                             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                       NOT FOR PUBLICATION WITHOUT THE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.




                              11                              A-3405-15T2
