IN THE MATTER OF THE CIVIL COMMITMENT OF M.C. (ESCC-1134-2016, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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
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-0435-16T4
IN THE MATTER OF THE
CIVIL COMMITMENT OF M.C.
_______________________________
Submitted November 8, 2017 – Decided December 4, 2017
Before Judges Reisner and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. ESCC-
1134-2016.
Joseph E. Krakora, Public Defender, attorney
for appellant M.C. (Richard I. Friedman,
Assistant Deputy Public Defender, on the
briefs).
Courtney M. Gaccione, Essex County Counsel,
attorney for State of New Jersey/County of
Essex (Thomas M. Bachman, Assistant County
Counsel, of counsel and on the brief).
PER CURIAM
M.C., who was previously involuntarily committed to a
psychiatric hospital, appeals from an August 23, 2016 order placing
him on conditional extension pending placement (CEPP). See R.
4:74-7(h)(2). He contends that, because there was no evidence
that he was dangerous to himself or others at the time of the
hearing, and his sister was willing to provide him a place to live
and make sure that he obtained any necessary outpatient treatment,
the court should have ordered his release.
Based on our review of the record, we conclude that the trial
court's decision was unsupported by the record and was inconsistent
with well-established case law concerning the permissible use of
CEPP as a disposition in a civil commitment case. Because there
was no expert testimony that M.C. was currently dangerous to
himself or others, and he had an immediately available place to
live in the community, the court should have ordered his release
subject to conditions, rather than continuing his involuntary
commitment. Accordingly, we reverse the order on appeal.
Contrary to the State's argument, although M.C. has since
been released, the appeal is not moot, because absent the relief
we provide here, M.C. will remain liable for the cost of his
hospitalization. See N.J.S.A. 30:4-80.1; In re Commitment of
B.L., 346 N.J. Super. 285, 292 (App. Div. 2002). Consistent with
this opinion, we hold that M.C. is not financially responsible for
his hospitalization costs between August 23, 2016 and the date of
his release, and the State must promptly discharge any lien
corresponding to that debt.
As our Supreme Court cautioned decades ago, CEPP is only
appropriate where a psychiatric patient cannot safely survive in
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the community without an appropriate placement and such a placement
is not yet available. In re S.L., 94 N.J. 128, 137-38 (1983).
CEPP is not a constitutionally permissible option where a patient
is "capable of surviving safely in freedom by himself or with the
help of willing and responsible family members or friends." Ibid.;
see also In re G.G., 272 N.J. Super. 597, 603 (App. Div. 1994).
Once a patient has such a community placement available, he
or she must be released within forty-eight hours after the hearing.
N.J.S.A. 30:4-27.15(b). We have repeatedly emphasized that CEPP
is not appropriate as a means of giving the hospital's staff extra
time to make arrangements for outpatient treatment.
We have stressed that "CEPP is not intended
as a means for extending an involuntary
commitment simply because the hospital has not
yet arranged for the periodic follow-up care
of a patient not found to be a danger to self,
others or property." And, we have cautioned
that use of "that erroneous approach . . .
devalue[s] [the patient's] constitutional
right to liberty." . . . Thus, CEPP is not a
fallback option when the [S]tate cannot
implement a discharge plan within forty-eight
hours, and CEPP is not a means through which
the judge may delay a conditional release.
[In re T.J., 401 N.J. Super. 111, 124 (App.
Div. 2008) (quoting In re M.C., 385 N.J.
Super. 151, 162 (App. Div. 2006)); see also
B.L., supra, 346 N.J. Super. at 348.]
Against that legal backdrop, we briefly summarize the limited
record placed before us. M.C. suffers from chronic paranoid
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schizophrenia, with alcohol abuse. He was hospitalized on June
17, 2016, because he was hearing voices telling him to hurt
himself, and an initial order of involuntary commitment was entered
on June 20, 2016. By the time of the review hearing on August 23,
2016, his psychiatric condition had improved to the point where
he no longer posed a danger and he was no longer legally
committable. However, his treating psychiatrist testified that
she wanted M.C. to remain in the hospital for several more weeks
so that she could monitor his response to his dosage of clozapine.
She admitted that medical monitoring, including weekly blood
testing and administration of the medication, could be performed
in the community, but she asked the judge to place M.C. on CEPP
status: "The only reason being that I want him to wait until we
make proper arrangements for blood work and clozapine medication
follow up."
M.C.'s sister appeared at the hearing and testified that she
was immediately willing to take him home with her, let him live
with her, and "take him to the doctor and get blood work every
week." However, the doctor asserted that it would take a month
to six weeks to identify an outpatient mental health facility in
the sister's neighborhood and to determine whether M.C. had
unspecified "benefits" to obtain outpatient treatment.
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There was no testimony that any member of the hospital staff
had made any efforts, prior to the hearing, to identify a community
mental health facility in the sister's neighborhood. Nor was
there any explanation as to what "benefits" M.C. would need in
order to obtain blood tests or medication monitoring at such a
facility, or why it would take a month to six weeks to determine
the location of a facility and find out whether the facility would
provide him with care.
On this record, we cannot find that the State met its burden
of proving, by clear and convincing evidence, that there was a
continued need to deprive M.C. of his liberty. See N.J.S.A. 30:4-
27.15(a) (The State's burden of proof is by clear and convincing
evidence.). M.C. had a supportive family member ready to take him
into her home and supervise his outpatient care. If the court was
persuaded that M.C. needed follow-up outpatient care to avoid "a
high risk of rehospitalization," the appropriate procedure was to
order his release on condition that he obtain that care in the
community. See N.J.S.A. 30:4-27.15(c) (authorizing conditional
release). "[T]he trial court's fear of [the patient's] potential
relapse without specific aftercare placements designed by the
[hospital staff], however well-intentioned, is legally
insufficient to continue his hospitalization." T.J., supra, 401
N.J. Super. at 123.
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In conclusion, we cannot accord our usual deference to the
trial court's decision here, because the evidence did not legally
justify the order keeping M.C. involuntarily confined on CEPP
status.1 See In re D.C., 146 N.J. 31, 58-59 (1996) (Deference is
due to the trial court's decision unless it was "clearly
erroneous.").
Reversed.
1
To the extent not specifically addressed here, the State's
appellate arguments, including its contention that M.C. failed to
"waive" his alleged "right" to remain in the hospital on CEPP
status, are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
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