Opinion
DOCKET NO. A-3321-11T2
01-30-2013
IN THE MATTER OF THE COMMITMENT OF F.S.
Joseph E. Krakora, Public Defender, attorney for appellant F.S. (William M. Ng, Assistant Deputy Public Defender, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-04-0538.
Joseph E. Krakora, Public Defender, attorney for appellant F.S. (William M. Ng, Assistant Deputy Public Defender, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
F.S. was indicted by the Monmouth County grand jury and charged with terroristic threats in the third degree, N.J.S.A. 2C:12-3(b); third-degree unlawful possession of a weapon, a box cutter knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of weapon, N.J.S.A. 2C:39-5(d). The charges arose from F.S.'s February 21, 2010 arrest in Freehold, where she was found by police officers in the middle of the street threatening two women and waving the knife in their direction.
On July 21, 2010, after a bench trial, F.S. was found not guilty by reason of insanity (NGI) and committed to the custody of the Department of Human Services pursuant to N.J.S.A. 2C:4-8(b)(3). Her commitment was continued after a first Krol hearing on January 27, 2011, and continued again after a second Krol hearing on July 22, 2011.
State v. Krol, 68 N.J. 236 (1975).
While this appeal was pending, we affirmed F.S.'s continued commitment under the July 22, 2011 order. In the Matter of the Commitment of F.S., No. A-6250-10 (App. Div. August 6, 2012).
On January 12, 2012, F.S. appeared for her third Krol hearing before a different Law Division judge. Dr. Dipali Das, F.S.'s treating psychiatrist at Trenton Psychiatric Hospital (TPH), testified as the State's sole witness.
Das had been treating F.S. since September 2011. Das noted that although F.S. self-reported twenty prior psychiatric hospitalizations, the records reflected only four. F.S. was previously at TPH in January 2009, having been transferred from "Centra State Hospital" after being "non-compliant with [her] medication[,] . . . aggressive and . . . actively having auditory hallucination." When her present commitment began, F.S. was at "level one," the most restrictive status. She was moved to level two, a less restrictive status, but in May 2011, F.S. was again placed at level one. Das testified this occurred when F.S. became "very frustrated" and swallowed a battery, believing that would lead to her discharge. F.S. was eventually returned to level two where she remained at the time of the hearing.
The two prior orders permitted the staff, in its discretion, to move F.S. to limited level three status.
Das evaluated F.S. on December 19, 2011, and again on January 5, 2012, when the Special Status Persons Review Committee (SSPRC) reviewed Das's earlier report and recommendations. Das prepared two reports that were received in evidence. Das diagnosed F.S. with "[s]chizophrenia paranoid type chronic." Das noted "a history of substance abuse" that "might affect [F.S.'s] judgment more." Although F.S. was "calm, cooperative, and attentive," Das opined that F.S. did not "have . . . understanding about her mental illness . . . ." F.S. did "not understand that . . . she has to . . . remain compliant with the medication."
However, Das also reported that F.S. had not been aggressive or violent toward anyone since Das began treating her, there had been no other incidents like the battery swallowing incident, and F.S. had reported no hallucinations. F.S. remained on medications, including an injection of Haldol Decanoate every four weeks. Das expressed concern that F.S. would not remain compliant with her medication in a less-structured setting. Non-compliance could result in "positive symptoms of psychosis, like hallucination[s], paranoid ideation[,]" and aggressiveness.
Haldo Decanoate is used to treat schizophrenia and similar conditions. Administered via intramuscular injection, Haldol Decanoate is stored and released slowly into the body over several weeks. It is prescribed to regulate positive symptoms of schizophrenia, such as suspicion or paranoia, and negative symptoms of schizophrenia, including lethargy and lack of energy. See Physicians Desk Reference, 1089-91 (40th ed. 1986).
Das stated that the current recommendations included moving F.S. to "level three," with structured leisure time, transfer to a transitional living unit (TLU) and initiation of discharge planning. This last provision was contained in the January report after the SSPRC had reviewed Das's initial December report.
On cross-examination, Das acknowledged that F.S. was not "currently suffering from a substantial disorder of thought, mood, perception or orientation." Das further acknowledged that "within the confines of the hospital," F.S. "has been absolutely not dangerous[.]" Responding to questions from the judge, Das acknowledged that F.S. "pose[d] a danger to herself and others if she be[came] noncompliant with her medications." Das also testified that F.S.'s diagnosis would not change within the next six months.
The judge reviewed the psychiatric testimony and concluded that F.S. "poses a danger to herself and others if she becomes noncompliant with her medications and decompensates . . . ." He characterized F.S.'s prior "involuntary commitments" as a "revolving door," in that she was stabilized, complied with her medications, was "let . . . out" and then "deviate[d] and . . . [came] back in again." The judge noted "[f]or someone to be hospitalized [twenty] times in a [ten]-year period is extraordinary." The judge noted the crimes that led to F.S.'s commitment involved threatened violence against "strangers on the street," and he ordered a continued six-month commitment. He included provisions in the order for F.S. to be moved to level three status and gave the treatment team discretion to "transfer her to a [TLU]." However, the judge also determined "[t]here . . . will not be discharge planning at [the] team['s] discretion," concluding "there is absolutely nothing in the record . . . which would indicate that this person is . . . ready for discharge planning."
On February 6, 2012, the judge entered an order consistent with his oral opinion and scheduled another Krol hearing for July 18, 2012. This appeal followed.
We have not been provided with the results of this hearing if it occurred.
Before us, F.S. raises the following points:
I. THE STATE OFFERED NO PROOF THAT F.S. IS "MENTALLY ILL" AS DEFINED BY N.J.S.A. 30:4-27.2.We have considered these arguments in light of the record and applicable legal standards. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
A. The [S]tate failed to prove F.S. is "mentally ill."
B. The Court predicated its finding of mental illness on lack of "insight" which is not relevant to involuntary commitment.
II. THE COURT ERRED IN FINDING THAT F.S. IS "DANGEROUS" AS DEFINED BY N.J.S.A. 30:4-27.2h [AND] N.J.S.A. 30:4-27.2i.
A. There was no proof F.S. is currently "dangerous to others or property" pursuant to N.J.S.A. 30:4-27.2i.
B. There is no evidence F.S. is currently at risk of self harm as defined in N.J.S.A. 30:4-27h.
I.
Before turning to the issues raised on appeal, we briefly set forth the standards that inform our review.
"'When a person accused of a crime is acquitted by reason of insanity, the accused may be held in continued confinement if the person is a danger to self or others and is in need of medical treatment.'" In re Commitment of M.M., 377 N.J. Super. 71, 76 (App. Div. 2005) (quoting In re Commitment of W.K., 159 N.J. 1, 2 (1999)), aff'd, 186 N.J. 430 (2006). "The rationale for involuntarily committing" a defendant who has been acquitted by reason of insanity, is not punishment, but rather "to protect society against individuals who, through no culpable fault of their own, pose a threat to public safety." Krol, supra, 68 N.J. at 246.
"[D]efendants committed after an NGI finding are reviewed on a periodic basis under the same standards as those applied to civil commitments generally." M.M., supra, 377 N.J. Super. at 76 (citing Krol, supra, 68 N.J. at 251). One notable exception is "that the burden for establishing the need for continued commitment is by a preponderance of the evidence, whereas in a civil commitment proceeding it is by clear and convincing evidence." W.K., supra, 159 N.J. at 4 (citation omitted); see also N.J.S.A. 2C:4-8(b)(3) (establishing preponderance of the evidence standard of proof). "[A]n NGI defendant may remain under Krol commitment for the maximum ordinary aggregate terms that defendant would have received if convicted of the offenses charged, taking into account the usual principles of sentencing." W.K., supra, 159 N.J. at 6.
F.S. does not contend that the State's burden of proof was other than by the "preponderance of the evidence."
"'Commitment requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future. Evaluation of the magnitude of the risk involves consideration both of the likelihood of dangerous conduct and the seriousness of the harm which may ensue if such conduct takes place.'" M.M., supra, 377 N.J. Super. at 76 (quoting Krol, supra, 68 N.J. at 260). The focus is on whether the defendant "presently poses a significant threat of harm either to himself or to others." Krol, supra, 68 N.J. at 247; see also M.M., supra, 377 N.J. Super. at 77 ("The continued involuntary commitment of an NGI defendant is based upon . . . whether the State has demonstrated that the defendant continues to be a danger to [him]self or others.") (citation omitted).
The determination of "'dangerousness'" is "'a legal one, not a medical one.'" M.M., supra, 377 N.J. Super. at 77 (quoting Krol, supra, 68 N.J. at 261). There must be a "substantial risk of dangerous conduct within the reasonably foreseeable future." Krol, supra, 68 N.J. at 260. Ultimately, the "[d]etermination of dangerousness involves prediction of [a] defendant's future conduct rather than mere characterization of his past conduct. Nonetheless, [a] defendant's past conduct is important evidence as to his probable future conduct." Id. at 260-61. The determination of dangerousness requires a "delicate balancing of society's interest in protection from harmful conduct against the individual's interest in personal liberty and autonomy." Id. at 261.
Additionally, "[o]rders, either requiring institutionalization or imposing lesser restraints are subject to modification on grounds that [the] defendant has become more or less dangerous than he was previously, or termination, on grounds that he is no longer mentally ill and dangerous, on the motion of either the State or the defendant." Id. at 263. And, an NGI defendant may be conditionally released if the court deems it appropriate. Id. at 262. If conditionally released, an NGI defendant may nonetheless be subject to periodic review by the court. State v. Ortiz, 193 N.J. 278, 293 (2008).
"[T]he scope of appellate review of such judgments will be extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The reviewing court has the "responsibility to canvass the record inclusive of the expert testimony to determine whether the findings made by the trial judge were clearly erroneous." In re J.M.B., 395 N.J. Super. 69, 90 (App. Div.) (citation omitted), aff'd, 197 N.J. 563 (2009), cert. denied, ___ U.S ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). We will modify a commitment order "only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996) (citing Fields, supra, 77 N.J. at 311).
II.
F.S. first argues that the State failed to prove that she is "mentally ill," and the judge predicated this finding upon Das's conclusion only that she lacked "insight" into her mental illness. We disagree.
Mental illness is defined by N.J.S.A. 30:4-27.2(r) as "a current, substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior or capacity to recognize reality . . . ." Although Das's reports and testimony clearly indicated F.S. was not suffering from active symptoms of her disease, it was undisputed that F.S. remained diagnosed with chronic schizophrenia of the paranoid type. Das clearly acknowledged that this diagnosis "will follow her for the rest of her life[.]" The purpose of treating F.S. was to "abate the acute symptoms of th[at] illness." Das indicated that F.S.'s lack of insight into her illness made it more likely that, in an unstructured setting, she would become non-compliant with her medications, a conclusion that was supported by F.S.'s prior history. Das also explained the consequences of non-compliance and amply supported the conclusion that F.S.'s judgment would be impaired and her behavior would be uncontrolled and aggressive as a result.
Based upon the totality of the record, the judge's conclusions in this regard were within the broad discretion we accord his ability to evaluate the testimony and the record evidence. We find no basis to reverse.
F.S. next contends that the State failed to demonstrate she remained dangerous to herself or others. She argues that there was a lack of any proof that she was currently at risk of "self-harm" or "dangerous to others."
"Dangerousness" has long been a requirement for the State to justify the involuntary commitment of a mentally ill person. See, e.g., Boesch v. Kick, 97 N.J.L. 92, 96-97 (Sup. Ct. 1922) (noting the danger must be at least "probable" and not merely possible); Ex parte R.R., 140 N.J. Eq. 371 (Ch. 1947) (noting that the power of the State to detain a person involuntarily stems from the State's police power and the need to protect the public from danger). Only a finding of mental illness, coupled with a finding of "dangerousness," justifies involuntary commitment. Krol, supra, 68 N.J. at 249.
The standard to be applied is now codified by statute:
"Dangerous to self" means that by reason of mental illness the person has threatened or attempted suicide or serious bodily harm, . . . so that it is probable that substantial bodily injury, serious physical harm or death will result 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."The risk of danger . . . must be substantial within the reasonably forseeable future." Krol, supra, 68 N.J. at 260. "Determination of dangerousness involves prediction of defendant's future conduct rather than mere characterization of . . . past conduct." Id. at 260-61.
"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, threat or serious psychiatric deterioration.
[N.J.S.A. 30:4-27.2(h) and (i).]
Clearly, the reports in evidence and Das's testimony about F.S. dangerousness to herself or others were equivocal. Since being hospitalized on Krol status, and, but for the battery swallowing incident, F.S. has never demonstrated a proclivity toward harming herself. In an admittedly highly-structured environment, F.S. has been compliant with her medications. Das testified that F.S. has never demonstrated any aggressive or violent behavior toward others.
However, evidence of past conduct is evidential in predicting the likelihood of future dangerousness. Krol, supra, 68 N.J. at 261; N.J.S.A. 30:4-27.2(h) and (i). Das stated repeatedly that if F.S. failed to comply with her medication, she would pose a danger to herself and others. At the present time, that medication regime included monthly injections with a powerful mood-modifying drug administered by the hospital staff. The likelihood of F.S.'s potential future non-compliance was supported by the evidence adduced at the hearing.
In short, reduced to its essence, the evidence supported a finding that absent this significant, hospital-administered medication regimen, F.S. would likely present a danger to herself and others in the foreseeable future. The evidence highlighted in stark terms the predictive nature of the judge's obligation in a Krol hearing, as well as that "delicate balancing of society's interest in protection from harmful conduct against the individual's interest in personal liberty and autonomy." Krol, supra, 68 N.J. at 261.
We find no mistaken exercise of the judge's broad discretion in this regard. Therefore, on the record presented to us, we affirm that portion of the order that required F.S.'s continued involuntary commitment.
We do part company, however, with the judge's refusal to permit discharge planning. The judge stated "there is absolutely nothing in the record . . . which would indicate that this person is . . . ready for discharge planning." In so doing, the judge overlooked what was the substantial evidence in the record to the contrary.
At each periodic Krol hearing, the State is required to "renew its authority to continue to subject a committee to a partial or total deprivation of his liberty . . . by demonstrating that such a deprivation is warranted by the committee's current condition." In re Commitment of Calu, 301 N.J. Super. 20, 29 (App. Div. 1997) (quoting Fields, supra, 77 N.J. at 301) (emphasis added). "If the State cannot meet this burden, the judge must fashion a new set of restrictions based on the committee's present condition." Ibid. (citing Fields, supra, 77 N.J. at 302).
In this case, we have already noted the lack of institutional history demonstrating F.S.'s present danger to herself and others while medicated, as well as Das's testimony regarding any threatened dangerous conduct. While crediting in large part Das's opinions, the judge inexplicably rejected the recommendations of the doctor and the SPRCC that F.S. was ready for discharge planning.
We therefore reverse that portion of the order denying discharge planning. On January 18, 2013, we were advised that the judge entered a consent order, dated December 5, 2012, continuing F.S.'s commitment; placing her at Level III status, with gradual transfer to a TLU; and implementing discharge planning, all in accordance with Das's October 15, 2012 report. The order also provided for another periodic review on May 30, 2013.
We have not been provided with a copy of that report.
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While some relief we otherwise would have ordered on remand is now moot as a result of the consent order, we nonetheless think it appropriate for the judge to consider the possibility of F.S.'s conditional discharge. At any periodic review, "'[t]he court's inquiry as to conditional release must be as broad as possible.'" Krol, supra, 68 N.J. at 262 (quoting State v. Carter, 64 N.J. 382, 403 (1974)). In particular, the court should consider the feasibility of conditional release or other alternatives under Rule 4:74-7(f)(1)(4) (permitting continued involuntary commitment if "other less restrictive alternative services are not appropriate or available to meet the patient's mental health care needs"). We have, in the past, recognized the judge's ability to "creatively mold the order and conditions of restraint according to the patient," including "plac[ing] restrictions . . . even outside" the institutional setting. In re J.L.J., 196 N.J. Super. 34, 51 (App. Div. 1984) (citations omitted), certif. denied, 101 N.J. 210 (1985).
In this case, Das did not recommend conditional discharge, and the issue was not raised during questioning by the attorneys. As a result, we do not fault the judge for not considering the option. On remand, the judge should consider the propriety of F.S.'s conditional discharge with appropriate conditions.
Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION