IN THE MATTER OF THE COMMITMENT OF E.S

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6118-10T2

IN THE MATTER OF THE

COMMITMENT OF E.S.

__________________________________

April 11, 2012

Argued: March 28, 2012 - Decided:

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CASC-785-11.

Lorraine Gormley Devine, Assistant Deputy Public Defender, argued the cause for appellant E.S. (Joseph E. Krakora, Public Defender, attorney; Ms. Gormley Devine, on the brief).

Joshua A. Friedman, Assistant County Counsel, argued the cause for respondent State of New Jersey (Sherri L. Schweitzer, Camden County Counsel, attorney; Mr. Friedman, on the brief).

PER CURIAM

E.S. appeals from an order of involuntary commitment. The judge found that E.S. posed a danger to herself. We reverse.

On June 3, 2011, E.S. was involuntarily committed to John F. Kennedy Hospital in Cherry Hill. Ten days later, she was transferred to Camden County Health Services Center pursuant to a temporary involuntary commitment order. At the June 28, 2011 hearing to review her continued eligibility for involuntary commitment, two witnesses testified: Dr. Joann Mathews and E.S. Dr. Mathews' testimony highlighted two factors: a history of assaultive behavior by E.S. and her failure to take her medications. The judge quickly determined that E.S. did not pose a danger to others. Accordingly, our review of the testimony offered by Dr. Mathews focuses solely on the issue of whether E.S.'s failure to take prescribed medications posed a danger to herself.

Dr. Mathews testified diagnosed E.S. with bipolar disorder with mixed psychotic features. The doctor reported that E.S. refused to take two medications over the weekend. One medication, Lasix, is a diuretic prescribed to address pedal edema (ankle swelling). The other medication, hydrochlorothiazide, was prescribed to treat hypertension. The doctor stated E.S. took all other prescribed medications. Dr. Mathews opined that failure to take these medications was "potentially life threatening if discontinued on her own." She could not state that E.S. suffered any harm due to the omission of these medications. The record contains no information that the ankle swelling worsened or her blood pressure rose to unhealthy or dangerous levels. Dr. Mathews also admitted that E.S. refused to take the diuretic due to increased urination. A urine culture revealed a urinary tract infection.

E.S. testified that she discontinued the medications "[b]ecause I pee on myself and I have to wash my clothes all the time." She also testified that she lived with her family prior to her hospitalization, sees a medical doctor three or four times a month, and consults a psychiatrist at the Hispanic Family Center (HFC). She did not remember the last time she went to HFC, but stated "sometimes I go every day." She also reported that she would like to return home and would attend the HFC and take her medications.

The judge found that E.S. suffered from a mental illness and posed a danger to herself based on her failure to take the two prescribed medications. He also found the failure to take the prescribed medications would be life-threatening and accepted the "opinion and medical conclusion that [E.S.] would be in clear and present danger, were she to not take her medications, which medication she had refused to take at the hospital." The judge, therefore, continued the commitment of E.S. until the next review hearing on July 26, 2011. E.S. was discharged on July 22, 2011.1

On appeal, E.S. argues that the record contained insufficient evidence to permit the judge to find by clear and convincing evidence that she was a danger to herself and required involuntary commitment. She also contends that she was denied a fair hearing by the judge.

N.J.S.A. 30:4-27.15a authorizes a court to continue an individual's involuntary commitment past a temporary commitment order, so long as "the court finds by clear and convincing evidence that the patient needs continued involuntary commitment to treatment . . . ." The statute defines "in need of involuntary commitment to treatment" as "an adult with mental illness, whose mental illness causes the person to be dangerous to self or dangerous to others or property . . . ." N.J.S.A. 30:4-27.2m. The Legislature further defined the purpose of the statute as requiring commitment only when an individual is "dangerous to [herself], others or property . . . ." N.J.S.A. 30:4-27.1a. When a person is no longer dangerous by reason of mental illness, however, and they can be supported by themselves or by family members, they must be released. See In re Commitment of M.C., 385 N.J. Super. 151, 159 (App. Div. 2006) (citing O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396, 407 (1975)).

"Dangerous to self" is defined as:

[B]y 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. 30:4-27.2h.]

The stated basis for the continued involuntary commitment of E.S. was the danger she presented to herself, not to others. As found by the trial judge, that danger was her failure to take a diuretic for pedal edema and an anti-hypertensive medication.

In re Commitment of J.R., 390 N.J. Super. 523, 525 (App. Div. 2007) addressed the issue of danger to self in the context of the failure to take prescribed medications. J.R. had been involuntarily committed to a psychiatric hospital and diagnosed with bipolar disorder. Ibid. At the review hearing, J.R.'s treating psychiatrist determined the "only danger that [J.R.] may present is that he may stop taking his medication as happened last time." Id. at 525-26 (emphasis and alteration in original). As a result of failing to take his medications, the doctor testified that J.R.'s manic symptoms and aggression "exacerbated." Id. at 526. J.R.'s justification for failing to take his medication was that "he had run out of medication because he had only been given a month's supply . . . . J.R. explained to the judge that he now had the ability to maintain his medication regimen." Id. at 527. J.R.'s girlfriend, S.W., also testified that she had arranged with J.R. and his social worker "alternative sources for obtaining J.R.'s medication to enable him to maintain his supply." Ibid. On these facts, the trial judge found J.R. to be a danger to himself and others. Id. at 528.

This court characterized the judge's dangerousness finding as "based essentially on the judge's belief that if J.R. fails to take his medication, he can become agitated and manic and we have seen assaultive behavior." Id. at 530 (internal quotation marks omitted). We held that the evidence to support this finding was "clearly inadequate" for the State to meet its burden. Id. at 531. The doctor's finding of dangerousness was not sufficiently supported by the record because he offered no explanation how the general description of J.R. as "manic" or "aggressive" meant that J.R. posed a danger to himself, others, or property. Ibid. Even with evidence of prior incidents, this court found insufficient evidence showing such incidents were likely to recur. Id. at 532. Moreover, S.W.'s testimony that she, J.R., and a social worker had a plan to help J.R. consistently stay on his medication suggested any incidents would not likely reoccur. Id. at 532-33.

Ultimately, we held the doctor's testimony "that there is a possibility J.R. may stop taking his medication is insufficient to constitute clear and convincing evidence of a substantial likelihood of future harm necessary for involuntary confinement." Id. at 532. Consequently, this court reversed the order continuing J.R.'s involuntary commitment. Id. at 533. See also In re Commitment of M.M., 384 N.J. Super. 313, 323 (App. Div. 2006) (continued involuntary commitment based on non-compliance with medication regimen not permitted when record revealed M.M. became compliant).

Here, the record does not support the concern articulated by the judge as the basis for the order continuing E.S.'s commitment. E.S. failed to take two non-psychiatric medications on two of the three days preceding the hearing. The record contains only an opinion that failure to take these medications might lead to great harm to E.S. The record contains no evidence of increased swelling, elevated blood pressure, or other medical consequences.

An application to commit a person involuntarily or to continue such a commitment must be based on a finding

by clear and convincing evidence . . . that the patient is in need of continued involuntary commitment by reason of the fact that (1) the patient is mentally ill, (2) mental illness causes the patient to be dangerous to self . . ., (3) the patient is unwilling to be admitted to a facility for voluntary care, and (4) the patient needs care at a short-term care or psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the patient's mental health care needs.

[R. 4:74-7(f)(1).]

J.R., supra, 390 N.J. Super. at 530; In re Commitment of Raymond S., 263 N.J. Super. 428, 431 (App. Div. 1993). Involuntary civil commitment must also be based on more than "the potential for dangerous conduct." J.R., supra, 390 N.J. Super. at 530.

Measured by this standard, the evidence adduced to support the continued commitment of E.S. was not of the quality to permit her continued commitment. The concerns about her failure to take two non-psychiatric medications on two of the three days preceding the hearing established no more than a potential for harm to E.S. Certainly, the evidence did not clearly and convincingly establish that E.S. posed a danger to herself. We, therefore, reverse the June 28, 2011 order of commitment.

Due to this disposition, we need not address the other issue raised by E.S. She contends the judge interfered with the presentation of her case and abdicated his role as a neutral jurist. We would be remiss, however, if we did not mention that the preclusion of testimony from E.S. about her attendance at HFC, her willingness to obtain voluntary treatment, and the availability of alternative treatment modalities and facilities are directly relevant to the issue of involuntary commitment. R. 4:74-7(f)(1).

1 E.S.'s discharge does not render this appeal moot. Her property is subject to a lien for the cost of her hospital care. N.J.S.A. 30:4-80.1; In re Commitment of W.H., 324 N.J. Super. 519, 521 (App. Div. 1999); In re Commitment of A.A., 252 N.J. Super. 170, 172 n.1 (App. Div. 1991).