IN THE MATTER PSYCHIATRIC COMMITMENT OF J.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 4415-04T3 4415-04T3

IN THE MATTER OF THE

PSYCHIATRIC COMMITMENT

OF J.G.

_______________________________________________________________

 

Argued April 3, 2006 - Decided May 18, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATSC-1062-04.

Lorraine Gormley, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Gormley, on the brief).

William P. Busch, Jr., Assistant County Counsel, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; James F. Ferguson, County Counsel, Atlantic County Department of Law, of counsel; Mr. Busch, on the brief).

PER CURIAM

Appellant, J.G., appeals the Law Division's December 23, 2004 order involuntarily civilly committing her to the Atlantic City Medical Center (ACMC), Mainland Division, pursuant to N.J.S.A. 30:4-27.15, with a review hearing in thirty days. We reverse.

On December 9, 2004, J.G. was involuntarily committed, pursuant to N.J.S.A. 30:4-27.10g, to the ACMC by an ex parte temporary order for commitment, following the submission of clinical screening documents pursuant to N.J.S.A. 30:4-27.10a. On December 23, 2004, an initial commitment hearing was conducted pursuant to Rule 4:74-7(c), after which the court entered the December 23, 2004 order continuing J.G.'s commitment.

On appeal, J.G. argues that the State failed to establish by clear and convincing evidence that she was a danger to herself, others or property as required by N.J.S.A. 30:4-27.15a and Rule 4:74-7(f)(1), that the judge failed to make the required findings of fact and conclusions of law, and that the order of commitment should be reversed due to ineffective assistance of counsel.

The civil commitment process is governed by New Jersey's screening and commitment statute, N.J.S.A. 30:4-27. For a court to order involuntary commitment, the court must find by clear and convincing evidence that a patient is "in need of continued involuntary commitment . . . ." R. 4:74-7(f)(1).

The Legislature has defined the following terms for purposes of N.J.S.A. 30:4-27:

"In need of involuntary commitment" means that an adult who is mentally ill, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to be admitted to a facility voluntarily for care, and who needs care at a short-term care, 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. 30:4-27.2m.]

"Dangerous to self" 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 debilitation 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.

[N.J.S.A. 30:4-27.2h.]

 
"Dangerous to others or property" means that by reason of mental illness there is a substantial likelihood that the person will inflict serious bodily harm upon another person or cause serious property damage within the reasonably foreseeable future. This determination shall take into account a person's history, recent behavior and any recent act or threat.

[N.J.S.A. 30:4-27.2i.]

The State bears the burden of proving the grounds for commitment by clear and convincing evidence. In re Commitment of Raymond S., 263 N.J. Super. 428, 431 (App. Div. 1993); N.J.S.A. 30:4-27.12. "'The burden should not be placed on the civilly committed patient to justify his liberty.'" State v. Fields, 77 N.J. 282, 300 (1978) (quoting Fasulo v. Arafeh, 378 A.2d 553, 557 (Conn. 1977)).

To justify an involuntary commitment, it is necessary to show more than the potential for dangerous conduct. In re Commitment of R.B., 158 N.J. Super. 542, 546-47 (App. Div. 1978). "[T]he risk of dangerousness that will warrant involuntary commitment must be relatively immediate . . . ." In re Commitment of N.N., 146 N.J. 112, 130 (1996). There must be, in fact, a "'substantial risk of dangerous conduct within the reasonably foreseeable future.'" In re S.L., 94 N.J. 128, 137-38 (1983) (quoting State v. Krol, 68 N.J. 236, 260 (1975)).

This court has not hesitated to reverse involuntary commitments where the record failed to contain clear and convincing evidence of a substantial risk of dangerous conduct within the reasonably foreseeable future. See Raymond S., supra, 263 N.J. Super. at 433-34 (finding insufficient evidence to support commitment despite testimony that patient was hallucinating, psychotic and depressed upon admission); R.B., supra, 158 N.J. Super. at 547 (holding evidence of mood swings alone insufficient to support conclusion that patient was dangerous to self); In re Heukelekian, 24 N.J. Super. 407, 411 (App. Div. 1953) (holding commitment not warranted despite testimony that patient was disoriented and seemed to live in her own fantasy world).

The only witness called by the State was Dr. Dyen Nguyen. Dr. Nguyen's qualifications to give expert testimony were not placed on the record nor were his qualifications stipulated to. See N.J.R.E. 702. Dr. Nguyen's opinions were not given to a reasonable degree of medical certainty. See Biunno, Current N.J. Rules of Evidence, Comment 2 on N.J.R.E. 702 (2005).

Dr. Nguyen testified that his diagnosis was paranoia. He indicated that he "step[ped] in" for a Dr. Ewler during an "on call" four days prior the hearing. Dr. Nguyen stated that he would "reveal all the treatment for Dr. Ewler from December 7 up to the time [he stepped] in during the on-call December 18 . . . ." Dr. Nguyen did not indicate what records of Dr. Ewler he was relying on. Dr. Nguyen testified that he attempted to talk to J.G. before the hearing but "she [didn't] want to talk to [him]." He stated that he reviewed the case and that J.G. had been brought in by the police after she had threatened her mother and had been missing for five days.

Dr. Nguyen was asked by the court if it was his opinion that J.G. was a danger to herself. He replied, "Yes. Believe it or not, something just scare me, because I'm - she didn't eat. My staff worry too much about it, okay. And, she may collapse at any time. . . ."

Later in his testimony, Dr. Nguyen stated, "I concerned about her negligent care - problem if she not continue to eat, and definitely the way she talk. She all the time paranoia, to very chronic never think. I think if she continue to not eating appropriately, if she continue to be paranoid that she may very ascertain (sic) . . . anywhere it very dangerous for herself."

Dr. Nguyen was asked by the Assistant County Counsel, "[Y]ou checked also danger to others. Would you explain that?" Dr. Nguyen replied, "[I]f the people paranoia, the idea of paranoia just away from the issue to be . . . accidentally become aggressive." Dr. Nguyen was asked if J.G. was aggressive at the hospital. He answered, "She didn't do anything, but . . . ."

At the conclusion of Dr. Nguyen's testimony, the remainder of the hearing consisted of J.G.'s rambling disagreement with Dr. Nguyen's testimony. J.G.'s complaints dealt principally with the adequacy of medical treatment that she had received on a prior admission, the medical treatment that she expected to receive on this admission, and her complaints about not being provided a salt-free, vegetarian diet. J.G. also disputed the doctor's mental health diagnoses.

"The civil commitment process must be narrowly circumscribed because of the extraordinary degree of state control it exerts over a citizen's autonomy." S.L., supra, 94 N.J. at 139. Because commitment effects a serious deprivation of liberty, citizens are entitled to "the meticulous protection of both procedural and substantive due process." R.B., supra, 158 N.J. Super. at 547.

A person cannot be involuntarily committed unless it is shown that the patient has a mental illness and that mental illness causes the patient to be dangerous to self, others, or property. See S.L., supra, 94 N.J. at 138; Krol, supra, 68 N.J. at 257. In In re Commitment of D.M., 313 N.J. Super. 449, 451 (App. Div. 1998), we reversed a lower court's order of continued commitment where the trial judge failed to make findings of fact or conclusions of law with respect to the elements necessary for commitment. In so doing, we stated:

[T]he Law Division judge did not articulate his reasons in ordering D.M.'s commitment. In a nonjury civil action, the role of the trial court is to find the facts and state conclusions of law. R. 1:7-4. . . . In this case, we are left with a cryptic commitment order unsupported by any factual findings or conclusions of law.

[Id. at 454.]

Moreover, the Supreme Court made clear in Curtis v. Finneran, 83 N.J. 563, 570 (1980), that "[n]aked conclusions do not satisfy the purpose of R. 1:7-4."

A review of the transcript establishes that the judge failed to make the required findings of fact and conclusions of law in support of her decision. She merely stated "Ms. [G.], the court finds that you meet the criteria for continued commitment under the statute."

In addition, the court failed to make any findings that hospitalization was necessary because other services are not appropriate or available to meet J.G.'s mental health care needs. See N.J.S.A. 30:4-27.1b; D.M., supra, 313 N.J. Super. at 456 (holding commitment statutes require consideration of whether the person's mental health care needs and resultant danger "can be alleviated by means short of involuntary commitment"); In re Commitment of J.B. and J.H., 295 N.J. Super. 75, 80 (App. Div. 1996) (holding orders of commitment reversed where lower court failed to make "the required examination into the question of alternative disposition").

Because the trial court failed to make the required findings of fact and conclusions of law that J.G. met the statutory standard for involuntary commitment, we would ordinarily remand for factfinding. See In re Vey, 124 N.J. 534, 544 (1991). However, we are convinced from our review of the meager record here that the State has failed to establish by clear and convincing evidence that J.G. presented a danger to herself or others or property as required by N.J.S.A. 30:4-27.15a, thereby requiring a reversal of the order of commitment. See Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.) aff'd, 78 N.J. 320 (1978). ("[I]f we are thoroughly satisfied that the findings and the ultimate conclusions are clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction, we should appraise the record as if we were deciding the matter at inception and make our own findings and conclusions.").

J.G. also complains that her counsel failed to make an opening statement, did not insist on properly qualifying Dr. Nguyen to testify, did not object to hearsay testimony given by him, and failed to insist that the doctor's opinions be given to a reasonable degree of medical certainty. J.G. also asserts that her attorney failed to include an argument in her closing that the State had failed to meet its burden of proof for involuntary civil commitment.

In view of our decision, we need not decide J.G.'s contention that her order of commitment should be reversed because of the ineffective assistance of counsel. We note, however, that a person's right to counsel in a civil commitment is provided in N.J.S.A. 30:4-27.14a. The right to counsel encompasses the rights to present evidence and to cross-examine witnesses. N.J.S.A. 30:4-27.14c and N.J.S.A. 30:4-27.14d. In addition to these statutory rights, the right to counsel is supported by constitutional requirements of due process. See S.L., supra, 94 N.J. at 136-42.

The record below fails to establish by clear and convincing evidence that J.G. was substantially likely to cause serious bodily injury to herself, others, or property within the reasonably foreseeable future. As a result, the evidence does not establish the grounds for commitment required by N.J.S.A. 30:4-27.15a and Rule 4:74-7(f)(1). In addition, the trial court failed to make required findings of fact and conclusions of law. Accordingly, the order of commitment is reversed.

 
Reversed.

Two physician certifications certified that J.G. suffered from paranoid schizophrenia, was in need of involuntary treatment, and was a danger to herself if not treated.

Subsequent to her commitment, J.G. was transferred to Ancora Psychiatric Hospital, and a review hearing was scheduled for January 28, 2005. Over objection, the review hearing was adjourned for a period of two weeks to allow the State to locate witnesses to testify to J.G.'s actions prior to commitment. At the adjourned hearing, no witnesses were presented, and the psychiatrist reported that J.G. did not represent a danger to herself or others. J.G. was placed on a CEPP (conditional extension pending placement) and subsequently dismissed into the community when placement was found.

The briefs refer to Dr. Nguyen as a treating psychiatrist. His medical specialty does not appear in the record.

(continued)

(continued)

11

A-4415-04T3

RECORD IMPOUNDED

May 18, 2006