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                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5605-15T4


IN THE MATTER OF THE
COMMITMENT OF S.S.
_______________________________

             Argued January 16, 2018 – Decided August 1, 2018

             Before Judges Accurso and Vernoia.

             On appeal from Superior Court of New Jersey,
             Law Division, Cumberland County, Docket No.
             CUCC000210165215.

             Lorraine Gormley Devine, Assistant Deputy
             Public Defender, argued the cause for
             appellant S.S. (Joseph E. Krakora, Public
             Defender, attorney; Lorraine Gormley Devine,
             of counsel and on the brief).

             Anne E. Walters, Assistant County Counsel,
             argued the cause for respondent State of New
             Jersey (Christopher A. Orlando, Camden
             County Counsel, attorney; Emeshe Arzón,
             Assistant County Counsel, on the brief).

PER CURIAM

       S.S. appeals from a June 28, 2016 order continuing her

involuntary civil commitment pursuant to R. 4:74-7.1                She argues


1
   Although S.S. was transferred to Ancora Psychiatric Hospital
and placed on CEPP (conditional extension pending placement)
                                                      (continued)
the State failed to prove by clear and convincing evidence that

she was 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 and

reverse.

    S.S. had been involuntarily committed at Northbrook

Behavioral Health Center for twenty-six days at the time of the

review hearing.    Before her transfer to Northbrook, she spent

two weeks at Bridgeton Hospital, precipitated by a report of

aggressive behavior at the shelter where she had been resident

for six weeks.    It was her fifth commitment within a year's

time.

    There was discussion on the record among counsel, S.S.'s

social worker and the court at the start of the hearing about a

domestic violence restraining order against S.S., apparently

obtained by her brother.   S.S. lived with her brother and their

grandmother before going to the shelter.   The social worker

explained she had been unable to obtain the order and it was not

produced at the hearing.   None of the participants had seen it

and there was no indication of whether it was a temporary or


(continued)
status following the review hearing on July 12, 2016, we do not
consider the matter moot in light of the importance of S.S.'s
liberty interest and the likely repetition of error escaping
review. See In re Commitment of N.N., 146 N.J. 112, 124 (1996).


                                 2                        A-5605-15T4
final order.    Addressing the issue as it related to her client's

placement, counsel for S.S. stated S.S. was not seeking

discharge to her family but requesting CEPP status.

    S.S.'s treating psychiatrist was not available for the

review hearing.    Instead, another psychiatrist met briefly with

S.S. five days before the hearing and testified for the State.

The doctor explained S.S. suffered from a mental illness,

schizoaffective disorder, remained on close supervision, and was

a danger to herself and others.       He claimed the danger to

herself was that she refused to permit staff to check her

"vitals" on one or two occasions, even though she had been

diagnosed with hypertension.    The psychiatrist opined she was a

danger to others because of "the admit reasons" and an oral

report he received about an "outburst" that morning "in which

she accused an R.N. of husband stealing and threatened to break

out . . . all the windows in the unit, apparently."      He

recommended S.S. remain committed, "act in a less labile manner

and continue to improve and take medications."

    The psychiatrist admitted on cross-examination he could not

recall very much about his interview with S.S., acknowledged he

had no concern for suicide, and confirmed S.S. was faithfully

taking all prescribed medications, including that prescribed for

hypertension.   He did not know whether her blood pressure was

                                  3                           A-5605-15T4
within normal limits.    Asked whether there had been other

incidents similar to the one he reported that morning, which he

acknowledged he did not witness, he replied "[w]ith that many

patients, I can't review every single note."    He admitted he was

"not aware of any specific harmful action" taken by S.S and did

not know the source of the allegations prompting S.S.'s

admission to the hospital, which he referred to as "the admit

reasons."

    S.S. testified she entered the hospital after the shelter

told her she had exceeded her allotted time there and her

grandmother was not available to pick her up.   She denied being

aggressive to anyone, and claimed she called the hospital for

assistance when she felt herself getting upset.    She testified

she had not refused vitals, was compliant with her medication

and would continue so upon her release.

    S.S. also testified her grandmother visited her when she

was in the hospital.    When the judge attempted to explain the

"no contact" provision in a domestic violence restraining order

would prevent her from returning to her grandmother's home, S.S.

replied that she and her "grandmom, like, we're very close.     She

raised me as her daughter."    Although acknowledging "that

paper," S.S. explained that "after a while, my grandmother is

going to come see me to see if I'm okay."

                                 4                        A-5605-15T4
    S.S.'s social worker testified she had not seen S.S.'s

outburst that morning because it occurred prior to the start of

her shift, but that it "was reported to [her]" as part of the

morning report.    The court overruled counsel's objection that an

oral report could not qualify as a business record exception to

the hearsay rule.   The social worker further testified, again

over objection, that she had taken S.S. the day before to

Parkwoods Residential Health Care Facility, but staff there told

her they refused to even permit S.S. to tour the facility after

"she told him how she knocked out all the windows" in her

grandmother's home.   The court rejected counsel's hearsay

objection, explaining the witness was "testifying [to] what your

client said to somebody else.   That's an exception to the

hearsay rule."    Based on the experience with Parkwoods, the

social worker testified that S.S. was not even "ready to be

discharged to a residential healthcare facility."

    When the social worker began to testify about her

conversations with S.S.'s grandmother, the judge sustained

counsel's objection, but said he would "draw adverse inferences

from that."   When counsel objected to the court drawing an

adverse inference from a well-grounded hearsay objection, the

judge explained "your client was telling me what a great



                                 5                         A-5605-15T4
relationship she has with her grandmother.    At this point, I

have to assume that that's not correct."

    After hearing the testimony and the argument of counsel,

the court continued S.S.'s commitment.     Although acknowledging

that he was not aware whether the domestic violence restraining

order was "a TRO or an FRO," what the predicate facts were or

when the incident occurred, other than some time in 2016, the

judge found "there is an order indicating that there has been

dangerous behavior with respect that it must rise to the level

of at least a petty disorderly offense or it could be more."

The judge further noted that "apparently the petitioner was her

brother . . . who lives with the grandmother who [S.S.]

indicates has a very good relationship with [S.S.], but [S.S.]

objected to the [social worker] testifying as to what the

grandmother said."   The judge concluded he had "to draw an

adverse inference from that because [S.S.] says I have a great

relationship with my grandmother.   I just don't want you to know

what my grandmother has to say."

    Noting that "after 26 days, people usually show

improvement," the judge found the doctor did not indicate that

was the case here, based on S.S. remaining on close supervision.

The judge found S.S. was not cooperative with treatment,

refusing to permit vitals, and thus preventing the staff from

                                6                          A-5605-15T4
monitoring her hypertensive condition.   Noting S.S.'s four prior

hospitalizations during the past year, the judge stated "at

least four prior times, there's been at least a temporary order

of commitment."

    Turning to the issue of placement and the testimony of the

social worker about S.S.'s rejection by Parkwoods, the judge

said, "if she can't be accepted at a supervised setting, I have

no idea where she would go."   The judge explained he found that

"significant evidence when Parkwoods, who accepts virtually

everybody, won't accept her. . . .   That indicates to me that

she is not ready to leave when a supervised setting will not

accept her."   The court concluded "it would be frivolous to put

her on CEPP to a supervised setting, because they've already

said no."

    S.S. appeals, arguing the court erred in concluding the

prior entry of a domestic violence restraining order could

conclusively establish a patient was dangerous to others under

New Jersey's civil commitment statutes or that collateral

estoppel could be applied to relieve the State of its burden of

proving the need for commitment by clear and convincing

evidence.   She further contends the court erred in concluding an

adverse inference could be drawn against a patient asserting a



                                7                         A-5605-15T4
hearsay objection, and that the State failed to prove by clear

and convincing evidence that S.S. was a danger to herself.

       The scope of appellate review of a civil commitment is

"extremely narrow."    State v. Fields, 77 N.J. 282, 311 (1978)

(reviewing the involuntary commitment of a defendant found not

guilty by reason of insanity).    We review a commitment

determination only for abuse of discretion.    In re D.C., 146

N.J. 31, 58-59 (1996).    The Court has directed that in

conducting our review, we are to accord "the utmost deference"

to "the reviewing judge's determination as to the appropriate

accommodation of the competing interests of individual liberty

and societal safety in the particular case."    Fields, 77 N.J. at

311.   Because even according that deference here it is obvious

the State did not meet its burden of proving S.S.'s continued

need for involuntary commitment on this record, we conclude the

judge mistakenly exercised his discretion in continuing her

commitment.

       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,

                                 8                         A-5605-15T4
         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).]

    As used in the Court Rule, "[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).]

A person is "[d]angerous to others or property" if

         by reason of mental illness there is a
         substantial likelihood that the person will
         inflict serious bodily harm upon another
         person or cause serious property damage
         within the reasonably foreseeable future.
         This determination shall take into account a
         person's history, recent behavior and any
         recent act, threat or serious psychiatric
         deterioration.

                                9                         A-5605-15T4
         [N.J.S.A. 30:4-27.2(i).]

    Because S.S. concedes she suffers from a mental illness,

our focus is on whether the State proved she was a danger to

herself or others.   We think it plain that S.S.'s refusal to

submit to having her blood pressure taken on one or two

occasions during her twenty-six-day stay at Northbrook does not

satisfy the statutory standard of dangerousness to self.      Even

crediting the psychiatrist's opinion that "refusing vitals when

you're on anti-hypertensives shows at least a gross disregard

for your own health and safety," his acknowledgement that S.S.

was taking her blood pressure medication and his inability to

testify that S.S.'s non-compliance had any effect on her health

means we need not consider the issue further.    See In re

Commitment of Robert S., 263 N.J. Super. 307, 311 (App. Div.

1992) (walking on nails spilled from a toolbox and turning on a

gas stove when the house got chilly insufficient to establish

mentally ill veteran was a danger to himself).

    Turning to the court's finding that S.S. was dangerous to

others, S.S. urges us to consider the extent to which a judge

reviewing a civil commitment can rely on an order entered in a

proceeding under the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35.   We decline to do so as it is patently

clear no reliance can be placed on an order not produced at the

                               10                            A-5605-15T4
hearing, that no one has seen and where there is no indication

of whether it was a temporary or final order, entered ex parte

or after a full hearing and whether the act of domestic violence

was homicide or harassment.    Cf. State v. Silva, 394 N.J. Super.

270, 275 (App. Div. 2007) (holding that findings from an FRO

trial were not judicially noticeable in a subsequent criminal

trial regarding the same conduct).

    County Counsel, representing the State here, "takes no

position" with regard to the evidentiary errors S.S. claims the

judge made in permitting the social worker to testify to the

oral reports she received from someone else regarding S.S.'s

alleged "outburst" on the morning of the hearing and from a

staff member at Parkwoods.    We take that to mean it concedes the

statements were hearsay, not subject to any exception.     See

In re Commitment of J.B., 295 N.J. Super. 75, 78-79 (App. Div.

1996) (cautioning against the admission of inadmissible hearsay

in the form of testifying witnesses reciting information

provided by others).   Although the judge appeared to consider

the social worker's testimony about the statement the Parkwoods

staffer made to her, reporting what S.S. allegedly said to him,

to constitute a statement of a party-opponent, N.J.R.E.

803(b)(1), or one against S.S.'s interest, N.J.R.E. 803(c)(25),



                                11                         A-5605-15T4
he did not address N.J.R.E. 805's requirement that each hearsay

statement meet an exception to N.J.R.E. 802.

    County Counsel also makes no attempt to defend the court

having drawn an adverse inference from a properly lodged hearsay

exception to the testimony the social worker wished to offer

regarding her conversations with S.S.'s grandmother.       We can

find no justification for such a patently improper ruling

abridging S.S.'s right to insist the State confine itself to

admissible evidence in shouldering its burden to prove by clear

and convincing that she required further commitment.       In re

Commitment of M.M., 384 N.J. Super. 313, 334 (App. Div. 2006).

    Because the State could not properly rely on the domestic

violence restraining order to establish S.S.'s dangerousness to

others, or the social worker's report of what others told her,

the State's proofs on this point rest solely on the testimony of

the psychiatrist.   He, however, was only filling in for S.S.'s

treating doctor and could offer nothing more than "the admit

reasons" and the same oral report the social worker offered

about an alleged "outburst" the morning of the hearing.       We have

before cautioned that judges "must take care to avoid any use of

an expert's testimony about the foundation for an opinion as

proof of facts that are neither derived from nor established by

otherwise admissible evidence."     Id. at 335.   As the

                               12                            A-5605-15T4
psychiatrist had no idea of the source of the information for

"the admit reasons," see J.B., 295 N.J. Super. at 78-79, and the

State offered no competent proof of S.S.'s alleged "outburst"

the morning of the hearing, even assuming such would be

sufficient to prove her dangerousness to others, its proofs that

she was a danger to others were decidedly lacking.     See M.M.,

384 N.J. Super. at 334 (quoting In re Commitment of G.G.N., 372

N.J. Super. 42, 59 (App. Div. 2004) ("The evidence must permit

the judge 'to come to a clear conviction [that person is

mentally ill and dangerous], without hesitancy.'")).

    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).   "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.    It does,

however, serve to prevent repetition of errors capable of

leading to unconstitutional confinement.

    Reversed.



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