IN THE MATTER OF THE CIVIL COMMITMENT OF A.R

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4384-10T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

A.R.

______________________

Submitted May 8, 2012 Decided May 16, 2012

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. 894-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Lizzette Zayas, Assistant Deputy Public Defender, on the brief).

Donato J. Battista, Hudson County Counsel, attorney for respondent (Daniel W. Sexton, Assistant County Counsel, of counsel and on the brief).

PER CURIAM

A.R. appeals from an order dated April 19, 2011, approving his involuntary civil commitment. We reverse.

I

We begin by commenting on what is and is not properly before us. A.R. had been a patient at Greystone Park Psychiatric Hospital (Greystone or hospital), since March 4, 2009. He had been on CEPP status1 for almost a year, when a series of events caused the State to seek to once again involuntarily commit him at a hearing held on April 19, 2011. The hearing was brief. The State presented one witness, and A.R. testified on his own behalf. The State did not introduce any records in evidence, including the hospital records allegedly documenting the incidents that led the State to seek A.R.'s re-commitment.

Before filing its appellate brief, the State sought to subpoena A.R. s psychiatric records from Greystone, apparently in an effort to fill in gaps in its proofs. Then, without filing a motion to supplement the record on appeal, the State proceeded to file an appellate appendix that included documents that post-dated the hearing, and filed a brief rife with references to psychiatric terms and diagnoses that were not part of the hearing testimony.2 This was improper.

The record on appeal consists of the documents on file with the trial court, including prior orders as to which we can take judicial notice, and the evidence introduced at the hearing. See R. 2:5-4(a). If the State intended to include additional documents in its appendix, either in support of its arguments on the merits or its argument that this appeal is moot, it was obligated to file a motion to supplement the record. It did not do so, and we will not consider any of the documents improperly included in its appendix. Nor will we consider any factual assertions not supported by citations to the record.

II

The following evidence was presented at the hearing. The State presented testimony from Dr. Jacqueline McFarland.3 Without objection, she testified that A.R. suffers from schizo-affective disorder, bipolar type, and an Axis II diagnosis of antisocial personality disorder. He had been a patient at Greystone since March 4, 2009. She confirmed A.R. had been on CEPP status for about ten months, until March 12, 2011.

According to Dr. McFarland, on March 12, 2011, A.R. assaulted another patient who was walking past him in a hospital hallway. Dr. McFarland testified that the assault was recorded on a security video which revealed that the other patient had not provoked the assault. However, Dr. McFarland was not present during the incident. She testified to hearsay contained in the notes prepared by a charge nurse. The nurse who witnessed the incident did not testify, and the State did not introduce in evidence either the nurse's notes or the video. Dr. McFarland testified that the other patient was not seriously injured. However, she testified that the police were called and A.R. was agitated and required medication.

Dr. McFarland further testified that a few weeks prior to the March 12 incident, the patient was "having periods of agitation" on January 25, 2011, and threatened to attack her on January 27, 2011. According to Dr. McFarland, during the January 27 incident, A.R. expressed his outrage at the hospital's failure to release him in a timely manner:

[A.R.] stood [at] the Patient Information Center and began shouting very loudly that he would attack anybody who came near him, because he's angry that he hasn't been discharged. He's been there two years. Other people have been discharged who were admitted after him. And so he was not going to take any medication when he was discharged, he'd smoke his crack and marijuana. And while he was still in the hospital, would assault anyone who came near him, it didn't matter whether it was a psychiatrist or one of his friends.

Dr. McFarland admitted that A.R. did not specifically mention her as being a psychiatrist whom he threatened to assault.

She testified that A.R. was "psychiatrically stable at the moment." However, she opined that his "dangerous behaviors" were mainly attributable to his Axis II diagnosis of antisocial personality disorder, although she did not further describe that disorder or why it caused him to be dangerous. She testified that this was the type of disorder that was "very resistant to improvement" and A.R. was not seeing a psychologist or otherwise accepting treatment for that condition. When the State's attorney asked her, in conclusory fashion, whether A.R. "presents as a danger to others by reason of mental illness and that this is likely to occur within the reasonably foreseeable future," Dr. McFarland replied, "[c]orrect." But she did not further explain why or how she reached that conclusion.

According to Dr. McFarland, A.R. told her his version of the March 12 incident, which was that the other patient touched him on the buttocks and "as a result he got upset and slammed him against the wall." Dr. McFarland admitted that immediately after the incident, A.R. called 9-1-1 "to report the other patient." She testified that he wanted to press charges but the police refused "because they were not convinced that the incident had occurred." She testified that A.R. later expressed regret that he had reacted violently toward the other patient.

On cross-examination, Dr. McFarland admitted that she had not seen the videotape of the March 12 incident, and that the charge nurse still worked at the hospital although she was not called as a witness. Dr. McFarland also testified that the videotapes were not routinely made available to the hospital psychiatrists, the patients' attorneys, or the State's attorneys.

Dr. McFarland explained that prior to the March 12 incident, A.R. had been on CEPP status for almost a year, while the staff tried to find an appropriate place for him to live. She testified that problems with A.R.'s immigration status complicated his placement. At one point the staff had located a group home for him to live in, but the process was delayed while they waited for "welfare paperwork," and the available slot went to someone else. Although she testified that A.R. had not been attending therapy, Dr. McFarland admitted that he "has been medication compliant" and had not assaulted anyone else since the March incident. She denied that it was her "idea" to apply to have A.R. re-committed.

A.R. testified that during the March 12 incident, the other patient "pinched me, my butt with his hands, he touched my butt." In response, A.R. "pushed him once" and "told him to be careful." He confirmed that he pushed the other patient away because he "just wanted him to get away from me." Afterwards A.R. went out on the porch to "get some air" and when he came back inside, he called the police. A.R. testified that he was taking all of his medications as of the time of the hearing. He also asserted that Dr. McFarland had told him that she would make it "very hard" for him to get released, because he was a plaintiff in a federal lawsuit filed by an advocacy group for persons with mental illness, and she was a defendant in that litigation.

On cross-examination, A.R. denied that he attacked another patient in 2010. He admitted that he "grabbed" another patient in self-defense after the March 2011 incident. He also admitted that recently he had been feeling depressed and had not attended his therapy group for several days.

In an oral opinion placed on the record after the hearing, the judge considered the differences between A.R.'s hearing testimony about the March 12 incident and what Dr. McFarland testified A.R. told her about the incident. He also considered that A.R. did not deny making the statements in January 2011 about attacking "the psychiatrist." However, the judge also stated that, for future reference, any videotapes relevant to the commitments hearings should be made available to the patient's attorney. He also observed that the hospital should be doing more to assist A.R. to obtain a community placement:

I continued him on CEPP, because I was hoping he would be placed. The immigration status, I think it has to be addressed by the hospital. If he had a green card and he doesn't have it now or [if] there's something wrong with the green card, I think it's the hospital's obligation to try and assist him in that regard.

The judge then determined to continue A.R.'s involuntary civil commitment:

But right now I am satisfied he suffers from a mental illness, the schizo [a]ffective disorder bipolar type. I am satisfied that at least for now he's a danger to other[s]. Some of that could be frustration, but that's argumentative . . . .

I accept Dr. McFarland's testimony. As far as the patient is concerned, his recall is selective in my view.

So I'm going to continue him [as involuntarily committed], but I'm going to order [a] review of this matter in one month.

III

The State argues that this appeal is moot, contending that after April 19, 2011, A.R. was once again placed on CEPP status and later was once again re-committed. In making those arguments, the State improperly relies on documents not in the record without making a motion to supplement the record. However, even if A.R. had been released from Greystone, this appeal would not be moot, because the commitment decision here might be considered pertinent in a future commitment hearing and this matter implicates A.R.'s constitutional liberty. See In re Commitmentof T.J., 401 N.J. Super. 111, 118 (App. Div. 2008); In re Commitmentof M.M., 384 N.J. Super. 313, 323 n. 3 (App. Div. 2006); Greenfield v.N.J. Dep't Corr., 382 N.J.Super. 254, 257-58 (App. Div. 2006).

IV

In order to justify a patient's involuntary civil commitment, the State must present clear and convincing proof that the person presents a danger to himself or others by reason of mental illness. See N.J.S.A. 30:4-27.2m (defining "in need of involuntary commitment"); R. 4:74-7(f)(standards for involuntary commitment); In re Commitmentof J.R., 390 N.J. Super. 523, 529 (App. Div. 2007).

In order to justify commitment in New Jersey the State must show that an individual is likely to pose a danger to self or others or property by reason of mental illness. State v. Krol, 68 N.J 236, 257 (1975). See R. 4:74-7(f); N.J.S.A. 30:4-23 (definition of "mental illness"). In addition to a showing of mental illness, "[c]ommitment requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future." State v.Krol, supra, 68 N.J. at 260.

[Inre S.L., 94 N.J. 128, 138 (1983).]

In pertinent part, the civil commitment statute defines "dangerous" as follows:

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. 30:4-27.2i.]

We have emphasized that in proving its case, the State must present legally competent evidence and not multiple levels of hearsay. Inre Commitment of J.B., 295 N.J. Super. 75, 78-79 (App. Div. 1996). In this case, we agree with A.R. that the State did not meet its proof burden. There was no legally competent evidence that the alleged assault on another patient was anything other than A.R. s attempt to defend himself against an unwelcome sexual advance by that patient. Dr. McFarland, the psychiatrist who testified at the hearing, did not observe the incident. The charge nurse s notes of the incident were not introduced in evidence, and neither was the video that supposedly would have contradicted A.R.'s version of the incident. The State presented no testimony from the nurse or any other eyewitness. That left A.R.'s unrebutted hearing testimony, in which he repeated the same assertion he had consistently made to Dr. McFarland and others - that he pushed the other patient into a wall in response to an unwelcome physical sexual overture.

Further, Dr. McFarland's testimony did not explain in any detail why she concluded that A.R.'s mental illness caused him to be presently dangerous to others. She admitted that his schizo-affective disorder was under control with medication. She gave no explanation as to why his anti-social personality disorder caused him to be currently dangerous. See M.M., supra, 384 N.J.Super. at 337 ("medical labels are not determinative of the existence of a qualifying 'mental illness' or dangerousness"). She admitted that she had not recommended that A.R. be re-committed.

In short, based on this record, we are constrained to conclude that the State did not prove by clear and convincing evidence that A.R. presented a danger to himself or others at the time of the April 19, 2011 hearing. Absent a much more convincing and specific explanation than Dr. McFarland provided on this record, A.R.'s expression of frustration at being kept on CEPP status for almost a year, and reacting with physical hostility to an unwanted sexual groping by another patient, did not warrant his continued involuntary psychiatric commitment. See J.R., supra, 390 N.J. Super. at 530-33; M.M., supra, 384 N.J. Super. at 335-36.

The order of April 19, 2011 is reversed. We have not considered or addressed the merits of any orders entered after April 19, 2011, because those orders are not part of this appeal. We also have not considered A.R.'s Points nine and ten, because they were not raised before the trial court. See Nieder v.Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

Reversed.

1 CEPP status refers to conditional extension pending placement in other words the patient no longer meets the standard for involuntary commitment, but needs to live in a supported setting and continues to be kept at the institution until the staff can locate an appropriate place for him to live in the community. See R. 4:74-7(h); In re S.L., 94 N.J. 128, 141-42 (1983).

2

In its appendix, the State provided screening reports from October 15, 2009 and January 21, 2010 but no records relevant to the April 11, 2011 hearing. See R. 4:74-7(e).

3 We infer from the hearing transcript that Dr. McFarland is a hospital psychiatrist. However, her employment and qualifications were not placed on the record at the beginning of her testimony, and the State's attorney did not proffer her as an expert witness, even by stipulation. We recognize that, in the course of a single day, counsel and the trial judge probably participate in multiple commitment hearings. However, this does not mean that the proofs in any individual case can be truncated. We remind counsel and the trial court that these hearings involve each patient's constitutional liberty interests, and the proceedings should be conducted with sufficient formality to create a complete record.