                          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                       NOT FOR PUBLICATION WITHOUT THE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-1534-15T2


IN THE MATTER OF THE
COMMITMENT OF S.D.
_____________________


             Submitted February 14, 2017 - Decided            March 16, 2017

             Before Judges Koblitz and Rothstadt.

             On appeal from a Municipal             Court    of   New
             Jersey, Docket No. 15-7115.

             Joseph E. Krakora, Public Defender, attorney
             for appellant (Rihua Xu, Assistant Deputy
             Public Defender, of counsel and on the
             brief).

             Courtney M. Gaccione, Essex County Counsel,
             attorney for respondent (Thomas M. Bachman,
             Assistant Essex County Counsel, of counsel
             and on the brief).

PER CURIAM

       S.D.1 appeals from an October 21, 2015 municipal court order

of involuntary commitment.2           Because      the      County      did       not



1
  Appellant's initials are used to protect his privacy.                  R. 1:38-
3(f)(2).
2
  This direct appeal to the Appellate Division from an order
entered by a municipal court judge is permitted pursuant to
demonstrate by clear and convincing evidence that S.D. was a

danger to himself, others or property, we reverse.

     S.D.     is    a    thirty-five-year-old          man    diagnosed      with

schizophrenia, 3 who has a long history of hospitalizations.                    A

manifestation      of   S.D.'s   symptoms   is   that    he   talks   aloud    to

himself, sometimes quite loudly.

     On     September     23,    2015,   S.D.    was    released      from    the

psychiatric ward of Newark Beth Israel Medical Center (Medical

Center) on condition that he take his prescribed medication,

reside at the Restoration Center shelter and follow up with the



N.J.S.A. 30:4-27.15, and the definition of "court" contained in
N.J.S.A. 30:4-27.2(f), as Superior Court or municipal court.
3
  The mental condition schizophrenia was characterized during the
commitment hearing as a disorder in which the individual has
"hallucinations, delusions, disorganized behavior, disorganized
thought or negative symptoms."

According to the Mayo clinic:

            Schizophrenia is a severe mental disorder in
            which people interpret reality abnormally.
            Schizophrenia may result in some combination
            of hallucinations, delusions, and extremely
            disordered   thinking   and   behavior   that
            impairs   daily  functioning,   and  can   be
            disabling.

            Schizophrenia   is   a   chronic            condition,
            requiring lifelong treatment.

            [Diseases   and  Conditions:   Schizophrenia,
            Mayo      Clinic    (Oct.      11,     2016),
            http://www.mayoclinic.org/diseases-
            conditions/schizophrenia/home/ovc-20253194.]
                                 2                                     A-1534-15T2
Program of Assertive Community Treatment (PACT).                           At the end of

September, a week after his conditional release, S.D. was sent

from   Newark       Penn    Station     back      to    the    Medical    Center    for     an

emergency screening.

       At    the    commitment     hearing,         Dr.       Sostre,    S.D.'s    treating

psychiatrist at the Medical Center, was qualified as an expert

in psychiatry and testified as the only witness for the County.

S.D. testified on his own behalf.                       Dr. Sostre described S.D. as

"guarded."         He stated that although S.D. denies any auditory or

visual hallucinations or "any suicidal or homicidal ideations,"

"he has been observed to be talking to himself, at times loudly,

on   the     unit."         According       to    Dr.    Sostre,    this       response     to

internal stimuli indicates that S.D. is "psychotic" with poor

insight into his illness.

       Dr.   Sostre        testified       that    he    believed       S.D.   would   be   a

danger to others if discharged from the hospital and recommended

that   S.D.        be   referred   to       a     long-term,      inpatient       treatment

center.      Dr. Sostre stated that he based his opinion on:

              S.D.'s history of . . . non-compliance with
              medications and follow-up, as he's refused
              to follow up with the PACT team, and his
              rapid decompensations, as evidenced by the
              fact that he was discharged just one week
              prior to this admission to the hospital and
              he was readmitted because of his threatening
              and agitative behavior at Penn Station.



                                       3                                           A-1534-15T2
       On     cross-examination,          Dr.    Sostre     admitted     that     "[t]he

reports       were     vague    coming      from     Penn    Station,     but      [his]

understanding [was] that [S.D.] was verbally threatening people

at Penn Station."          Dr. Sostre also testified that S.D. had never

been physically abusive or threatening toward any staff member

or patient in the hospital.               When asked by defense counsel if on

the day in Penn Station it was "possible that [S.D.] was simply

being loud, as he's demonstrated in the hospital?"                        Dr. Sostre

replied "possibly."

       No testimony was adduced at trial regarding S.D.'s danger

to himself except the following.

              [Dr. Sostre]: He's a danger to himself and
              others -- because he becomes non-compliant
              with medications and [h]e becomes threating
              towards other people in the community,
              specifically Penn Station this last time.

       S.D. testified that he did not remember the events of that

day, but maintained he did not threaten anyone.                           He further

testified      he    had   never     been   verbally      abusive   toward       anyone,

never       intended    harm    against         another    individual,     and     never

intended to harm himself.                 On cross-examination, S.D. claimed

that    he    had    filled    his   prescription         upon   discharge      and   was

taking his medication.             No evidence was given concerning whether

the PACT team had an opportunity to contact S.D. during the week

he was out of the Medical Center.


                                      4                                         A-1534-15T2
    After   closing   statements,   and   before   announcing   her

findings, the municipal court judge asked S.D. some questions

and made the following remarks:

         [The   Court]:   The  problem,  [S.D.]   and
         counsel, is that [S.D.] is among the vast
         sea of humanity that is kind of lost because
         he is mentally ill, he is psychotic.     I'm
         not saying that he's dangerous to the point
         where he has actively injured anybody, but
         we all know the phenomenon of people who are
         drawn to linger, loiter, hangout in public
         spaces and especially find Penn Station
         particularly appealing, and especially with
         the winter coming.

         And I think that the confrontations with
         commuters comes about in the panhandling
         context, although there has been not a word
         of testimony suggesting that.   So it could
         either be soliciting food or money from
         strangers, which is bothersome, or just
         talking to them. He admitted that he talks
         to people.    I don't want to suggest that
         talking to people means that you should be
         locked up in an institution, but it’s the
         combination [of] factors here.

         [S.D.] is an articulate young man. He's 35
         years old. He says that he has reported to
         the Restoration Center and is staying there
         every night, but why do you have to keep
         going to Penn Station, [S.D.]?     Tell me
         that.

    The judge then asked S.D. what he did to obtain money, to

which S.D. responded: "I receive benefits from Social Security."

After further discussion on the symptoms of schizophrenia the

court characterized S.D.'s testimony.



                           5                              A-1534-15T2
             [The Court]: All right. Well, I understand,
             [defense   counsel's]  argument     that  just
             because somebody is different, he talks to
             himself and he wanders around and he – he's
             not likely to take his meds, that, . . . in
             and of itself, is not a sufficient reason to
             commit   him.      However,    this    is  not
             speculation when it comes to [S.D.].        He
             does not take his meds.     He is recommitted
             as regularly as clockwork.

             And I find his testimony a mixture of
             credible and incredible.      The incredible
             part is that he doesn't go to Penn Station
             every day.    I think he goes there with a
             purpose and his purpose is to preserve his
             life, get money, get – maybe get food, go in
             the garbage, whatever people do –

             . . . .

             Well, sir, I understand your dilemma, but
             when you come into confrontations with the
             public, it is a threat to the safety and the
             good order of the people who are commuting.

      The    judge     went   on   to   make     a     finding   that   S.D.    was

"aggressive     and    threatening      toward   commuters       at   Newark    Penn

Station."      She further found that "even though [S.D.] puts a

more benign spin on his talking to people, [the court] find[s]

that that's not exactly how he was perceived by others.                         And

that being the case, he is lacking in judgment and insight."

      The judge ordered S.D. to be civilly committed "by virtue

of   his    mental    illness,     dangerous     as    he   is   to   himself    and

others."      The     court   ordered    that    the    "doctor's     report    [be]




                                   6                                      A-1534-15T2
amended to add danger to self by virtue of [S.D.'s] provocative

behavior."

    S.D. was transferred to a long-term locked institution and

subsequently discharged.

    S.D. raises the following issues on appeal:

           POINT   ONE:  THE   TRIAL   COURT  ERRED  BY
           INVOLUNTARILY CONFINING S.D. IN A LOCKED
           PSYCHIATRIC FACILITY AND ORDERING HIM TO BE
           TRANSFERRED TO A LONG TERM INSTITUTE WITHOUT
           CLEAR   AND  CONVINCING   EVIDENCE  THAT  HE
           PRESENTED A DANGER TO HIMSELF, OTHERS, OR
           PROPERTY AS REQUIRED BY N.J.S.A. 30:4-
           27.15(A) AND 30:4-27.2(M).

           POINT   TWO:  THE   TRIAL  COURT  COMMITTED
           REVERSIBLE ERROR WHEN IT ENTERED A CIVIL
           COMMITMENT ORDER THAT WAS ROOTED IN A
           MULTITUDE OF BASELESS SPECULATION DEVOID OF
           ANY SUPPORTING EVIDENCE OR VALID FACTUAL
           BASIS TO MERIT A CONTINUATION OF CIVIL
           COMMITMENT.

           POINT THREE:   S.D.'S APPEAL IS NOT MOOT.

    "The     scope   of    appellate   review   of     a   commitment

determination is extremely narrow and should be modified only if

the record reveals a clear mistake."     In re D.C., 146 N.J. 31,

58 (1996).   While the reviewing court should "give[] deference

to civil commitment decisions and reverse[] only when there is

clear error or mistake," it should also "consider the adequacy

of the evidence."    In re Commitment of M.M., 384 N.J. Super.

313, 335 (App. Div. 2009).



                             7                               A-1534-15T2
      "Because     commitment    effects     a   serious   deprivation         of

liberty, citizens are entitled to 'the meticulous protection of

both procedural and substantive due process.'"             In re Commitment

of J.R., 390 N.J. Super. 523, 533 (App. Div. 2007) (quoting In

the Commitment of R.B., 158 N.J. Super. 542, 547 (App. Div.

1978)).     Reviewing     courts     "have    not   hesitated    to     reverse

involuntary commitments when the record failed to contain clear

and   convincing    evidence    of   'a   substantial   risk    of    dangerous

conduct   within    the   reasonably      foreseeable   future.'"        In    re

Commitment of T.J., 401 N.J. Super. 111, 119 (App. Div. 2008)

(quoting In re S.L., 94 N.J. 128, 138 (1983)).

      The provisions of N.J.S.A. 30:4-27.1 to -27.23 and Rule

4:74-7 govern the process of involuntary commitments.                     For a

court to order involuntary commitment, it must find "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 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, 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).]


                                8                                      A-1534-15T2
    Under    N.J.S.A.    30:4-27.2(m),    a    person    is    "[i]n    need    of

involuntary commitment" when "mental illness causes the person

to be dangerous to self or dangerous to others or property[,]"

and the person is unwilling to be voluntarily admitted to a

facility for care.       The burden is on the County to prove "the

grounds for commitment by clear and convincing evidence."                  In re

Commitment of J.R., supra, 390 N.J. Super. at 529.

    Furthermore,        the    dangerousness     must         be   "relatively

immediate" and "[t]here must be, in fact, a 'substantial risk of

dangerous conduct within the reasonably foreseeable future.'"

Id. at 530 (first quoting In re Commitment of N.N., 146 N.J.

112, 130 (1996), then quoting In re S.L., supra, 94 N.J. at

138).

    According to N.J.S.A. 30:4-27.2(h) "dangerous to self"

            means that 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
            debilitation or death will result within the
            reasonably foreseeable future.

    S.D.    maintains     that   "there   is   not   a    single       shred    of

testimony   or   evidence     presented   by   the   [County]"      that     S.D.

cannot care for himself or has threatened or attempted self-

harm.   The County relies on Dr. Sostre's response to cross-

                                 9                                      A-1534-15T2
examination that S.D. is "a danger to himself and others . . .

because he becomes non-compliant with medications and he becomes

threatening towards other people in the community."

       Under      N.J.S.A.       30:4-27.2(h)         danger     to     self       may     be

established if the patient "is unable to satisfy his need for .

. . essential medical care."                However, the record must contain

clear and convincing evidence of a substantial risk of dangerous

conduct within a foreseeable future.                        J.R., supra, 390 N.J.

Super. at 530.

       In J.R., the court's "finding of dangerousness was based

essentially on the judge's belief that if [the patient] fail[ed]

to   take   his     medication,       he   can     become     agitated      and    manic."

Ibid.       The     lower    court      rationale       was     that    the       patient's

"behavior      could   lead      to   someone      assaulting        him,   which       could

cause him to be dangerous to himself as well."                         Ibid.      We found

this    "inadequate"        to   meet   the   State's       burden.         Id.    at    531.

Likewise, in this case, Dr. Sostre testified that S.D. becomes

dangerous      to   himself      "because     he      becomes    non-compliant           with

medications."

       In her findings, the judge stated: "I understand that just

because     somebody    is       different,      he    talks    to     himself      and    he

wanders around" and is unlikely to continue taking medication,

"in and of itself is not a sufficient reasons to commit him."


                                      10                                           A-1534-15T2
She committed S.D. nonetheless, because of the frequency of his

prior    commitments.           The   judge    went   on   to     order,    without    a

request from the County, that the "doctor's report" be amended

to    "add     danger   to     self   by    virtue    of   [S.D.'s]        provocative

behavior."

       N.J.S.A. 30:4-27.2(i) states:

               "Dangerous to others or property" means that
               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 or threat.

               [Emphasis added.]

       We have held that in rare instances the statute could be

satisfied if the "substantial likelihood of psychological harm to

others [was] so severe as to inflict 'serious bodily harm upon

another person.'" In re Commitment of A.A., 252 N.J. Super. 170,

179    (App.    Div.    1991)    (quoting     N.J.S.A.     30:4-27.2(i)).       Merely

characterizing language as "aggressive" is not enough, however,

to establish that a "verbal assault" occurred that reached the

level of serious bodily harm.                 J.R., supra, 390 N.J. Super. at

532.     In     J.R.,    the    patient    was   accused     of    making    verbally

abusive statements to the medical staff; however, no evidence

was presented "regarding the nature" of these comments or "the


                                      11                                      A-1534-15T2
context in which they were made, or even the demeanor and tone

used."        Id.     at     532.      We    found      that       this    evidence     was

insufficient to satisfy N.J.S.A. 30:4-27.2(i).                       Ibid.

       Similarly, in In the Commitment of W.H., 324 N.J. Super.

519,   524    (App.        Div.   1999),    we     found     the    testimony      of   the

appellant's      doctor      that    when    the    patient        does    not   take   his

medications      he        becomes   "delusional        and        talks    to   himself"

insufficient to meet the standard of dangerousness to self or

others.      Suffering from a mental illness alone is not sufficient

for involuntary commitment.                 S. L., supra, 94 N.J. at 137-38

(citing O'Connor v. Donaldson, 422 U.S. 563, 575-76, 95 S. Ct.

2486, 2493-94, 45 L. Ed. 2d 396, 406-07 (1975)).

       Here, no testimony was presented about the content of the

comments made at Penn Station.               Dr. Sostre himself characterized

the    reports      as     "vague"   and    could      not    relay       them   with   any

specificity.         Dr. Sostre acknowledged it was "possible" that

S.D. was merely "being loud."                    Furthermore, when Dr. Sostre

testified that S.D. "was threatening other commuters at Penn

Station," S.D.'s counsel objected to the testimony as hearsay.

The court allowed the comments because the doctor "utilize[d]

that   screening         information       for   the   purposes       of    diagnosis      –

only[.]"      As the County concedes, "a judge must take care to

avoid any use of an expert's testimony about the foundation for


                                     12                                           A-1534-15T2
an opinion as proof of facts that are neither derived from nor

established by otherwise admissible evidence."                M.M., supra, 384

N.J. Super. at 335.

    Dr. Sostre admitted on cross-examination that he had never

witnessed    S.D.   verbally      abusing     anyone     at    the   hospital.

Therefore, his evidence that S.D. was dangerous to others was

based only on the report from Penn Station and the fact that

S.D. responds to verbal stimuli.              J.R. requires that verbal

threats be more than just generally categorized as "aggressive."

J.R., supra, 390 N.J. Super. at 531.               Without a finding of

dangerousness    based    on    clear   and   convincing       evidence,     S.D.

should not have been involuntarily committed.

    "It is well settled in New Jersey that an appeal in these

types of cases is not moot, even if the patient is no longer

confined,    when   the   patient     remains   liable     for    his   or    her

hospital bill, and a finding in the patient's favor will entitle

the patient to a credit for any period of illegal commitment."

In re Commitment of B.L., 346 N.J. Super. 285, 292 (App. Div.

2002).      Although New Jersey has repealed the automatic lien

provisions    formerly    contained     in    N.J.S.A.    30:4-80.1,       other

statutes render patients liable for all or part of the costs of

their hospitalization.         See N.J.S.A. 30:4-60(c)(1) (establishing

liability for cost of treatment, maintenance and all related


                                 13                                     A-1534-15T2
expenses   for     treatment      in     a    psychiatric          facility);    N.J.S.A.

30:4-70 (requiring payment upon subsequent discovery of patient

funds).

       Furthermore,    "even      if         appellant       had    no    liability        for

hospital costs, we 'should nevertheless decide the issue [if] it

implicates a committee's constitutional right to liberty. . .

.'"     T.J.,    supra,   401     N.J.         Super.    at    118       (quoting     In    re

Commitment of G.G., 272 N.J. Super. 597, 600 n.1, (App. Div.

1994)).      Finally,        if   the         correctness          of    the   challenged

commitment affects the nature of future placements the matter

should not be considered moot.                 M.M., supra, 384 N.J. Super. at

322, n.3; see N.J.S.A. 30:4-27.5 ("If a person has been admitted

three times or has been an inpatient for 60 days at a short-term

care   facility     during    the      preceding        12    months,      consideration

shall be given to not placing the person in a short-term care

facility.").

       Reversed.




                                    14                                              A-1534-15T2
