IN THE MATTER OF THE COMMITMENT OF R.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1213-08T21213-08T2

IN THE MATTER OF THE

COMMITMENT OF R.P.

___________________________________

 

Argued May 5, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. MH-729-2006.

Purificacion Flores, Assistant Deputy Public Advocate, argued the cause for appellant, R.P. (Ronald K. Chen, Public Advocate, attorney; Ms. Flores, of counsel and on the brief).

Thomas M. Bachman, Assistant Essex County Counsel, argued the cause for respondent, State of New Jersey, County of Essex (James R. Paganelli, Essex County Counsel, attorney; Mr. Bachman, of counsel and on the brief).

PER CURIAM

R.P. appeals from an order entered on September 18, 2008 continuing his involuntary civil commitment and scheduling his next review hearing for December 11, 2008. At the December 11, 2008 hearing, his involuntary commitment was terminated and he was granted a Conditional Extension Pending Placement (CEPP).

Appellant was sentenced to a term at the Adult Diagnostic Treatment Center (ADTC) after he was found guilty of sexual assault, burglary, possession of a weapon for an unlawful purpose and terroristic threats. The charges arose from his invading the home of a fourteen-year-old girl, restraining her, cutting off her clothes and sexually assaulting her in the presence of her five-year-old brother. Appellant served approximately 12 years in the ADTC.

In a termination report dated March 3, 2005, an ADTC therapist evaluated appellant's record and made the following recommendations:

On the STATIC-99, [R.P.'s] score indicates that he is at "medium-low" risk for sexual re-offense. On the MnSOST-R, he has a score that suggests that he is a "moderate" risk for sexual re-offense. This risk is exacerbated by [R.P.'s] long history of substance abuse and lack of family or community support. Nevertheless, it is the opinion of the writers that [R.P.] does not meet the criteria for commitment as a [s]exually [v]iolent [p]redator. Given his long-standing psychiatric stability, [R.P.] is not a candidate for general civil commitment. Upon release it is recommended that he attend sex offender specific aftercare, attend substance abuse treatment and attend Alcoholic and Narcotic Anonymous meetings, weekly.

On June 27, 2005, an ADTC psychiatrist evaluated appellant to determine whether he met the criteria for civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.26. At the time of that evaluation, R.P. was fifty-one years old and the diagnostic impression was:

AXIS I: Paraphelia, [NOS].

Post-Traumatic Stress Disorder.

Heroin and Alcohol Dependence in Institutional Remission.

AXIS II: Borderline Intellectual Functioning.

Possible Mild Mental Retardation.

Borderline Personality Disorder.

Antisocial Personality Disorder.

Conduct Disorder.

AXIS III: Meditastic Disease of the Right Humerus.

History of Renal Malignancy, Reportedly

in Remission.

Headaches, Chronic Migraines.

Chronic Renal Insufficiency.

Hypertension.

Hyperlipidemia.

Hyperglycemia.

Glaucoma.

His prognosis was "Fair-Poor." The psychiatrist authoring the report stated:

I am concerned about this inmate's ability to obtain his basic needs once released - including medical, sex offender and mental health care; this is based on the combination of impaired intellect, potentially fatal metastatic disease, his past propensity for rapid and severe decompensation to suicidality and substance abuse in times of stress, severe underlying symptamology of PTSD and personality disorder, and almost non-existent community or financial supports. While [R.P.] has "thrived" in a relative sense at the ADTC, I am of the opinion that when the structure of this facility disappears, he will not be able to navigate the "real" world and may suffer psychiatric decompensation, leading to an inability to take care of his basic needs. To this date, no viable plan for discharge, which would require a supportive living environment, has been able to be arranged. Therefore, I recommend general civil commitment for [R.P.] at the completion of his sentence.

Accordingly, on July 27, 2005, the State moved for temporary commitment of R.P. to Ann Klein Forensic Center (Ann Klein) for evaluation to determine whether he was a danger to himself or others. He was admitted to Ann Klein on August 5, 2005, where he participated in sex offender programs at Ann Klein. His involuntary commitment was continued after each review.

R.P. was scheduled for review on September 18, 2008 after he had been transferred to a medical unit at Trenton Psychiatric Hospital (TPH). At that time, his treating psychiatrist, Dr. Anita Sack, testified that he was stable on medications, did not have any current psychotic symptoms, was cooperative, exhibited mood stability, good impulse control, excellent medication compliance and was good with unit routine. The psychiatrist noted that R.P. had not engaged in any assaultive or sexually inappropriate behavior since his transfer to TPH from Ann Klein. He was then undergoing cancer treatment for metastatic bone cancer and required the use of a walker. Despite R.P.'s apparent stability, the psychiatrist recommended continued commitment based upon R.P.'s complete lack of family or community support, the nature of his offense and his Megan's Law status. The psychiatrist further indicated that there was an administrative procedure necessary for recommendation to a community based placement and that an individual psychiatrist was "not supposed to just make the recommendation."

At the September 18, 2008 hearing, R.P. requested a supervised community placement and termination of his involuntary civil commitment, even though his treatment team had not recommended or presented a plan for community placement. The court denied that request and continued the involuntary commitment until the next hearing in December 2008.

In this appeal, R.P. argues:

POINT I

THE COURT BELOW ERRED IN CONTINUING APPELLANT'S INVOLUNTARY COMMITMENT ABSENT PROOF OF DANGEROUSNESS BY REASON OF A MENTAL ILLNESS

POINT II

THE COURT BELOW ABUSED ITS DISCRETION BY REFUSING TO END R.P.'S COMMITMENT AND INSTEAD RELIED ON AN EXPERT'S NET OPINION THAT WAS CONTROLLED BY AN ADMINISTRATIVE COMMITTEE

A. The psychiatrist's opinion testimony in support of [a]ppellant's continued involuntary commitment was controlled by the SSPRC

B. The trial court improperly gave conclusive weight to the psychiatrist's net opinion testimony in finding R.P. was dangerous to others

POINT III

THIS APPEAL IS NOT MOOT BECAUSE APPELLANT RETAINS A SUBSTANTIAL LEGAL INTEREST IN THE OUTCOME

A. The issues presented are capable of repetition yet may evade review

B. The present appeal is not moot because collateral consequences flow from a wrongful involuntary commitment

C. The present appeal is not moot since it involves important issues of public policy

POINT IV

THERE IS NO PROVISION IN "MEGAN'S LAW" THAT AUTHORIZES THE IMPOSITION OF DIFFERENT STANDARDS AND PROCEDURES IN MENTAL HEALTH COMMITMENT CASES

At the December 2008 hearing, R.P.'s involuntary commitment was terminated and he was granted the CEPP status that he had sought at the September 18 hearing from which he is now appealing. He argues that although he obtained the relief he sought, this appeal is not moot because the issue will recur in other cases, if not his. He further maintains that "[t]his case presents this [c]ourt with an opportunity to further explain the standards to be applied and the authority of the trial judge in terminating involuntary commitment when the evidence does not support an individual's continued commitment."

"Mootness is ordinarily defined as the inability of a court because of attendant circumstances to grant judicial relief." Pressler, Current N.J. Court Rules, comment on R. 2:8-2 (citing Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002); Majarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000). Appeals from involuntary civil commitments may not be moot where the dismissal may cause the committee to be subject to long-term involuntary commitment if the need were to rise again to evaluate the committee's mental condition. Ibid. (citing Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006); M.X.L. v. N.J. Dept. of Human Servs., 379 N.J. Super. 37, 41 (App. Div. 2005); Matter of Robert S., 263 N.J. Super. 307 (App. Div. 1992)). Here, we dismiss the appeal as moot because the requested relief has already been granted by the trial court and R.P. is unlikely to be subject to long-term commitment in the future. Moreover, in our experience, there are very few, if any, cases similar to this and the issue is highly unlikely to recur.

The appeal is dismissed as moot.

 

(continued)

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8

A-1213-08T2

RECORD IMPOUNDED

July 15, 2009