RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5605-15T4
IN THE MATTER OF THE
COMMITMENT OF S.S.
_______________________________
Argued January 16, 2018 – Decided August 1, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
CUCC000210165215.
Lorraine Gormley Devine, Assistant Deputy
Public Defender, argued the cause for
appellant S.S. (Joseph E. Krakora, Public
Defender, attorney; Lorraine Gormley Devine,
of counsel and on the brief).
Anne E. Walters, Assistant County Counsel,
argued the cause for respondent State of New
Jersey (Christopher A. Orlando, Camden
County Counsel, attorney; Emeshe Arzón,
Assistant County Counsel, on the brief).
PER CURIAM
S.S. appeals from a June 28, 2016 order continuing her
involuntary civil commitment pursuant to R. 4:74-7.1 She argues
1
Although S.S. was transferred to Ancora Psychiatric Hospital
and placed on CEPP (conditional extension pending placement)
(continued)
the State failed to prove by clear and convincing evidence that
she was in continued need of involuntary commitment pursuant to
N.J.S.A. 30:4-27.1 to -27.23 and R. 4:74-7. We agree and
reverse.
S.S. had been involuntarily committed at Northbrook
Behavioral Health Center for twenty-six days at the time of the
review hearing. Before her transfer to Northbrook, she spent
two weeks at Bridgeton Hospital, precipitated by a report of
aggressive behavior at the shelter where she had been resident
for six weeks. It was her fifth commitment within a year's
time.
There was discussion on the record among counsel, S.S.'s
social worker and the court at the start of the hearing about a
domestic violence restraining order against S.S., apparently
obtained by her brother. S.S. lived with her brother and their
grandmother before going to the shelter. The social worker
explained she had been unable to obtain the order and it was not
produced at the hearing. None of the participants had seen it
and there was no indication of whether it was a temporary or
(continued)
status following the review hearing on July 12, 2016, we do not
consider the matter moot in light of the importance of S.S.'s
liberty interest and the likely repetition of error escaping
review. See In re Commitment of N.N., 146 N.J. 112, 124 (1996).
2 A-5605-15T4
final order. Addressing the issue as it related to her client's
placement, counsel for S.S. stated S.S. was not seeking
discharge to her family but requesting CEPP status.
S.S.'s treating psychiatrist was not available for the
review hearing. Instead, another psychiatrist met briefly with
S.S. five days before the hearing and testified for the State.
The doctor explained S.S. suffered from a mental illness,
schizoaffective disorder, remained on close supervision, and was
a danger to herself and others. He claimed the danger to
herself was that she refused to permit staff to check her
"vitals" on one or two occasions, even though she had been
diagnosed with hypertension. The psychiatrist opined she was a
danger to others because of "the admit reasons" and an oral
report he received about an "outburst" that morning "in which
she accused an R.N. of husband stealing and threatened to break
out . . . all the windows in the unit, apparently." He
recommended S.S. remain committed, "act in a less labile manner
and continue to improve and take medications."
The psychiatrist admitted on cross-examination he could not
recall very much about his interview with S.S., acknowledged he
had no concern for suicide, and confirmed S.S. was faithfully
taking all prescribed medications, including that prescribed for
hypertension. He did not know whether her blood pressure was
3 A-5605-15T4
within normal limits. Asked whether there had been other
incidents similar to the one he reported that morning, which he
acknowledged he did not witness, he replied "[w]ith that many
patients, I can't review every single note." He admitted he was
"not aware of any specific harmful action" taken by S.S and did
not know the source of the allegations prompting S.S.'s
admission to the hospital, which he referred to as "the admit
reasons."
S.S. testified she entered the hospital after the shelter
told her she had exceeded her allotted time there and her
grandmother was not available to pick her up. She denied being
aggressive to anyone, and claimed she called the hospital for
assistance when she felt herself getting upset. She testified
she had not refused vitals, was compliant with her medication
and would continue so upon her release.
S.S. also testified her grandmother visited her when she
was in the hospital. When the judge attempted to explain the
"no contact" provision in a domestic violence restraining order
would prevent her from returning to her grandmother's home, S.S.
replied that she and her "grandmom, like, we're very close. She
raised me as her daughter." Although acknowledging "that
paper," S.S. explained that "after a while, my grandmother is
going to come see me to see if I'm okay."
4 A-5605-15T4
S.S.'s social worker testified she had not seen S.S.'s
outburst that morning because it occurred prior to the start of
her shift, but that it "was reported to [her]" as part of the
morning report. The court overruled counsel's objection that an
oral report could not qualify as a business record exception to
the hearsay rule. The social worker further testified, again
over objection, that she had taken S.S. the day before to
Parkwoods Residential Health Care Facility, but staff there told
her they refused to even permit S.S. to tour the facility after
"she told him how she knocked out all the windows" in her
grandmother's home. The court rejected counsel's hearsay
objection, explaining the witness was "testifying [to] what your
client said to somebody else. That's an exception to the
hearsay rule." Based on the experience with Parkwoods, the
social worker testified that S.S. was not even "ready to be
discharged to a residential healthcare facility."
When the social worker began to testify about her
conversations with S.S.'s grandmother, the judge sustained
counsel's objection, but said he would "draw adverse inferences
from that." When counsel objected to the court drawing an
adverse inference from a well-grounded hearsay objection, the
judge explained "your client was telling me what a great
5 A-5605-15T4
relationship she has with her grandmother. At this point, I
have to assume that that's not correct."
After hearing the testimony and the argument of counsel,
the court continued S.S.'s commitment. Although acknowledging
that he was not aware whether the domestic violence restraining
order was "a TRO or an FRO," what the predicate facts were or
when the incident occurred, other than some time in 2016, the
judge found "there is an order indicating that there has been
dangerous behavior with respect that it must rise to the level
of at least a petty disorderly offense or it could be more."
The judge further noted that "apparently the petitioner was her
brother . . . who lives with the grandmother who [S.S.]
indicates has a very good relationship with [S.S.], but [S.S.]
objected to the [social worker] testifying as to what the
grandmother said." The judge concluded he had "to draw an
adverse inference from that because [S.S.] says I have a great
relationship with my grandmother. I just don't want you to know
what my grandmother has to say."
Noting that "after 26 days, people usually show
improvement," the judge found the doctor did not indicate that
was the case here, based on S.S. remaining on close supervision.
The judge found S.S. was not cooperative with treatment,
refusing to permit vitals, and thus preventing the staff from
6 A-5605-15T4
monitoring her hypertensive condition. Noting S.S.'s four prior
hospitalizations during the past year, the judge stated "at
least four prior times, there's been at least a temporary order
of commitment."
Turning to the issue of placement and the testimony of the
social worker about S.S.'s rejection by Parkwoods, the judge
said, "if she can't be accepted at a supervised setting, I have
no idea where she would go." The judge explained he found that
"significant evidence when Parkwoods, who accepts virtually
everybody, won't accept her. . . . That indicates to me that
she is not ready to leave when a supervised setting will not
accept her." The court concluded "it would be frivolous to put
her on CEPP to a supervised setting, because they've already
said no."
S.S. appeals, arguing the court erred in concluding the
prior entry of a domestic violence restraining order could
conclusively establish a patient was dangerous to others under
New Jersey's civil commitment statutes or that collateral
estoppel could be applied to relieve the State of its burden of
proving the need for commitment by clear and convincing
evidence. She further contends the court erred in concluding an
adverse inference could be drawn against a patient asserting a
7 A-5605-15T4
hearsay objection, and that the State failed to prove by clear
and convincing evidence that S.S. was a danger to herself.
The scope of appellate review of a civil commitment is
"extremely narrow." State v. Fields, 77 N.J. 282, 311 (1978)
(reviewing the involuntary commitment of a defendant found not
guilty by reason of insanity). We review a commitment
determination only for abuse of discretion. In re D.C., 146
N.J. 31, 58-59 (1996). The Court has directed that in
conducting our review, we are to accord "the utmost deference"
to "the reviewing judge's determination as to the appropriate
accommodation of the competing interests of individual liberty
and societal safety in the particular case." Fields, 77 N.J. at
311. Because even according that deference here it is obvious
the State did not meet its burden of proving S.S.'s continued
need for involuntary commitment on this record, we conclude the
judge mistakenly exercised his discretion in continuing her
commitment.
An order of continued commitment is only appropriate if the
State has presented clear and convincing evidence 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. 30:4-27.2(h) and
-.2(i), (3) the patient is unwilling to be
admitted to a facility for voluntary care or
accept appropriate treatment voluntarily,
8 A-5605-15T4
and (4) the patient needs outpatient
treatment as defined by N.J.S.A. 30:4-
27.2(hh) or inpatient care at a short-term
care or psychiatric facility or special
psychiatric hospital because other less
restrictive alternative services are not
appropriate or available to meet the
patient's mental health care needs.
[R. 4:74-7(f)(1); see also N.J.S.A. 30:4-
27.2(m).]
As used in the Court Rule, "[m]ental illness" "means a
current, substantial disturbance of thought, mood, perception or
orientation which significantly impairs judgment, capacity to
control behavior or capacity to recognize reality." N.J.S.A.
30:4-27.2(r). A person is "[d]angerous to self" if
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 harm or death will result
within the reasonably foreseeable future.
[N.J.S.A. 30:4-27.2(h).]
A person is "[d]angerous to others or property" if
by reason of mental illness 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.
This determination shall take into account a
person's history, recent behavior and any
recent act, threat or serious psychiatric
deterioration.
9 A-5605-15T4
[N.J.S.A. 30:4-27.2(i).]
Because S.S. concedes she suffers from a mental illness,
our focus is on whether the State proved she was a danger to
herself or others. We think it plain that S.S.'s refusal to
submit to having her blood pressure taken on one or two
occasions during her twenty-six-day stay at Northbrook does not
satisfy the statutory standard of dangerousness to self. Even
crediting the psychiatrist's opinion that "refusing vitals when
you're on anti-hypertensives shows at least a gross disregard
for your own health and safety," his acknowledgement that S.S.
was taking her blood pressure medication and his inability to
testify that S.S.'s non-compliance had any effect on her health
means we need not consider the issue further. See In re
Commitment of Robert S., 263 N.J. Super. 307, 311 (App. Div.
1992) (walking on nails spilled from a toolbox and turning on a
gas stove when the house got chilly insufficient to establish
mentally ill veteran was a danger to himself).
Turning to the court's finding that S.S. was dangerous to
others, S.S. urges us to consider the extent to which a judge
reviewing a civil commitment can rely on an order entered in a
proceeding under the Prevention of Domestic Violence Act,
N.J.S.A. 2C:25-17 to -35. We decline to do so as it is patently
clear no reliance can be placed on an order not produced at the
10 A-5605-15T4
hearing, that no one has seen and where there is no indication
of whether it was a temporary or final order, entered ex parte
or after a full hearing and whether the act of domestic violence
was homicide or harassment. Cf. State v. Silva, 394 N.J. Super.
270, 275 (App. Div. 2007) (holding that findings from an FRO
trial were not judicially noticeable in a subsequent criminal
trial regarding the same conduct).
County Counsel, representing the State here, "takes no
position" with regard to the evidentiary errors S.S. claims the
judge made in permitting the social worker to testify to the
oral reports she received from someone else regarding S.S.'s
alleged "outburst" on the morning of the hearing and from a
staff member at Parkwoods. We take that to mean it concedes the
statements were hearsay, not subject to any exception. See
In re Commitment of J.B., 295 N.J. Super. 75, 78-79 (App. Div.
1996) (cautioning against the admission of inadmissible hearsay
in the form of testifying witnesses reciting information
provided by others). Although the judge appeared to consider
the social worker's testimony about the statement the Parkwoods
staffer made to her, reporting what S.S. allegedly said to him,
to constitute a statement of a party-opponent, N.J.R.E.
803(b)(1), or one against S.S.'s interest, N.J.R.E. 803(c)(25),
11 A-5605-15T4
he did not address N.J.R.E. 805's requirement that each hearsay
statement meet an exception to N.J.R.E. 802.
County Counsel also makes no attempt to defend the court
having drawn an adverse inference from a properly lodged hearsay
exception to the testimony the social worker wished to offer
regarding her conversations with S.S.'s grandmother. We can
find no justification for such a patently improper ruling
abridging S.S.'s right to insist the State confine itself to
admissible evidence in shouldering its burden to prove by clear
and convincing that she required further commitment. In re
Commitment of M.M., 384 N.J. Super. 313, 334 (App. Div. 2006).
Because the State could not properly rely on the domestic
violence restraining order to establish S.S.'s dangerousness to
others, or the social worker's report of what others told her,
the State's proofs on this point rest solely on the testimony of
the psychiatrist. He, however, was only filling in for S.S.'s
treating doctor and could offer nothing more than "the admit
reasons" and the same oral report the social worker offered
about an alleged "outburst" the morning of the hearing. We have
before cautioned that judges "must take care to avoid any use of
an expert's testimony about the foundation for an opinion as
proof of facts that are neither derived from nor established by
otherwise admissible evidence." Id. at 335. As the
12 A-5605-15T4
psychiatrist had no idea of the source of the information for
"the admit reasons," see J.B., 295 N.J. Super. at 78-79, and the
State offered no competent proof of S.S.'s alleged "outburst"
the morning of the hearing, even assuming such would be
sufficient to prove her dangerousness to others, its proofs that
she was a danger to others were decidedly lacking. See M.M.,
384 N.J. Super. at 334 (quoting In re Commitment of G.G.N., 372
N.J. Super. 42, 59 (App. Div. 2004) ("The evidence must permit
the judge 'to come to a clear conviction [that person is
mentally ill and dangerous], without hesitancy.'")).
The importance of the individual and public interests
implicated by involuntary civil commitment compel the trial
judge to assiduously attend to the need to make adequate
findings. In re Commitment of S.D., 212 N.J. Super. 211, 218-19
(App. Div. 1986). "A judge presiding over a commitment hearing
is vested with extraordinary responsibility; when the judge does
not apply the legal standards and find the relevant facts, our
subsequent correction of the abuse of discretion is a poor
remedy for the ill." M.M., 384 N.J. Super. at 332-33. It does,
however, serve to prevent repetition of errors capable of
leading to unconstitutional confinement.
Reversed.
13 A-5605-15T4