On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. MH-1213-2006.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff*fn1 Lisa and Lihotz.
We examine the propriety of two orders requiring the conditional extension pending placement (CEPP) of appellant's involuntary civil commitment to the Trenton Psychiatric Hospital (TPH), pursuant to Rule 4:74-7(g). We conclude the trial court failed to make the proper legal findings to continue appellant's hospitalization. Accordingly, the orders dated January 11 and February 8, 2007, improperly infringed upon his constitutionally guaranteed liberty rights and must be reversed.
On April 18, 2006, appellant, T.J. was temporarily, civilly committed to the Ann Klein Forensic Hospital, West Trenton. He was transferred to the hospital from South Woods State Prison. T.J.'s incarceration was imposed following conviction for robbery and aggravated sexual assault, during which he blinded the victim. T.J. was never classified as a sexually violent predator (SVP), subject to civil commitment under N.J.S.A. 30:4-27.24 to -27.38. T.J. had a history of drug abuse. His civil commitment followed episodes in prison, which resulted in a diagnosis of chronic schizophrenia, paranoid type. While civilly confined, T.J. completed the maximum term of his criminal sentence.
On September 7, 2006, the trial court did not continue T.J.'s civil commitment but placed him on CEPP. R. 4:74-7(g). The judge also ordered the Special Status Patient Review Committee (SSPRC),*fn2 an administrative hospital committee, to determine the level of allowable privileges and the nature of any necessary restrictions due to T.J.'s mental health status and Megan's Law*fn3 conviction. T.J. was then transferred to the less restrictive Drake Building (Level 2 privileges) at TPH.
The court reviewed T.J.'s CEPP status on October 5 and November 2, 2006. Richard Povacz, T.J.'s treating social worker, submitted a request to the SSPRC in the hope it would approve T.J.'s transfer to a residence with Level 3 privileges. This would enable T.J. to enjoy home visits, grounds privileges, and supervised work opportunities. T.J.'s transfer to a less restrictive environment stalled while awaiting SSPRC action and an available placement.*fn4
On January 4, 2007, T.J. was interviewed and authorized for placement in the Discharge Oriented Program (DOP). The DOP offered counseling and coping skills to ease a participant's return to the community. However, T.J.'s admission was subject to SSPRC approval.
At the time of the January 11, 2007 review hearing, T.J. remained housed in the Drake Building. The court had not received a report from the SSPRC.
Povacz again expressed his support for T.J.'s transfer from the Drake Building to a less restrictive Level 3 environment because he "had never been any problem," was always compliant with all medications, and was "very helpful." Povacz acknowledged a current placement was not "available" because the SSPRC had not held a review hearing. Povacz believed a DOP bed was available, but transfer could not occur without SSPRC authorization.
Also, Povacz had submitted a discharge plan for T.J.'s release the prior week and it too, awaited SSPRC approval. The ultimate discharge plan for T.J. provided that he would reside with his father and step-mother in Newark.
T.J. expressed his frustration with being housed in a restrictive facility despite his progress and demonstrated ability to participate in extended privileges. T.J. requested immediate discharge to his parents' home with the understanding that he would continue his medication, attend any recommended after-care programs, schedule psychiatric care, and counseling.
L.W., T.J.'s father, wanted T.J. to be discharged and stated his son was "welcome" to reside in his home upon discharge. He stated he and his wife were prepared to provide daily supervision and assure T.J.'s attendance at his programs.
A review of the trial judge's determination on January 11, 2007, reveals her concern and caution exercised for T.J.'s benefit. The judge commented on T.J.'s Megan's Law status, which "was something that should be dealt with on a very cautionary basis" and "was complicated by the fact that [T.J.] had an extensive drug problem and certainly his use of drugs exacerbated the antisocial behavior that was at the root of these charges to begin with." The judge's aim was to prevent recidivism:
So I think it's very important, I've seen the revolving door too many times and I want [T.J.] to have every benefit because I really think, as I know that Mr. Povacz believes that this gentleman can succeed where we've seen all too many fail. But what we do know is that they need to have help and that help has to be in place prior to the discharge.
[W]hat I was upset about was that it has been a long period of time before he has . . . been moved to a less restrictive setting, that's my concern. And . . . I'm not satisfied that [T.J.] is ready and that appropriate measures are in place in the community and the level of support that would protect the community as well as to assist [T.J.] is ...