IN THE MATTER OF THE COMMITMENT OF J.M. IN THE MATTER OF THE COMMITMENT OF D.D. (ATCC000072-18, ATLANTIC COUNTY AND STATEWIDE, AND MECC000670-17, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3251-17T2
A-3260-17T2
IN THE MATTER OF THE
COMMITMENT OF J.M.
____________________________
IN THE MATTER OF THE
COMMITMENT OF D.D.
____________________________
Argued February 27, 2019 - Decided April 8, 2019
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. ATCC000072-
18 (in A-3251-17) and Mercer County, Docket No.
MECC000670-17 (in A-3260-17).
Lorraine Gormley-Devine, Assistant Deputy Public
Defender, argued the cause for appellant J.M., Docket
No. A-3251-17 (Joseph E. Krakora, Public Defender,
attorney; Lorraine Gormley-Devine, on the briefs).
Lorraine Gormley-Devine, Assistant Deputy Public
Defender, argued the cause for appellant D.D., Docket
No. A-3260-17 (Joseph E. Krakora, Public Defender,
attorney; Lorraine Gormley-Devine and Amy B.
Denero, Assistant Deputy Public Defender, on the
briefs).
Anne E. Walters, Assistant County Counsel, argued
the cause for respondent State of New Jersey, Docket
Nos. A-3251-17 and A-3260-17 (Christopher A.
Orlando, Camden County Counsel, attorney; Anne E.
Walters, on the briefs).
PER CURIAM
J.M. and D.D. appeal from February 6, 2018 orders continuing their
involuntary civil commitments pursuant to R. 4:74-7. Although the cases are
not related, they were decided by the same judge on the same day, the same
psychiatrist testified in each case, they raise the same issue and the parties are
represented by the same counsel. The cases were argued back-to-back and we
now consolidate them for disposition in this opinion. J.M. and D.D. argue the
State failed to prove by clear and convincing evidence they were 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 in each instance and reverse both orders.
J.M.
J.M. was involuntarily committed at Northbrook Hospital in Camden
County on January 18, 2018. At his initial commitment hearing on February 6,
he testified he was a former IT executive for a national bank until 2000, when
he left the bank to start a software company. That venture failed, as did
several others, forcing him into bankruptcy. J.M. testified he became
A-3251-17T2
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depressed, leading to several involuntary commitments some years back. He
claimed he collects $2200 a month in social security disability benefits and had
recently moved to Atlantic County to get back on his feet because the motels
there are cheaper than in Hudson County.
His treating psychiatrist, Dr. Campo, testified J.M. suffered from an
unspecified psychosis with major depressive disorder with psychotic features.
He claimed J.M. was a danger to himself because, although compliant with the
Risperdal prescribed to treat his mental illness, he had refused the Glyburide
prescribed for his Type II diabetes. J.M. testified he refused the Glyburide
after he suffered twenty-four hours of diarrhea. The doctor acknowledged
J.M. had complained of "G.I. problems which might be due to the medication
or there's also the flu bug going around." Asked whether diarrhea was a side
effect of Glyburide, the doctor replied: "Not to my knowledge[,] . . . [i]t most
likely was the bug that was going around."
Dr. Campo testified J.M. had "a fair degree" of insight into "his
psychosis or major depression disorder" and a "fair" mastery of the activities
of daily living. When asked by County Counsel whether J.M. was currently
psychotic, the doctor replied: "I — I — well, I — he's — to my mind, at least,
mistaken in his opinion that the Glyburide is causing his symptomology."
A-3251-17T2
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Asked about the effects of J.M.'s failure to take the Glyburide, Dr. Campo
responded: "It increases your blood sugar which in time is disruptive to
virtually every organ in the body."
The doctor's recommendation for J.M. was "to resume taking the
Glyburide or get it switched . . . if [he] truly doesn't want to take that
medication" because "he needs to be on something orally for the diabetes."
Dr. Campo testified no less restrictive environment than Northbrook would be
appropriate for J.M. until "we resolved that issue." The doctor testified "[i]t's
something that really needs to get hammered out before he leaves[,] . . .
particularly, if he's living at a motel."
Dr. Campo conceded on cross-examination he was unaware of whether
J.M.'s blood sugar was within a normal range upon admission or whether he
was treating with a physician for the condition before he was admitted. The
doctor testified J.M. did not refuse insulin while at Northbrook, although
stating he did not "think he's really needed it that much."
J.M. testified he was "complying with psych medications, but diabetes
medication was causing complications." He claimed his was "not an outright
refusal. It was a result of a medical reaction or the flu bug . . . that was
severely going around the unit." J.M. agreed with Dr. Campo that he needed
A-3251-17T2
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"to be on something orally for the diabetes," but wanted to ascertain "whether
it was the Glyburide or the bug outbreak" that caused his G.I. problem.
Based on Dr. Campo's testimony, the judge found J.M. suffered from a
mental illness, psychosis, not otherwise specified. The judge did not make a
specific finding that J.M. was a danger to himself or others. He found "Dr.
Campo testifies, and Dr. Campo is a doctor and [J.M.] is not . . . that [J.M.]
does have diabetes and does require Glyburide for his diabetes." The judge
found if J.M. "doesn't take that medication, it's not speculative, it will do
substantial bodily harm." The judge entered an order continuing J.M.'s
involuntary commitment, scheduling a review hearing in one week's time. At
the review hearing, the judge approved J.M. for CEPP (conditional extension
pending placement) status pursuant to R. 4:74-7(h)(2) and scheduled a review
hearing for two weeks' time. J.M. was discharged two days later to a halfway
house.
D.D.
D.D., an alleged insulin-dependent diabetic, was admitted to Northbrook
on January 6, 2018, after having been on CEPP status at St. Francis Medical
Center in Mercer County. Northbrook sought her involuntary commitment at
an initial hearing on February 6. Dr. Campo testified D.D. was initially
A-3251-17T2
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committed based on reports of having been aggressive toward her mother and
sister. He testified she suffered from a mental illness, schizoaffective disorder,
and was then unable to care for herself because she was "refusing some
medications. She refused her finger-stick, I believe, this morning." Asked
whether that was the first time D.D. had refused a finger-stick, Dr. Campo
testified he "didn't review the whole monitoring. I presume that she's refused
it other times before since she's refusing some medication." Dr. Campo
explained he was not D.D.'s treating psychiatrist and thus had seen her only
two or three times.
Although acknowledging D.D. had shown improvement during her stay,
Dr. Campo testified she was not "ready" for CEPP status. He claimed she had
been verbally aggressive and was "barking at her [social worker] up until
recently." He testified he would "like . . . to see her become more cooperative,
more organized, and stop refusing necessary medical procedures and
medication." He suggested a three-week review period would be sufficient.
On cross-examination, Dr. Campo was asked whether he was sure D.D.
had refused a finger-stick before that morning. He replied he was "not
positive[,] . . . [b]ut if she refused it today, she most likely refused it other
times." When counsel for D.D. clarified that she was not asking the doctor for
A-3251-17T2
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his speculation, the doctor replied, "it's not speculation." Counsel then
reasonably followed up by asking on what other occasions had D.D. declined
the procedure. That question led to the following exchange with the judge:
THE COURT: He just answered that question. He
just answered that question. He answered the question.
COUNSEL: Okay. When was it that she refused on
other times?
THE COURT: He said it was not speculation, that if
— if she did it once, she would have done it at other
times.
COUNSEL: And I'm asking him what other times.
THE COURT: And that is — he just answered the
question. He answered the question.
COUNSEL: I'm asking for a specific . . . .
THE COURT: He doesn't know.
COUNSEL: If I could get an answer from the . . . .
THE COURT: You can't — you can't.
THE COURT: He said he doesn't have any specific
indication. But, if you refused it once, she would have
done it before.
COUNSEL: Okay?
THE COURT: And he said [he] doesn't have any
record of anything else other than that.
A-3251-17T2
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COUNSEL: Okay.
Dr. Campo testified he had "no idea" whether D.D.'s last finger-stick
was "within normal range" but stated it was "most likely not." He went on to
explain the hospital does not "do finger-sticks" on people with normal blood
sugars. "If someone's getting regular finger-sticks, it indicates that it's almost
always not in the normal range." Although the doctor testified D.D. was
refusing medications, he never specified what the medications were or how
often they were refused. He did acknowledge there did not "seem to be a
pattern to it."
D.D. testified she was homeless because she could not return to live with
her mother in Mercer County. D.D. testified she was sixty years old and had
been diagnosed with Type II diabetes at twenty-five. She claimed the doctor
she saw before being committed had taken her off medication for diabetes and
she did not take insulin. D.D. was reluctant to admit she had a mental illness,
although acknowledging she had been hospitalized before and was under
psychiatric care and taking medication before being committed. She testified
she had "an anxiety disorder."
D.D.'s counsel acknowledged D.D. "obviously, does need housing" but
contended the failure to submit to a finger-stick on one occasion did not meet
A-3251-17T2
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the statutory criteria for involuntary commitment. She accordingly asked that
D.D. be returned to CEPP status.
The judge found, based on Dr. Campo's "very credible and convincing"
testimony that the State proved by clear and convincing evidence that D.D.
suffers from a mental illness, schizoaffective disorder. He further found "it
would be absolutely inappropriate to return her to CEPP status at this time.
She absolutely could not survive in a less restrictive setting right now." The
judge found "the doctor testified that if she missed one [finger-stick], or
refused one, she would have refused others and that that would not be
speculation at all. That would be in fact medically what happened."
The judge did not make a specific finding that D.D. was a danger to
herself, but only "[t]he refusal to participate with the diabetes can absolutely
result in substantial bodily harm." The judge found D.D. does not "want to be
a voluntary patient" but was instead focused on getting out. The judge stated
"[i]f she wants to get out, she is going to have to cooperate better with the
treatment team at this hospital. She's clearly a very intelligent person who is
confused right now due to her not taking her medication."
A-3251-17T2
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Analysis
Although we review a commitment determination only for abuse of
discretion, In re D.C., 146 N.J. 31, 58-59 (1996), we think it self-evident that
neither of these orders for continued involuntary commitment can stand. The
record in each instance "reveals a clear mistake in the exercise of the
reviewing judge's broad discretion in evaluating the committee's present
condition." State v. Fields, 77 N.J. 282, 289-90, 311 (1978) (reviewing the
involuntary commitment of a defendant found not guilty by reason of
insanity).
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, 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).]
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As used in R. 4:74-7(f)(1)(2), "'[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).]
Because neither J.M. nor D.D. contends the State failed to prove mental
illness,1 the first prong of the statutory test, our focus is on whether the State
proved clearly and convincingly that they were a danger to themselves. The
1
We note, however, that Dr. Campo's testimony in response to County
Counsel's question as to whether J.M. was "currently psychotic," i.e., that he
was "at least mistaken in his opinion that the Glyburide is causing his
symptomology," appears to fall far short of establishing J.M. suffered from "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 medical diagnosis is not
determinative of whether a patient suffers from a "mental illness" as defined
by the Legislature. In re Commitment of M.M., 384 N.J. Super. 313, 337
(App. Div. 2006). Because J.M. concedes mental illness on appeal, and we
reverse for other reasons, we need not consider whether the State established
J.M. suffered from a mental illness as defined by the statute.
A-3251-17T2
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State did not allege either J.M. or D.D. posed any risk to anyone else. See
N.J.S.A. 30:4-27.2(i) (defining when a person is "[d]angerous to others or
property").
Having reviewed the record, we think it plain the State failed to carry its
burden to prove by clear and convincing evidence that J.M. and D.D. "by
reason of mental illness" had "behaved in such a manner as to indicate" the y
were unable to satisfy their need for "essential medical care," making it
"probable that substantial bodily injury, serious physical harm or death
[would] result within the reasonably foreseeable future." See N.J.S.A. 30:4-
27.2(h) (emphasis added). Although we certainly do not question that
untreated Type II diabetes can have severe and debilitating effects on one's
health, "the risk of dangerousness that will warrant involuntary commitment
must be relatively immediate." In re Commitment of N.N., 146 N.J. 112, 130
(1996). The State must show "a substantial risk of dangerous conduct within
the reasonably foreseeable future," In re Commitment of S.L., 94 N.J. 128, 138
(1983) (quoting State v. Krol, 68 N.J. 236, 260 (1975)), not at some
unspecified time months or years hence.
Even assuming J.M.'s refusal to take the Glyburide prescribed him was a
product of his mental illness as opposed to a reasoned response to his G.I.
A-3251-17T2
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distress, Dr. Campo's testimony of the danger refusal posed to J.M. — that it
would "in time [be] disruptive to virtually every organ in the body" — falls
woefully short of establishing the "relatively immediate" danger the statute
requires. Accordingly, the judge's decision to continue J.M.'s involuntary
commitment with no showing that J.M.'s refusal of the Glyburide would have
any ill effect on his health within the reasonably foreseeable future was an
abuse of discretion.
As to D.D., the record is even more lacking. The only evidence of
dangerousness proffered by the State was D.D.'s refusal of a finger-stick to
monitor her blood sugar the morning of the hearing. Dr. Campo's testimony
that she refused unspecified medications on unknown dates is obviously not
competent proof of the fact. The doctor's assertion that because D.D. refused
one finger-stick "she most likely refused it other times," is, as her counsel
argued, nothing more than rank speculation.
Notwithstanding the judge's assertion, Dr. Campo's surmise that D.D.
refused other finger-sticks obviously does not make that "in fact medically
what happened." The evidence the State presented in D.D.'s initial hearing at
Northbrook was clearly inadequate to satisfy its burden to prove by clear and
convincing evidence that D.D. was dangerous to herself on the date of the
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hearing. See In re Commitment of J.R., 390 N.J. Super. 523, 531 (App. Div.
2007). D.D.'s refusal to submit to a finger-stick on one occasion during her
stay at Northbrook simply cannot satisfy the statutory standard of
dangerousness to self. Accordingly, the judge clearly abused his discretion in
continuing her commitment on this record. See In re Commitment of Robert
S., 263 N.J. Super. 307, 311-13 (App. Div. 1992).
To say we find the record of these two hearings troubling would be an
understatement. As we have stressed on several other occasions, 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). As Judge Fritz noted more than thirty years ago in S.D.,
We do not doubt that trial judges are harried by the
number of R. 4:74-7(f) hearings assigned to them day
after day, many times held in the cloistered halls of
the mental institution. It would come as no surprise if
any of those judges became either inured or enervated
by this constant, unrelieved association with the
mentally deprived and their lay and medical guardians
to the extent that the beleaguered judge failed to dot
every "i" or cross every "t." This, however, is no
reason for them or for us to forget that which is the
basic teaching of S.L.: that each one in the bundle of
rights of these committed persons deserves protection.
[Id. at 219.]
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"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. We certainly
expect it will serve to prevent repetition of errors capable of leading to
unconstitutional confinement.
Reversed.
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