IN THE MATTER OF THE CIVIL COMMITMENT OF K.O.

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                             NOT FOR PUBLICATION WITHOUT THE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-0681-17T4


IN THE MATTER OF THE
CIVIL COMMITMENT OF K.O.


                Argued November 28, 2018 - Decided January 10, 2019

                Before Judges Fuentes, Accurso and Vernoia.

                On appeal from Superior Court of New Jersey, Law
                Division, Ocean County, Docket No. OCC00212017.

                Renée J. Bissonnette, Assistant Deputy Public
                Defender, argued the cause for appellant K.O. (Joseph
                E. Krakora, Public Defender, attorney; Christina M.
                Salabert, Assistant Deputy Public Defender, and Renée
                J. Bissonnette, on the briefs).

                Steven B. Lieberman argued the cause for respondent
                Carrier Clinic, Inc.

PER CURIAM

      K.O. appeals from an October 3, 2017 order, entered on reconsideration,

placing her on CEPP (conditional extension pending placement) status pursuant

to R. 4:74-7. We agree with K.O. that the judge erred in placing her on CEPP
status.   But having studied the transcript of the two commitment hearings

conducted only a few hours apart, it appears what transpired here resulted

entirely from the judge simply misspeaking from the bench when he made his

initial ruling that K.O. should be discharged, hours before he reconsidered and

placed her on CEPP status. Moreover, despite the judge having placed K.O. on

CEPP status, counsel confirmed for us at argument she was discharged the

following day in accordance with  N.J.S.A. 30:4-27.15(b).            Accordingly,

although not our customary approach to such matters,1 we conclude the unusual

circumstances giving rise to this order, which did not result in the illegal

extension of K.O.'s involuntary commitment, are unlikely to be repeated, and

thus the appropriate resolution is to dismiss the appeal as moot.

      Three witnesses testified at the commitment hearing: the psychiatrist who

had examined K.O. at Carrier Clinic in anticipation of the hearing and was

standing in for her treating psychiatrist, the social worker from Carrier where

K.O. was involuntarily committed, and K.O. The psychiatrist testified K.O.



1
  Our courts generally consider appeals challenging civil commitment even after
the appellant's release has mooted relief because of the importance of the
individual's liberty interest and the likelihood of repetition of error that will
escape review. See In re Commitment of N.N.,  146 N.J. 112, 124 (1996); see
also In re Commitment of P.D.,  381 N.J. Super. 389, 391-92 (App Div. 2005),
certif. granted and remanded,  186 N.J. 251 (2006).
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suffered from a mental illness, namely bipolar disorder with mania and

psychosis, which K.O. did not dispute. The contested issue was whether she

was then a danger to herself, others, or property as defined in  N.J.S.A. 30:4-

27.2(h) and (i).

      K.O. had been admitted involuntarily to Carrier through psychiatric

emergency services two weeks prior to the hearing. The psychiatrist and the

social worker both testified K.O. resisted medication 2 throughout her stay and

refused to engage in necessary conversations about discharge planning and after

care. Carrier staff testified discharge planning was important, as K.O. was

estranged from her family and was apparently homeless with nowhere to go.

The report on admission had been that K.O. was living in her car.

      The social worker testified the first conversation staff had been able to

have with K.O. about discharge planning took place just prior to the hearing

when she expressed a desire to go to a motel. Stressing K.O.'s homelessness,

the psychiatrist opined that because of her mental illness, and without

appropriate after care in place, K.O. was dangerous to herself or others. He




2
  The psychiatrist testified K.O. was subject to an involuntary medication order
and, although resistant, took all medications prescribed.
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recommended a two-week review period, saying, "[h]opefully she'll be able to

get out wherever she can go."

      K.O. testified she had been divorced from her husband the year before,

and he had a restraining order preventing her from any contact with him or their

children. She also explained in a somewhat disjointed fashion, which the judge

ascribed to mania, that she was not welcome at her mother's or grandmother's

homes, places she had previously resided at different times. Although her

testimony about funds available to her or anticipated was not clear, K.O. claimed

she had adequate resources in the short term to stay at a hotel.

      Following that testimony, K.O.'s counsel argued the State had not proved

dangerousness, and that homelessness could not justify K.O.'s continued

commitment. See In re S.L.,  94 N.J. 128, 139 (1983) (holding "the State may

not commit those persons who are mentally ill but not dangerous"). Counsel

contended the proofs established K.O. was capable of renting a hotel room and

caring for herself, and thus that her continued commitment was not justified.

      The court agreed, finding the State had clearly and convincingly

established K.O. was mentally ill but not proved she was dangerous or incapable

of caring for herself. The judge accordingly, and appropriately, ordered her

release, stating, "I'm going to discharge her." Following an interruption by K.O.


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thanking the judge and assuring him he had not made a mistake, the judge added

"[b]y the end of the day."

          N.J.S.A. 30:4-27.15(b) provides that a court finding a "patient does not

need continued involuntary commitment to treatment . . . shall so order" and the

"patient shall be discharged by the facility within 48 hours of the court 's verbal

order or by the end of the next working day, whichever is longer, with a

discharge plan prepared pursuant to [N.J.S.A. 30:4-27.18]." Nothing in the

record suggests why the judge ordered what was, in essence, K.O.'s immediate

discharge contrary to the provisions of  N.J.S.A. 30:4-27.15(b). Neither county

counsel nor the public defender questioned the judge about that aspect of his

order.

         Instead, roughly three hours later, counsel for Carrier appeared and orally

requested reconsideration on behalf of the hospital.3         The public defender

objected, arguing Carrier was not a party and any motion for reconsideration

would have to be made by the County. 4 Counsel for Carrier responded that the



3
    Both hearings took place at Carrier.
4
   There is no explanation on the record why county counsel, presumably still on
site, did not present this motion. Counsel for Carrier represented at oral
argument before us that he approached county counsel and was told, "[y]ou do
it."
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hospital had a legal and ethical obligation to safely discharge its patient, which

the court's order prevented it from doing, and thus that it was obligated to seek

relief from the court's order. The court permitted the reopening of the hearing

and the same three witnesses offered additional testimony.

      Both the psychiatrist and the social worker testified in greater detail about

the hospital's inability to plan for K.O.'s discharge because of her refusal to sign

consent forms, permitting the hospital to contact her psychologist and others,

until just prior to the first hearing earlier in the day. The psychiatrist explained

that K.O. was "not fully stable."       She was also resistant to taking mood

stabilizing medication, leading the doctor to believe she would not take it on

discharge without outpatient treatment in place. The psychiatrist claimed that

without the medication, K.O. would remain in a manic phase that could worsen

very quickly.

      The social worker testified the hospital did not have outpatient treatment

set up because the number K.O. provided for her psychologist was not in service,

and the hospital did not know the name of the home health aide K.O. intended

to hire or how to contact her. The hospital also did not know whether the hotel

K.O. wanted to go to, which was two hours away in Ocean County, had an

available room or how K.O. would get there. The social worker further could


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not say how K.O. "would pay for any of this." The social worker had not been

able to verify K.O.'s claim "to have a credit card with alimony money on it," and

explained that K.O.'s "belongings are in her car that may have been towed from

the mini-mart where it was last found."       The social worker explained the

difficulty of trying to address all of those issues within a few hours and that "a

little bit more time would allow us to do that."

      K.O. testified it was "quite apparent to [her] that [Carrier] didn't make a

plan for today." She explained that without Carrier staff "confirming where my

car is, which they can do, because they've done before, I don't want to leave

today. I'd prefer to leave tomorrow when they have a plan in place." K.O. went

on to explain she would need police to escort her to her grandmother's house

because "that's my primary place of residence and that's where I left — left some

of my bank account information" and access her car so she could get her

"identification, you know, and — and bank information . . . . [b]ecause it was

all left in my vehicle." K.O. advised the court she "certainly [did not] want to

be, you know, leaving at 5 o'clock today, based on, you know, nobody

confirming anything for me. You know I thought she — my social worker would

be confirming that stuff."




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      Carrier's counsel argued the hospital was seeking some time to develop a

discharge plan with K.O.'s cooperation to allow her to be safely discharged,

which the hospital did not believe could happen that afternoon. The public

defender, while reiterating that K.O. was not a danger to herself or others and

thus could not be involuntarily confined, noted that K.O. testified "she would be

willing to stay in the hospital for another day to help solidify a discharge plan"

and reminded the court that  N.J.S.A. 30:4-27.15(b) permitted Carrier forty-eight

hours "to solidify discharge arrangements."

      After permitting counsel to make their arguments, the judge said:

            [t]here's no question that the patient no longer meets the
            requirements for commitment. The question is whether
            she can be discharged today. She — admits that she —
            she doesn't want to be discharged today, because no
            arrangements have been made for her to leave today.
            So I am going to place her on conditional extension
            pending placement.

The judge did not explain why he chose to put K.O. on CEPP instead of simply

discharging her in accordance with the statute, which provides for discharge "by

the facility within 48 hours of the court's verbal order or by the end of the next

working day, whichever is longer." He simply advised K.O. that the more she

cooperated "the sooner this is going to happen," and advised counsel "if she's




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still here, we'll review her status in one week, but my — my assumption is that

it will be all done by then." This appeal followed.

      The public defender argues the court erred in allowing K.O.'s matter to be

reheard, that Carrier was not a party to K.O.'s commitment and thus its

intervention was improper, that neither the State nor Carrier proved K.O.'s

commitment or CEPP status was necessary and that the appeal is not moot.

Carrier counters that it had an obligation to intervene in order to protect the

interests of its patient K.O, that the court "determined that strict compliance with

the Rules of court should be relaxed" to protect K.O.'s health and safety and that

the matter is moot.

      As should be clear to anyone having read this far, the error here was not

ordering K.O.'s discharge in accordance with the clear dictates of  N.J.S.A. 30:4-

27.15(b). Had the court simply followed the statute in ordering K.O.'s discharge,

it is likely that none of what followed would have ever occurred.

      As we have stated on countless other occasions, the importance of the

individual and public interests implicated by involuntary civil commitment

compel the trial judge to assiduously attend to the demands of the statute and

the need to make adequate findings. See, e.g., In re Commitment of S.D.,  212 N.J. Super. 211, 218-19 (App. Div. 1986).             "A judge presiding over a


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commitment hearing is vested with extraordinary responsibility; when the judge

does not apply the legal standards and find the relevant facts, our subsequent

correction of the abuse of discretion is a poor remedy for the ill."         In re

Commitment of M.M.,  384 N.J. Super. 313, 332-33 (App. Div. 2006).

      The judge here never explained why he initially ordered K.O.'s immediate

discharge contrary to the forty-eight hours permitted by the statute in order to

allow an appropriate discharge plan, nor why he ordered CEPP status on

reconsideration instead of simply ordering K.O.'s discharge in accordance with

 N.J.S.A. 30:4-27.15(b). We are well aware of the number of hearings judges at

institutions such as Carrier conduct in a day, sometimes resulting in their failure

"to dot every 'i' or cross every 't.'" S.D.,  212 N.J. Super. at 219. But as we have

observed before, the number of hearings "is no reason for them or for us to forget

that which is the basic teaching of S.L.: that each one in the bundle of rights of

these committed persons deserves protection." Ibid.

      Counsel who appear in these proceedings, of course, also play a critical

role in assuring the rights of the committed persons at the center of these

hearings. Here, neither county counsel nor the public defender questioned the

court about an aspect of the order clearly contrary to statute. Had either done

so, we are confident the court's oral order of discharge would have been


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                                       10
corrected to permit K.O.'s release within forty-eight hours with a discharge plan

formulated in accordance with  N.J.S.A. 30:4-27.18, as required by  N.J.S.A.

30:4-27.15(b), instead of precipitating the hurried, oral application by the

hospital hours later in order to present the testimony that should have been

presented at the initial hearing.

      As we noted, despite the errors committed by the judge in first failing to

order K.O.'s discharge in accordance with the statute and then placing her on

CEPP, K.O. was discharged the day after the hearing in compliance with

 N.J.S.A. 30:4-27.15(b) and  N.J.S.A. 30:4-27.18. Accordingly, because she

suffered no unconstitutional extension of her involuntary commitment and the

errors here appear sui generis and unlikely to recur, we decline to consider the

thorny issues the parties raise as to the hospital's standing to intervene in this

matter. Guidance as to those issues is better provided in the context of a live

controversy where the several aspects of the problem are more sharply

presented.

      Appeal dismissed as moot.




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