NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2013
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).
Before Judges Grall, Koblitz and Accurso.
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.
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 ...