IN THE MATTER OF THE COMMITMENT OF Z.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0641-12T2

IN THE MATTER OF THE

COMMITMENT OF Z.G.

______________________________

November 1, 2013

Argued September 23, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Civil Part, Essex County,

Docket No. MH-1494-2012.

Daniel F. O'Brien, Assistant Deputy Public

Defender, argued the cause for appellant

(Joseph E. Krakora, Public Defender,

attorney; Mr. O'Brien, on the brief).

Thomas M. Bachman, Assistant Essex County

Counsel, argued the cause for respondent

(James R. Paganelli, Essex County Counsel,

attorney; Mr. Bachman, of counsel and on the

brief).

PER CURIAM

Z.G. appeals from an order dated September 5, 2012, that continued his civil commitment for psychiatric treatment at the University of Medicine and Dentistry of New Jersey (University Hospital). We dismiss the appeal as moot because appellant was discharged within a few weeks of his commitment and there is no adequate remedy that we can grant him to address the court's alleged errors in its findings of fact and conclusions of law.

The forty-year-old appellant was taken by police to University Hospital in Newark on August 16, 2012. He had called the police himself after an altercation occurred in his mother's home where he lived. Appellant's mother testified at the commitment hearing and explained what occurred. She testified that her son suffered from paranoid schizophrenia and alcohol abuse. In August 2012, he may not have been taking his medication and had isolated himself in his room, expressing suspicion that people in the house were threatening him and children were purposely making noise to keep him from sleeping. He would eat his meals alone in his room. He kept the volume of his television set loud and plugged his ears because he was hearing voices.

On August 16, he came into the kitchen and became involved in a verbal dispute with his niece, the witness's granddaughter. When the child's mother and brother appellant's sister and nephew entered the kitchen to see what was happening, appellant "clobbered" the sixteen-year-old nephew by suddenly striking him on the back of the head with a frozen water bottle. Several family members had to restrain appellant. He then went to his room and called the police, which he had done about half a dozen times earlier that same day because he was upset about something that his brother had done to his car. The police eventually arrived and transported him to the hospital. The mother testified that, in the past, appellant had been "verbally" but not "physically violent." She believed he should remain hospitalized for treatment. She would not accept his return to her home until his medications and his behavior were stabilized.

University Hospital psychiatrist Ye-Ming Sun testified that he had examined appellant and diagnosed his condition as schizophrenia, paranoid type, and alcohol abuse. Appellant's medical records indicated he had been hospitalized about three years earlier but not much detail was available about the reasons for that hospitalization.

While at the hospital on this commitment, defendant was angry and irritable. He believed he did not need medication that had been previously prescribed for him. He had improved some during the approximately three weeks of his treatment, but the doctor was still working on determining the appropriate medications for him. It was the doctor's opinion that appellant was a danger to others because he had attacked his teenaged nephew, and also that he needed further treatment to become compliant with medication before he could return to the community. The doctor recommended that appellant be transferred to another hospital for longer term treatment.

Appellant did not testify and presented no witnesses at the hearing. The court determined that appellant's commitment should continue but that a review hearing should be conducted to determine his status as soon as possible if he was transferred to another facility and in two weeks if he remained at University Hospital.

A review hearing was conducted two weeks later at University Hospital. The court's order of September 19, 2012, changed appellant's status to conditional extension pending placement (CEPP). See R. 4:74-7(h)(2). It recited three conditions for his discharge: 1) compliance with medications, 2) follow-up with a combined mental health and substance abuse program, and 3) community residential placement in a boarding house. According to appellant's brief, he was discharged from the commitment before the next review hearing scheduled in early October 2012. At oral argument before us, appellant's attorney reported that appellant has not been re-committed since his discharge.

There is no dispute that civil commitment for mental health treatment implicates the constitutional rights of the person committed. Addington v. Texas, 441 U.S. 418, 425-26, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979). Nor is there a dispute that the governmental entity seeking the commitment must prove by clear and convincing evidence "that an individual is likely to pose a danger to self or others or property by reason of mental illness . . . within the reasonably foreseeable future." In re Commitment of S.L., 94 N.J. 128, 138 (1983) (citing State v. Krol, 68 N.J. 236, 257, 260 (1975)).

A court can issue a final order of commitment if it finds by clear and convincing evidence that the patient needs continued involuntary commitment to treatment." N.J.S.A. 30:4-27.15(a); R. 4:74-7(f)(1). A patient is "in need of involuntary commitment" if he is "an adult with mental illness, whose mental illness causes the person to be dangerous to self or dangerous to others or property," and requires treatment as set forth in N.J.S.A. 30:4-27.2(m); R. 4:74-7(f)(1). "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

. . . .

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

"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.

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

Appellant argues that his commitment was contrary to constitutional, statutory, and rule requirements because the judge did not find by clear and convincing evidence that he was a danger to others, and because the judge's finding that he was a danger to himself was contrary to the evidence and a violation of his due process rights. We agree that the judge erred in finding on this record that appellant was a danger to himself. No one testified that he was, and the psychiatrist specifically restricted his opinion to danger to others. But we disagree with appellant that the judge also made a finding that the evidence was insufficient to prove appellant was a danger to others. It appears that the judge ultimately realized that such a finding was the proper basis of ordering the commitment.

The judge described the case as "a close one," and she initially vacillated in her findings regarding whether appellant was a danger to others. The judge stated: "I don't necessarily find that adequate proof has been presented that the violence episode is linked to his paranoia." But the judge also found that appellant's abuse of alcohol and non-compliance with his prescribed medications caused a "family dynamic" that was "toxic" and "exasperat[ed] his paranoia." She stated that he suffered from a serious mental illness that "made him dangerous in his own home." The judge also stated: "at this point, I'm not prepared to say that he is not a danger to others because that volatile atmosphere persists."

Following the judge's ruling that appellant was a danger to himself, appellant's attorney asked for clarification. The judge explained her ruling, stating that "the nexus" between appellant's mental illness and the need for continued commitment was:

based on the doctor's testimony and that of his mother that, he is a danger to others based on the escalating tension in the household which which manifested itself in an attack on a child. And the danger that, that violence might repeat itself coupled with the fact that his his mental illness persists and left to self treat, would, based on his history, not only not comply with medication regime but would also abuse alcohol.

It appears from these comments that the judge did find that appellant was a danger to others. Based on our review of the record in accordance with the appropriate deferential standard of review, see Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); In re Commitment of D.M., 285 N.J. Super. 481, 489 (App. Div. 1995), certif. denied, 144 N.J. 377 (1996), we would affirm such a finding had it been made clearly.

If appellant was still confined, we would remand the matter to the judge who heard the case to clarify her findings and to ensure that the appropriate legal standard was applied in continuing the commitment. But such a remand would serve no purpose and would provide no useful remedy to appellant. The September 5, 2012 order no longer has any effect on appellant.

We are aware of our prior cases that have decided the propriety of a civil commitment order although the appellant's status had changed, including discharge from the commitment. See, e.g., In re Commitment of B.L., 346 N.J. Super. 285, 292 (App. Div. 2002); D.M., supra, 285 N.J. Super. at 485 n.1; In re Commitment of G.G., 272 N.J. Super. 597, 600 n.1 (App. Div. 1994); In re Commitment of Robert S., 263 N.J. Super. 307, 309 (App. Div. 1992). We are also aware that the Supreme Court decided the merits of a commitment order involving a minor although the order had become moot by the time of the Court's decision, see In re Commitment of N.N., 146 N.J. 112, 124 (1996), and that the Court summarily reversed Judge Stern's published opinion determining that the appeal of an adult civil commitment should be dismissed as moot because the patient had been discharged and faced no further detrimental consequences, In re Commitment of P.D., 381 N.J. Super. 389, 393 (App. Div. 2005), certif. granted and remanded to consider the merits, 186 N.J. 251 (2006).

This appeal does not "involve significant matters of public policy," as did the standards for the commitment of young children in N.N., supra, 146 N.J. at 124. It does not require that we comment about the appropriate standards for the commitment of adults, or a legal issue evading review, such as the failure of the mental health facility in G.G., supra, 272 N.J. Super. at 600 n.1, 602-03, to prepare a timely follow-up treatment plan so that a non-dangerous patient could be discharged. Rather, the only potential error we find on this appeal involves unclear and somewhat ambiguous fact findings. We see no significant benefit to appellant for us to remand this case for more specific fact finding.

Since appellant's discharge more than a year ago, he has not again faced involuntary commitment that might have implicated the provisions of N.J.S.A. 30:4-27.5(b), as in Robert S., supra, 263 N.J. Super. at 309. That statute provides: "If a person has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing the person in a short-term care facility." N.J.S.A. 30:4-27.5(b)(2). Here, the statute has no effect on appellant.

Furthermore, other cases that declined to dismiss an appeal on mootness grounds cited a prior statute that authorized a monetary lien against the property of a committed person to reimburse the county for the costs of the commitment. See B.L., supra, 346 N.J. Super. at 292; D.M., supra, 285 N.J. Super. at 485 n.1. That statute was repealed in 2005. N.J.S.A. 30:4-80.6a. Appellant will suffer no monetary consequences from his commitment.

Although neither party cited the Supreme Court's summary reversal of our decision on mootness in P.D., supra, 381 N.J. Super. 389, we have also considered that precedent. We see a distinction here in that additional fact findings and clarification of the judge's decision on dangerousness to others would be an empty exercise that would not benefit appellant. Since there was sufficient evidence in the record that appellant was a danger to others, we would only be reversing and remanding for the procedural shortcomings of the judge's fact findings under Rule 1:7-4(a) to facilitate appellate review. See, e.g., Ronan v. Adely, 182 N.J. 103, 111 (2004) ("it is imperative that the trial court make clear its findings of fact"); Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions").

Appellant argues nevertheless that his history of prior commitments is relevant in the event that he is involuntarily committed in the future. But he does not argue that his initial temporary commitment on August 16, 2012, was improper. Instead, he argues that he should have been conditionally discharged on September 5, 2012. More specific fact finding, or even the vacating of the September 5, 2012 order, would not erase his temporary commitment. The hospitalization would remain part of appellant's medical history as a factual matter. His history of mental illness and treatment would not be significantly affected by a remand to clarify the judge's decision.

We conclude that the appeal is moot because appellant was discharged more than a year ago and has not faced any detrimental consequences of his commitment, because the appropriate remedy of a remand for clarification of the judge's fact finding and conclusions would provide no benefit to any party, and because there was sufficient evidence in the record to justify appellant's continued commitment on the ground that he was a danger to others.

A