Opinion
DOCKET NO. A-6085-10T2
04-09-2012
IN THE MATTER OF THE CIVIL COMMITMENT OF S.H.
Joseph E. Krakora, Public Defender, attorney for appellant S.H. (Richard I. Friedman, Deputy Public Defender, of counsel and on the brief). Neil J. Carroll, Jr., Hudson County Adjuster, attorney for respondent State of New Jersey (Mr. Carroll, on the statement in lieu of brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. CM-223-11.
Joseph E. Krakora, Public Defender, attorney for appellant S.H. (Richard I. Friedman, Deputy Public Defender, of counsel and on the brief).
Neil J. Carroll, Jr., Hudson County Adjuster, attorney for respondent State of New Jersey (Mr. Carroll, on the statement in lieu of brief). PER CURIAM
S.H. appeals from the July 12, 2011 order of the Law Division that denied his discharge from involuntary confinement at Greystone Park Psychiatric Hospital (Greystone), and instead continued his status as a Conditional Extension Pending Placement (CEPP). We dismiss the appeal as moot.
I.
According to orders made a part of the appendix, after S.H. had been found incompetent to stand trial, criminal charges against him were dismissed and he was committed to the custody of the Commissioner of the Department of Human Services pursuant to an order entered November 1, 2010. A temporary order for involuntary commitment was entered March 9, 2011. On March 30, 2011, the court entered an order continuing his commitment until a hearing April 27, 2011, but provided that he could be transferred to a less restrictive environment. On May 31, 2011, the court approved S.H.'s CEPP status pursuant to Rule 4:74-7(h), with a placement review hearing scheduled for June 28, 2011. On June 28, 2011, CEPP was continued, with another hearing scheduled for July 12, 2011. The court ordered that S.H. be interviewed for a day program "forthwith," and also ordered notice to the Hudson County Prosecutor's Office.
Although only part of the order was included in the appendix, we can glean the substance of the order from the excerpts provided. Also, although the indictment is not provided, appellant represents he was charged with stalking, criminal contempt and unsworn falsification.
At the hearing at Greystone on July 12, 2011, a hospital social worker testified the treatment team recommended S.H.'s discharge conditioned upon his admission to a suitable day treatment program. She reported that she had learned the previous day that a day program to which S.H. was referred was unable to accept him. Efforts were ongoing to gain S.H.'s admission to another program. Therefore, she recommended placing S.H. on CEPP status for two weeks, to assure S.H.'s admission to a day program. "We would like to get [S.H.] into a day program and, basically, get him discharged."
However, she also reported that the Special Status Patient Review Committee (SSPRC) had recently interviewed S.H., and concluded he was delusional and disagreed with the treatment team. When asked to explain why the delusions were a barrier to his discharge, the social worker declined to defend the SSPRC's decision, stating, "I'm not the one that made the decision. I don't find it to be a barrier. He's doing good. His treatment team feels that he is ready for discharge. And we brought him to Special Status and they den[ied] him."
See In re Commitment of T.J., 401 N.J. Super. 111, 114 n.2 (App. Div. 2008) ("The SSPRC provides review of recommendations made by a patient's treatment team balancing the patient's needs to 'successfully participate in treatment and rehabilitative programs, while maintaining a safe and secure therapeutic milieu for patients and staff. . . .'") (quoting N.J.A.C. 10:36-1.1).
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S.H.'s attorney argued S.H. was no longer in need of commitment and there was no evidence to support imposition of continued restraints. He urged that S.H. be discharged within forty-eight hours to his mother, a family therapist and mental health counselor, who testified that she was prepared to supervise her son to assure he received prescribed medication. The Hudson County Adjuster argued CEPP status was appropriate, as S.H. was incapable of surviving on his own without a day program in place.
The court ordered continued CEPP status for two weeks to enable the team to seek "a group setting" for S.H. If such a program were not found, the judge stated he would reconsider whether S.H. should be "totally discharged in two weeks." S.H. was then discharged by order entered July 26, 2011.
S.H. appeals from the court's July 12, 2011 order, which continued him on CEPP status for an additional two weeks. He raises the following points:
POINT I
THE TRIAL COURT ERRED BY INVOLUNTARILY DETAINING S.H. AT A STATE PSYCHIATRIC FACILITY WITHOUT CLEAR AND CONVINCING EVIDNCE THAT HE PRESENTED A DANGER TO HIMSELF, OTHERS, OR PROPERTY
A) The Trial Court Exceeded Its Authority Under State Commitment Statutes By Involuntarily Detaining S.H. At A State Psychiatric Facility 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).
B) The Trial Court Violated S.H.'s Constitutional Right To Due Process By Involuntarily Detaining Him At A State Psychiatric Facility Without Finding That He Represented A Danger To Himself, Others, Or Property.
POINT II
THE TRIAL COURT'S ORDER OF CONTINUED CEPP WAS NOT AUTHORIZED BY THE STATE'S PARENS PATRIAE OR POLICE POWER, THE NEW JERSEY SUPREME COURT'S HOLDING IN IN RE S.L., OR NEW JERSEY COURT RULES
A) The Trial Court's Order of CEPP Was Not Authorized By Either The Holding In In Re S.L. Or Its Progeny Or New Jersey Court Rule 4:74-7(h)(2).
B) The Trial Court's Order of CEPP Exceeded The Bounds Of The State's Parens Patriae Power
POINT III
S.H.'S APPEAL IS NOT MOOT
The Hudson County Adjuster filed a statement in lieu of brief advising that Hudson County did "not oppose the Office of the Public Defender[,]" notwithstanding the County Adjuster had urged the court to enter the July 12, 2011 order on appeal.
II.
Given the lack of adversariness between the parties, and the sparseness of the record, we decline to reach the merits of the issues raised on appeal in light of S.H.'s discharge.
We generally avoid resolving issues in the abstract and deciding moot cases. N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949). "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation and citation omitted). However, a dispute is not moot if a party will still suffer "adverse consequences" from the decision. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261-62 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).
We may decline to dismiss a matter on mootness grounds in order to address an important matter of public interest. Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 484 (2008). That includes cases involving interpretation of a statute that would broadly affect persons governed by it. Nini v. Mercer Cty. Comm. Coll., 202 N.J. 98, 105-06 n.4 (2010). We may also decline to dismiss a case involving issues of substantial importance that are likely to recur and otherwise evade review. Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996).
Our courts have often applied these principles to address issues involving civil commitment where the committee had been discharged before the case was presented for decision. See In re Commitment of N.N., 146 N.J. 112, 124 (1996) (considering the standard governing involuntary commitment of minor who was no longer confined); In re Commitment of T.J., 401 N.J. Super. 111, 123-25 (App. Div. 2008) (reversing order continuing CEPP status based on trial court's failure to make necessary factual findings, notwithstanding patient's discharge); In re Commitment of M.C., 385 N.J. Super. 151, 164 (App. Div. 2006) (reviewing and reversing CEPP orders despite patients' discharge); In re Commitment of M.M., 384 N.J. Super. 313, 321-22 (App. Div. 2006) (addressing, despite patient's discharge, grounds for extending statutory deadline for hearing on civil commitment); In re Commitment of B.L., 346 N.J. Super. 285, 292-93 (App. Div. 2002) (addressing, despite their later discharge, revocation of patients' conditional release); In re Commitment of G.G., 272 N.J. Super. 597, 600 n.1 (App. Div. 1994) (addressing, notwithstanding committees' discharge, the appropriateness of continued CEPP status because treatment team had not yet prepared discharge plan for follow-up care by community mental health agency); In re Application for Commitment of Z.O., 197 N.J. Super. 330, 336 (App. Div. 1984) (addressing time periods for commitment hearings despite committees' discharge). See also In re Commitment of P.D., 186 N.J. 251 (2006) (summarily remanding for consideration of merits an appeal that appellate court had dismissed as moot).
We have found a discharged patient's financial responsibility for hospital costs during the challenged commitment is an adverse consequence that defeats mootness. In re Commitment of R.B., 158 N.J. Super. 542, 545 (App. Div. 1978). Likewise, we have found a non-moot controversy exists if the correctness of the challenged commitment affects the nature of future placements. M.M., supra, 384 N.J. Super. at 322, n.3 (under N.J.S.A. 30:4-27.5b(2), placement outside a short-term care facility shall be considered if a person has had three admissions, or one for sixty days at a short-term care facility, in the previous year).
Nonetheless, the decision to address a moot case is discretionary. State v. Hughes, 230 N.J. Super. 223, 227 (App. Div. 1989). Balanced against the interest in deciding important issues otherwise likely to evade review is the interest in judicial economy and in restraint. See Spadoro v. Whitman, 150 N.J. 2, 13 (1997) (Handler & Stein, JJ., concurring in relevant part and dissenting in part) ("'[F]or reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, a judgment cannot grant effective relief, or the parties do not have concrete adversity of interest.'") (quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)); Sente v. Mayor & Municipal Council of Clifton, 66 N.J. 204, 210 (1974) (Pashman, J., dissenting) (court must balance interest in judicial economy and restraint against interest in deciding, and not relitigating, issues of public importance).
The absence of genuine adversariness of the parties is a significant factor that militates against addressing the merits of moot issues. We prefer to decide "concrete contested issues conclusively affecting adversary parties in interest." Parsons, supra, 3 N.J. at 240 (internal citation and quotation omitted). "[W]hen litigants seek the same result, a court cannot approach its task confident of the aid which truly adversary positions will ordinarily generate." Whelan v. N.J. Power & Light Co., 45 N.J. 237, 243 (1965); see also Sente, supra, 66 N.J, at 210 (Pashman, J., dissenting) (recognizing the risk "of erroneous or overgeneralized opinions caused by the absence of the vigorous adversary advocacy necessary to focus questions of fact and of law and . . . ramifications of the issues").
The absence of a full factual record also supports judicial restraint. Sente, supra, 66 N.J. at 205 (vacating Appellate Division decision and dismissing appeal on mootness grounds where Court finds "record . . . [is] so unsatisfactory that we cannot be confident of reaching the correct result" on a novel and far-reaching constitutional issue); Hughes, supra, 230 N.J. Super. at 227 (noting "meager factual presentation" supported court's decision to dismiss appeal as moot).
Applying these principles, we are persuaded that dismissal is appropriate in this case. As a threshold matter, we conclude the issue whether S.H. was correctly confined on CEPP status on July 12, 2011 is moot. As S.H. was discharged two weeks later, S.H. seeks a decision reversing the trial court's order that "can have no practical effect on the existing controversy." Greenfield, supra, 382 N.J. Super. at 258 (internal quotation and citation omitted).
Also, no adverse consequences are certain to flow from the July 12 order. First, we reject S.H.'s argument that his commitment "remains relevant in the event of possible future commitments." S.H.'s appeal does not challenge S.H.'s initial confinement, which extended more than sixty days excluding the challenged two-week period. Thus, the appeal would not affect placement if S.H. were committed again within twelve months. N.J.S.A. 30:4-27.5b.
Second, S.H.'s bald assertion he is "potentially liable for the cost of his hospitalization" for the disputed two weeks lacks any support in the record. S.H. has not provided us with a determination of the Department of Human Services (DHS) that S.H. shall bear any personal financial responsibility for his care. See N.J.S.A. 30:4-60(c)(4) (DHS shall determine whether mentally ill patient is liable to contribute toward treatment costs). For various reasons, a State hospital patient may be exempt from personal liability. See N.J.S.A. 30:4-60(c)(1) (providing for reliance on third party insurance benefits or medical assistance program [benefits] to reimburse State for cost of care); N.J.S.A. 30:4-60(c)(1) (patient eligible for charity care for costs unreimbursed by third party insurance or medical assistance); N.J.A.C. 10:7-4.2 (providing zero liability for person with income less than or equal to 200 percent of the HHS Poverty Guidelines); N.J.S.A. 30:4-60(c)(6) (stating DHS Commissioner shall liberally compromise and settle charges otherwise due for State hospital treatment).
Turning to the balancing of interests, there are insufficient grounds to reach the merits of this appeal notwithstanding its mootness. We are mindful of the importance of S.H.'s right to be free from unjustified confinement. See T.J., supra, 401 N.J. Super. at 118. CEPP status is appropriate when "a patient otherwise entitled to discharge, cannot be immediately discharged due to the unavailability of an appropriate placement[.]" R. 4:74-7(h)(2). "An 'appropriate placement' . . . is a placement in a facility that will provide continuing support and assistance through the day to mentally ill people who are 'incapable of survival on their own.'" G.G., supra, 272 N.J. Super. at 604 (quoting In re Application for Commitment of S.L., 94 N.J. 128, 140-41 (1983)). See also M.C., supra, 385 N.J. Super. at 163 (CEPP should not be used to delay discharge of a person lacking "optimal living arrangements and family relationships").
However, S.H.'s interest in contesting the two-week extension of his confinement is outweighed by broader interests in judicial economy and restraint. The unexplained non-opposition from the county, which supported continued CEPP status before the trial court, deprives us of the adversariness that would assist us in our review. In the several decisions cited above involving contested civil commitments, the apparently active and adversarial participation of the county or State assisted the Supreme Court or us in addressing the issues. That is missing here.
The sparse record also hinders our ability to discern whether the two-week extension of CEPP status was justified. The record does not reflect whether the July 26, 2011 discharge was ordered because a day treatment program was located, or for another reason. We do not have the benefit of S.H.'s treatment records or diagnoses, or the transcript of the hearing at which the court initially placed S.H. on CEPP status. While S.H. argues he should have been discharged to his mother, and not wait for a day treatment program, the record does not reflect how S.H.'s mother could care for him during her work day.
Moreover, S.H.'s social worker who recommended he be discharged with a day treatment program, could not explain SSPRC's opposition, except to report that SSPRC found S.H. still suffered from delusions. By contrast, in T.J., supra, 401 N.J. Super. at 124, we held the trial court erred in continuing CEPP status when, among other things, the committee "no longer suffered the problems posed by his mental illness . . . [and] demonstrated no . . . aberrant behaviors[.]" We concluded conditional release should have been used to assure medication compliance, Megan's Law registration, and other post-release treatment. Here, we are unable to confidently decide whether conditional release would have been warranted on July 12, 2011, instead of continued CEPP status.
Dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION