IN THE MATTER OF THE CIVIL COMMITMENT OF I.M. IN THE MATTER OF THE CIVIL COMMITMENT OF A.F. (MECC-736-19 AND MECC-803-19, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-0292-19T2
A-0317-19T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF I.M.
___________________________
IN THE MATTER OF THE
CIVIL COMMITMENT OF A.F.
___________________________
Argued October 19, 2020 – Decided January 20, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket Nos. MECC-736-19
and MECC-803-19.
Shannon M. Dolan, Assistant Deputy Public Defender,
argued the cause for appellants I.M. and A.F. (Joseph
E. Krakora, Public Defender, attorney; Shannon M.
Dolan, on the briefs).
Suzette Price, Assistant County Counsel, argued the
cause for respondent Mercer County (Paul R. Adezio,
Mercer County Counsel, of counsel; Suzette Price, on
the brief).
PER CURIAM
In these consolidated appeals, appellants I.M. and A.F. contend they were
entitled to be discharged from Trenton Psychiatric Hospital (TPH) within forty-
eight hours of their commitment review hearings pursuant to N.J.S.A. 30:4-
27.15(b) and Rule 4:74-7(h). Instead, in both instances, appellants argue the
judge erroneously continued their commitment as a Conditional Extension
Pending Placement (CEPP). See R. 4:74-7(h)(2).
Dr. Biju Basil, the State's medical expert at I.M.'s hearing, diagnosed I.M.
with schizophrenia. Dr. George Dubois, the State's medical expert at A.F.'s
hearing, diagnosed A.F. with schizoaffective disorder, bipolar type, and
substance abuse disorder. During the respective commitment review hearings,
the State's medical expert testified that appellants no longer were a danger to
themselves, others, or property, and each had arranged housing upon discharge.
Despite this, both doctors testified that they needed to ensure treatment
services were in place before discharge. Dr. Basil wanted to make sure "the
treatment plans [we]re really put in place . . . [so I.M.] is able to stay safe, [and]
take her medications regularly[.]" Dr. Dubois testified that A.F. "did extremely
well in complying with her medication" but there were "a few things to put in
place."
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Appellants sought to be discharged. The judge ordered appellants
detained under CEPP with a review hearing scheduled two weeks later. See R.
4:74-7(h)(2). TPH has since discharged appellants – I.M. fourteen days after
her commitment review hearing (the date on which her subsequent review
hearing had been scheduled), and A.F. six days after her commitment review
hearing.
I.
Civil commitment implicates one's constitutional right to liberty. See In
re N.N., 146 N.J. 112, 127 (1996) ("There is no doubt that the constitutional
liberty interests that are implicated in the context of civil commitment
proceedings are sensitive and substantial." (Parham v. J.R., 442 U.S. 584(1979))). Nevertheless, "[o]ur scope of review of civil commitment judgments
is exceedingly narrow." In re W.X.C., 407 N.J. Super. 619, 630 (App. Div.
2009) (citing In re J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007); In re V.A.,
357 N.J. Super. 55, 63 (App. Div. 2003)). "While this court gives deference to
civil commitment decisions and reverses only when there is clear error or
mistake, a reviewing court must consider the adequacy of the evidence." In re
M.M., 384 N.J. Super. 313, 334 (App. Div. 2006) (citing In re D.C., 146 N.J.
31, 58–59 (1996)).
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Although appellants' liberty rights were affected adversely by their
continued commitment, these appeals are moot. "[A]n issue is 'moot' when the
decision sought in a matter, when rendered, can have no practical effect on the
existing controversy[.]" In re J.S., 444 N.J. Super. 303, 313 (App. Div. 2016)
(citing Greenfield v. N.J. Dep’t of Corr., 382 N.J. Super. 254, 257–58 (App.
Div. 2006)). Since appellants have been discharged, there is no existing
controversy. Because appellants are not financially liable for their
hospitalization, there is also no adequate remedy this court can grant them. See
In re T.J., 401 N.J. Super. 111, 118 (App. Div. 2008) ("[W]hen the patient
remains liable for his or her hospital bill . . . a finding in the patient's favor will
entitle the patient to a credit for any period of illegal commitment." (quoting In
re B.L., 346 N.J. Super. 285, 292 (App. Div. 2002))). Nonetheless, we are
compelled to address the continued abuse of CEPP as a means to delay discharge
when discharge is appropriate.
II.
A court can enter an order of involuntary commitment if the State proves
by clear and convincing evidence that "mental illness causes the patient to be
dangerous to self or dangerous to others or property[.]" R. 4:74-7(f)(1)(2); see
also N.J.S.A. 30:4-27.2(m). One is "[d]angerous to self" when:
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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; 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.
[N.J.S.A. 30:4-27.2(h).]
The question of dangerousness is a strictly legal determination that
requires the "judge . . . make specific findings and correlate them to the legal
standards" while guided by medical expert testimony. M.M., 384 N.J. Super. at337–38 (citing D.C., 146 N.J. at 59; In re D.M., 313 N.J. Super. 449, 454, 456
(App. Div. 1998)). "The evidence must permit the judge 'to come to a clear
conviction [that person is mentally ill and dangerous], without hesitancy. '" Id.
at 334 (alteration in original) (quoting In re G.G.N., 372 N.J. Super. 42, 59 (App.
Div. 2004)). The evidence must be "so clear, direct and weighty and convincing
as to enable [the factfinder] to come to a clear conviction, without hesitancy, of
the truth of the precise facts in issue." In re Robert S., 263 N.J. Super. 307, 312
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(App. Div. 1992) (alteration in original) (quoting In re Jobes, 108 N.J. 394, 407–
08 (1987)).
On the other hand, when a person detained under civil commitment "is no
longer dangerous to self" but cannot "survive in the community independently
or with the help of family or friends[,]" a court can order the person detained
under CEPP status. In re M.C., 385 N.J. Super. 151, 162 (App. Div. 2006); R.
4:74-7(h)(2).
Dr. Basil sought to delay discharge for two weeks because he wanted to
ensure I.M. "[took] her medications regularly and [would] not have to come back
this often to the hospital." Dr. Dubois testified that A.F. was "[doing] extremely
well in complying with her medication," and he had "a few things to put in
place." The court cannot order CEPP if there is a mere possibility that a person
may stop taking medication. That is not evidence of a substantial likelihood of
future harm. See In re J.R., 390 N.J. Super. 523, 532 (App. Div. 2007) (holding
a doctor's testimony that there was a possibility a detained person may stop
taking his medication "is insufficient to constitute clear and convincing evidence
of a substantial likelihood of future harm necessary for involuntary
confinement") (citing In re W.H., 324 N.J. Super, 519, 523 (App. Div. 1999)).
Even if the court believed appellants were a danger to themselves because of
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potential non-compliance with medications, a hospital cannot confine a patient
on CEPP status based on these concerns. See M.C., 385 N.J. Super. at 165(holding that ordering CEPP "to ensure compliance with a medication schedule
to which the patient agrees is not a basis for continuing the commitment of a
person who is not mentally ill and dangerous").
The State argues that at the time of their hearings, appellants were
suffering from a mental illness rendering them dangerous to themselves, and
CEPP was the least restrictive environment for them. The State asserts that the
trial court took judicial notice of their dangerousness pursuant to N.J.R.E.
201(b)(3) by considering appellants' medical history.
We reject this argument for several reasons. It is unclear whether the
judge even considered appellants' medical history. The State did not introduce
any chart notes or other documents into evidence. Even if the judge had them
available, there is no indication they contained any facts or opinions that the
judge took notice of or relied upon. The judge made no legal findings that
suggested appellants were a danger as defined by N.J.S.A. 30:4-27.2(h).
Additionally, an order placing a patient on CEPP status means that the judge
found the patient was not dangerous, and therefore, did not meet the criteria for
involuntary commitment. See In re S.L., 94 N.J. 128, 131 (1983) (patients
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placed on CEPP status, "although technically 'discharged,' remain in mental
hospitals until appropriate outside placements become available").
Pursuant to N.J.S.A. 30:4-27.15(b) and Rule 4:74-7(h)(1), if the court
finds that a patient no longer needs involuntary commitment, the facility shall
discharge the patient no later than forty-eight hours of the court's verbal order
or by the end of the next working day, whichever is longer. See also M.C., 385
N.J. Super. at 160 (noting if the State fails to establish the need for involuntary
commitment or CEPP, "the general rule requires discharge upon completion of
discharge plans within forty-eight hours") (citing N.J.S.A. 30:4-27.15(b)).
Ordering CEPP when there is appropriate placement available is improper and
a deprivation of appellants' liberty. In re G.G., 272 N.J. Super. 597, 605 (App.
Div. 1994). "[A] hospital treatment team's failure to arrange for follow-up care
before a commitment hearing does not present the 'unavailability of an
appropriate placement' contemplated under Rule 4:74-7(h)(2)." Id. at 600. Dr.
Basil and Dr. Dubois not only testified that appellants did not meet the criteria
for continued hospitalization and had appropriate placement, but both failed to
present a discharge plan or explain why appellants could not be discharged
within the time needed for minimal discharge planning.
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In a final attempt to support its position, the State argues that more than
"minimal efforts" for developing an outpatient plan were needed because once
discharged, appellants would "return to the places they were at when they
decompensated" and again need hospitalization. There is no evidence in the
record that appellants were going to be exposed to situations upon release that
would make them dangerous.
Lastly, the judge's findings and conclusions in both hearings were
woefully inadequate. Rule 1:7-4(a) requires a judge to make findings of fact
and conclusions of law. In each of these cases, the judge did neither. We
admonish judges to make adequate factual findings and legal conclusions on the
record so that appellate review may properly serve the litigants. See, e.g., Estate
of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018) (noting
"our function as an appellate court is to review the decision of the trial court ,"
and the "requirements [of Rule 1:7-4(a)] are unambiguous").
The evidence adduced at appellants' hearings did not support the orders
placing them on CEPP status. We take this opportunity to express our concern
with the continued use of CEPP status to detain patients without proper proof or
for improper reasons. Because appellants were discharged shortly after the
judge entered the orders under review, the appeal is moot.
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Both appeals are dismissed as moot.
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