple

sources," including his mother, who reported that he used

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marijuana on a regular basis. A judge may rely on hearsay

evidence in commitment hearings only if the judge "make[s]

clear, in writing or on the record, what specific indicia of

reliability led him or her to conclude that the hearsay evidence

. . . [wa]s substantially reliable" to satisfy due process. Id.

at 308. This requirement is "critical, particularly in light of

the clear and convincing evidence standard of proof required"

for an involuntary commitment. Matter of G.P., 473 Mass. 112,

122 (2015), abrogated on other grounds, Matter of a Minor, supra

at 299.

Although the judge relied on hearsay about Ulmer's

marijuana use to conclude that he had cannabis use disorder, the

judge did not make any findings on the reliability of this

information. While the "requirement that a judge make explicit"

findings about the reliability of any hearsay relied on "need

not impose a significant burden on the hearing judge," it does

require more than what the judge did here. Matter of a Minor,

484 Mass. at 308.

Moreover, even if the statements that Ulmer regularly

smoked marijuana were appropriately considered by the judge as

sufficiently reliable, the evidence failed to establish that

Ulmer's marijuana use constituted a substance use disorder. A

substance use disorder is "marked by 'chronic or habitual

consumption' to the extent that using the substance either

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'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." Matter

of a Minor, 484 Mass. at 302, quoting G. L. c. 123, § 35. The

fact that Ulmer used marijuana on a regular basis does not, by

itself, constitute a substance use disorder. See Matter of a

Minor, supra at 303 (insufficient evidence of alcohol use

disorder when based solely on juvenile's mother finding open

beer bottles in his room on numerous occasions). While Ulmer's

cannabis use was understandably concerning given his young age,

there was insufficient evidence that he was unable to exercise

self-control over his marijuana use or that his consumption

threatened his health or impaired his social functioning. None

of the behavioral issues he faced, aside from breaking into his

cousin's car, were directly attributable on this record to his

cannabis use. The information in the probation officer's

affidavit that Ulmer was missing overnights and found in

stairwells was likewise not tied to Ulmer's cannabis use.

Furthermore, as discussed in more detail below, the evidence was

inadequate to show that Ulmer's marijuana use substantially

injured his health given that its impact on his heart condition

was unclear at best. We therefore conclude that the evidence

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was insufficient to support a finding that Ulmer had a substance

use disorder requiring involuntary commitment.

2. Likelihood of serious harm. Ulmer further argues that

the evidence was insufficient to demonstrate that he faced a

likelihood of serious harm because of his substance use disorder

as required by G. L. c. 123, § 35. A likelihood of serious harm

can be proved by showing "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. See Matter of G.P., 473 Mass. at 128. The

risk of harm, however, has to have "a causal nexus" to the

identified alcohol or substance use disorder. Matter of a

Minor, 484 Mass. at 302. The harm must also be imminent, which

requires it to "materialize 'in the reasonably short term -- in

days or weeks rather than in months.'" Matter of A.M., 94 Mass.

App. Ct. 399, 402 (2018), quoting Matter of G.P., 473 Mass. at

128.

There was insufficient evidence to demonstrate that Ulmer

faced an imminent risk of serious harm because of his substance

use. The judge appeared to primarily rest his determination

that such a risk existed due to Ulmer's inability to follow

medical advice concerning his complex congenital heart disease.

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But there was no evidence connecting Ulmer's marijuana use to

any definite adverse effect on either his compliance with

medical advice or his heart condition. Although Ulmer's doctor

recommended that he discontinue smoking, Dr. Frederique

testified that she "wasn't able to get a solid answer on

imminent risk" created by the minor's substance use with respect

to his heart disease. The mere possibility that Ulmer's failure

to take aspirin daily for his heart condition "could be

detrimental to his health," even if he only failed to do so

because of his cannabis use, does not rise to an imminent risk

of serious harm as required. See Matter of A.M., 94 Mass. App.

Ct. at 402-403 (failure to take prescribed medication, and

possibility that drug use combined with prescribed medication

could be life threatening, did not constitute imminent serious

harm).

To the extent the judge relied on the information in the

probation officer's affidavit that Ulmer was found intoxicated

in a stairwell after allegedly urinating on himself, this event

was never linked to his cannabis use, thereby lacking the

requisite causal nexus to be properly considered in finding a

likelihood of serious harm. See Matter of a Minor, 484 Mass. at

302. None of the evidence elicited on the changing nature of

his familial relationships, his attempts to run away, his

failure to attend school, his occasional aggression, or his

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alleged criminal activity, even assuming arguendo that they were

the result of his marijuana use instead of "developmentally

typical adolescent misbehavior," amounted to an imminent risk of

serious harm. Id. As Ulmer argued at the commitment hearing,

this case appeared to be about "more of a frustration of

resources and maybe a frustration [with] what DCF has provided,

as opposed to an actual imminent danger." Consequently, the

evidence of harm before the judge also failed to justify Ulmer's

involuntary commitment under G. L. c. 123, § 35.

Given that there was insufficient evidence to support the

conclusion Ulmer suffered from a substance use disorder

resulting in a likelihood of serious harm, we need not address

his argument that the judge failed to consider less restrictive

alternatives before ordering Ulmer committed under G. L. c. 123,

§ 35.5

Conclusion. 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

5 Raising the issue for the first time in a footnote in his
reply brief, Ulmer also contends that the court lacked
jurisdiction because the probation officer who filed the
petition did not have standing. We need not address this
argument, however, as it does not rise to the level of adequate
appellate argument. See Mass. R. A. P. 16 (a) (9), as appearing
in 481 Mass. 1628 (2019).

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

of an order consistent with this decision.

So ordered.

By the Court (Shin, Grant &
Smyth, JJ.6),

Clerk

Entered: April 17, 2025.

6 The panelists are listed in order of seniority.

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