Opinion
DOCKET NO. A-4251-13T2
01-28-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF D.E.
Lorraine Gormley-Devine, Assistant Deputy Public Defender, argued the cause for appellant D.E. (Joseph E. Krakora, Public Defender, attorney; Ms. Gormley-Devine, on the brief). M. Lou Garty argued the cause for respondent Cumberland County Adjuster (The Garty Law Firm, L.L.C., attorneys; Ms. Garty, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. CUCC-00019314. Lorraine Gormley-Devine, Assistant Deputy Public Defender, argued the cause for appellant D.E. (Joseph E. Krakora, Public Defender, attorney; Ms. Gormley-Devine, on the brief). M. Lou Garty argued the cause for respondent Cumberland County Adjuster (The Garty Law Firm, L.L.C., attorneys; Ms. Garty, on the brief). PER CURIAM
D.E. appeals from a March 28, 2014 order of involuntary commitment. Following our review, we conclude the trial judge did not apply the proper legal standard which requires the State to prove by clear and convincing evidence that D.E. was a danger to herself or others before ordering her continued involuntary commitment. Accordingly, we reverse.
We discern the following facts from the record on appeal. D.E. was temporarily involuntarily committed to Hampton Hospital on March 11, 2014, after a confrontation at a hotel where she resided with her boyfriend. The police were called after D.E. supposedly threatened to kidnap a couple's baby. D.E. denied this allegation. The police brought D.E. to Hampton Hospital where she was evaluated by Dr. Shujaat Nathani. D.E. had a history of hospitalizations for mental illness, suffered from schizophrenia, and abused drugs. A hearing was scheduled for March 28, 2014, to determine whether D.E.'s commitment should be continued.
Before being involuntarily committed, D.E. had received services from the Program of Assertive Community Treatment (PACT) for approximately four years. The PACT team's nurse practitioner would visit D.E. at her residence once or twice a month. D.E. also saw the PACT team's psychiatrist approximately three times a year who prescribed her medication. The PACT team also visited D.E.'s residence to bring her food and provided transportation to pick up her prescribed medicines. In addition to the PACT team, D.E. received assistance from her mother who brought her clothing and occasionally took her out to eat.
Upon arrival at Hampton Hospital, Dr. Nathani observed D.E. was alert and oriented to person, time, and place, but was unkempt, malodorous, and eating improperly. Dr. Nathani noted D.E. did not possess suicidal or homicidal thoughts and did not suffer from any physical health problems. Dr. Nathani stated D.E. was noncompliant with taking her medication before entering the hospital, but during her hospital stay, she was compliant with her medicine and began eating appropriately.
At the March 28, 2014 civil commitment hearing, Dr. Nathani stated D.E. should not be discharged to a less restrictive setting because she remained paranoid and lacked insight regarding her conditions. Dr. Nathani opined D.E. would be a danger to herself if released because she did not have a home to return to, she would become noncompliant with her medications, and would again abuse drugs which would exacerbate her mental illness.
Accepting Dr. Nathani's opinion, the trial judge ordered D.E.'s continued involuntary commitment. On April 8, 2014, D.E. was placed on conditional extension pending placement status and was subsequently discharged on April 17, 2014.
D.E. filed an appeal from the March 28, 2014 order arguing the State failed to prove the need for her involuntary commitment by clear and convincing evidence of a substantial risk of danger to herself or others. She maintains review is required because the matter involves important issues of public policy necessitating review, and her liability remains uncertain for costs and expenses. Respondent on behalf of the State argues D.E.'s appeal is moot because she was discharged a few weeks after her involuntary commitment.
Civil commitments by their nature often evade review because the committees are discharged before their appeal is heard. An appeal is not moot "if serious collateral legal consequences nevertheless stem from the commitment order." In re R.B., 158 N.J. Super. 542, 545 (App. Div. 1978).
It is well settled in New Jersey that an appeal in [involuntary commitment] cases is not moot, even if the patient is no longer confined, when the patient remains liable for his or her hospital bill, and a finding in the patient's favor will entitle the patient to a credit for any period of illegal commitment.
[In re B.L., 346 N.J. Super. 285, 292 (App. Div. 2002) (citations omitted).]
An appeal regarding an illegal commitment should be heard even if the committee is no longer confined because multiple commitments within a short time can lead to long term consequences. In re D.M., 285 N.J. Super. 481, 485 n.1 (App. Div. 1995), certif. denied, 144 N.J. 377 (1996); N.J.S.A. 30:4-27.5(b), (stating "[i]f a person has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing the person in a short-term care facility.").
Most importantly, "even if appellants were not responsible for their hospital costs, 'we should nevertheless decide the issue because it implicates a committee's constitutional right to liberty, and by its nature, will continually become moot before judicial review.'" In re B.L., supra, 346 N.J. Super. at 292 (quoting In re G.G., 272 N.J. Super. 597, 600 n.1 (App. Div. 1994)). For all of these reasons, we conclude the matter is not moot.
We turn to the merits of the issues raised on appeal. D.E. argues the record contained insufficient proof permitting the trial judge to find by clear and convincing evidence she was a danger to herself, requiring her continued involuntary commitment. D.E. maintains she demonstrated conditional discharge to her residence would have satisfied the State's interests in a less restrictive manner.
We "give[] deference to civil commitment decisions and reverse[] only when there is clear error or mistake . . . ." In re M.M., 384 N.J. Super. 313, 334 (App. Div. 2006). The reviewing court "must consider the adequacy of the evidence"; evidence is adequate if it is competent. Ibid.
A court can continue an individual's temporary involuntary commitment if it finds "by clear and convincing evidence that the patient needs continued involuntary commitment." N.J.S.A. 30:4-27.15(a). Involuntary commitment is warranted when there is clear and convincing evidence:
(1) the person is mentally ill, as that term is defined in N.J.S.A. 30:4-27.2(r); (2) the mental illness causes the person to be dangerous (a) to self or (b) to others or property, as those terms are defined in N.J.S.A. 30:4-27.2(h), (i); (3) the person is unwilling to be admitted to a facility for voluntary care; and (4) the patient needs care at a psychiatric facility or hospital because other available services will not meet the patient's needs.See also R. 4:74-7(f)(1).
[In re M.M., supra, 384 N.J. Super. at 337 (citing N.J.S.A. 30:4-27.2(m)).]
"Dangerous to self" as defined by statute means:
that by reason of mental illness the person has threatened or attempted suicide or serious bodily harm, or has behaved in such a manner as to indicate that the person is unable to satisfy his need for nourishment, essential medical care or shelter, so that it is probable that substantial bodily injury, serious physical harm or death will result within the reasonably foreseeable future; however, no person shall be deemed to be unable to satisfy his need for nourishment, essential medical care or shelter if he is able to satisfy such needs with the supervision and assistance of others who are willing and available. This determination shall take into account a person's history, recent behavior and any
recent act, threat or serious psychiatric deterioration.
[N.J.S.A. 30:4-27.2(h).]
"Clear and convincing evidence is evidence that produces 'a firm belief or conviction' that the allegations are true; it is evidence that is 'so clear, direct and weighty and convincing' that the factfinder can 'come to a clear conviction' of the truth without hesitancy." In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re Jobes, 108 N.J. 394, 407 (1987)).
Based on the testimony presented at trial, the stated basis for D.E.'s involuntary commitment by the trial judge was the danger she presented to herself and her observed condition on admission. In making his findings, the trial judge did not apply the standard of clear and convincing evidence. Rather, continued involuntary commitment was ordered based on the finding D.E. "may present a danger to herself" and "could benefit from some further care."
We find the evidence presented does not establish clearly and convincingly D.E. was a danger to herself. Dr. Nathani admitted during his testimony D.E. did not possess suicidal or homicidal thoughts. He also conceded D.E. was not malnourished upon admittance and did not suffer from any physical health problems. There was also evidence presented D.E. was living in a hotel with her boyfriend and would return to the hotel upon release, which would provide her with adequate shelter.
Dr. Nathani's fear D.E. would stop taking her medication after release was principled, but not sufficient to show D.E. is a danger to herself. See In re J.R., 390 N.J. Super. 523, 532 (App. Div. 2007) (holding the possibility a committee "may stop taking his medication is insufficient to constitute clear and convincing evidence of a substantial likelihood of future harm necessary for involuntary confinement.").
Further, D.E. demonstrated she would continue to have appropriate supervision and assistance from the PACT team upon release for essential medical needs, to have her medication use monitored, and for nourishment.
There is evidence to establish D.E. suffered from mental illness, and her living conditions were not ideal. But these facts alone are not enough to restrict an individual's liberty interest. See O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493-94, 45 L. Ed. 2d 396, 407 (1975) (stating "the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution"). We are confident Dr. Nathani and the trial judge had D.E.'s best interest in mind in forming their opinions, but mere unkemptness, malodor, and improper eating is not enough to establish D.E. was a danger to herself.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION