Opinion
DOCKET NO. A-3844-14T2
04-15-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF T.S.
Joseph E. Krakora, Public Defender, attorney for appellant T.S. (Cynthia Seda-Schreiber, Assistant Deputy Public Defender, on the brief). James B. Arsenault, Jr., Union County Counsel, attorney for respondent State of New Jersey (Lauren F. Fogarty, Assistant County Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. UNCC00106713. Joseph E. Krakora, Public Defender, attorney for appellant T.S. (Cynthia Seda-Schreiber, Assistant Deputy Public Defender, on the brief). James B. Arsenault, Jr., Union County Counsel, attorney for respondent State of New Jersey (Lauren F. Fogarty, Assistant County Counsel, on the brief). PER CURIAM
T.S. appeals from the February 25, 2015 civil commitment order that continued his involuntary commitment to Trenton Psychiatric Hospital (Trenton Psychiatric) pursuant to N.J.S.A. 30:4-27.15(a). We reverse.
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.
I.
In August 2013, T.S., was taken to the hospital and then committed involuntarily after he threatened a store owner following a verbal altercation. When committed, he was "actively responding to internal stimuli and admitted to hearing voices." By May 2014, he had been granted Conditional Extension Pending Placement (CEPP) status, which was continued for the next several months following regular review hearings. During a visit to a group home in Cranford, New Jersey, which was a possible discharge location, T.S. left without permission, went to a liquor store, drank three and a half pints of vodka, was found later "in his room unconscious with an empty vodka bottle next to him" and then hospitalized. He was returned to Trenton Psychiatric for twenty days on a temporary commitment and then was involuntarily committed following a hearing in early January 2015. During his commitment, T.S. was enrolled in a voluntary drug rehabilitation program, but this enrollment failed because T.S. was "[n]ot fully engaging in treatment and not attending group consistently[.]"
CEPP status applies to "individuals who are legally entitled to leave a mental hospital because they are not considered dangerous" but "'are incapable of competently exercising' the right to be discharged because of a diminished capacity to survive in the outside world." In re Commitment of M.G., 331 N.J. Super. 365, 378 (App. Div. 2000) (quoting In re S.L., 94 N.J. 128, 139 (1983)). Such individuals remain confined until the State arranges for appropriate placement. Ibid.; see also R. 4:74-7(h)(2).
T.S.'s involuntary commitment was reviewed at a hearing on February 25, 2015 before a municipal court judge. A doctor from Trenton Psychiatric testified that T.S. had schizoaffective and poly-substance abuse disorders for which he took medication. She found no evidence of a thought disorder during her evaluation. The symptoms of T.S.'s schizoaffective disorder were "in control with the medication." The doctor verified that T.S. was compliant with medication in the hospital. She confirmed that T.S. was not suffering from symptoms of his schizoaffective disorder at the time of the hearing.
The doctor's progress notes from January 2015 raised no other evidence about the schizoaffective disorder. She noted that T.S. appeared healthy, made good eye contact, behaved appropriately, had a cooperative attitude, was fairly groomed, and denied any suicidal or homicidal thoughts. The doctor found T.S.'s thought processes to be "goal directed" and "logical" and that there was no evidence T.S. was internally preoccupied or suffering from delusions. T.S. denied experiencing any hallucinations. She characterized T.S.'s insight and judgment as "variable." Although T.S. had a history of assaults in the past, he had not made any threats to others while committed.
The doctor testified T.S. remained a danger to himself, requiring further stabilization before his release, because of the drinking episode and substance abuse issues. He had poor insight into these issues and needed to develop better coping mechanisms for these. The doctor stated, "[i]f he drinks . . . [h]e will immediately decompensate without having adequate coping skills due to his poly[-]substance dependence in the less restrictive environment." Although T.S. had no other medical issues that his drinking would immediately affect, he had no "insight" about his alcoholism or even how to "work with the counselor." The doctor recommended three more months at the facility before again exploring CEPP or involuntarily outpatient commitment.
The judge found that T.S.'s involuntary commitment should be extended with a review in two months, finding he "still suffers from schizoaffective disorder[,]" which was only managed in "this controlled setting." Specifically, the judge stated,
[i]f he were to be released from this setting, it is clear that he would consume alcohol to the point where his schizoaffective disorder would become active again and he would be a danger to himself clearly, and become a danger to others based upon his intensive alcohol consumption.The judge applied the following standard in ruling to continue commitment: "if [T.S.] were to be released or in a less restrictive setting, would he be actively suffering from his symptoms." Based on the doctor's testimony, the judge found T.S.'s symptoms would return if he were released and also that there was inadequate factual testimony about outpatient involuntary commitment to release him to that program.
T.S. appeals from the judge's finding to continue his involuntary commitment, arguing here there was no evidence he was suffering from a current mental illness or that he was a danger to himself or others. T.S. also contends he was denied a fair hearing because his counsel wanted the opportunity to conduct further cross-examination and a more complete closing and that the trial court failed to address involuntary outpatient commitment.
The State opposes this, contending there was clear and convincing evidence to continue the commitment under the applicable statute and that T.S. was not denied a fair hearing.
II.
We review the decision to continue T.S.'s civil commitment under an abuse of discretion standard, In re D.C., 146 N.J. 31, 58-59 (1996), giving "deference to the trial court's supportable findings," In re Commitment of T.J., 401 N.J. Super. 111, 119 (App. Div. 2008), and reversing "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 review interpretations of the law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
To involuntarily commit an individual, a court must find
by clear and convincing evidence presented at [a] hearing that . . . (1) the patient is mentally ill, (2) mental illness causes the patient to be dangerous to self or dangerous to others or property . . . , (3) the patient is unwilling to be admitted to a facility for voluntary care or accept appropriate treatment voluntarily, and (4) the patient needs . . . inpatient care at a short-term care or psychiatric facility or special psychiatric hospital because other less restrictive alternative services are not appropriate or available to meet the patient's mental health care needs.We reverse the decision to continue T.S.'s commitment because the municipal court judge did not make a finding that T.S. was mentally ill nor did the evidence support he was mentally ill at the time of the February 2015 hearing.
[R. 4:74-7(f)(1); see also N.J.S.A. 30:4-27.2(m) (defining "in need of involuntary commitment").]
"Mental illness" is defined as
a current, substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior or capacity to recognize reality, but does not include simple alcohol intoxication, transitory reaction to drug ingestion, organic brain syndrome or developmental disability unless it results in the severity of impairment described herein. The term mental illness is not limited to "psychosis" or "active psychosis," but shall include all conditions that result in the severity of impairment described herein.
[N. J.S.A. 30:4-27.2(r).]
Although T.S. was diagnosed with schizoaffective disorder, at the time of his hearing in February 2015, he was not then suffering from a disturbance of thought or mood such that it impaired his judgment. He showed appropriate "behavior, attitude and affect." He had no auditory or visual hallucinations or delusions. He was not suffering from a thought disorder or paranoia. He was described as goal directed and logical. His condition was "in control with the medication." He was compliant with taking his medications. He was not suicidal or homicidal. He had not made any threats against others. In short, he was not currently mentally ill.
The concern expressed by the doctor was that T.S. is an alcoholic, who was diagnosed with "poly-substance" abuse. Although no one contended that poly-substance abuse constituted "mental illness" under the commitment statute, the doctor testified T.S. had no coping skills with respect to these poly-substance abuse issues. He would "immediately decompensate" if released, his judgment would be impaired and he could be dangerous to himself or others in that condition.
To involuntarily commit, not only must a person currently suffer from mental illness, but he also must be dangerous to himself, others or property by reason of the mental illness. 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).]
To continue an order of civil commitment, the danger posed by the individual must be "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 138). "'Reasonably 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). Therefore, the potential for dangerous conduct is not enough for commitment. See In re Commitment of J.R., 390 N.J. Super. 523, 530 (App. Div. 2007).
We have reversed decisions to involuntarily commit when based solely on evidence that an individual might discontinue taking required medication if released because that alone is not "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 138); J.R., supra, 390 N.J. Super. at 532.
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 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 threw "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.
In one respect, T.S.'s case is similar to these cases because his continued commitment was based on testimony that if he were released he would start drinking again and become a danger because of the underlying schizoaffective disorder. This concern was not abstract. When he eloped from the group home visit, he drank alcohol to the point of becoming unconscious and requiring hospitalization. T.S. never challenged the testimony that he lacked the coping skills needed to address his alcoholism or that alcohol could trigger the schizoaffective disorder. The unchallenged testimony was that T.S. would immediately decompensate because of his inadequate coping skills due to his poly-substance abuse, which then would pose a danger to himself or others. Thus, although T.S. was not mentally ill, he was at risk.
In S.L., supra, 94 N.J. at 130, under different circumstances, the Court considered the situation of individuals who were not mentally ill, but who also could not survive independently outside an institution due to the length of their prior commitments. Recognizing that the "State cannot constitutionally commit individuals to mental hospitals solely on the basis of mental illness[,]" id. at 137, the Court also acknowledged it was not required to "cast them adrift into the community when the individuals are incapable of survival on their own." Id. at 140. "In a proper exercise of its parens patriae authority, it may therefore of necessity continue the confinement of such persons on a provisional or conditional basis to protect their essential well-being, pending efforts to foster the placement of these individuals in proper supportive settings outside the institution". Ibid.
Here, T.S. was asking for CEPP placement at the hearing, yet the court never decided if T.S. was mentally ill and never ascertained whether there was another less restrictive environment, such as CEPP, that would have been more appropriate for his poly-substance abuse problem. It was error to continue his involuntary commitment because of his lack of current mental illness and it also was error not to consider whether T.S. could live on his own, with or without the help of others, and if not, what less restrictive environment was appropriate for him. Because T.S. was not mentally ill at the time of his review hearing, it was error to continue his involuntary commitment under these circumstances.
We note T.S. was placed on CEPP status at his next review hearing. Although not challenged on the basis of mootness, we considered this appeal nevertheless because T.S.'s involuntary civil commitment implicates his constitutionally protected liberty interest. T.J., supra, 401 N.J. Super. at 118. --------
T.S. also contends he was denied the opportunity for a fair hearing because the municipal court judge abbreviated cross-examination and closing arguments. We find these points lack sufficient merit on this record to warrant discussion in a written opinion and comment on them briefly. R. 2:11-3(e)(1)(E).
A person involuntarily committed has a right to counsel, discovery, confrontation, and presentation of evidence in all placement review proceedings. N.J.S.A. 30:4-27.14; R. 4:74-7(h)(2). This includes a right to cross-examine witnesses, R. 4:74-7(h)(2), but "[w]e will not interfere with the trial judge's authority to control the scope of cross-examination unless clear error and prejudice are shown." State v. Messino, 378 N.J. Super. 559, 583 (App. Div.) (quotation omitted), certif. denied, 185 N.J. 297 (2005). We cannot say the court erred regarding the permissible scope of the doctor's cross-examination because the issues his counsel wanted to explore more fully on cross-examination about T.S.'s compliance and cooperation during his psychiatric hospital admission were shown by the psychiatric progress note that was admitted in evidence.
As for the allegation the closing argument was unnecessarily abbreviated, we review the issue under the plain error standard because it was raised for the first time on appeal. R. 2:10-2. The record does not reflect what those other arguments would have been nor any unwarranted abbreviation of T.S.'s counsel's ability to make arguments on behalf of her client that was "of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION