Opinion
DOCKET NO. A-2069-14T2
03-02-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF A.S.
Stanley Shur, Assistant Deputy Public Defender, argued the cause for appellant A.S. (Joseph E. Krakora, Public Defender, attorney; Mr. Shur, on the briefs). Elizabeth C. D'Ancona, Assistant County Counsel, argued the cause for respondent State of New Jersey (James F. Ferguson, Atlantic County Counsel, attorney; Ms. D'Ancona, on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATCC-148014. Stanley Shur, Assistant Deputy Public Defender, argued the cause for appellant A.S. (Joseph E. Krakora, Public Defender, attorney; Mr. Shur, on the briefs). Elizabeth C. D'Ancona, Assistant County Counsel, argued the cause for respondent State of New Jersey (James F. Ferguson, Atlantic County Counsel, attorney; Ms. D'Ancona, on the briefs). PER CURIAM
A.S. appeals from the November 21, 2014 civil commitment order that continued his involuntary commitment pursuant to N.J.S.A. 30:4-27.15(a). At his subsequent review hearing, A.S. was recommended for conditional extension pending placement (CEPP). He was later discharged.
We perceive no error in permitting an appeal directly to this court from an order of involuntary commitment entered by a municipal court judge instead of requiring review by the Law Division in the first instance. The statute authorizing a "court" to commit an individual involuntarily, N.J.S.A. 30:4-27.15, defines the term "court" as meaning "the Superior Court or a municipal court." N.J.S.A. 30:4-27.2(f). It also makes no provision for a de novo review in the Law Division.
As an initial matter, we decline the State's request to dismiss this matter as moot. The continuance of involuntary civil commitment implicates A.S.'s constitutionally protected liberty interest, which warrants our review on the facts of this case. In re Commitment of T.J., 401 N.J. Super. 111, 118 (App. Div. 2008); In re Commitment of G.G., 272 N.J. Super. 597, 600 n.1 (App. Div. 1994). "[T]he involuntary commitment of an individual 'is a profound and dramatic curtailment of a person's liberty and as such requires meticulous adherence to statutory and constitutional criteria.'" In re Commitment of D.M., 285 N.J. Super. 481, 486 (App. Div. 1995) (quoting Fair Oaks Hosp. v. Pocrass, 266 N.J. Super. 140, 149 (Law Div. 1993)), certif. denied, 144 N.J. 377 (1996).
A.S., who is a young adult, suffers from schizophrenia. He was involuntarily temporarily committed on November 6, 2014. He does not contest that he has been diagnosed with a mental illness nor does he contest the validity of his temporary commitment. On November 21, 2014, a hearing was held by a municipal court judge, who continued A.S.'s involuntary commitment and permitted A.S.'s transfer to a long-term care facility. A.S.'s emergent application for appellate review was denied. At a subsequent review, A.S. was found suitable for discharge but was ordered to CEPP because he had lost his housing. He was discharged shortly thereafter when he obtained a new residence.
Dr. Atta Rehman, a psychiatrist, testified at the November 21 commitment hearing that on November 6, A.S. was brought to the emergency room by the police after contacting them "due to feeling like his legs were on fire." When A.S became agitated in the emergency room, he was restrained. Dr. Rehman testified A.S. had been hospitalized in the past, although he did not know the dates of those hospitalizations. The doctor stated A.S. was "psychotic and delusional." There was no testimony about past incidents of violence by A.S. The doctor testified A.S. remained "preoccupied, confused," and remained "withdrawn to his room." The doctor described A.S. as "mostly toward himself, staying in the room, self[-]reclusive, isolated, withdrawn, sucking his thumb." A.S. was also "not attending groups."
Dr. Rehman's testimony about the basis for A.S.'s admission was allowed over objection and only admitted for the purposes of explaining A.S.'s diagnosis and treatment, not for the truth of the statements. --------
Dr. Rehman did not ask A.S. if he would continue to take his medications as an outpatient, but he thought A.S. would discontinue them. The doctor testified A.S. had been non-compliant with medications in the past, although he did not know if this lapse resulted simply from his lack of psychiatric services. A.S. had been cooperative in taking medications while at the hospital, but the doctor had not seen any improvement and wanted A.S. to stay longer.
The doctor testified A.S. was a danger to himself. For instance, A.S. was unable to care for his hygiene, which could lead to infections. A.S. was responding to "internal stimuli" and had to be drawn out to eat and participate. The doctor feared A.S. would isolate himself and not be able to obtain "shelter, food [or] medical care." On cross-examination, however, the doctor acknowledged that A.S. had a place to live, was not malnourished upon his admission and had not refused essential medical care.
Based on this testimony, the municipal court judge continued A.S.'s involuntary commitment, finding because of a demonstrated history of mental illness, that A.S. was "delusional and psychotic" and that he was "unable to care for himself," making him a danger. The court explained that A.S. "won't take his medications" and "[w]hen he sets his leg on fire, that's a problem."
We review the decision to continue an individual's civil commitment utilizing an abuse of discretion standard. See In re D.C., 146 N.J. 31, 58-59 (1996). When reviewing civil commitment decisions, "we afford deference to the trial court's supportable findings." T.J., supra, 401 N.J. Super. at 119. We "reverse[] only when there is clear error or mistake." In re Commitment of M.M., 384 N.J. Super. 313, 334 (App. Div. 2006). However, we "must consider the adequacy of the evidence." Ibid.
To continue an individual's involuntary commitment after a temporary commitment order, a court must find "by clear and convincing evidence presented at [a] hearing that the patient is in need of continued involuntary commitment" to treatment. R. 4:74-7(f)(1). The Legislature has defined this to mean
that an adult with mental illness, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to accept appropriate treatment voluntarily after it has been offered, needs outpatient treatment or inpatient care at a short-term care or psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the person's mental health care needs.
[N.J.S.A. 30:4-27.2(m).]
A.S. does not challenge the finding that his diagnosis of schizophrenia qualifies as a mental illness under this statutory scheme. The question raised in this appeal is whether the judge erred in finding that mental illness caused him to be "dangerous to self" requiring commitment. A person is "dangerous to self" if
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).]
For a civil commitment order to continue, a court must find by clear and convincing evidence that the danger a committed person poses constitutes "a substantial risk of dangerous conduct within the reasonably foreseeable future." T.J., supra, 401 N.J. Super. at 119 (quoting In re S.L., 94 N.J. 128, 138 (1983)). The potential for dangerous conduct is not enough. In re Commitment of J.R., 390 N.J. Super. 523, 530 (App. Div. 2007). The Legislature has provided that the term "'[r]easonably foreseeable future' means a time frame that may be beyond the immediate or imminent, but not longer than a time frame as to which reasonably certain judgments about a person's likely behavior can be reached." N.J.S.A. 30:4-27.2(kk).
Recognizing our deference only to a trial court's supportable findings, In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001), "we have not hesitated to reverse involuntary commitments when the record failed to contain clear and convincing evidence of 'a substantial risk of dangerous conduct within the reasonably foreseeable future.'" T.J., supra, 401 N.J. Super. at 119 (quoting S.L., supra, 94 N.J. at 139 (quoting State v. Krol, 68 N.J. 236, 260 (1975); J.R., supra, 390 N.J. Super. at 530; In re Commitment of M.C., 385 N.J. Super. 151, 162 (App. Div. 2006); In re Commitment of B.L., 346 N.J. Super. 285, 304 (App. Div. 2002); In re Commitment of Raymond S., 263 N.J. Super. 428, 433 (App. Div. 1993))).
In T.J., we reversed an order of CEPP where the committed individual "whose mental illness contributed to past violent criminal behavior" only needed outpatient counselling programs for mental health, had available living arrangements and was not "incapable of survival on his own." Id. at 122-23 (quoting In re Commitment of G.G., 272 N.J. Super. 597, 604 (App. Div. 1994)).
In J.R., the appellant was suffering from bipolar disorder. J.R., supra, 390 N.J. Super. at 525. When he did not take his medication, his "manic symptoms exacerbated." Id. at 526. He became "verbally assaultive to the staff." Ibid. We held the evidence did not support his continued involuntary commitment on the sole basis that "he may stop taking his medications" in the future as he had done in the past. Id. at 531.
In In re Commitment of W.H., 324 N.J. Super. 519, 521 (App. Div. 1999), the appellant was committed because he had a "long psychiatric history" and "became non-compliant with his medications." Although the doctor had testified the appellant "had a history of violence . . . no facts were presented to support that conclusion." Id. at 524. When he did not take his medication, he "is delusional and talks to himself." Ibid. We held this was not clear and convincing evidence he was a danger to himself. Ibid.
In In re Commitment of Robert S., 263 N.J. Super. 307, 310 (App. Div. 1992), the appellant was diagnosed as suffering from paranoid schizophrenia. He was "very noncommunicative." Ibid. Although not suicidal, he was described as "an 'indirect' danger to himself because of his erratic behavior." Ibid. He had thrown "nails on the floor and walked on them"; he had "left the gas stove lit when he was not at home." Ibid. We reversed the commitment, holding that "indirect danger" did not satisfy the required standard "that there is a substantial risk of dangerous conduct within the reasonably foreseeable future." Id. at 312-13.
By applying the statutory framework and cases discussed above, we conclude the municipal court judge's determination here to continue A.S.'s involuntary commitment was not supported by clear and convincing evidence. To be sure, A.S. was mentally ill when he was committed. However, "[t]he State cannot constitutionally commit individuals to mental hospitals solely on the basis of mental illness." S.L., supra, 94 N.J. at 137. A.S.'s continued commitment rested instead on the conclusion that his mental illness caused him to be a danger to himself. That finding was also not adequately supported. There was no credible evidence A.S. ever threatened or attempted suicide or inflicted serious bodily harm upon himself. There was no evidence A.S. had set fire to his legs. The conclusion that A.S. was a danger to himself was not supported by the testimony nor the psychiatric commitment hearing report.
The evidence did not support the finding, clearly and convincingly, that A.S. behaved in a manner indicating he was "probably" not able to satisfy his need for "nourishment, essential medical care or shelter." A.S. was not malnourished when committed. He had a place to live. He had not refused essential medical care. He was cooperative in taking his medication.
The doctor did not testify what might be different now, as compared to the past, about A.S.'s ability to obtain nourishment, shelter and medical care if he were released, other than the doctor's fear he might not continue to take his medication and the doctor's observation that he was withdrawn. However, in this regard, we are guided by W.H., supra, 324 N.J. Super. at 519, where we reversed a commitment decision based on the doctor's prediction that the appellant might fail to take his medicine as he had done in the past. Apparently, A.S.'s hygiene was poor, but he did not have an infection or a condition making him prone to infection that would pose a threat to him in the reasonably foreseeable future. Similar to A.S.'s situation, in T.J., supra, 401 N.J. Super. at 111, we reversed a CEPP order because the appellant had other living arrangements and was not incapable of survival on his own.
The record did not show clear and convincing proof at the review hearing that A.S. remained a danger to himself because the conclusion was not supported with facts indicating the danger to himself was "probable" in the "reasonably foreseeable future," as is required by the statute. See N.J.S.A. 30:4-27.2(h).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION