IN THE MATTER CIVIL COMMITMENT OF J.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3757-05T33757-05T3

IN THE MATTER OF THE CIVIL COMMITMENT OF

J.G.

__________________________________________

 

Argued August 21, 2007 -- Decided August 29, 2007

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, ATSC-76-06.

Lorraine Gormley, Assistant Deputy Public Advocate, argued the cause for appellant J.G. (Ronald Chen, Public Advocate, attorney; Ms. Gormley, on the brief).

William Busch, Atlantic County Assistant County Counsel, argued the cause for respondent State of New Jersey (James F. Ferguson, County Counsel, attorney; Mr. Busch, on the brief).

PER CURIAM

Appellant, J.G., appeals the trial court's February 17, 2006, order continuing her involuntary civil commitment pursuant to N.J.S.A. 30:4-27.15 to the Behavioral Unit of the Atlantic City Medical Center (ACMC), with a review hearing in two weeks. We affirm.

J.G. is age forty-nine and has a long history of psychiatric hospitalizations. J.G. was involuntarily committed to the ACMC, on January 30, 2006, by a temporary order for involuntary commitment dated February 1, 2006, pursuant to N.J.S.A. 30:4-27.10. J.G. was recommitted after a review hearing to the ACMC pursuant to the February 17, 2006, order which is the subject of this appeal.

Subsequent to her recommitment, pursuant to the February 17, 2006, order, J.G. was transferred to Ancora Psychiatric Hospital (Ancora), where, after a review hearing on March 3, 2006, J.G. was placed on continued extension pending placement (CEPP) status, subject to a conditional discharge per N.J.S.A. 30:4-27.15(c)(1). Her CEPP status was renewed at several subsequent hearings, while placement was sought. J.G. was administratively discharged from Ancora on July 6, 2006. J.G.'s appeal of her February 17, 2006, recommitment was filed March 16, 2006.

At the beginning of the February 17, 2006 plenary hearing, J.G. expressed complaints about the adequacy of her treatment at ACMC, requested that the judge recuse himself because of his involvement in an earlier case involving her involuntary commitment, and sought to discharge the attorney appointed to represent her and represent herself. J.G. requested the discharge of counsel because counsel had an inadequate opportunity to meet with her and review the facts of her case and her previous commitment history prior to her hearing and, thus, was not prepared to properly represent her.

The judge declined to recuse himself stating that the existence of an appeal of his prior commitment order was insufficient grounds for recusal. The judge counseled J.G. against dismissing her assigned counsel because of her lack of legal training and counsel's knowledge of the law and trial procedures. The court ruled that J.G. would be allowed to conduct cross-examination on her own but directed her attorney to be available to advise her.

J.G. outlined a number of her complaints concerning her treatment at ACMC. They included the alleged stealing by hospital staff of her bank card, staff refusing her permission to order take-out food, the failure to provide her a vegetarian diet, and declining to provide her a medical evaluation and treatment.

Dr. Alexander S. Zwil, J.G.'s treating psychiatrist and medical director for inpatient psychiatry for ACMC, testified for the State. Dr. Zwil indicated J.G. refused to be formally examined. However, by observing J.G.'s affect and behavior and listening to her verbal output, as recently as the day of the hearing, he was able to make a psychiatric diagnosis to a reasonable degree of medical certainty.

Dr. Zwil made an Axis I diagnosis of schizophrenia, chronic paranoid type, consistent with previous diagnoses contained in records he had reviewed. Dr. Zwil noted that when J.G. was examined medically in the emergency room (ER) at the time of her admission to the ACMS she was found to have a low serum potassium level (LSP) which, based on her emaciated appearance, Dr. Zwil opined was probably due to low nutrition. The doctor stated that LSP is a potentially serious medical problem that can lead to cardiac arrhythmias. J.G. had refused potassium replacement, an electrocardiogram, and further laboratory testing since her admission to ACMC. Dr. Zwil indicated that J.G. had agreed to be treated with Risperdal for her psychiatric condition but refused Haloperidol.

Dr. Zwil opined that J.G.'s psychiatric and medical conditions placed her at great risk of exposure to malnutrition and victimization if she were released into the community on the date of the hearing, because the only available facility for her to be released to was the Atlantic City Rescue Mission. Dr. Zwil opined that because J.G. would not obtain adequate nutrition in those circumstances she was at risk to further the LSP and was apt to have additional malnutrition related metabolic disturbances which could put her at serious risk and disability or even death from medical causes.

Dr. Zwil, in support of his diagnosis of schizophrenia, paranoid type, stated that while admitted in the hospital, J.G. was preoccupied with delusional events in her verbalizations and writings, and was verbally aggressive and abusive with staff, including making anti-semetic remarks directed to staff she believed were Jewish. The doctor noted that J.G. had refused to provide ACMC staff permission to contact her family to confirm that she is able to return to her family's residence. He stated that J.G. was brought to the ER by her elderly mother who was unable to continue to care for her. Therefore, J.G. was unable to be discharged to her mother, leaving the Rescue Mission as the only alternative placement.

Dr. Zwil testified there had been no improvement in either J.G.'s psychiatric or medical conditions since her admission on January 30, 2006. Dr. Zwil stated that the anti-psychotic medication, Risperdal, can take as long as four to six weeks to work. The doctor recommended that J.G. continue with inpatient psychiatric treatment to insure her safe treatment, notwithstanding her lack of cooperation with treatment, so that after receiving her medication for a sufficient period of time her psychiatric condition would improve to a point where she could be released to a less restrictive environment or home.

Dr. Zwil, on cross-examination by J.G., explained the basis for his diagnosis of paranoid schizophrenia as J.G.'s pervasive delusional ideation, including allegations by her that he and staff members have performed patently untrue actions. The doctor added that she is preoccupied with delusions she believes to be true and is unable to focus on goal-directed conversation because of her preoccupation with her paranoid delusions.

J.G. in her own defense gave ten transcribed pages of what the judge described as "rambling and disconnected speech" consistent with the delusional thinking Dr. Zwil described as indicative of a diagnosis of paranoid schizophrenia.

J.G.'s direct testimony, which is supportive of the judge's conclusion of rambling and disconnective speech, included statements that she suffers from Parkinson's Disease and is paralyzed on the left side of her body with a "vascular luke lesion." She also stated that: she was placed under investigation by the Department of the Navy in an espionage case in connection with a Navy physicist; she had contacts with the FBI, Office of Professional Responsibility, the National Security Agency, and the Office of the Inspector General; the U.S. Attorney in Philadelphia is in the process of instituting a premeditated murder by torture charge in connection with FBI agents interfering in her medical treatment for breast cancer; she was under investigation by the FBI who refused to allow her to leave the country; she had produced critical analysis of original Latin prayers and had contacted the Church in an attempt to have them rewrite the prayers to return to original doctrine; she is a descendant of the Lithuanian and Prussian Aristocracy but she had no Irish ancestry and therefore Schizophrenia is unlikely; Navy Agents attacked her and the Navy Department would not accept the Central Intelligence Agency's disposing of her espionage case due to her work with people from the Kremlin; her lineage is Prussian Royalty; there was a vigilante attack by Jews upon her; and she had traced her lineage back to an Egyptian Tribe and had been in contact with the Egyptian Embassy who would verify these statements. She reported that every job she has had, the FBI has moved in and taken employment away. She also said that her mother suffers from Alzheimer's disease and is insane. As respects her medical condition, J.G. stated that when she came to the ER, she brought with her urine samples which were luminescent orange with white powder crystals. J.G. asserted that her heart is paralyzed from a toxin inside that was documented at Bryn Mawr Hospital, and that the hospital has provided her information that potassium will kill her because of this toxic chemical that is still stuck in her stomach. After making the above "rambling and disconnected" remarks, the court terminated J.G.'s testimony.

J.G.'s attorney was able to elicit, on cross-examination of Dr. Zwil, a concession that J.G. would be safe in a family home where her nutritional and medical needs could be accommodated. The doctor noted, however, that because of J.G.'s lack of cooperation, the hospital was unable to contact J.G.'s mother. However, if J.G.'s cooperation could be obtained, Dr. Zwil testified that he would include her family in a treatment and release plan.

The judge made the following findings of fact and conclusions of law:

[T]he doctor's testimony was established by clear and convincing evidence to me that, number one, you do suffer from mental illness, which is schizophrenia, chronic paranoid type. The doctor found that to be congruent with your previous diagnosis. The doctor's factual basis that he relies upon is not only credible and believable, but is evidenced from your presentation here in court also.

I further find that at the present time, there is no less restrictive environment where you could receive essential medical care and shelter because without the medical care and shelter that is available to you here, there is substantial possibility -- it's probable that you will suffer serious physical debilitation. The low serum potassium continues that can lead to cardiac arrhythmia --

. . . .

-- upon those facts, I conclude that the State has established by clear and convincing evidence the elements for a further commitment. I'm going to order continued commitment and I'll place a review period of two weeks.

J.G. presents the following arguments for our consideration.

POINT I: THE ORDER FOR COMMITMENT BELOW SHOULD BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

A. CONSTITUTIONAL GUARANTEES OF DUE PROCESS AND THE STATUTORY RIGHT TO COUNSEL REQUIRE THAT A CIVIL COMMITTEE BE AFFORDED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

B. EFFECTIVE ASSISTANCE OF COUNSEL MEANS THAT COUNSEL HAS ADEQUATELY PREPARED AND ADVOCATED AGAINST A PATIENT'S INVOLUNTARY COMMITMENT.

C. J.G. WAS DENIED HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II: THE APPROPRIATE REMEDY WHEN A PATIENT COMPLAINS THAT HER COUNSEL HAS NOT PREPARED HER CASE PROPERLY IS NOT TO REQUIRE THE PATIENT TO PROCEED PRO SE.

POINT III: THE TRIAL JUDGE ERRED BY COMMITTING J.G. ABSENT CLEAR AND CONVINCING EVIDENCE OF DANGEROUSNESS AS DEFINED BY STATE COMMITMENT STATUTES.

A. THE STATE BEARS THE BURDEN OF ESTABLISHING THAT APPELLANT IS A DANGER TO SELF, OTHERS, OR PROPERTY BY CLEAR AND CONVINCING EVIDENCE.

B. THE STATE FAILED TO ESTABLISH CLEAR AND CONVINCING EVIDENCE THAT J.G. WAS A DANGER TO SELF AS DEFINED BY STATE COMMITMENT STATUTES.

I.

In In re Commitment of J.R., 390 N.J. Super. 523 (App. Div. 2007), we reiterated the statutory and case law prerequisites for involuntary mental health commitment. We stated:

The civil commitment procedure 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 with mental illness, 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 right to liberty." State v. Fields, 77 N.J. 282, 300 (1978) (quoting Fasulo v. Arafeh, 173 Conn. 473, (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, 547 (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, 138 (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.

[Id. at 529-30.]

In this case, Dr. Zwil provided uncontradicted testimony that J.G. suffers from a documented and serious medical condition for which she was refusing prescribed medication, and to the possible serious medical effects which might arise from that refusal. The doctor further attributed J.G.'s refusal to accept suitable nourishment and accept medical treatment as being related to her axis one diagnosis of schizophrenia, chronic paranoid type. The doctor noted that these delusions prevent her from accepting the treatment which would permit her to be released safely from the hospital. Additionally, J.G.'s rambling and largely incoherent testimony is consistent with Dr. Zwil's conclusion as to J.G.'s need for treatment and the risks that would result from her release to any less secure facility than the ACMC.

Implicit in Dr. Zwil's psychiatric diagnosis is that if J.G. were released to a less secure state of confinement on the date of the hearing, her psychiatric condition coupled with her medical condition would cause her to be a danger to herself, as defined by N.J.S.A. 30:4-27.2h. The record clearly establishes that the medical staff at ACMC was having difficulty convincing J.G. to accept medication, nutrition, and treatment, which Dr. Zwil opined was of paramount importance to her continued health and safety.

We are satisfied the expert medical testimony of Dr. Zwil as corroborated by J.G.'s incoherent and rambling testimony constituted clear and convincing evidence J.G. suffers from a mental illness that caused her to be a danger to herself on the date of her review hearing. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We are convinced, therefore, that the court properly entered an order providing for J.G.'s continued commitment with a review in two weeks. N.J.S.A. 30:4-27.15.

II.

Because of our decision on the merits, we decline to address in any detail J.G.'s contention that she was deprived of the effective assistance of trial counsel. J.G. argues that she is entitled as a matter of constitutional due process to the effective assistance of counsel, which is statutorily required to be provided to her by N.J.S.A. 30:4-27.11(c) and N.J.S.A. 30:4-27.12(d) and by Rule 4:74-7(e). The State agrees that J.G. is entitled in a civil commitment proceeding to the effective assistance of counsel equivalent to that afforded to criminal defendants. We agree. See In re J.L., 94 N.J. 128, 137 (1983) (holding "because commitment effects a great restraint on individual liberty, this power of the State is constitutionally bounded," and that in order to comply with due process, the individual has the right to be represented by counsel).

J.G. urges that the two-part test for effective assistance of counsel required for criminal defendants under the Sixth Amendment established in Strickland v. Washington, 446 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), should not apply but we should instead adopt a more liberal standard, similar to that adopted by the Montana Supreme Court in In the Matter of the Mental Health of K.G.F., 29 P.3d 485 (2000). Under that approach, if counsel failed to perform "five critical areas of representation" on behalf of the committee, the commitment order is subject to vacation, as a violation of due process under the applicable sections of the Montana Constitution, without the need for demonstrating that the outcome would likely have been different if the critical area of representation had been adhered to. Id. at 500-01.

The State urges that the Strickland/Fritz standard should apply, and that neither prong is met on this record. Our Supreme Court has adopted the Strickland/Fritz test for ineffective assistance of counsel claims in termination of parental rights cases as a matter of constitutional imperative. See New Jersey Division of Youth & Family Servs. v. B.R., ___ N.J. ___, ___ (2007) (slip op. at 6-7). That test requires not only a showing of deficient misrepresentation, but also a showing that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d 698. The error committed must be so serious to undermine the court's confidence in the decision rendered. See State v. Castagna, 187 N.J. 293, 313-15 (2006).

In our view the Strickland/Fritz test is most likely the appropriate one in the context of a civil commitment proceeding. See In re L.G., 2 006 Ohio 5043 (Ohio Ct. App. 2006) (declining to accept K.G.F., supra, as standard for ineffective assistance of counsel claim in mental health cases); In re the Det. of T.A.H.-1 Snohomish County v. T.A.H.-L, 97 P.3d 767 (Wash. Ct. of App. 2006) (finding the Strickland standard sufficient to protect the rights for a civil committee). Even if a more expansive test than Strickland/Fritz were adopted as the standard by which the attorney's conduct is measured, we are confident that the second prong of the Strickland/Fritz test would apply. We are satisfied that on this record the second prong is not satisfied, and, therefore, even if counsel's conduct were somehow deficient, there is no basis to vacate the commitment order. Accordingly, we affirm.

 

(continued)

(continued)

16

A-3757-05T3

RECORD IMPOUNDED

August 29, 2007