Opinion
DOCKET NO. A-1447-12T2
07-08-2013
IN THE MATTER OF THE COMMITMENT OF G.F.
Stanley M. Shur, Assistant Deputy Public Defender, argued the cause for appellant, G.F. (Joseph E. Krakora, Public Defender, attorney; Theodore S. Novak, Deputy Public Defender, of counsel and on the brief; Mr. Shur, on the brief). Malcolm I. McPherson, Assistant County Counsel, argued the cause for respondent, State of New Jersey (James F. Ferguson, Atlantic County Counsel, attorney; Mr. McPherson, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATSC-1273-11.
Stanley M. Shur, Assistant Deputy Public Defender, argued the cause for appellant, G.F. (Joseph E. Krakora, Public Defender, attorney; Theodore S. Novak, Deputy Public Defender, of counsel and on the brief; Mr. Shur, on the brief).
Malcolm I. McPherson, Assistant County Counsel, argued the cause for respondent, State of New Jersey (James F. Ferguson, Atlantic County Counsel, attorney; Mr. McPherson, on the brief). PER CURIAM
G.F. appeals from an October 5, 2012 order continuing his involuntary civil commitment pursuant to R. 4:74-7. He argues that the State failed to prove by clear and convincing evidence that he was in continued need of involuntary commitment pursuant to N.J.S.A. 30:4-27. We agree and reverse.
Although G.F. was released thirty-five days after entry of this order and the County Adjuster has determined that he is not liable for the cost of his confinement, our courts generally consider appeals challenging civil commitment because of the importance of the committee'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.P., 381 N.J. Super. 389 (App Div. 2005), certif. granted and remanded, 186 N.J. 251 (2006).
G.F. was involuntarily committed to Ancora Psychiatric Hospital with a detainer on August 23, 2011, after shooting out two outdoor lights belonging to his next-door-neighbor with a BB gun. When police responded, they discovered a cache of unregistered firearms in G.F.'s home. The police confiscated the weapons and charged G.F. with a disorderly persons offense for use of the BB gun and weapons offenses not specified in the record.
G.F. had been committed at Ancora for fourteen months at the time of the October 5, 2012 review hearing. The Public Defender and County Counsel representing the parties in this action agree that their practice at review hearings at Ancora has been to stipulate to the qualifications of the State's psychiatrists and the entry into evidence of the psychiatric reports, subject to cross-examination. That procedure was followed here. G.F.'s psychiatrist at Ancora, Dr. Khalid Bajwa, examined G.F. two days before the review hearing and his report was admitted into evidence subject to cross-examination.
Dr. Bajwa's report lists G.F.'s current diagnosis as "schizoaffective disorder, bipolar type." It notes that G.F. was admitted following a "manic and psychotic" episode in which he "was shooting at [his] neighbor's house." He thereafter "barricaded himself" in his own home from which the "police confiscated multiple guns." The report notes "improvement in mood and psychotic symptoms" but opines that G.F. "has to be assessed at less restricted levels prior to discharge" because of his "significant history of dangerous behavior." Dr. Bajwa deemed G.F. as dangerous to others due to his mental illness, concluding that "[t]here is a substantial likelihood that [G.F.] will hurt others in a less restrictive environment at present."
At the hearing, however, Dr. Bajwa could not provide the statutory definition of mental illness and testified that G.F. did not have a substantial disturbance of thought, mood, or perception and was fully oriented as to person, place, and time. He explained G.F. had spent over a year at level one and that the detainer had prevented Ancora from moving forward with his treatment and assessing him at less restrictive levels. The doctor had moved G.F. to level two after release of the detainer and planned to move him to level three which would allow him "some day passes and brief visits [home]." Dr. Bajwa noted G.F.'s "significant past history" of violence and made reference to an incident in which G.F. "blew up the fence of the neighbor in the back with a gas container." Although acknowledging that G.F. had lately been taking his medication, was cooperative with staff, and had not threatened anyone in the last several months, Dr. Bajwa recommended continued commitment to assess G.F.'s behavior in less restrictive circumstances in light of his violent history.
G.F. testified at the review hearing. He explained that the episode with the BB gun had happened in the midst of a "manic attack" brought on by failure to take his medicine. He expressed his belief that his fourteen months at Ancora had helped him a great deal and stabilized his condition. He acknowledged that he had an illness that required continued medication for control. G.F. testified that he was taking his medication regularly and expressed his intention to continue to take it as prescribed and to continue to see a psychiatrist upon his release. He anticipated no further problems with his neighbor. G.F.'s wife also testified. She expressed her belief that G.F. was ready to return home and stated that she very much wanted him to do so.
G.F.'s counsel argued that Dr. Bajwa's plan, while medically sound, failed to comply with the legal standard for involuntary commitment. He asked that G.F. be discharged on condition that he take his medication, attend an out-patient program, and cooperate with any supervision the doctor would recommend. See N.J.S.A. 30:4-27.15c. County Counsel argued that the doctor did not have to recite the statutory definition of mental illness and that G.F.'s history of violence was critical to an assessment of his current dangerousness.
The court denied G.F.'s request for conditional discharge, ordered him moved to level three, N.J.A.C. 10:36-1.7, and continued his commitment pending another review in thirty days. The judge expressed his reasons for the order with the following:
I do agree with the State's attorney, however, that even though the doctor couldn't recite the statutory definition of mental illness and his testimony didn't necessarily use those particular words, it's really for the Court to determine as to whether the testimony that he's given creates a situation that the patient fits within the statutory definition, and I find that he does. Based upon what I've heard I find that a continued commitment is required.The court did not identify the facts or evidence supporting those conclusions.
We review a commitment determination for abuse of discretion. In re D.C., 146 N.J. 31, 58-59 (1996). We give great deference to such determinations and set them aside "only where the record reveals a clear mistake in the exercise of the reviewing judge's broad discretion in evaluating the committee's present condition." State v. Fields, 77 N.J. 282, 311 (1978) (reviewing the involuntary commitment of a defendant found not guilty by reason of insanity). Because it is clear that the State did not meet its burden of proving G.F.'s continued need for involuntary commitment on this record, we conclude the judge mistakenly exercised his discretion in continuing G.F.'s commitment.
An order of continued commitment is only appropriate if the State has presented clear and convincing evidence that
(1) the patient is mentally ill, (2) mental illness causes the patient to be dangerous to self or dangerous to others or property as defined in N.J.S.A. 30:4-27.2(h) and -.2(i), (3) the patient is unwilling to be admitted to a facility for voluntary care or accept appropriate treatment voluntarily, and (4) the patient needs outpatient treatment as defined by N.J.S.A. 30:4-27.2(hh) or inpatient care at a short-term care or psychiatric facility or special psychiatric hospital because other less restrictive alternative services are notAs used in the Court Rule, "mental illness" "means a current, substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior or capacity to recognize reality." N.J.S.A. 30:4-27.2r. A person is "dangerous to others or property" if
appropriate or available to meet the patient's mental health care needs.
[R. 4:74-7(f)(1); see also N.J.S.A. 30:4-27.2m.]
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.]
Although Dr. Bajwa testified that G.F. suffered from schizoaffective disorder, bipolar type, the doctor also testified that G.F. did not have a substantial disturbance of thought, mood, or perception and was fully oriented as to person, place, and time. We have long held that arcane psychiatric nomenclature "cannot substitute for the standards plainly articulated in the relevant statutes." In re Commitment of D.M., 313 N.J. Super. 449, 456 (App. Div. 1998). A medical diagnosis is simply not determinative of whether a patient suffers from a "mental illness" as defined by the Legislature. In re Commitment of M.M., 384 N.J. Super. 313, 332, 337 (App. Div. 2006). Dr. Bajwa's testimony makes clear beyond any doubt that there was no evidence of current mental illness requiring continued commitment. R. 4:74-7(f)(1).
Because the State failed to prove that G.F. was suffering from a current mental illness, a finding of dangerousness alone would not have been sufficient to justify continuing his commitment. D.M., supra, 313 N.J. Super. at 454-56. Notwithstanding, there was also insufficient evidence on this record to establish that G.F. was substantially likely to inflict serious bodily harm on another person or cause serious property damage within the reasonably foreseeable future. N.J.S.A. 30:4-27.2i.
Dr. Bajwa testified that G.F. had lately been taking his medication, was cooperative with staff, and had not threatened anyone in the last several months. The doctor acknowledged that the episodes of violence to which he referred in his testimony were all in the past. While history is important to a determination of present dangerousness, history alone is insufficient. In order to justify committing an individual involuntarily, the risk of dangerousness must be relatively immediate. N.N., supra, 146 N.J. at 130. Here, G.F. testified to his awareness of the need to continue on medication and his intention to do so. In reviewing the testimony of Dr. Bajwa, G.F., and his wife, we see nothing in this record to support a finding that G.F. was substantially likely "within the reasonably foreseeable future" to inflict serious bodily harm upon another person or cause serious property damage. N.J.S.A. 30:4-27.2i.
The importance of the individual and public interests implicated by involuntary civil commitment compel the trial judge to assiduously attend to the need to make adequate findings. In re Commitment of S.D., 212 N.J. Super. 211, 218-19 (App. Div. 1986). "A judge presiding over a 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." M.M., supra, 384 N.J. Super. at 332-33. It does, however, serve to prevent repetition of errors capable of leading to unconstitutional confinement.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION