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In the Matter of the Civil Commitment of T.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 30, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF T.H.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. SC-602-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012

Before Judges Payne and Reisner.

T.H. was involuntarily committed on a temporary basis to Jersey City Medical Center on July 21, 2010. Following the issuance of an order on July 27, 2010 authorizing a continuation of his commitment, on August 3, 2010, T.H. was transferred to Greystone Park Psychiatric Hospital. In these consolidated appeals, T.H. challenges orders entered on September 7, October 5 and December 14, 2010 continuing his involuntary commitment, and an order entered on March 8, 2011, changing his status to Conditional Extension Pending Placement (CEPP). T.H. was administratively discharged on April 20, 2011 to a boarding house in Newark.

On appeal, T.H. presents the following arguments:

Point I

THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT WAS DANGEROUS TO SELF AS DEFINED BY STATE COMMITMENT STATUTES.

A.) The State Failed To Present Clear and Convincing Evidence That Appellant Was Unable To Satisfy His Need For Nourishment, Essential Medical Care or Shelter.

B.) The State Failed To Present Clear and Convincing Evidence That Appellant Was Likely To Suffer Substantial Physical Injury In The Reasonably Foreseeable Future Due To An Inability To Care For Himself.

C.) The Psychiatrists' Opinions Of Dangerousness Were Speculative and Lacked Sufficient Factual Basis.

1.) Speculation and Conjecture Are Not Sufficient To Establish the Need For Involuntary Commitment.

2.) The Psychiatrists' "Net Opinions" Are Insufficient To Support an Order Of Involuntary Commitment.

D.) Dangerousness Cannot Be Presumed From a Confused Mental State Absent a Factual Showing That It Causes an Inability To Care For Self That Is Likely To Result In Some Substantial Physical Injury.

Point II

THE COURT BELOW CONSIDERED INADMISSIBLE HEARSAY IN REACHING ITS DECISION TO CONTINUE APPELLANT'S COMMITMENT ON SEPTEMBER 27, 2010.

Point III

AT THE TIME OF T.H.'S REVIEW HEARING ON MARCH 8, 2011, HE WAS NOT A DANGER TO SELF, OTHERS OR PROPERTY AND WAS ABLE TO SURVIVE INDEPENDENTLY OUTSIDE OF THE HOSPITAL SETTING, AND THUS SHOULD HAVE BEEN DISCHARGED, RATHER THAN RELEGATED TO THE MORE RESTRICTIVE CEPP STATUS.

We agree with T.H.'s arguments and reverse.

I.

As a preliminary matter, we note that the County has moved to dismiss these appeals as mooted by T.H.'s release from the hospital and, in the alternative, to supplement the record with T.H.'s records of treatment, none of which was authenticated or entered into evidence during the earlier proceedings. We deny both motions.

With respect to the issue of mootness: "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 Commitment of B.L., 346 N.J. Super. 285, 292 (App. Div. 2002). Although the automatic lien provisions formerly contained in N.J.S.A. 30:4-80.1 have been repealed, other statutes render patients liable for all or part of the costs of their hospitalization. See N.J.S.A. 30:4-60(c)(1) (liability for cost of treatment, maintenance and related expenses when treated in a psychiatric facility); N.J.S.A. 30:4-70 (payment upon subsequent discovery of patient funds).

Moreover, were T.H.'s 2010 commitment to stand unchallenged, it could affect his future status if, in fact he is recommitted. For instance, we note that a screening psychiatrist is required to take into account prior hospital admissions. If a person "has been admitted three times or has been an inpatient for 60 days at a short-term care facility during the preceding 12 months, consideration shall be given to not placing [him] in a short-term care facility." N.J.A.C. 10:31-2.3(i)(1)(i) (implementing N.J.S.A. 30:4-27.5(b)).

We also deny the County's motion to supplement the record. "Our appellate courts will not ordinarily consider evidentiary material that is not in the record below." Cipala v. Lincoln Technical Inst., 179 N.J. 45, 52 (2004). "[T]he factors to be considered on a motion to supplement include (1) whether at the time of the hearing or trial, the applicant knew of the information he or she now seeks to include in the record, and (2) if the evidence were included, whether it is likely to affect the outcome." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452-53 (2007) (citing In re Gastman, 147 N.J. Super. 101, 114 (App. Div. 1997)).

In this case, the materials that the County belatedly seeks to include with its appeal were not introduced into evidence despite the expressed willingness of the court at the September hearing to take whatever time was required to consider admissibility. Further, our review of the transcripts in this matter satisfies us that the records would add little to our understanding of the parties' arguments. The one exception that we make to this determination is to permit supplementation with the Jersey City Medical Center screening documents, to which both parties refer.

We find it unnecessary to strike the County's brief and appendix, which we can selectively consider in evaluating the parties' arguments on appeal.

II.

Turning to the merits of the matter, we briefly summarize the evidence adduced at the various hearings that form the basis for T.H.'s appeal.

A. The September 7, 2010 Hearing: At this hearing, psychiatrist Michael Stewart testified for the County. Dr. Stewart stated that T.H. had been transferred to Greystone from the Jersey City Medical Center on August 3, 2010, and that he had previously been admitted to two or three other hospitals, although T.H. was unable to identify them. T.H. had not been taking his medications while in Jersey City, and he needed further longer-term treatment.

When admitted at Greystone, T.H. was paranoid, and he continued to refuse to take his medications, stating it was against his religious convictions. Dr. Stewart diagnosed T.H. as suffering from what seemed to be a schizoaffective disorder, bipolar type. When asked to describe T.H.'s condition, the doctor stated that he had some manic symptoms. "He seemed to be very guarded, very paranoid, and very religiously preoccupied. He talked about God, Satan, and being able to speak in tongues, both angelic and human, on a mission, several times during the admission." Dr. Stewart testified that T.H. agreed to take the medication Risperdal "in order to get out of here," but he denied needing the medication, denied having a psychiatric illness, and stated that he would not take his medications upon discharge. The doctor stated that T.H.'s insight was poor.

Additionally, the doctor was permitted to testify, over objection, that T.H. "was found wandering the swamps of Secaucus." In that regard, the court held:

Well, obviously the doctor didn't see him wandering, but again, the same ruling [as to admissibility] as the type of information that I think in making a diagnosis and in order to assess treatment, whether it's a 703 [bases of opinion of an expert] or whether it's an 803(c)(3) [existing mental, emotional or physical condition], or an 803(c)(4) [statements for purposes of medical diagnosis or treatment], the doctor is permitted to consider that.

In explaining where the information had come from, Dr. Stewart testified, after the court had summarized the doctor's testimony by saying "[h]e was wandering the streets,"

Actually he was wandering in a swamp, and that was in the transfer documents from Jersey City Medical Center, that they had the police reports there in the E.R.

I'm reading from the admission document. Patient brought in the E.R. by Secaucus Police. Patient was wandering in a swamp.

The doctor reported that, when first admitted, T.H. was angry and irritable, and he refused to leave his room. However, now he did leave his room for meals, he bathed, he permitted staff to take his vital signs, and he attended group therapy, although he did not participate in it. Dr. Stewart testified that T.H. was not able to take care of himself at present, because if he were off his medications, his behavior on admission would quickly recur: "the bizarre behavior, the roaming, the homelessness, the incoherent thoughts, . . . the catatonic behavior that was documented when he got here." Additionally, his religious preoccupation would recur.

On cross-examination, Dr. Stewart admitted that T.H. understood the process for renting an apartment and booking a hotel room. In determining that T.H. was catatonic, the doctor could not rule out the possibility that he simply did not wish to speak to staff. T.H.'s anger, the doctor stated, was based on the fact that he wished to be in the community, not confined. The doctor also admitted that the nursing staff reported that T.H. could do his own self care and had been reported as calm and cooperative as early as August 17. Additionally, T.H. ate "a percentage" of his meals. When admitted, T.H. was in good health, and within a few days after admission, he was taking his medication, although an increase in dosage had greatly improved T.H.'s mental condition.

Testimony was also provided by T.H., who denied being picked up in a swamp, and testified: "I was actually about three to four blocks away around the corner, walking down the sidewalk, where I was stopped and picked up." He stated that before his encounter with the police, he had spent time in a "public picnic-type park area" having a meal purchased from a store, not in a swamp. He described the area further by testifying:

It was a good, residential neighborhood. There was a picnic area with a deck or a block - a wooden - it was a wooden deck with wooden - with wooden rails, and there was wetlands and also dry marshlands nearby, but I wasn't walking through them or wandering through them.

T.H. stated that he was not a New Jersey resident, and that he was simply passing through the State on his way to Pennsylvania to look for factory or industrial work, in which he had ten to twelve years of experience. He had over $43,000 in employment earnings in the bank that he could access with his ATM card, and approximately $6,000 to $8,000 with him when picked up. T.H. stated that his last job had been in Bensenville, Illinois and had ended on September 30, 2008. Thereafter, he had sought work in Canada and in Europe, returning to the United States in January 2010. While in Bensenville, T.H. lived in a rented room and prepared his own meals. When discharged, T.H. planned to get a room for a while, and then rent a car or take mass transit to look further for employment.

On cross-examination, T.H. admitted to having spent two or three nights in New Jersey "just camping out" in out-of-the-way areas so as to get away from people, although he had also stayed in a hotel at least one night. He did not have a tent, because the weather was warm.

At the conclusion of the testimony, and following closing arguments, the court found after describing the testimony:

I'm satisfied there is a mental illness from the basis of what I've just described. I think he's a danger to himself for this reason. He's really unable to satisfy his need for nourishment, and essential shelter care. There's a probability [of] substantial bodily injury or even death, I can perceive it, if he's carrying that kind of money in those remote areas away from people, something could happen to him that either is unexpected, undesirable, and certainly something that no one in this room wants to see happen, or there's serious physical debilitation he would suffer which would result from - from his conduct within the reasonable foreseeable future.

So I'm satisfied there's a mental illness. I'm satisfied he's a danger to himself. I'm satisfied also that he's not here voluntarily and I don't know of any less restrictive setting at this point.

His behavior has been described as bizarre. He's been incoherent. He's been described as homeless and he corroborates that to some extent.

The court therefore continued T.H.'s commitment, scheduling a further hearing for October.

B. The October 5, 2010 Hearing: At the next hearing, psychiatrist Roberto Caga-Anan testified for the County. Dr. Caga-Anan stated that T.H. had admitted to wandering in the Secaucus swamp, stating that he loved nature. When asked why, in a report, he had indicated that T.H. was dangerous to himself and that he was unable to care for himself, the doctor stated that T.H. still needed reminders to comply with his treatment, and that he refused to acknowledge that he was mentally ill. If released, the doctor was of the opinion that T.H. would not take his medications, and then he would present with "serious and severe psychotic symptoms, again, unable to care for himself, suspicious, paranoid and disorganized." Additionally, he needed to be reminded about showering.

T.H. also testified. He denied that he was malnourished upon arrival to Greystone, and stated: "I'm able to take care of myself." When hungry, T.H. stated that he went to the store and purchased food, which he could afford because of his considerable savings. While T.H. stated that he enjoyed nature, he denied wandering or walking in the swamp, once again describing the park in which he had eaten a meal, shortly before being picked up by the police. The park, it was disclosed, was a bird watching area with raised wooden pathways or nature trails over wetlands.

T.H. explained to the court that, a number of years earlier, he had been homeless for four months, and that he was well able to care for himself. While in New Jersey, having moved out of his apartment in Brooklyn, he had slept outside for three nights and in a hotel for one. He assured the court: "When I camped out there was no danger. I knew exactly what I was doing." T.H. testified:

When people are homeless, they basically find a place - they find like a - like an alley, a wooded area of - behind a factory or something. They know what they're doing and - and when the weather is warm it's a lot easier, but even in the cold, they know what to do. I was homeless like them.

When asked what he would do if discharged, T.H. again said that he would look for work in Pennsylvania, traveling there either by public transportation or a car, which he would purchase. T.H. provided counsel with the name of the bank holding his savings.

Additionally, when asked his educational background, he stated that he had a bachelor of science degree in mining engineering from the University of Minnesota. He had worked in that field for approximately seventeen months, and then was employed by the United States Patent and Trademark Office as a patent examiner until May 1984. After that, he had been unable to find work in his field. T.H. had first been hospitalized for mental illness in 1983 when he was in his early twenties.

T.H. was unwilling to admit that he had a mental illness, stating that he stammered, and that he had a forceful or a quirky, weird personality. However, he said that he would agree to take his medications "for some time," acknowledging that there was some sort of chemical imbalance in his brain. However, T.H. would not agree to take the medications for the remainder of his life.

At the conclusion of the hearing, the court continued T.H.'s confinement, expressing an ongoing concern about his ability to satisfy his needs for nourishment, medical care and shelter. In particular, the court remarked on T.H.'s lack of camping gear and his determination to sleep outside, despite the fact that he was carrying large amounts of cash. According to the court, T.H. "was sleeping alongside the road. He was on the edge of the swamp last time, not on the deck, but on the edge of the swamp." Also, according to the court, T.H. had previously testified that he was sleeping in an abandoned building.

The court also noted T.H.'s unwillingness to continue his medication on a permanent basis and his denial that he was suffering from a mental illness. Finally, the court sought confirmation of some of T.H.'s statements, particularly those concerning his money.

C. The December 14, 2010 Hearing: At the commencement of the hearing, the court expressed frustration at not being able to obtain confirmation of statements made by T.H., especially those concerning his money, but also "his whole version of, you know, where he traveled from, where he went to, how he got over to New Jersey. You know, where his camping status, you know, all those things that were indicated to me." As the discussion regarding T.H.'s money progressed, the court again stated: "Well, my concern about the money, no matter what amount it was, is certainly anybody with that amount of money sleeping in the areas that he was could be assaulted[.]"

The hearing then began with testimony from Dr. Caga-Anan, who testified that at the prior hearing [t]here was a mention that prior to admission to Jersey City Medical Center three weeks prior to that hospitalization he was just discharged from a hospital from Toledo, Ohio.

Then went to New York and to New Jersey and was in the swamps and the police were concerned because he was not able to pick up himself. And he was brought to Jersey City Medical Center and hence brought to Greystone.

The doctor reported that T.H. had been refusing to shower '[a]nd he just remained impaired." "For now," T.H. had been compliant with all medication. Nonetheless, the doctor considered T.H. to be unable to care for himself because he would not continue to take his medications if released "and would have regardings [sic] for being safe and might become a danger for himself or hope not to others." Also, he was unable to care for his hygiene.

The doctor recommended a review of T.H.'s condition in three to six months. He acknowledged that there had been no effort to confirm or determine the details of any of T.H.'s prior hospitalizations, and that efforts to confirm the status of his finances were incomplete because T.H.'s ATM card was in storage.

In determining to continue T.H.'s commitment, the court reviewed T.H.'s history as reported by him, observing: "So the history is certainly not one that is easy for me to accept. In fact, I don't accept it, as far as what he has indicated." Additionally, the court concluded that T.H. "still suffers from a mental illness." When reminded of the proper standard, the court found that T.H. remained unable to care for himself, stating, specifically:

Well, I think I've mentioned certain things. First of all, if I go back to all the hearings as far as his food is concerned, as far as his camping equipment is concerned, as far as the location in the swamp and alongside the road, the fact that he didn't have any transportation available to him, the fact that he had a substantial sum of money where he could have been assaulted and he could have received serious, serious debilitating injuries. Unlike you [T.H.'s counsel], I don't think he has to be beaten up in order for me to find, do you follow me, that that's a circumstance.

I would prefer to prevent that from occurring. But certainly the situation was there. He's going to no destination in Pennsylvania. He's discharged from a hospital. He's not taking care of those things that you would expect somebody with a college education and with funds, as far as hygiene is concerned. I don't believe that this man is able to care for himself. . . .

But there has to be some way where I can get information about this man other than what I have. And what I have is not, in my view, supportive of him being discharged.

D. The March 8, 2011 Hearing: At the fourth hearing on T.H.'s case, counsel for T.H. confirmed that he had slightly more than $43,000 in a bank account. In testimony given at the hearing, Dr. Caga-Anan testified that T.H. had been approved for CEPP status, having for several months been compliant with his treatment and been attending programs and activities that were scheduled for him. As a result, in the doctor's opinion, T.H. had improved to the point where, if discharged to an appropriate placement, he would not be a danger to himself, others, or to property. The doctor confirmed that, at the present time, T.H. was able to leave his unit unescorted, he was calm and cooperative, he had demonstrated excellent participation in his medication group, had good social behavior, and was independent in all of his self care and daily living activities. Additionally, the doctor confirmed that if T.H. were discharged to a place other than a supervised setting, he would know the process for obtaining shelter for himself, and that he had funds for that and for the purchase of food.

Nonetheless, the court rejected the request of T.H.'s counsel that he be immediately released, expressing concern that it might lack the power to grant such relief, since an appeal was pending before us challenging the three earlier orders continuing T.H.'s commitment. As stated, T.H. was discharged on April 20, 2011. A further appeal was filed from the court's March 8, 2011 order.

III.

Involuntary commitment is governed by the provisions of N.J.S.A. 30:4-27.1 to -27.23 and Rule 4:74-7. A person is "[i]n need of involuntary commitment" when "mental illness causes the person to be dangerous to self or dangerous to others or property[,]" and the person is unwilling to be voluntarily admitted to a facility for care. N.J.S.A. 30:4-27.1m. In the present case, T.H. was found to be dangerous to self, which is defined by N.J.S.A. 30:4-27.2h to mean: by reason of mental illness the person has threatened or attempted suicide or serious bodily harm, or has behaved in such a manner as to indicate that the person is unable to satisfy his need for nourishment, essential medical care or shelter, so that it is probable that substantial bodily injury, serious physical debilitation or death will result within the reasonably foreseeable future . . .

On appeal, T.H. challenges the orders continuing his involuntary commitment arguing that the County, which had the burden of proof, In re Commitment of J.R., 390 N.J. Super. 523, 529-30 (App. Div. 2007), failed to demonstrate, by clear and convincing evidence, N.J.S.A. 30:4-27.15a; Rule 4:74-7(f)(1), that he was dangerous to himself as statutorily defined, and for that reason, his involuntary commitment was unlawful. In considering T.H.'s appeal, we "give[] deference to civil commitment decisions and reverse[] only when there is clear error or mistake[.]" In re Commitment of M.M., 384 N.J. Super. 313, 334 (App. Div. 2006). Nonetheless, in making our decision we must consider the adequacy of the evidence supporting the determination to continue commitment to evaluate whether it is competent. Ibid. (citations omitted).

Equivocal proofs are not sufficient. In re Commitment of W.H., 324 N.J. Super. 519, 523 (App. Div. 1999). The evidence must permit the judge "to come to a clear conviction [that the person is mentally ill and dangerous], without hesitancy." In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004); [In re Commitment of] P.D., 381 N.J. Super. [389,] 394 [(App. Div. 2005)], In re D.C., 146 N.J. 31, 60-61 (1996). [M.M., supra, 384 N.J. Super. at 334.]

In reaching our decision, we must keep in mind the substantive limitations that exist on a court's authority to order continued involuntary commitment in cases such as this. We have observed previously,

The interference with a patient's liberty that civil commitment entails is justified on the basis of the state's interest in confining and treating "an individual [who] is likely to pose a danger to self or others or property by reason of mental illness." In re Commitment of S.L., 94 N.J. 128, 138 (1983). "[A] State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." O'Connor v. Donaldson, 422 U.S. 563, [575-76,] 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396, 407 (1975). Because the patient's liberty is at stake at all stages of a commitment proceeding, "meticulous adherence to statutory and constitutional criteria" for commitment is required. In re Commitment of D.M., 285 N.J. Super. 481, 486 (App. Div. 1995), certif. denied, 144 N.J. 377 (1996). [In re Commitment of M.C., 385 N.J. Super. 151, 159-60 (App. Div. 2006).]

See also N.J.S.A. 30:4-27.1(b) (setting forth legislative findings and declarations).

Our initial concern in this matter arises from the court's decision to accept as true the statement by Dr. Stewart at the first hearing that T.H. "was found wandering the swamps of Secaucus." We recognize that police, screening center or hospital reports indicating that the author had recorded his or her observations of a patient's behavior in the course of performing his or her duties may be admissible pursuant to N.J.R.E. 803(c)(6). See M.M., supra, 384 N.J. Super. at 334.

However, in this case, Dr. Stewart's statement had its origin in a screening document that was not based on personal observation, but instead, was allegedly based on a police report that was not introduced at the hearing or entered into evidence at that time. As a consequence, the unverified content of the police report, which underlay significant aspects of the court's initial decision and those that followed, constituted inadmissible hearsay. See In re Commitment of J.B., 295 N.J. Super. 75, 78-79 (App. Div. 1996) (finding it improper for psychiatrist to rely on unverified hearsay statements of conduct, the trustworthiness of which could not be ascertained). What further concerns us is the fact that the alleged statement in the police report that T.H. was found in a swamp - a statement that T.H. refuted with credible evidence that he was in a park on a bird-watching platform*fn1 - became transmogrified, without evidentiary support, by the court over time into the conclusion that T.H. had been sleeping in or at the edge of a swamp, thereby further demonstrating that he was a danger to himself.*fn2

But other aspects of the court's decision give us concern as well. Because there was no evidence that T.H. had threatened or attempted to harm himself, to justify continued commitment it was necessary for the County to provide clear and convincing proof that he was "unable to satisfy his need for nourishment, essential medical care or shelter, so that it [was] probable that substantial bodily injury, serious physical harm or death [would] result within the reasonably foreseeable future."

N.J.S.A. 30:4-27.2m. In that regard, the court found after the first hearing that T.H. suffered from an Axis I diagnosis of schizoaffective disorder, that he was resistant to medications, although he was taking one drug on a regular basis, and that he was preoccupied with religion. He was "almost catatonic with staff, he just blinks his eyes," and he was "not participating fully in group and things of that nature but he [was] going." The court noted that although T.H. "indicated he didn't need any clothing [or camping gear] because it was July, it was warm . . . I have to be concerned, quite candidly, about whether or not he is a danger to himself." Elaborating, the court found T.H. was "unable to satisfy his need for nourishment, and essential shelter care." Further, the court was concerned about the "probability" of "substantial bodily injury or even death" because T.H. was carrying substantial amounts of money and about "serious physical debilitation" that would result from his conduct.

The court's conclusions following the first hearing were based on the testimony of Dr. Stewart, who opined that T.H. would be unable to provide shelter for himself outside the hospital. To the extent that the doctor's opinion was based on his conclusion that, if discharged, T.H. would revert to his former ways, we find the doctor's conclusion to be inadequate as a foundation for a finding of dangerousness. J.B., supra, 295 N.J. Super. at 79.

In that regard, the record reflects Dr. Stewart's testimony that "before [T.H.] got [to Greystone] he found housing on his own, but that's not clear. Per the transfer documents, it appears [as] though he was homeless." T.H. testified that "[w]hile I was in New Jersey . . . I spent about two or three nights just camping out," once in a wood behind a factory, and once by the side of a road - "someplace where there wouldn't be people." He indicated that he had no camping gear, but that "in July the weather was warm, it was perfectly easy and warm enough to sleep out[.]" He said that "one reason why I camped out [was] because I didn't know if there was a hotel nearby." Finally, when asked if he had camped out during cold weather during this period of looking for work, he said that he had not because "I did not have the gear for it," which he specified as "a tent, sleeping bag, blankets, that sort of thing."

We do not find such testimony adequate to demonstrate that T.H. was unable to satisfy his need for shelter, "so that it [was] probable that substantial bodily injury, serious physical debilitation or death [would] result within the reasonably foreseeable future." N.J.S.A. 30:4-27.2h.

Moreover, we note the doctor's admission on cross-examination that T.H. understood how to rent an apartment and to obtain hotel lodging. Although Dr. Stewart doubted that T.H. would have the money to rent an apartment, it was later proven that T.H. did, in fact, have such money. Thus, his opinion in that regard was "devoid of any empirical basis[.]" Ibid.

Furthermore, the record of the first hearing provides no evidence that T.H. was unable to nourish himself. T.H.'s own testimony indicated that he had the ability to purchase his own food and the fact that he had eaten a meal shortly before he was picked up. He testified on cross-examination that on the nights when he slept outdoors, "I had food - food, drink and - and enough clothes to keep warm." Further, T.H. was said to be in physically good condition when examined at Jersey City Medical Center, and no indication existed that his condition had changed upon admission to Greystone. Dr. Stewart admitted that T.H. ate at least "a percentage" of his meals. He did not indicate that the percentage eaten was low, or that T.H.'s eating habits in any fashion impaired his health.

As for catatonic behavior, the doctor conceded on cross-examination that T.H., who resisted commitment, may simply have been unwilling to talk to hospital staff. Even if it were conceded that T.H.'s behavior was bizarre, we see no evidence that would suggest that characterization could be equated with dangerousness to self. The United States Supreme Court has held that the State may not "fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different[.]" O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396, 407 (1975). "Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty." Ibid. (citations omitted).

As a final matter, the court suggested that T.H. would be in danger upon discharge because of the amount of cash he claimed to have been carrying at the time he was picked up. However, we find the danger that T.H. could be injured in a robbery to be entirely speculative. Further, we find no basis for concluding that such a possibility would render T.H. a danger to himself.

Our courts have set a high standard of proof in connection with a showing of a probability of injury, harm or death:

To justify an involuntary commitment, it is necessary to show more than the potential for dangerous conduct. In re Commitment of R.B., 158 N.J. Super. 542, 547 (App. Div. 1978). "[T]he risk of dangerousness that will warrant involuntary commitment must be relatively immediate . . . ." In re Commitment of N.N., 146 N.J. 112, 130 (1996). There must be, in fact, a "substantial risk of dangerous conduct within the reasonably foreseeable future." In re S.L., 94 N.J. 128, 138 (1983) (quoting State v. Krol, 68 N.J. 236, 260 (1975)).

This court has not hesitated to reverse involuntary commitments where the record failed to contain clear and convincing evidence of a substantial risk of dangerous conduct within the reasonably foreseeable future. See [In re Commitment of] Raymond S. 263 N.J. Super. [428,] 433-34 [(App. Div. 1993)] (finding insufficient evidence to support commitment despite testimony that patient was hallucinating, psychotic and depressed upon admission); R.B., supra, 158 N.J. Super. at 547 (holding evidence of mood swings alone insufficient to support conclusion that patient was dangerous to self); In re Heukelekian, 24 N.J. Super. 407, 411 (App. Div. 1953) (holding commitment not warranted despite testimony that patient was disoriented and seemed to live in her own fantasy world). [J.R., supra, 390 N.J. Super. at 530.]

Applying this standard, we find the court's conclusions to have been speculative, and insufficiently grounded in competent evidence in the record. As a consequence, we find, contrary to the court's conclusion, that the County failed to meet its burden of establishing, by clear and convincing evidence, a basis for the involuntary commitment of T.H. at the first hearing on July 27, 2010.

Because, at the two hearings that followed, evidence demonstrated improvements in T.H.'s behavior and compliance with his medical regime, we find the County's proofs to fail in connection with them, as well.

IV.

T.H. argues that, following the March 8, 2011 hearing, he should have been immediately discharged instead of held at Greystone on CEPP status. We agree.

N.J.S.A. 30:4-27.15b provides that "[i]f the court finds that the patient does not need continued involuntary commitment, the court shall so order." Thereafter, the patient "shall be discharged by the facility within 48 hours[.]" Exceptions to this standard apply only if the release is subject to conditions as authorized by N.J.S.A. 30:4-27.15c and Rule 4:74-7c(1), a circumstance that is not relevant here, or when CEPP is ordered as authorized by Rule 4:74-7(h)(2), the provision upon which the court relied. That rule provides that "[i]f a patient otherwise entitled to discharge cannot be immediately discharged due to the unavailability of an appropriate placement, the court shall enter an order conditionally extending the patient's hospitalization and scheduling a placement review hearing within 60 days thereafter."

In discussing CEPP, we have noted:

The Supreme Court first approved the status now known as CEPP in In re Commitment of S.L., 94 N.J. [128,] 132 [(1983)]. Recognizing that under O'Connor v. Donaldson "[t]he State cannot constitutionally commit individuals to mental hospitals solely on the basis of mental illness," the Court held that the state may continue to confine a person who is unable to "survive independently outside the institution without some care and supervision." S.L., supra, 94 N.J. at 132, 137, 139-40. [M.C., supra, 385 N.J. Super. at 161.]

We noted that, "[a]s the Court explained it, CEPP is available where the state would otherwise be required 'to cast [] adrift into the community . . . individuals . . . incapable of survival on their own,' and it is justified by the state's interest in protecting the 'essential well-being' of these individuals."

M.C., supra, 385 N.J. Super. at 162 (quoting S.L., supra, 94 N.J. at 140). This standard has not been relaxed. Ibid.

In the present matter, Dr. Caga-Anan testified that T.H. had improved to the point where, if discharged to an appropriate placement, he would not be a danger to himself. He also stated, however, that if he were discharged to a place other than a supervised setting, he would know the process for obtaining shelter, and he had funds for that and for food. As a consequence, there was no evidentiary support for the court's order placing T.H. on CEPP status, since evidence unequivocally established that he was capable of survival on his own.

The court, in fact, did not rule that there was a sufficient factual basis to support CEPP status. Rather, it was concerned that the trial court might have lost jurisdiction in the matter as the result of the pendency of appeals from the court's three prior orders. Neither party has briefed this jurisdictional issue on appeal. However, we are satisfied that this is a circumstance, envisioned by Rule 2:9-1(a), in which the trial court maintained continuing jurisdiction to determine whether continued involuntary commitment was required, since to deprive the court of such jurisdiction would severely and unjustifiably deprive T.H. of his constitutionally-protected interest in freedom from involuntary restraints on his liberty. As a consequence, we find no procedural bar to have existed that would have precluded T.H.'s unconditional discharge.

Reversed.


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