I/M/O THE CIVIL COMMITMENT OF S.D



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4070-07T24070-07T2

I/M/O THE CIVIL

COMMITMENT OF S.D.

_________________________________________________________


Submitted September 10, 2008 - Decided:

Before Judges Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, MH-1848-07.

Ronald K. Chen, Public Advocate, attorney for appellant (Theodore S. Novak, Deputy Public Advocate, on the brief).

Kavanagh & Kavanagh, LLC., attorneys for respondent (Brendan J. Kavanagh, Assistant County Counsel, on the brief).

PER CURIAM

S.D., a civil committee at Ancora Psychiatric Hospital (Ancora), appeals from the March 7, 2008 order that continued his involuntary commitment and scheduled his next review date for May 9, 2008. In 2003, S.D. was convicted of second-degree sexual assault and sentenced to a six-year term of imprisonment with an 85% period of parole eligibility. Upon his release from prison in August 2007, he was civilly committed to the Ann Klein Forensic Center, and transferred to Ancora on November 21, 2007. His status was first reviewed in December 2007 and again in February 2008, when his privileges were advanced to Level II. See N.J.A.C. 10:36-1.6.

The hearing that gives rise to this appeal took place on March 7, 2008. The only witness produced was Doctor Toni Calabrese, a psychiatrist on staff at Ancora and part of S.D.'s treatment team. She opined that S.D. suffered from "[m]ajor depression, major depressive disorder, alcohol dependence and [a] borderline personality disorder." Calabrese noted S.D. had been compliant in taking his medication but continued "to have residual symptoms." She further opined that S.D. was "a danger to others if he was released . . . outside the structure." Asked to expand upon the basis for this opinion, Calabrese testified

In view of the fact that past behavior is the best predictor of future behavior, and . . . that [S.D.] is alcohol addicted, that alcohol was involved and intoxication was involved at the time of the offense, in view of the fact that he remains depressed, has borderline personality traits, has poor insight into relationships and his role in relationships, has poor problem-solving skills, there is a likelihood that he will decompensate outside of the structure of the hospital and that when that happens, based on that he has had a previous offense, under those conditions, there is a likelihood that this could happen again.

On cross-examination, Calabrese confirmed that S.D. was not psychotic, not bi-polar, did not suffer from delusions or hallucinations, did not suffer from any paraphilia, and was not suicidal. She also found him "oriented to person, place and time" and coherent in his speech. Calabrese also agreed that S.D. was "generally cooperative" and had not engaged in threatening or agitated behavior while at Ancora.

As cross-examination concluded, the following exchange took place between Calabrese and S.D.'s counsel:

Q. So correct me if I'm wrong, but there's a couple of ifs involved in your concern. If [S.D.] starts drinking, if he has a relationship with a woman, if there's a break-up, if he doesn't handle it well, then the[re]'ll be a problem. Is that sort of the gist of that?

A. Yes.

This prompted further questioning by the judge:

Q. Doctor, you gave a very firm opinion to me . . . that you feel that there's a substantial likelihood that [S.D.] will repeat the offense if I release him.

A. Yes.

Q. Is that what you said?

A. Yes.

Q. Would . . . you be able to address whether you feel that that substantial likelihood . . . would happen in the reasonably foreseeable future . . .?

A. I think that it's possible based on the fact that he could relapse with respect to the drinking . . . .

. . . .

Q. I'm looking for probabilities.

A. I think that without the proper insight and coping skills[] that it is probable that he will relapse with respect to the drinking.

. . . .

Q. And your opinion is, based on reasonable medical certainty, that if all those ifs happen, it[']s probable that [S.D. will] repeat the offense, is that what you're saying? If he gets involved in a relationship, if that relationship turns bad and he starts drinking, is it your opinion . . . that it is probable that he will repeat the sexual offense that he was incarcerated for . . . ?

A. Based on his past behavior, yes.

The judge concluded "there is clear and convincing evidence that [S.D.] remains dangerous to others and property, that he suffers from mental illness, that he will not voluntarily be admitted to this facility and that there is no less restrictive facility." The judge concluded the hearing by noting, "based on the fact that the only witness that [] testified, Dr. Calabrese, and the only expert that's being offered to me has given an opinion that he remains dangerous, I have no choice but to continue the commitment." The judge executed the order under review.

S.D. argues the judge erred "in holding that he had 'no choice'" in continuing the commitment because Calabrese's testimony "failed to meet the standard for involuntary commitment." We have considered this argument in light of the record and applicable legal standards. We agree that the State failed to demonstrate by clear and convincing evidence that there was a "substantial likelihood" that S.D. would "inflict serious bodily harm upon another person or cause serious property damage within the reasonably foreseeable future," and therefore reverse. N.J.S.A. 30:4-27.2i (emphasis added).

We recognize that our review of a judge's decision reached at a commitment hearing is extremely narrow. State v. Fields, 77 N.J. 282, 311 (1978). That decision is entitled our "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)(quoting Fields, supra, 77 N.J. at 311). On appeal, "[t]he appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower court's findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996). However, a reviewing court must always "consider the adequacy of the evidence." In re M.M., 384 N.J. Super. 313, 334 (App. Div. 2006). In this case, the expert testimony was inadequate to prove the statutory requirement regarding dangerousness.

In reaching a determination that a committee poses a "danger[] to others or property," N.J.S.A. 30:4-27.2i permits consideration of "[that] person's history, recent behavior and any recent act or threat." In this case, in large part, Calabrese based her opinion upon S.D.'s prior sexual offense that involved his ex-girlfriend and was clearly influenced by his alcoholism. She acknowledged that S.D.'s recent behavior had not demonstrated any dangerous tendencies and he had refrained from any aggressive or threatening behaviors during his entire incarceration and commitment. Calabrese acknowledged that S.D. had attended alcohol counseling and had remained abstinent for six years.

While past conduct is a permissible predictive tool in reaching an opinion about a committee's current dangerousness, the State must demonstrate that the person's release poses the substantial likelihood that he will harm others "within the reasonably foreseeable future." N.J.S.A. 30:4-27.2i. Our Supreme Court has construed this phrase as requiring "the risk of dangerousness . . . [to] be relatively immediate[.]" In re N.N., 146 N.J. 112, 130 (1996).

In this regard, Calabrese's opinion was essentially contingent upon several predicate conditions, all of which needed to occur before she believed S.D. posed a substantial threat of danger to others. As to those predicate conditions, with the exception of S.D.'s likely relapse into alcoholism, which Calabrese indicated was "probable," the doctor acknowledged that each could "possibly" occur. Such proof does not meet the requisite standard of clear and convincing evidence that S.D. would pose an imminent danger to others if released. See In re J.R., 390 N.J. Super. 523, 532-33 (App. Div. 2007)(noting "possibility [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"); In re W.H., 324 N.J. Super. 519, 523-24 (App. Div. 1999)(noting proof of a possibility is insufficient).

We have noted that in order to continue the denial of an individual's liberty rights under the civil commitment statute, "[e]quivocal proofs are not sufficient. The evidence must permit the judge to come to a clear conviction [that person is mentally ill and dangerous], without hesitancy." In re M.M., supra, 384 N.J. Super. at 334 (citations omitted). We conclude that the proof regarding S.D.'s likely risk for dangerous conduct "within the reasonably foreseeable future" was equivocal because the ultimate conclusion was based upon the required occurrence of a series of predicate events, most of which the expert opined were possibilities, not probabilities, and none of which were factually supported by S.D.'s recent behavior. Since there was no proof that these conditions would necessarily occur, much less that they would probably occur in the immediate future, the proof of S.D.'s dangerousness was less than clear and convincing and hence inadequate under the statute.

Reversed.

We were advised by the parties that S.D. has since been released. The State argues the appeal should be dismissed as moot. We disagree. See In re R.S., 263 N.J. Super. 307, 309 (App. Div. 1992) (noting "involuntary commitment has potential ramifications if the need again arises to evaluate [committee's] mental condition").

S.D.'s commitment was not pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. However, as we recently noted, "the State's burden to justify the continued involuntary commitment . . . is no different for [a committee], whose mental illness contributed to past violent criminal behavior, including a sexual assault, than it is for any other patient who has not committed a violent crime or sexual offense." In re T.J., 401 N.J. Super. 111, 122 (App. Div. 2008).

S.D.'s second argument on appeal is that he should have been conditionally released because that would have been the "least restrictive" appropriate setting. That point is moot in light of S.D.'s unconditional release in the interim.

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A-4070-07T2

RECORD IMPOUNDED

October 14, 2008