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In re Commitment of B.L.

January 3, 2002

IN THE MATTER OF THE COMMITMENT OF B.L.
IN THE MATTER OF THE COMMITMENT OF M.W.



On appeal from Superior Court of New Jersey, Atlantic County, Law Division, Docket No. 290- 00 (A-0132-00T5). On appeal from Superior Court of New Jersey, Cape May County, Law Division, Docket No. 197- 99 (A-1298-00T1).

Before Judges Havey, Braithwaite and Weissbard.

The opinion of the court was delivered by: Braithwaite, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

OPINION CORRECTED 03/14/02

Argued December 3, 2001

Appellants B.L. and M.W.*fn1 , former patients at Ancora Psychiatric Hospital ("Ancora"), appeal from orders revoking their conditional release from Ancora and recommitting them to that facility. They both contend that their involuntary rehospitalization violated New Jersey's civil commitment statute and their due process rights under the United States and New Jersey Constitutions.

Because we agree with B.L. and M.W. that the procedures used here violated the New Jersey civil commitment statute and their due process rights, we reverse the orders involuntarily recommitting them to Ancora. Furthermore, we set forth the procedures to be followed for future cases by mental health service providers and the trial court when a patient, who has been conditionally released, violates his or her conditions.

Although both B.L. and M.W. are no longer involuntarily committed, their appeals are not moot because they both remain liable for the cost of their confinement. It is well settled in New Jersey that an appeal in these types of cases is not moot, even if the patient is no longer confined, when the patient remains liable for his or her hospital bill, and a finding in the patient's favor will entitle the patient to a credit for any period of illegal commitment. In re R.B., 158 N.J. Super. 542, 545 (App. Div. 1978); accord In re W.H., 324 N.J. Super. 519, 521 (App. Div. 1999); In re J.B., 295 N.J. Super. 75, 80 (App. Div. 1996); In re D.M., 285 N.J. Super. 481, 485, n.1 (App. Div. 1995), certif. denied, 144 N.J. 377 (1996); In re Raymond S., 263 N.J. Super. 428, 431, n.1 (App. Div. 1993); In re A.A., 252 N.J. Super. 170, 172, n.1 (App. Div. 1991). In addition, even if appellants were not responsible for their hospital costs, "we should nevertheless decide the issue because it implicates a committee's constitutional right to liberty, and by its nature, will continually become moot before judicial review." In re G.G., 272 N.J. Super. 597, 600, n.1 (App. Div. 1994).

I.

We set forth the undisputed facts relevant to these appeals. B.L. was involuntarily committed to Ancora on May 26, 2000, pursuant to a temporary order. The doctor who examined B.L. determined that he suffered from "schizo affective disorder - bipolar type" and that he was a danger to himself or others. See N.J.S.A. 30:4-27.2b and -27.2m; R. 4:74-7.

On June 30, 2000, Mary Lee, M.D., recommended to the court that B.L. be conditionally released to return to his apartment. Following the hearing, the court released B.L. under instructions that he comply with certain conditions for ninety days. See N.J.S.A. 30:4-27.15c(2). The conditions required B.L. to: (1) take his prescribed medication; (2) attend follow-up medication- monitoring appointments; and (3) cooperate with clinical management services.

On July 11, 2000, B.L. was involuntarily returned to Ancora for a violation of his conditional release because he was not taking his medication and could not maintain himself. The record is devoid of any evidence that the "mental health agency staff person" notified the trial court that B.L. failed to comply with a condition or that he was rehospitalized. N.J.S.A. 30:4-27.15c(3). Further, there is no written explanation for his return to Ancora. On July 28, 2000, the trial court conducted a post-reconfinement hearing to review B.L.'s return from conditional release. See ibid.

At the July 28 hearing, B.L. stated that he was returned to Ancora because he arrived late for an appointment at the Hartford Clinic and was put on the bottom of the list, leading B.L. to "brush" away a piece of paper handed to him. B.L.'s treating psychiatrist, V. Chheda, M.D., stated at the hearing*fn2 that B.L. was violent and swung at staff on July 11 and also attacked hospital staff on July 14, requiring that he be restrained. Although Dr. Chheda related these "violent" incidents to the court, she acknowledged that B.L. was not committable. Dr. Chheda also said that B.L. had violated his conditional release by not taking his medication.

Dr. Chheda recommended that B.L. be kept on Conditional Extension Pending Placement/Conditional Release ("CEPP/CR" or "CEPP") status until he was stabilized, at which point he could be discharged. B.L.'s counsel argued that it would be inappropriate to continue to confine B.L. on CEPP/CR status because B.L. had an apartment and a "place to go." Counsel further argued that since B.L. was not dangerous and not committable, Ancora could not hold him. There was no evidence presented that B.L. was a danger to himself or others and Dr. Chheda only wanted him to remain for the limited purpose of stabilizing him.

The trial court ordered B.L. to remain at Ancora on CEPP status until he was "stabilized." The reason for that order was B.L.'s violation of the conditions of his release. The court directed Dr. Chheda to "stabilize him as quickly as possible [] and get him out as quickly as [Dr. Chheda could]." The trial court assumed that B.L.'s rehospitalization had been valid, stating that "[h]aving been brought back here, I assume it was appropriate." On August 7, 2000, B.L. was conditionally released to his apartment with the same conditions imposed on June 30, 2000. B.L. filed a timely notice of appeal to the order entered on July 28, 2000. He also appeals his involuntary return to Ancora on July 11, 2000.*fn3

With respect to M.W., the following facts are relevant. In October 1999, M.W. was involuntarily committed to Ancora. On August 11, 2000, M.W. was conditionally released from Ancora and placed on CEPP/CR status. The conditions required M.W. to: (1) take her medication; (2) cooperate with case management; and (3) be placed in a group home immediately when a bed became available. The conditions were imposed for a period of ninety days. See N.J.S.A. 30:4-27.15c(2).

On September 1, 2000, M.W. was placed at the Goshen Home ("Goshen") in Cape May County. M.W., however, did not reside at Goshen, but merely went there on several visits. She was involuntarily returned to Ancora on September 16, 2000, for reasons that are not adequately set forth in the record.

On September 22, 2000, M.W. was provided a hearing pursuant to N.J.S.A. 30:4-27.15c(3). At the hearing, Dr. Villanueva, a psychiatrist, told the court that no written documentation of M.W.'s rehospitalization existed, but that her return was based on "verbal" information that she had "decompensated."*fn4

Dr. Villanueva added that the factual basis for M.W.'s return was her hallucinations and that she had become suicidal by verbalizing the "voices of Chuck telling her to run in front of a car." This information was included in a report written on September 16, 2000, by M.W.'s admitting physician, Dr. Chang. That report is not part of the record on appeal.

M.W., who was sworn, testified that on September 15, 2000, she had decided not to take her medication because "the voices were telling [her] not to take them," but she "composed" herself and became "ready" to take the medication. She was then given her medication, which she took. She testified that she took all of the medication that she was given.

For the September 22 hearing, Ancora submitted a written report, from Dr. Chheda, M.W.'s treating psychiatrist. The report stated that Dr. Chheda had examined M.W. on September 20, 2000, and that she was not a danger to herself or others. The report included Dr. Chheda's note that M.W. was "awaiting stabilization." At the September 22 hearing, Dr. Villaneuva stated that M.W. was not dangerous, had been taking her medication, and had not been involved in any "incidents of any kind." Dr. Villanueva added that the institution "had to adjust her medication," but that the institution did not want to commit her and wanted "to get her out as soon as possible, as quickly as possible". According to Dr. Villanueva, M.W. would be sent back to the group home that day if the home would stabilize her (meaning, adjust her medication). The doctor noted that "it's [the group home's] responsibility to stabilize her," but added that at the home, "she's, you know, barely being managed." The trial court was ready to conditionally release M.W. back to the group home, but was informed by a hospital social worker, Phyllis Federman, that there may not be a bed available at the group home.

Consequently, the trial court ordered M.W. returned to CEPP status. The conditions were that she: (1) take her medication; (2) cooperate with clinical case management services; and (3) be placed in a group home immediately when a bed became available. By returning M.W. to CEPP/CR status, the court instituted a new ninety-day period of conditional release. M.W. was released from Ancora to Goshen on October 19, 2000. On November 6, 2000, M.W. filed a notice of ...


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