ANTONIO PEREIRA VS. OASIS FOODS (DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISION OF WORKERS' COMPENSATION)

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NOT FOR PUBLICATION WITHOUT THE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-3405-15T2
IN THE MATTER OF THE
COMMITMENT OF S.S.
———————————————————————
Argued January 26, 2017 – Decided March 22, 2017
Before Judges Hoffman and O'Connor.
On appeal from a Municipal Court of New
Jersey, Docket No. MNCC-1490-15.
Cynthia Seda-Schreiber, Assistant Deputy
Public Defender, argued the cause for
appellant S.S. (Joseph E. Krakora, Public
Defender, attorney; Ms. Seda-Schreiber, on the
briefs).
Jeffrey P. Beekman, Special County Counsel,
argued the cause for respondent Monmouth
County Adjustor (Andrea I. Bazer, Monmouth
County Counsel, attorney; Mr. Beekman, on the
brief).
PER CURIAM
S.S. (Susan)1 appeals from a March 3, 2016 civil commitment
order that continued her involuntary commitment pursuant to
1
We refer to appellant using a pseudonym for ease of reference
and to protect her privacy.
N.J.S.A. 30:4-27.15(a). A municipal court judge2 entered the order
after denying Susan's request to convert to voluntary admission
status, finding her incapable "of making the decision knowingly."
Susan challenges the court's conclusion, citing her
acknowledgement of her need for therapy, her current medications,
and one-to-one supervision. She also acknowledged the State would
involuntarily recommit her if she declined to comply with her
psychiatrist's treatment. We agree with Susan that the record
shows she knowingly requested to convert to a voluntary admission.
We therefore reverse the court's order renewing her involuntary
commitment.
I.
Jersey Shore Medical Center (JSMC) admitted Susan to its
psychiatric unit on November 8, 2015. While on the unit, Susan
used staples to cut her neck, wrist, and legs, and "required [four]
point restraints" and "monitoring for safety." Three days later,
a psychiatrist screened Susan for temporary involuntary commitment
at JSMC. The psychiatrist affirmed (1) she "personally examined"
2
We discern no error in permitting an appeal directly to this
court from an order of involuntary commitment entered by a
municipal court judge instead of requiring review by the Law
Division in the first instance. The statute authorizing a "court"
to commit an individual involuntarily, N.J.S.A. 30:4-27.15,
defines the term "court" as meaning "the Superior Court or a
municipal court." N.J.S.A. 30:4-27.2(f). It also makes no
provision for a de novo review in the Law Division.
2 A-3405-15T2
Susan, (2) Susan suffered "from a mental illness," (3) Susan, "if
not committed, would be a danger to self and/or others or property
by reason of mental illness in the foreseeable future," and (4)
Susan was "unwilling to be admitted to the required treatment
program or facility voluntarily for care." The next day, another
psychiatrist screened Susan at Monmouth Medical Center (MMC), and
came to the same conclusions.
After an initial hearing on November 24, 2015, a municipal
court judge ordered defendant involuntarily committed to a
psychiatric facility. Susan was transferred to Trenton
Psychiatric Hospital (TPH) the next day. On December 17, 2015,
and February 4, 2016, the municipal court reviewed Susan's case
and continued her involuntary commitment to TPH.
On March 3, 2016, the municipal court once again reviewed
Susan's case. Without previously notifying the court or the State,
Susan asked the court to convert her involuntary commitment to a
voluntary admission. Her covering psychiatrist then testified.
He had started covering her case the previous day; nevertheless,
he had reviewed Susan's chart and personally evaluated her. He
testified Susan had been admitted to MMC because "she was non-
compliant with treatment, including medications." She stated she
could not handle herself, and had several visits to the Emergency
Room because of cutting herself.
3 A-3405-15T2
The psychiatrist said Susan's "primary diagnosis" was
"bipolar I, although borderline personality disorder is on Axis
II." She received dialectical behavior therapy designed to prevent
her borderline personality disorder from causing her to harm
herself. She was currently taking four prescribed medications.
The psychiatrist testified Susan's mood remained "unstable."
She still had "poor impulse control." The day before, she had
told the psychiatrist that "she had these staples[,] and she wanted
to cut herself." TPH assigned her a "one-to-one" to supervise her
at all times. She gave the staples to the "one-to-one." Without
the "one-to-one," she may have acted on her desire to cut herself.
The psychiatrist therefore concluded Susan was a "danger to
herself." He also concluded Susan was "unable to care for herself"
because of her "mood disregulation" and instability.
The psychiatrist testified Susan could forego the "one-to-
one" when she could reliably regulate her own mood and refrain
from harming herself. He said if Susan were on voluntary status
and asked TPH to discharge her, the hospital would seek to commit
her involuntarily because she was a danger to herself. The
psychiatrist consequently recommended "continued commitment and
four-month review."
On cross-examination, the psychiatrist admitted Susan knew
where she was, to whom she spoke, and the approximate date. Her
4 A-3405-15T2
"thought process" was "not disorganized." She did not have
"auditory or visual hallucination[s]." Although she had reported
her desire to harm herself the day before, she had "cut herself
without telling the staff" in the past.
Susan testified next. She recognized she was at TPH. She
said she was cooperatively undergoing dialectical behavior
therapy. She admitted she needed the therapy. She said she had
been taking her medications, but she said "they're not [the] right
medications." She expressed this opinion to the psychiatrist who
examined her the day before, but he told her that she had to wait
until her regular psychiatrist returned. She admitted she had
"racing thoughts." "I'll just be honest, yesterday I was close
to suicide." "I mean, sitting here now I can see a bunch of
staples that I could pick up and use, but I'm not going to." She
said she wanted to continue as a voluntary patient, and she would
not refuse medication. She understood that TPH would seek to
recommit her involuntarily if she declined to follow her
psychiatrist's prescribed treatment. She said she was responsible
enough to be a voluntary patient.
The court denied her request and continued her involuntary
commitment. Initially, the court emphasized its concern for
Susan's safety. The court, however, relied on "the opinion of . . .
the doctor who’s examined her, and the doctor pretty much
5 A-3405-15T2
unequivocally says that she does not believe that the patient has
the capability to give the consent to dictate the terms of her own
treatment."
In its brief, the State discusses testimony from the next
review hearing, without moving to supplement the record, R. 2:5-
5, and without providing a transcript of the hearing. R. 2:5-
4(a). Because of these deficiencies, we decline to discuss the
subsequent hearing further. Additionally, because this case
presents a narrow issue regarding Susan's request to convert to
voluntary admission status on a particular date, we do not find
the subsequent hearing relevant to the decision under review.
II.
We review the decision to continue an individual's civil
commitment utilizing an abuse of discretion standard. See In re
D.C., 146 N.J. 31, 58-59 (1996). When reviewing civil commitment
decisions, "we afford deference to the trial court's supportable
findings." In re Commitment of T.J., 401 N.J. Super. 111, 119
(App. Div. 2008) (citation omitted). We "reverse[] only when
there is clear error or mistake." In re Commitment of M.M., 384
N.J. Super. 313, 334 (App. Div. 2006) (citations omitted).
However, we "must consider the adequacy of the evidence." Ibid.
(citations omitted).
6 A-3405-15T2
N.J.S.A. 30:4-27.15a 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). The
Legislature further defined the purpose of the statute as requiring
commitment only when an individual is "dangerous to [herself],
others or property." N.J.S.A. 30:4-27.1(a). When a person is no
longer dangerous by reason of mental illness, however, and they
can be supported by themselves or by family members, they must be
released. See In re Commitment of M.C., 385 N.J. Super. 151, 159
(App. Div. 2006) (citing O'Connor v. Donaldson, 422 U.S. 563, 576,
95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396, 407 (1975)).
"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 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
7 A-3405-15T2
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).]
An application to commit a person involuntarily or to continue
such a commitment must be based on a finding
by clear and convincing evidence . . . that
the patient is in need of continued
involuntary commitment by reason of the fact
that (1) the patient is mentally ill, (2)
mental illness causes the patient to be
dangerous to self . . . , (3) the patient is
unwilling to be admitted to a facility for
voluntary care, and (4) the patient needs . . .
care at a short-term care or psychiatric
facility or special psychiatric hospital
because other services are not appropriate or
available to meet the patient's mental health
care needs.
[R. 4:74-7(f)(1).]
Involuntary civil commitment must also be based on more than "the
potential for dangerous conduct." In re Commitment of J.R., 390
N.J. Super. 523, 530 (App. Div. 2007).
"Voluntary admission" means
that an adult with mental illness, whose
mental illness causes the person to be
dangerous to self or dangerous to others or
property and is willing to be admitted to a
facility voluntarily for care, needs care at
a short-term care or psychiatric facility
because other facilities or services are not
8 A-3405-15T2
appropriate or available to meet the person’s
mental health needs.
[N.J.S.A. 30:4-27.2(ee).]
When a patient has been involuntarily committed to a
psychiatric facility, and the patient motions the municipal court
to convert the commitment to voluntary status, "the court shall
hold a hearing within 20 days to determine whether the patient had
the capacity to make an informed decision to convert to voluntary
status and whether the decision was made knowingly and
voluntarily." R. 4:74-7(g)(1). "Knowing" means "[h]aving or
showing awareness or understanding." Black's Law Dictionary 950
(9th ed. 2009).
Susan argues her "orientation and lack of thought
disorganization tends to show that she had the capacity for a
knowing and voluntary application for voluntary status," and
"[c]ompliance and asking for help indicate insight and also
illustrate capacity for a knowing and voluntary request for
voluntary conversion." The record supports Susan's argument. It
shows she understood her surroundings and her need for dialectical
behavior therapy and one-to-one supervision. She was taking her
prescribed medicine, even though she wanted her psychiatrist to
reconsider certain medication because her thoughts were racing,
and she felt acutely suicidal. She expressed these feelings, so
her doctors and the court could help her get better. She did not
9 A-3405-15T2
dispute she needed one-to-one supervision. She understood TPH
would recommit her involuntarily if she decided not to comply with
her psychiatrist's prescribed treatment.
Notwithstanding Susan's acknowledgment of her condition and
her need for treatment, the testifying psychiatrist nevertheless
concluded Susan should remain involuntarily committed to TPH. He
reasoned that Susan still desired to harm herself, she had "poor
impulse control," and she needed one-to-one supervision.
The testimony of the testifying psychiatrist does not support
the court's decision to renew Susan's involuntary commitment to
TPH. Both parties agree Susan required psychiatric care for the
mental illness that causes her desire to harm herself, as Rule
4:74-7(f) requires. The record, however, does not show Susan was
"unwilling to be admitted to a facility for voluntary care." Ibid.
The record shows Susan understood she needed to comply with her
psychiatrist's prescribed treatment, and the consequences of not
complying. The record further shows Susan knowingly and
voluntarily asked the court to convert her from involuntary
commitment to a voluntary admission. We conclude the judge's
determination here to continue Susan's involuntary commitment was
not supported by clear and convincing evidence. We therefore
reverse the municipal court.
10 A-3405-15T2
The State argues it needed advance notice of Susan's request
for voluntary admission in order "to adequately prepare its case
for a fair and meaningful hearing relative to capacity and the
determination whether the patient made the conversion request
knowingly and voluntarily." The State never made this argument
at the hearing; the State did not request an adjournment or argue
that lack of notice precluded a proper hearing. We discern no
basis for considering this argument here. "[O]ur appellate courts
will decline to consider questions or issues not properly presented
to the trial court when an opportunity for such a presentation is
available unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public
interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Reversed.
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