IN THE MATTER OF THE CIVIL COMMITMENT OF S.T. (24218, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2928-17T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF S.T.,
____________________________
Submitted February 14, 2019 – Decided May 2, 2019
Before Judges Simonelli and O'Connor.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. 24218.
Joseph E. Krakora, Public Defender, attorney for
appellant S.T. (Alexandria S. Correa, Assistant
Deputy Public Defender, of counsel and on the brief).
Robert E. Barry, Union County Counsel, attorney for
respondent County of Union (Kevin G. Campbell,
Assistant County Counsel, on the briefs).
PER CURIAM
S.T. appeals from a February 22, 2018 order that continued her
involuntary commitment to Trinitas Regional Medical Center. Although she is
no longer committed, 1 this matter is not moot because she is liable for the cost
of the confinement the court ordered on February 22, 2018. See N.J.S.A. 30:4-
60(c)(1). If that confinement should not have been ordered, S.T. is entitled to
a credit. See In re Commitment of B.L., 346 N.J. Super. 285, 292 (App. Div.
2002). After perusing the record and applicable legal principles, we reverse.
On February 18, 2018, pursuant to N.J.S.A. 30:4-27.2(m), the court
entered a temporary order for S.T.'s involuntary commitment for inpatient
treatment. A hearing to review her continued eligibility for involuntary
commitment was held on February 22, 2018. At that hearing, M. Awais Sethi,
M.D., and S.T.'s mother testified. We summarize the salient testimony.
S.T. was admitted into the hospital on February 16, 2018, with a history
of having given birth to her first child within the month. Since then, she had
been "agitated," and was observed to have thrown vases and cable boxes
against the wall. During her hospital admission, Sethi diagnosed S.T. with
psychotic disorder, not otherwise specified. He noted the Division of Child
Protection and Permanency was involved in the baby's care because of her
behavior.
1
The record does not reveal when S.T. was released from involuntary
commitment.
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Although Sethi testified that he had observed S.T. "acting really bizarre"
while in the hospital, which took the form of S.T.'s "laughing for no reason,"
he also stated that, on the day before the hearing, he thought S.T. "wasn't that
sick, [and] I was questioning why she was brought [to the hospital]." Despite
the latter statement, he testified he had a concern for both S.T. and her
newborn. He commented:
I believe she's . . . not in her right mind to provide the
child with the care that the child needs. She is at risk
of losing the child if she continues to behave the way
she did. And I've just started her on the anti-psychotic
medication that . . . needs to be adjusted before she's
stable enough to go home.
Sethi acknowledged S.T. is compliant with taking medication and, while
hospitalized, did not exhibit assaultive behavior either toward herself or others,
and did not damage any property. Nevertheless, Sethi was "fairly convinced
that [S.T. is] psychotic[,]" and he had a concern about her "bizarre behavior."
In his opinion, if she were discharged, she "possibly" would be a danger to
others and, in particular, her child. Sethi recommended that S.T. continue to
be committed, but that the court hold a review hearing in two weeks. S.T. 's
mother's testimony was very limited; she merely testified S.T. would "laugh
out sometimes."
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Without making any findings of fact or conclusions of law, see Rule 1:7-
4(a), the court ordered that S.T.'s involuntary commitment continue another
two weeks and scheduled a review hearing for March 8, 2018. The record
does not reveal what occurred at the latter hearing.
On appeal, S.T. asserts a number of contentions. They include, but are
not limited to, that Sethi had not been qualified as an expert witness before he
testified, and that he did not state it was probable S.T. would be a danger to
others if released from involuntary commitment. S.T. argues either one of
these omissions requires the reversal of the February 22, 2018 order.
N.J.S.A. 30:4-27.15(a) authorizes a court to continue an individual's
involuntary commitment past a temporary commitment order, so long as "the
court finds by clear and convincing evidence that the patient needs continued
involuntary commitment." The statute defines "in need of involuntary
commitment to treatment" as "an adult with mental illness, whose mental
illness causes the person to be dangerous to self or dangerous to others or
property and who is unwilling to accept appropriate treatment voluntarily after
it has been offered." N.J.S.A. 30:4-27.2(m).
"Dangerous to self" is defined as:
[B]y reason of mental illness the person has threatened
or attempted suicide or serious bodily harm, or has
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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; however, no person shall be deemed to be
unable to satisfy his need for nourishment, essential
medical care or shelter if he is able to satisfy such
needs with the supervision and assistance of others
who are willing and available. This determination
shall take into account a person's history, recent
behavior and any recent act, threat or serious
psychiatric deterioration.
[N.J.S.A. 30:4-27.2(h).]
We turn to S.T.'s contention that the court's failure to qualify Sethi as an
expert witness warrants the reversal of the February 22, 2018 order. N.J.R.E.
702 states that:
[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form
of an opinion or otherwise.
This rule requires that a witness who testifies on a subject matter beyond the
ken of the fact-finder possess sufficient expertise to offer the intended
testimony. State v. Kelly, 97 N.J. 178, 208 (1984). Before such witness may
testify, the court must establish the witness has the requisite expertise to testify
about such specialized knowledge. See State v. Jenewicz, 193 N.J. 440, 455
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(2008). In addition, when seeking a final order for involuntary commitment,
the State's application must be supported by the oral testimony of a
psychiatrist. R. 4:74-7(e).
As stated, to involuntarily commit a party, the State must prove such
party is afflicted with a mental illness that causes the party to be dangerous to
himself, others, or property. R. 4:74-7(f). Generally, such proof requires
medical expert testimony. Here, S.T. did not stipulate Sethi was qualified to
testify as an expert in this matter. Thus, the State was required to introduce
evidence of Sethi's qualifications and the court was obligated to make a
finding about them. As a result of the State's omission, the court could not
make the requisite findings. There was no evidence Sethi was qualified to
testify as an expert witness. There is not even any evidence he was a
psychiatrist. See R. 4:74-7(e).
In addition, even if Sethi were properly qualified, he merely testified it
was "possible" S.T.'s mental illness made her a danger to others. That opinion
was insufficient to establish by clear and convincing evidence S.T. needed
continued involuntary commitment. To establish her illness made her a danger
to others required expert testimony couched in terms of reasonable medical
probability. Eckert v. Rumsey Park Associates, 294 N.J. Super. 46, 50-51
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(App. Div. 1996). An opinion stating it is "possible" an illness or condition
causes a particular result is inadmissible. See ibid.; see also Vuocolo v.
Diamond Shamrock Chems. Co., 240 N.J. Super 289, 299 (App. Div. 1990)
("Historically, courts have refused to admit expert medical testimony based on
mere speculation of possibility . . . ."); Gribbin v. Fox, 130 N.J.L. 357, 359
(Sup. Ct. 1943) aff'd, 131 N.J.L. 187 (E & A 1944) (it was error to not strike
the testimony of a medical expert based on mere possibility).
Here, Sethi's failure to testify it was probable S.T. was a danger to others
and the fact he was not qualified to testify as an expert witness compels that
we reverse the February 22, 2018 order. There was no competent evidence
introduced at the subject hearing that supports the State's contention S.T. was a
danger to others. Because of our disposition, we need not address the other
contentions S.T. raises on appeal.
Reversed.
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