IN THE MATTER OF THE COMMITMENT OF M.J.

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NOT FOR PUBLICATION WITHOUT THE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

COMMITMENT OF M.J.

________________________

November 17, 2016

Submitted October 11, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. MK 2011-08-08.

Joseph E. Krakora, Public Defender, attorney for appellant M.K. (Lauren Michaels, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (Andrew R. Burroughs, Special DeputyAttorney General/ActingAssistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 2011, M.J. was found not guilty by reasons of insanity and she was civilly committed to the custody of the Commissioner of Human Services pending periodic review. M.J. appeals from an April 8, 2015 order continuing her commitment and denying her request to be placed on conditional extension pending placement (CEPP). We affirm because our review of the record establishes that the findings made by the trial judge were not clearly erroneous.

A grand jury indicted M.J. for (1) third-degree making terroristic threats to kill, N.J.S.A. 2C:12-3(b); (2) second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1); (3) third-degree possession of a weapon (flammable liquid) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and (4) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The charges in the indictment were based on allegations that on March 11, 2010, M.J. threatened to kill the residents of a home and then set fire to the home using flammable liquid.

M.J. waived her right to a jury trial, and in 2011, a judge found her not guilty by reason of insanity in accordance with N.J.S.A. 2C:4-1. The trial court ordered that M.J. be civilly committed and that she be periodically reviewed to determine if she required continued commitment or if she was eligible for release in accordance with the rules and procedures established in State v. Krol, 68 N.J. 236 (1975). See also R. 4:74-7.

Beginning in January 2012, M.J. has been periodically reviewed, and March 11, 2020, was established as the latest date by which she must be released.1 M.J. has been diagnosed as suffering from schizophrenia, which is "a chronic mental illness" where patients have "symptoms of hallucinations, delusions, disorientated behavior, and agitation." M.J. has been confined in a psychiatric hospital where she has received medication and treatment. She was born in 1957, and she is not a citizen of the United States. The record does not provide any specifics concerning her immigration status.

The periodic review that is the subject of this appeal took place on March 23, 2015. During that review, the trial court heard testimony from two experts: Dr. Mark Schuchman, who has treated M.J. for several years, testified for the State; and Dr. Daniel Paul Greenfield testified as an expert for M.J.

Dr. Schuchman testified that M.J. continues to suffer from schizophrenia, but her symptoms have been under good control with medication. Indeed, Dr. Schuchman described M.J. as a "model patient." Dr. Schuchman also opined that without her medication M.J. is at a very "high risk to become psychotic again and decompensate." Thus, Dr. Schuchman opined that M.J. "continues to be a danger to herself and others due to her mental illness" unless she remains in an appropriate supportive placement and continues taking her medication.

Dr. Schuchman also opined that M.J. could function outside a psychiatric hospital in a placement such as a group home. Dr. Schuchman, therefore, recommended discharge planning for M.J. He noted, however, that the State currently has not been able to find a proper placement because M.J. has no money, no family support, and her immigration status prevents her from being eligible for coverage of her medication and outpatient placement. As a consequence, Dr. Schuchman recommended that M.J. "continue her current Krol status" in a psychiatric facility.

Dr. Greenfield essentially agreed with Dr. Schuchman regarding M.J.'s mental illness and current condition. In that regard, Dr. Greenfield did not dispute that M.J. suffers from schizophrenia and he agreed that M.J. has responded well to treatment and medication. Dr. Greenfield opined that as long as M.J. remains in treatment and on appropriate medication, "she is not likely to act out in a dangerous way in the reasonably foreseeable future." Dr. Greenfield also opined that M.J. should only be discharged from an inpatient hospital if she can be placed in an appropriate placement such as a group home. Dr. Greenfield went on to express the view that M.J. may satisfy the criteria for being placed on CEPP status. In that regard, he explained that CEPP status was a "legal concept," but he believed that M.J. satisfied the clinical components of CEPP. Thus, he testified

A. Well, it's a legal concept. It's a legal term. And what it basically means from a practical clinical perspective is that a person has reached the point of being able to be discharged to a less restrictive environment from an inpatient setting with proper safeguards, treatment, placement and place. And a person is put on that status pending the ability of the staff at the hospital to find a place for that person to live and treatment services and the like for that person.

Q. And based on your evaluations, and within a reasonable degree of medical certainty, do you think [M.J.] would be appropriate for this status, conditional extension pending placement?

A. Well, let me couch my answer by saying that it - - from a clinical yes, definitely. From what I understand CEPP status is a legal and administrative determination, but certainly clinically she would - - she does satisfy those requirements.

After hearing the testimony of both experts, the trial court recognized the unique issue presented by this case. That is, M.J. could be released from an inpatient hospital to an appropriate outpatient placement, but no such placement was currently available to M.J. The trial court also went on to state that if a placement could be found, the court would schedule a review on short notice. In the meantime, however, the trial court found that M.J. continued to suffer from a mental illness that caused her to pose a danger to herself and others. Thus, the court ordered her continued commitment. On April 8, 2015, the court issued an order embodying its ruling. That order provided that M.J. should remain on Krol status, that the Department of Human Services continue the process of planning M.J.'s discharge, and that the matter should be scheduled for future periodic reviews.

M.J. now appeals the April 8, 2015 order. She contends that she should be placed on CEPP status. Specifically, she frames her argument as follows

BECAUSE THE STATE DID NOT ESTABLISH THAT THERE IS A SUBSTANTIAL RISK OF SIGNIFICANT INJURY TO PERSON OR PROPERTY TO JUSTIFY M.J.'S CONTINUING INVOLUNTARY COMMITMENT, BUT RATHER IT IS ONLY HER IMMIGRATION STATUS AND LACK OF FINANCES THAT IS THE BARRIER TO HER RELEASE, SHE MUST BE PLACED ON CONTINUED EXTENSION PENDING PLACEMENT (CEPP) STATUS

As framed by M.J., her argument is premised on two contentions: (1) the State failed to establish that there was a substantial risk of harm to M.J. or others if she was released; and (2) but for her financial condition and immigration status, she would be released and, thus, she is entitled to be placed on CEPP status. The flaw with those contentions is that the first premise is not accurate and, therefore, M.J. is not entitled to CEPP status.

There are two legal principles relevant to our analysis. The first is the standard for continuing a person in civil commitment. The second is the standards for CEPP. We start our analysis by reviewing our standard of review and then we analyze those two legal principles.

"Our scope of review of a civil commitment judgment is exceedingly narrow." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). We will modify a civil commitment determination "only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996) (citing State v. Fields, 77 N.J. 282, 311 (1978)). "Accordingly, it is our responsibility to canvass the record inclusive of the expert testimony to determine whether the findings made by the trial judge were clearly erroneous." J.M.B., supra, 395 N.J. Super. at 90. In so doing, "[w]e must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." Id. at 89-90 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). With that standard of review in mind, we review the applicable legal principles.

"When a person accused of a crime is acquitted by reason of insanity, the accused must be held in continued confinement if the person is a danger to self or others and is in need of medical treatment." In re Commitment of M.M., 377 N.J. Super. 71, 76 (App. Div. 2005) (quoting In re Commitment of W.K., 159 N.J. 1, 2 (1999)), aff'd, 186 N.J. 430 (2006). The State must show by a preponderance of the evidence that defendant is mentally ill and poses a danger to herself or society. Krol, supra, 68 N.J. at 257. "Commitment requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future. Evaluation of the magnitude of the risk involves consideration both of likelihood of dangerous conduct and the seriousness of the harm which may ensue if such conduct takes place." M.M., supra, 377 N.J. Super. at 76 (quoting Krol, supra, 68 N.J. at 260). The focus is on whether the defendant "presently poses a significant threat of harm either to himself [or herself] or to others." Krol, supra, 68 N.J. at 247.

"After the defendant is committed, periodic review hearings (Krol hearings) are held in a criminal proceeding on notice to the prosecutor to determine if continued involuntary commitment is warranted." M.M., supra, 377 N.J. Super. at 76 (quoting W.K., supra, 159 N.J. at 4). "The continued involuntary commitment of a[] defendant [not guilty by reasons of insanity] is based upon the court's determination of whether the State has demonstrated that defendant continues to be a danger to herself or others." Id. at 77 (citing Krol, supra, 68 N.J. at 263). The determination of "dangerousness" is "a legal one, not a medical one." Ibid. (quoting Krol, supra, 68 N.J. at 261).

CEPP is a narrow exception to the general rule requiring prompt release. Rule 4:74-7(h)(2) authorizes CEPP, and it applies only when a patient lacks the capacity to survive independently. In re Commitment of S.L., 94 N.J. 128, 131 (1983). The State may not confine a person who is mentally ill unless the mental illness causes the patient to pose a danger to that person, other persons or property and that person is unwilling to accept treatment. Ibid. Thus, a patient who no longer needs involuntary commitment generally must be released within forty-eight hours in accordance with a plan developed by the patient's treatment team. N.J.S.A. 30:4-27.15(b); see also N.J.S.A. 30:4-27.18 (stating the treatment team's obligation with respect to preparation of the plan). CEPP is a narrow exception to the general rule requiring release within forty-eight hours. An order conditionally extending confinement pending appropriate placement is proper only when the patient "is not able to survive in the community independently or with the help of family or friends." S.L., supra, 94 N.J. at 140. A judge must make the finding, and the evidence must be adequate to satisfy the judge that CEPP is appropriate. Ibid. at 140-41.

Applying our standard of review and the applicable law, we are satisfied that the record supports the judge's factual findings and his conclusion that M.J. continues to be a danger to herself and others and that she should remain involuntarily committed. Dr. Schuchman testified that M.J. continues to suffer from schizophrenia and that if she was not on medication, she would very likely become a danger to herself and others. Dr. Greenfield did not challenge that opinion. Thus, this is not a situation where M.J.'s mental illness no longer poses a danger to herself or other persons.

The State is not holding a mentally ill person who poses no danger. Instead, the State is continuing to confine M.J. who both experts agreed required continued treatment and medication to control her mental illness. Under these circumstances, we find no error with the judge's determination not to place M.J. on CEPP. Indeed, such a designation might create confusion in this situation. All parties agree that M.J. can be released to an appropriate placement. The record reflects that the State has made efforts to find such a placement. The trial court also questioned counsel representing M.J. who acknowledged that the Office of Public Defender has made efforts to try to find an appropriate placement. The trial court also made it clear that once any party identified such a placement, the court would schedule a new review hearing on short notice. In other words, everything that is possible to do, is being done. We find no error in the trial court's decision to deny the request that M.J. be placed on CEPP status.

Affirmed.

1 A person civilly committed after being acquitted by reason of insanity, may be held, subject to periodic review, "during the maximum period for which imprisonment could have been imposed as an ordinary term of imprisonment for the charges on which the defendant has been acquitted by reason of insanity, after giving credit for all time spent in confinement for the charges." In re Commitment of M.M., 377 N.J. Super. 71, 76 (App. Div. 2005) (quoting In re Commitment of W.K., 159 N.J. 1, 4 (1999)), aff'd, 186 N.J. 430 (2006). "[A] Krol status defendant may be committed for longer than the ordinary maximum term if the court finds that she remains a danger to herself or others." M.M., supra, 377 N.J. Super. at 77 (citing Jones v. United States, 463 U.S. 354, 368-70, 103 S. Ct. 3043, 3052-53, 77 L. Ed. 2d 694, 708-09 (1983)).