IN THE MATTER OF THE CIVIL COMMITMENT OF R v. (20018, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-2929-17T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF R.V.,
_____________________________
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. 20018.
Joseph E. Krakora, Public Defender, attorney for
appellant R.V. (Christina Lewis, Assistant Deputy
Public Defender, of counsel; Alexandria S. Correa,
Assistant Deputy Public Defender, of counsel and on
the briefs).
Robert E. Barry, Union County Counsel, attorney for
respondent County of Union (Kevin G. Campbell,
Assistant County Counsel, on the brief).
PER CURIAM
R.V. appeals from a February 22, 2018 order that continued his involuntary
commitment to Trinitas Regional Medical Center. R.V. is no longer involuntarily
committed,1 but the matter is not moot because the February 22, 2018 order may be
considered in a future commitment hearing, which implicates R.V.'s constitutional
liberty. See In re Commitment of T.J., 401 N.J. Super. 111, 118 (App. Div. 2008).
Further, R.V. is liable for the cost of the confinement that ensued as a result of the
February 22, 2018 order. See N.J.S.A. 30:4-60(c)(1). If R.V. should not have been
confined, he will be entitled to a credit. See In In re Commitment of B.L., 346 N.J.
Super. 285, 292 (App. Div. 2002).
After reviewing the record and applicable legal principles, we reverse.
I
The salient facts are these. On February 12, 2018, the court entered a
temporary order for R.V.'s involuntary commitment for inpatient treatment pursuant
to N.J.S.A. 30:4-27.2(m). A hearing to review his continued eligibility for
involuntary commitment was held on February 22, 2018. At that hearing two
witnesses testified, M. Awais Sethi, M.D., and R.V.'s mother. Their pertinent
testimony was as follows.
Dr. Sethi, who was not qualified as an expert witness, testified R.V. suffers
from schizoaffective disorder, bipolar type, for which he had been previously
hospitalized before his commitment just a few weeks before. During that prior
1
The record does not indicate the date R.V. was discharged.
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hospitalization, he received medication and was discharged. Then, approximately
one year before he was involuntarily committed in February 2018, R.V. stopped
taking his medication and became agitated and aggressive, "destructive of property"
in his home, and "very religiously preoccupied."
Sethi observed R.V. after he was hospitalized on February 12, 2018, and found
R.V. to be "very easily agitated" and "religiously preoccupied." The doctor stated
he "couldn't really follow [R.V.'s] conversation[s] because [R.V.] would say things
that didn't make much sense of a religious nature." While hospitalized, R.V. took
medication for a short period and his condition improved, but he then refused to take
medication and the noted improvement "vanished."
The day before Sethi testified, he saw R.V., who at that time claimed he was
talking to God. The doctor testified, "[h]e did not seem to be in his right mind, for
a lack of a better way of putting it. Very religiously preoccupied still. Irrational.
And I don't think he's in the state of mind where he can fend for himself out in the
community." The doctor acknowledged that he had never seen R.V. harm another
or damage property.
The doctor further testified R.V. is a "possible" danger to himself or to others,
an opinion the doctor based upon R.V.'s state of mind, events that occurred before
R.V.'s hospitalization, his history of mental illness, and the treatment he has
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received, as set forth in hospital records. The doctor recommended that the court
continue R.V.'s commitment for another four weeks, to permit R.V. to be treated
with medication and become well enough to be discharged.
R.V.'s mother testified she had not seen R.V. engage in aggressive behavior
when he stopped taking his medication, but he did become preoccupied with
religion, did not sleep or eat, and talked endlessly. She stated R.V. is "fine" when
he takes his medication and could return to her home if he resumed taking it.
After the mother testified, Sethi was recalled as a witness. He indicated he
heard the mother testify and he stated her testimony supported his opinion R.V. was
not able to function safely in the community, because "he just reads the Bible and
walks around, doesn't eat, doesn't drink." Sethi repeated that if R.V. took his
medication, he could be discharged from the hospital.
At the conclusion of Sethi’s testimony, the court did not make any findings of
fact or conclusions of law, as required by Rule 1:7-4(a). The court merely ordered
that R.V.'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
March 8, 2018 hearing. In his brief, R.V. mentions he was transferred to a long-
term locked institution and subsequently discharged, but he does not state when such
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admission occurred and if it was related to the involuntary commitment that
commenced in February 2018.
II
On appeal, R.V. asserts an array of arguments. They include that Sethi was
not qualified as an expert witness during the February 22, 2018 hearing, and that his
opinion R.V. was a danger to himself and others was based upon only a possibility,
an opinion that falls far short of the requirement the State prove by clear and
convincing evidence a party has a mental illness and that it causes him to be
dangerous to themselves, others, or property.
N.J.S.A. 30:4-27.15(a) authorizes a court to continue an individual's
involuntary commitment past a temporary commitment order as long as "the court
finds by clear and convincing evidence that the patient needs continued
involuntary commitment to treatment . . . ." 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 R.V.'s contention that the failure of Sethi to be qualified 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 embodies the requirement that a witness who provides specialized
knowledge on a subject matter beyond the ken of the fact-finder must have sufficient
expertise to offer the intended testimony. State v. Kelly, 97 N.J. 178, 208 (1984).
Before such witness may testify, the court must be satisfied that a witness has the
expertise to testify about such specialized knowledge. See State v. Jenewicz, 193
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N.J. 440, 455 (2008). Further, 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).
Here, Sethi's qualifications were not placed on the record, and the court
neither found nor did R.V. stipulate the doctor was qualified to testify as an expert
witness in this matter. The record does not even reveal whether Sethi was a
psychiatrist. Thus, Sethi was not qualified to render any of the medical expert
opinions he provided during the hearing. We recognize that court and counsel may
have participated in other commitment hearings that day, and Sethi may have been
qualified as an expert witness at a previous hearing. Nevertheless, to involuntarily
commit a party, the State must prove such party has a mental illness that makes him
dangerous to himself, others, or property, and that requires the testimony of an expert
who is properly qualified.
In addition, Sethi testified it was only possible R.V.'s mental illness made him
a danger to himself or others. That opinion did not establish by clear and convincing
evidence R.V. needed continued involuntary commitment. The State was required
to show that, within a reasonable degree of medical probability, R.V. had a mental
illness that made him a danger to himself or others. An opinion an illness or
condition "possibly" causes a particular result is inadmissible. See Eckert v. Rumsey
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Park Associates, 294 N.J. Super. 46, 50-51 (App. Div. 1996); 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).
Sethi’s failure to testify that, within reasonable medical probability, R.V.'s
mental illness made him a danger to himself or others, not to mention Sethi was not
qualified as an expert witness, was fatal to the State's case. There was no competent
evidence to support the State's premise R.V. required involuntary commitment.
The February 22, 2018 order is reversed. Because of our disposition, we need
not address any other contentions R.V. asserts on appeal.
Reversed.
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