IN THE MATTER OF THE CIVIL COMMITMENT OF J.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.W.

_____________________________

December 21, 2016

Argued December 6, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. MK-12-10-012.

Daniel O'Brien, Assistant Deputy Public Defender, argued the cause for appellant J.W. (Joseph E. Krakora, Public Defender, attorney; Mr. O'Brien, on the brief).

LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent The State of New Jersey (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

J.W. appeals from an August 3, 2015 order for continued involuntarilycommitment at the Trenton Psychiatric Hospital. We affirm.

On October 16, 2012, J.W. was found not guilty by reason of insanity of fourth-degree impersonating a police officer, N.J.S.A.2C:28-8; first-degree carjacking, N.J.S.A.2C:15-2; second-degree kidnapping, N.J.S.A.2C:13-1(b)(1); third-degree criminal restraint, N.J.S.A.2C:13-2; and third-degree receiving stolen property, N.J.S.A.2C:20-7. He was committed to the custody of Ann Klein Forensic Center.

In April 2013, the court transferred J.W. to level one security. Defendant was transferred to Trenton Psychiatric Hospital, but in October 2013, the court ordered J.W.'s privileges be increased to Level of Supervision (LOS) II privileges. In April 2014, the court increased J.W.'s level of privileges to LOS III.

On June 8, 2015, the court held a Krol1hearing and heard testimony from Dr. Jocelyn Fabila, a Clinical Psychiatrist at Trenton Psychiatric Hospital. Dr. Fabila testified that J.W. has schizoaffective disorder, bipolar type and the facility ensures that he receives an injection every twenty-eight days for his disorder. Dr. Fabila testified that J.W. had a history of non-compliance with his medications, which resulted in his decomposition. J.W. would become delusional, including impersonating a police officer and becoming aggressive. She recommended that J.W. stay in the hospital and be reviewed again in three months. She believed he was still a danger to himself and others and wanted to see him slowly reintegrate into the community by attending programs with staff supervision.

The court issued an oral decision and found J.W. continued to suffer from mental illness and he remained dangerous. The judge then ordered the continued commitment of J.W., increased LOS III privileges, and scheduled a Krolreview in three-months.

J.W. moved for reconsideration and the court denied that request on July 29, 2015. In denying reconsideration, the judge stressed J.W.'s history of non-compliance with his medication after being released from hospitals. The court reasoned that gradually removing J.W.'s restrictions would allow J.W. to show that he can "cope responsibly with the stresses of normal everyday life with diminishing degrees of supervision."2

On appeal, J.W. argues

I. J.W. IS NOT MENTALLY ILL WITHIN THE MEANING OF THE NEW JERSEY CIVIL COMMITMENT ACT AND THEREFORE THE DENIAL OF HIS REQUEST TO BE PLACED ON DISCHARGE PLANNING STATUS WAS UNCONSTITUTIONAL. THE COURT MISAPPLIED THE DEFINITION OF MENTAL ILLNESS CONTAINED IN N.J.S.A. 30:4-27.2(r) AND AS CLARIFIED IN SUBSEQUENT CASE LAW.

II. THE STANDARD OF REVIEW VIS- -VIS THE LOWER COURT'S APPLICATION OF N.J.S.A. 30:4-27.2(r) IS DE NOVO BECAUSE IT IS AN INTERPRETATION OF LAW AND THEREFORE NOT ENTITLED TO SPECIAL DEFERENCE.

III. PRESUMING ARGUENDOTHAT THERE WAS CONSTITUTIONALLY SUFFICIENT EVIDENCE OF MENTAL ILLNESS, THE EVIDENCE PRODUCED BY THE STATE AT TRIAL FAILED TO SATISFY THE CONSTITUTIONAL BURDEN OF PROOF OF DANGEROUSNESS BECAUSE THERE WAS NO ARTICULATION OF THE POSSIBLE DANGER NOR ANY INDICATION THAT J.W. WOULD BE DANGEROUS WITHIN THE REASONABLY FOR[E]SEEABLE FUTURE BECAUSE THE EXPERT ONLY OFFER[ED] A WILDLY SPECULATIVE NET OPINION.

J.W. does not challenge his initial diagnosis of schizoaffective disorder, bipolar type, but claims that he does not presently suffer from a mental illness because he is currently symptom free.

In Krolcases, we defer to the trial court's findings when the record contains clear and convincing evidence of "a substantial risk of dangerous conduct within the reasonably foreseeable future." In re Commitment of T.J., 401 N.J. Super.111, 119 (App. Div. 2008) (quoting In re S.L., 94 N.J.128, 138 (1983)). We "reverse[] only when there is clear error or mistake[.]" In re Commitment of M.M., 384 N.J. Super.313, 334 (App. Div. 2006).

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).]

The definition "requires . . . that the person to be committed harbor a 'substantial disturbance of thought, mood, perception or orientation' significantly impairing the individual's 'judgment, capacity to control behavior or capacity to recognize reality[.]'" Matter of Commitment of D.M., 313 N.J. Super.449, 455-56 (App. Div. 1998) (quoting N.J.S.A.30:4-27.2(r)). The mental illness must "cause[] him to be 'dangerous to [him]self or dangerous to others or property[.]'" Id.at 456 (second alteration in original) (quoting N.J.S.A.30:4-27.2(m)). In drafting the statutes, "the Legislature clearly intended to balance the rights of the mentally ill with those of our citizens who are not so afflicted." Id. at 455.

There is sufficient credible evidence to support the judge's finding that J.W. suffered from a mental illness. Although Dr. Fabila admitted J.W. was "symptom-free," she stated that he still suffered from schizoaffective disorder, bipolar type. She testified that J.W.'s illness causes him to become delusional and aggressive when he fails to take his medication. Dr. Fabila also testified that J.W. was still guarded about his prior charges and claimed to not remember them occurring.

A person can be involuntarily committed when their mental illness "causes the person to be dangerous to self, or dangerous to others or property[.]" N.J.S.A.30:4-27.2(m); seeState v. Krol, 68 N.J.236 (1975). This determination "lies with the courts, not the expertise of psychiatrists and psychologists." In re D.C., 146 N.J.31, 59 (1996). "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 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).]

Furthermore "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, threat or serious psychiatric deterioration.

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

Although dangerousness predicts defendant's future conduct, a "defendant's past conduct is important evidence as to his probable future conduct." Krol, supra, 68 N.J.at 261. Furthermore, as the level of dangerousness of the person committed decreases, he or she "should be afforded the opportunity to demonstrate his [or her] ability to cope responsibly with the stresses of normal everyday life with diminishing degrees of supervision." State v. Fields, 77 N.J.282, 303 (1978). "[T]he outright release of the committee[] into the community without the use of any intermediate levels of restraint, would normally constitute a manifestly mistaken exercise of the reviewing court's discretion." Ibid. (internal citation omitted).

There exists sufficient credible evidence that J.W. was a danger to others or himself. The judge properly considered J.W.'s long history of not taking his medication after release. The facts here are dissimilar to In re Commitment of J.R., where we held that not taking medication was insufficient to establish dangerousness. 390 N.J. Super. 523, 531 (App. Div. 2007). The appellant in J.R.did not have a long history of failing to take his medication and was not a danger to others when he decompensated. In J.R., the doctor testified that the appellant became verbally assaultive toward staff at the hospital and was careless while smoking, but was unable to provide any incidents where the appellant had assaulted someone in the community while he was suffering from his mental illness. Id. at 526.

Here, J.W. was admitted to the hospital for his psychiatric illness. He was released three times, but each timehe stopped taking his medication. His delusions also caused him to become aggressive and dangerous, which was evidenced by him kidnapping a person and taking a car. Dr. Fabila also testified that she believed J.W. was a danger to himself or others. She stated that he could decompensate if released into society today and she wanted to reintegrate him into society by putting him in the least restrictive environment.

J.W.'s contentions that Dr. Fabila's testimony was a net opinion are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E).

Affirmed.

1 State v. Krol, 68 N.J. 236 (1975).

2 At oral argument before us, counsel represented that J.W. has since been released from the hospital.