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In re Civil Commitment of O.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2007

IN THE MATTER OF CIVIL COMMITMENT OF O.P.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, MH-2011-2005.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically - May 25, 2007

Before Judges Stern, A. A. Rodríguez and Lyons.

In these consolidated appeals, O.P., presently an involuntary civil committee at Greystone Park Psychiatric Hospital, appeals from: (1) the March 7, 2006 judgment, continuing his involuntary commitment; (2) the October 17, 2006 judgment, continuing said commitment; and (3) the January 9, 2007 order discharging him subject to the following conditions:

(1) twenty-four hour residential treatment program; day program, ICMS [Integrated Case Management Services] follow-up; MICA [Mentally Impaired Chemical Abuse] program;

(2) prior to actual discharge Hospital shall give notice and opportunity to be heard to prosecuting attorney;

(3) prior to actual discharge Hospital shall give notice to Megan's Law authorities; and

(4) discharge subject to SSPRC/CARP [Special Status Patient Review Committee/Clinical Assessment Review Panel].

The judge amended the January 9, 2007 order to clarify that O.P.'s status should be deemed "Continued Extension Pending Placement (CEPP)," rather than "Conditional Discharge." Insofar as the January 9, 2007 order is concerned, O.P. only challenges the fourth condition. We modify the January 9, 2007 order to vacate condition (4). As modified, the order is affirmed. The March 7, 2006 and October 17, 2006 orders are affirmed.

I.

In 1989, O.P. was charged with aggravated sexual assault, attempted sexual assault, criminal sexual conduct (two counts), criminal restraint, and unlawful possession of a weapon (screwdriver). The criminal prosecution ended with a finding of "not guilty by reason of insanity." Pursuant to N.J.S.A. 2C:4- 8, O.P. was committed to the custody of the Commissioner of Human Services and confined to Marlboro Psychiatric Hospital. Subsequently, he was confined to Ancora Psychiatric Hospital. He was periodically re-evaluated pursuant to State v. Krol, 68 N.J. 236 (1975); State v. Fields, 77 N.J. 282 (1978).

On September 20, 2005, O.P. was discharged from Krol status. An application for a temporary order for involuntary commitment was presented to the Superior Court.

On September 28, 2005, Judge Millenky entered a temporary order for commitment pursuant to N.J.S.A. 30:4-27.10. The judge found there to be probable cause pursuant to N.J.S.A. 30:4-27.2b and R. 4:7-7(c), "to believe that the person is in need of involuntary commitment," in accordance with the standard set forth in N.J.S.A. 30:4-27.2m.*fn1 The order set a date of October 7, 2005 for an initial hearing. Thus, O.P.'s commitment was converted from one governed by the Criminal Code, N.J.S.A. 2C:4-8, to a civil commitment governed by N.J.S.A. 30:4-27.15 and R. 4:74-7.

Despite Judge Millenky's order, there was no initial hearing on October 7, 2005. A hearing was held by a different judge. The issues to be decided were whether there was clear and convincing evidence: that the patient is in need of continued involuntary commitment by reason of the fact 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. 30:4-27.2h and -.2i, (3) the patient is unwilling to be admitted to a facility for voluntary care, and (4) the patient needs care at a short-term care or psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the patient's mental health care needs.

[R. 4:74-7(f)(1); N.J.S.A. 30:4-27.15.]

The hearing was continued six times delaying a decision for nearly three months. We note that O.P. was not seeking a discharge, but rather to be placed on a CEPP status. O.P. objected to each and every continuation.

The first hearing commenced on December 13, 2005. At this hearing, Jerry F. Gaviola, M.D., O.P.'s treating psychiatrist, testified. However, his cross-examination was not completed. The hearing was continued to December 27, 2005 because notice was not given to the prosecutor pursuant to N.J.S.A. 30:40-27.15. The judge ruled that the Krol hearing of September 20 was an initial commitment hearing. Therefore, he considered the proceeding before him to be a review hearing pursuant to R. 4:74-7(2). The hearing was further continued to January 10, 2006 because the State failed to produce Gaviola for cross-examination. The State again failed to produce Gaviola, therefore, the hearing was continued to January 24, 2006. The judge sua sponte continued the hearing to February 7, 2006, because he wanted an additional report before making a decision. The February 7, 2006 hearing was continued to February 21, 2006, because the judge sua sponte ordered more reports from the State prior to making a decision.

In the interim the judge, sua sponte and without notice to O.P., issued an order directing the State to produce "a risk assessment for sexual offenders as required by Division of Mental Health Services Bulletin 3.29." The matter was continued to March 7, 2006 because the judge had not received the assessment. On March 7, 2006, the judge completed the hearing.

During hearings, the judge heard the testimony of three mental health professionals. Sherry Monray-Miller, a psychologist, testified that she had treated O.P. She recommended that O.P. be given less restrictive confinement within Greystone. At a subsequent hearing, Monray-Miller testified to several inappropriate behaviors exhibited by O.P.:

(1) sexually inappropriate gestures; (2) refusing blood work; and (3) verbally threatening others. Additionally, she testified that he is mentally ill, a danger to others and lacks insight into his illness.

Gaviola testified that he treated O.P. at Greystone since October 11, 2005. He reported that O.P. was diagnosed with "Schizo effective disorder, bipolar type and mild mental retardation." Gaviola observed O.P. engage in the following behavior:

[S]ome periods of agitated behavior verbally abusive behavior. Basically, he's maintained himself in the ward. I maintain that he continues to be dangerous to himself and others as a result of mental illness and that he is a Megan's Law [patient] and is at high risk to re-offend.

Additionally, he opined:

[H]e still displays evidence of mental illness. His speech continues to be rambling, disorganized. He's had several episodes of agitation, threatening behavior, verbal abuse, minimal insight into his minimal illness. It's questionable whether he'll comply with medicine when he goes out of the hospital.

Gaviola relied on a report dated October 25, 2005, written by a Greystone staff member, which stated:

Patient verbally abus[ive] toward staff when he was called for p.r. insulin. Was agitated that -- staff says, another staffer called him instead of giving him the prescribed insulin back in his room -- by another p.m. staff nurse. After 10 minutes of taking the insulin, patient approached the writer, next time he calls for his medication, instead bringing it to his room, he would punch her in the face.

Similarly, on November 21, 2005, a staff member reported:

Refused vital signs. This morning staff also reported seeing him smoking in the unit in the bathroom and spread baby powder all over the floor to cover the smell. Verbally abusive with a nonchalant attitude when being re-directed.

O.P.'s counsel objected to this report as being hearsay. The judge admitted the report.

In addition to these written reports from the hospital staff, Gaviola relied on the report of Gene Nebel, Ph.D., a clinical psychologist. Nebel treated O.P. in a group setting. Gaviola testified about his conversations with Nebel as follows:

We spoke about [O.P.'s] progress during the sex offenders group, that he's made minimal if any progress. He takes no responsibility for the act. His explanation is that he was simply helping the woman out and giving her some money, without taking responsibility for his actions. Highly likely that this will continue, this -- with this [sic] behavior.

Gaviola's opinion also relied on the results of the Violence Risk Assessment Guide (VARG), which is an "objective indication of the probability of dangerousness of the individual. . . ." The VARG results showed that O.P. "will not [] violently recidivate within seven years at sixty-five percent."

Nebel also testified at the hearing. He was the author of the risk assessment for sexual offenders. He conducted a sexual topics group in which O.P. was a participant. Nebel testified with respect to his group meetings, as well as results of certain tests. The Static 99 test, which assesses a sex offender's recidivism, revealed that O.P., within ten years, has a probability of thirty-one percent chance of re-offending and within fifteen years a probability of forty-six percent chance of re-offending.

On March 7, 2006, the judge concluded the hearing and made findings. He continued O.P.'s involuntary civil commitment. The judge stated on the record:

I find for the reasons I have stated that the hospital has demonstrated by clear and convincing evidence that [O.P.] is suffering from a mental illness, the patient is suffering from a mental illness [sic].

That the mental illness causes him to be dangerous to others. It is clear by the psychiatrist's testimony and from the SSPRC report that his confinement at a hospital for the treatment and with the restrictions that are placed on him is [necessary].

O.P. filed his first appeal (A-5159-05T2) from this order of commitment. O.P. contends that the judge denied him "due process of law by ordering numerous continuances sua sponte, seeking new evidence on [his] own after counsel's summation and improperly deferring to conclusory testimony." He also contends that the judge erred by: (1) affording undue deference to psychiatric net opinion of dangerousness, which lacked adequate factual basis; (2) committing him absent clear and convincing evidence of dangerousness as defined by the commitment statutes; (3) continuing his confinement while adjourning his initial commitment hearing absent any "exceptional circumstances" required for adjournments of initial commitment hearings pursuant to R. 4:74-7(c)(1), due process and case law.

While the first appeal was pending, the judge reviewed the matter on October 17, 2006 and again ordered the continued commitment of O.P. O.P. filed his second appeal (A-1449-06T2) and moved to consolidate the two appeals. We ordered consolidation on December 18, 2006 (M-1840-05).

The matter was again reviewed by the judge on January 9, 2007. The judge entered a discharge order with the conditions listed above, and set a review date of March 6, 2007. O.P. moved before us to amend the notice of appeal in A-1449-06T2 to:

(1) include the January 9, 2007 order; (2) to expedite this matter; and (3) stay further proceedings pending a decision by this court. We granted the amendment and expedited the handling of the appeal, but denied a stay on February 27, 2007 (M-2889-06).

On the second appeal, O.P. contends that: (1) the first appeal is not moot; and (2) the judge improperly refused to exercise his judicial function and deferred his powers, authority and responsibility to the SSPRC and CARP.

We approach this appeal, mindful of the principle that, "[a] party may not seek appellate review of an adverse interlocutory order without seeking relief from the outcome of the litigation as embodied in the judgment." Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990). This is so because "a litigant satisfied with the judgment cannot have an advisory appellate evaluation of an alleged interlocutory error." Ibid. Therefore, in deciding these appeals, we will focus on the challenge to the commitment order issued on March 7, 2006 and the fourth condition for release set in the January 9, 2007 order.

II.

O.P. challenges the March 7, 2006 order on due process and other substantive grounds. We agree with O.P. that the judge made a number of erroneous interlocutory rulings. The judge should have held an initial commitment hearing within twenty days of O.P.'s discharge from Krol status. R. 4:74-7(c)(1); N.J.S.A. 30:4-27.12a; In re Commitment of M.M., 384 N.J. Super. 313, 327-28 (App. Div. 2006). In order to extend this twenty- day period, the judge had to find "exceptional circumstances" and "good cause." R. 4:74-7(c)(1); N.J.S.A. 30:4-27.12(a); Coll v. Hyland, 411 F. Supp. 905 (D.N.J. 1976). The judge did not abide by this rule. Moreover, the judge was incorrect in ruling that the Krol hearing constituted the initial civil commitment hearing. We agree with O.P. that an order discharging a patient from Krol status is not an initial civil commitment order. The burden of proof is different. At a Krol hearing, the standard is preponderance of the evidence. N.J.S.A. 2C:4-8. However, the State must prove the standard for civil commitment by clear and convincing evidence. N.J.S.A. 30:4-27.15; R. 4:74-7(f)(1). Here, the Krol hearing was decided based on a preponderance of the evidence standard. There was no finding by clear and convincing evidence until the decision of March 7, 2006.

We also agree with O.P. that a judge, at a commitment hearing, should not seek additional testimony from the State if the judge is not convinced that the commitment standard has been met. If that is the case, the judge must discharge the patient. This is so because involuntary commitment to a mental hospital triggers significant due process requirements that must be "scrupulously followed." Matter of Commitment of Raymond S., 263 N.J. Super. 428, 431-32 (App. Div. 1993). However, the judge is not precluded from seeking clarification of the evidence presented. Nor is the judge precluded from adjourning a hearing to continue the testimony of a witness that has already offered some testimony. Based on our review of the record, we conclude that the judge sought such clarification, rather than additional expert testimony. We find no abuse of discretion on his part. We do not pass on whether the judge, in appropriate circumstances, may appoint an expert to assist the court.

Despite our agreement with some of O.P.'s conditions, in light of our conclusion that the March 7, 2006 order must be affirmed, we reject O.P.'s argument that these procedural missteps warrant a reversal. To do so would exalt procedure over the substantive evidence that O.P. was a danger to himself and others due to mental illness.

O.P. argues that the judge relied on conclusory and net opinion testimony from the State's experts and that the evidence presented by the State did not establish by clear and convincing evidence that he was dangerous. We disagree. We note that O.P. does not dispute that he is mentally ill, as defined in N.J.S.A. 30:4-27. He disputes that the State met its burden to show that as a result of such mental illness, he was a danger to himself, to others, or to property.

In order to involuntarily commit or extend a commitment, the judge must find by clear and convincing evidence that "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. Such a determination requires the judge to take into account the patient's "history, recent behavior and any recent act or threat." Ibid.

Here, the judge made that finding based on Gaviola's and Nebel's testimony. Gaviola testified about two recent accounts of threats of violence. On October 25, 2005, O.P. threatened to punch a staff member. On November 21, 2005, O.P. was verbally abusive to a staff member when caught smoking in the bathroom. In addition, Gaviola testified about episodes of "agitation," "threatening behavior," and "verbal abuse." Nebel also opined that O.P.'s commitment should continue, albeit in a less restrictive setting within Greystone. Thus, based on our review of the record, we conclude that the finding of dangerousness due to mental illness was supported by clear and convincing competent evidence.

We also conclude that O.P.'s first appeal is not moot.

O.P.'s commitment remains relevant in the event of future placements. See N.J.S.A. 30:4-27.5b; In re Commitment of M.M., supra, 384 N.J. Super. at 322 n.3. In re Commitment of P.D., 381 N.J. Super. 389, 393 n. 2 (App. Div. 2005), certif. granted and remanded, 186 N.J. 251 (2006). Moreover, a controversy cannot be rendered moot if "serious collateral legal consequences, nevertheless, stem from the commitment order." In re B., 158 N.J. Super. 542, 545 (App. Div. 1978) (finding hospital debt from such commitment to be such a consequence in that case). O.P. remains liable for payment of Greystone's services.

III.

In the second appeal, O.P. challenges one condition set by the January 9, 2007 order of discharge, "discharge subject to SSPRC/CARP review." We agree that this condition should be eliminated. A judge may determine that discharge is contingent upon certain conditions, however, the decision to discharge a civil committee must be made by the judge. R. 4:74.7(h). Here, the judge's condition of discharge that it be subject to SSPRC/CARP review, is an unauthorized delegation of judicial power. Although, these bodies perform the function of advising the judge, the final determination to discharge a civil committee must be made by the judge. Once the judge decides to discharge a patient, the judge cannot then ask these bodies to ratify the judicial decision. Such a procedure would create a circular review process that is not authorized by statutes or regulations.

On the other hand, although not appealed, we note that the judge has the inherent authority to impose certain conditions upon the patient's discharge. In re Civil Commitment of E.D., 353 N.J. Super. 450, 458 (App. Div. 2002). In this case, the following condition upon discharge was proper: twenty-four hour residential treatment program; day program; I.C.M.S. follow-up and M.I.C.A. program. Furthermore, the judge was required by law to order that Megan's Law notice be given after discharge. N.J.S.A. 2C:7-2.a. (requiring a person found not guilty by reason of insanity for committing a sexual offense to register as a sex offender.). Similarly, the judge's condition that the prosecutor be given notice of the discharge is appropriate. However, a response by the prosecutor, who has already been notified about O.P.'s commitment and has chosen not to intervene, shall not be a condition precedent to discharge.

Accordingly, the March 7, 2006 and October 17, 2006 orders are affirmed. The January 9, 2007 order is modified to delete the fourth condition. As modified, the January 9, 2007 order is affirmed.


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