IN THE MATTER OF THE CIVIL COMMITMENT OF A.P. (000652-20, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4441-19

IN THE MATTER OF THE

CIVIL COMMITMENT OF

A.P.

_________________________

Submitted May 12, 2021 – Decided June 7, 2021

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Law

Division, Morris County, Docket No. MRCC-000652-

20.

Joseph E. Krakora, Public Defender, attorney for

appellant A.P. (Karol Y. Ruiz, Assistant Deputy Public

Defender, on the briefs).

John Napolitano, Morris County Counsel, attorney for

respondent County of Morris (Staci L. Santucci, First

Assistant County Counsel, and Nikki T. Caruso,

Special County Counsel, on the brief).

PER CURIAM

A.P. appeals from an August 7, 2020 order of involuntary civil

commitment. Although she has been discharged from the hospital, she seeks

removal of the involuntary commitment from her record. We affirm.

On August 3, 2020, then sixteen-year-old A.P. was admitted to the child

psychiatric unit of St. Clare's Hospital (the Hospital), on a seven-day voluntary

parental admission petition submitted by her mother, P.C. The petition stated

that A.P. suffered from depression and anxiety.

That same day, counsel emailed the Hospital's Director of Nursing,

requesting a copy of A.P.'s medical records. Two days later, counsel received

notice that the initial commitment hearing was scheduled for 9:00 a.m. on

August 7, 2020. On August 6, 2020, counsel sent another discovery request to

the Director of Nursing for A.P.'s medical records, including "the psychiatrist's

assessment, biopsychosocial assessment, and progress notes detailing any

incident, placement effort, or family team meeting." Later that day, counsel

received the Psychiatric Commitment Hearing Report authored by A.P.'s

treating psychiatrist, Dr. Jay Shah. At 8:33 a.m. on August 7, 2020, counsel

received 142 pages of additional discovery from the Director of Nursing.

The initial commitment hearing was held as scheduled. Prior to the start

of the hearing, counsel requested additional time to review the voluminous

medical records. The court granted some additional time to review the records

but counsel had limited time to do so because she was also representing other

minors that day. From the provided discovery, counsel learned that Dr. Shah

2 A-4441-19

was A.P.'s treating psychiatrist. In her certification, counsel claimed there were

"significant differences between A.P. and her mother's reporting of events that

led up to her hospitalization" and the version reported in the Hospital's medical

records. Additionally, counsel claimed she "did not have time to consult with

[her client] as to those differences" or otherwise prepare for the hearing.

A.P. and her mother opposed A.P.'s commitment. P.C. participated by

telephone with the assistance of a Spanish interpreter.

During her opening statement, A.P.'s counsel moved to dismiss and for

A.P.'s discharge based on the failure to provide timely discovery and failure to

present testimony from the treating psychiatrist. The County intended to call

Dr. Damien Chiodo, who had not authored the commitment report and was the

covering psychiatrist on the day of the hearing.

The judge denied the motion without prejudice and explained that counsel

provided no prior notice or certifications concerning the discovery issues. The

judge noted that a major storm had recently caused electrical problems

throughout the State. He then asked counsel if she wished to adjourn the

proceedings to file a written motion to dismiss. Counsel declined the offer to

adjourn, and the hearing continued.

3 A-4441-19

Dr. Chiodo testified that he met A.P. for the first time that morning. A.P.

"was admitted for her second hospitalization due to increasing depression,

suicidal thoughts, cutting, and auditory hallucinations." A.P. was "diagnosed

with major depressive disorder, [which was] recurrent [and] severe with

psychotic features." A.P. was prescribed Prozac and Abilify, along with daily

psychotherapy. He opined that A.P. still posed a danger to herself based on his

conversation with A.P., his review of her medical records, and his discussions

with the treatment team. Dr. Chiodo noted, however, that A.P. maintained

activities of daily living and remained compliant with her medication regimen

within the structure of the unit.

When asked for his recommendation, Dr. Chiodo recommended continued

commitment for A.P.'s safety and stabilization. He stated that "as recent[ly] as

yesterday," A.P. had reported suicidal thoughts and hallucinations. A.P.'s

counsel objected because it was hearsay. The judge sustained the objection but

would allow admission of the relevant medical records under the business record

exception if the County's counsel could lay a proper foundation.

Dr. Chiodo clarified that A.P.'s medical file contained an August 6, 2020

progress note from Dr. Shah, which reported that A.P. still had suicidal thoughts.

A.P.'s counsel objected, arguing that that the business record exception "applies

4 A-4441-19

to the admissibility of the record, not to subsequent testimony." The court

overruled the objection and allowed "Dr. Chiodo's opinion under [N.J.R.E.] 702

and 703 based upon the fact that it is information that an expert or doctor would

rely upon for his opinion." The court also allowed the testimony under N.J.R.E.

803(c)(6). Dr. Shah's progress report was not admitted into evidence.

During cross-examination, Dr. Chiodo testified that he began treating A.P.

that morning before the commitment hearing began. He explained that Dr. Shah

had been treating A.P. since she was admitted and had prescribed her

medication. While he did not diagnose A.P., Dr. Chiodo agreed with Dr. Shah's

diagnoses. Dr. Chiodo testified he had reviewed her file and consulted with Dr.

Shah and Ashley Merklinghaus, A.P.'s social worker. A.P. was admitted this

time due to suicidal thoughts, cutting, auditory hallucinations, and increasing

depression. Merklinghaus told him that A.P. injured herself by cutting her thigh.

Dr. Chiodo further testified that he met with A.P. for a psychotherapy

session and they discussed her medication. He acknowledged that A.P. had been

compliant with medications and that she wanted to continue with the medication

and therapy after hospitalization. When asked whether he spoke to A.P.'s

mother, Dr. Chiodo stated that he had not spoken to her and explained that it

5 A-4441-19

was not necessary or very relevant "because we're continuing the medication

and the treatment."

Before excusing Dr. Chiodo, the judge asked him several questions. Dr.

Chiodo clarified that he was the covering psychiatrist and reiterated that he

personally examined A.P. the morning of the commitment hearing, had reviewed

her file, and had spoken to Dr. Shah and Merklinghaus. His meeting with A.P.

lasted approximately twenty-five to thirty-five minutes.

Merklinghaus testified that she met with A.P.'s the day after her admission

to discuss a discharge plan, which included continuation of treatment with an

outpatient psychiatrist and care management services. Merklinghaus

acknowledged that A.P. had been cooperative with planning.

On cross-examination, Merklinghaus confirmed that A.P., her mother and

father, and her father's girlfriend attended the family meeting. When asked

whether she believed A.P. had a supportive family unit, Merklinghaus stated, "I

believe everybody wants what's in the best interests for [A.P.]." She noted that

A.P.'s discharge papers would provide A.P.'s mother with instructions on how

to obtain A.P.'s medication, which would be covered by insurance. She also

stated that Caring Partners would assist in securing intensive in-home

counseling for A.P.

6 A-4441-19

A.P.'s counsel then called P.C. to testify. When asked why she took her

daughter to the hospital, P.C. stated: "I took my daughter to the hospital to get

medication because she didn't have her medication at the time. Not to be

admitted. She had an attack for lack of medication. We went to the pharmacy,

but it was closed."

P.C. testified that she never saw A.P. cut herself and never reported to the

hospital that A.P. cut herself. She also testified that A.P. never reported cutting

herself. She told the doctor that A.P. "needed medication" and asked the doctor

"whether she could get it." At the family meeting, she told the social worker

that she was ready for her daughter to return home. A.P.'s mother expressed

concern that A.P. seemed more depressed at the hospital because A.P. did not

want to be there—she wanted to go home. A.P.'s mother confirmed that she

would take care of her daughter if she were discharged. She noted that she now

knew how to obtain A.P.'s medication.

On cross-examination, A.P.'s mother confirmed this was A.P.'s second

admission to the Hospital and that A.P. was admitted a month-and-a-half earlier

for attempting suicide by overdose. During her first admission, A.P. remained

in the Hospital for nine days and was prescribed medication. After A.P. was

7 A-4441-19

discharged, she received assistance from the treatment team and "[t]here was no

need for her to be admitted again."

During cross-examination, counsel made several objections to questions

concerning the circumstances behind A.P.'s first admission and cutting.

Towards the end, the judge stopped the cross-examination, stating he did not

need to hear any further testimony. At that point, the County moved to continue

A.P.'s civil commitment. In turn, A.P.'s counsel opposed and argued that the

County failed to show clear and convincing evidence that A.P. threatened or

attempted to cause serious bodily injury or death.

The judge found that A.P.'s mother was not a credible witness, noting her

testimony was not consistent. He rejected her claim "that she brought her

daughter to the hospital to secure medication," and found that "all of the other

observations were incorrect." The judged commented that she responded

differently during cross-examination than she did on direct. He found it

inconceivable that she did not know the date A.P. was first admitted.

Relying on Rule 4:74-7(e), the judge accepted Dr. Chiodo's testimony

because he reviewed A.P.'s file before testifying and noted that covering

psychiatrists regularly testified at commitment hearings. The judge deemed Dr.

Chiodo's testimony "highly credible."

8 A-4441-19

The judge found that A.P. was admitted on August 3 for depression,

anxiety, suicidal thoughts, auditory hallucinations, attempted suicide, and

cutting. He noted that Dr. Chiodo's and Merklinghaus's testimony and Dr.

Shah's progress reports confirmed the reason for A.P.'s admission.

The judge further found that A.P. was diagnosed with "major depressive

disorder, recurrent severe with psychotic features." He noted Dr. Chiodo's

recommendation that A.P. remain hospitalized "for her safety and for

stabilization." He found A.P. was compliant with medications and "does well

in a structured setting, but not when she's not structured."

The judge found by clear and convincing evidence that A.P. suffered from

mental illness that caused her to be an imminent danger to herself. He noted

that that within the span of two months, A.P. was hospitalized twice. She was

admitted the first time for depression and attempting to commit suicide and had

cut herself before her second admission. Although her family wanted her to

return home and care for her, "they do not recognize her psychiatric illness, nor

does [A.P.]." The court continued her commitment and scheduled a review date

for August 21, 2020.

While the judge was announcing his decision, P.C.'s telephone connection

to the hearing became disconnected. Staff advised the judge that A.P.'s mother

9 A-4441-19

would have to call back. Noting his crowded calendar and the lateness of the

day, and desiring to complete the case, the judge released the interpreter and

continued rendering his oral decision. After commenting that A.P.'s mother "can

order the transcript," A.P.'s counsel stated: "I have no objection to Your Honor

continuing, because, right, [her mother] can order the transcript and I can

certainly fill her in."

A.P. was discharged from the Hospital three days after the hearing. This

appeal followed. A.P. raises the following points for our consideration:

POINT I

A.P.'S DUE PROCESS RIGHTS WERE VIOLATED

WHEN THE TRIAL COURT DENIED HER MOTION

TO DISMISS FOR FAILURE TO PRODUCE

DISCOVERY IN A TIMELY FASHION PURSUANT

TO [RULE] 4:74-7(d).

POINT II

THE TRIAL COURT VIOLATED A.P.'S RIGHTS

UNDER N.J.S.A. 30:4-27.13(b) AND [RULE] 4:74-

7(e) WHEN IT INVOLUNTARILY COMMITTED

HER WITHOUT TESTIMONY FROM HER

TREATING PSYCHIATRIST.

POINT III

THE TRIAL COURT VIOLATED A.P.'S RIGHTS

UNDER N.J.S.A. 30:4- 27.2(h), N.J.S.A. 30:4-27.2(m),

and N.J.S.A. 30:4-27.2(r) WHEN IT COMMITTED

HER WITHOUT CLEAR AND CONVINCING

10 A-4441-19

EVIDENCE THAT SHE SUFFERED FROM A

CURRENT MENTAL CONDITION THAT CAUSED

HER TO BE A DANGER TO SELF OR OTHERS AND

FAILED TO CONSIDER APPROPRIATE

COMMUNITY TREATMENT THAT SHE WAS

WILLING TO ACCEPT.

POINT IV

DISMISSING THE INTERPRETER BEFORE THE

CONCLUSION OF THE HEARING VIOLATED

A.P.'S RIGHTS TO AN INTERPRETER.

"The scope of appellate review of a commitment determination is

extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014)

(quoting In re D.C., 146 N.J. 31, 58 (1996)). "[A]n appellate court should not

modify a trial court's determination either to commit or release an individual

unless 'the record reveals a clear mistake.'" Id. at 175 (quoting D.C., 146 N.J.

at 58). The trial court's findings "should not be disturbed" if they are "supported

by 'sufficient credible evidence present in the record."' Ibid. (quoting State v.

Johnson, 42 N.J. 146, 162 (1964)).

"Involuntary commitment to a mental hospital is state action which

deprives the committee of important liberty interests and, as such, triggers

significant due process requirements." In re Commitment of Raymond S., 263

N.J. Super. 428, 431 (App. Div. 1993). As a result, our Legislature and Supreme

Court have promulgated N.J.S.A. 30:4-27.1 to -27.23 and Rule 4:74-7 "to ensure

11 A-4441-19

that no person is involuntarily committed to a psychiatric institution without

having been afforded procedural and substantive due process." Ibid. (citations

omitted). Rule 4:74-7A(b)(4) provides in relevant part:

A final order of commitment pursuant to [Rule] 4:74-

7(f) may be entered if the court finds that either:

(i) a minor fourteen years of age or older (a) suffers

from childhood mental illness, (b) that the childhood

mental illness causes the minor to be dangerous to self

or others or property as defined by N.J.S.A. 30:4-

27.2(h) and -27.2(i) and (c) that the minor is in need of

intensive psychiatric treatment that can be provided at

a psychiatric facility, special psychiatric hospital, or

children's crisis intervention service and which cannot

be provided in the home, the community or on an

outpatient basis.

In turn, Rule 4:74-7A(a)(2) defines "childhood mental illness" as:

a current substantial disturbance of thought, mood,

perception, or orientation which differs from that which

is typical of children of a similar developmental stage,

and which significantly impairs judgment, behavior, or

capacity to recognize reality when also compared with

children of a similar developmental stage. A seizure

disorder, developmental disability, organic brain

syndrome, physical or sensory handicap, or a brief

period or periods of intoxication caused by alcohol or

other substances is not sufficient by itself to meet the

criteria for childhood mental illness.

A judge may not commit a person to a psychiatric facility "without proof

by clear and convincing evidence that the individual has a mental illness, and

12 A-4441-19

the mental illness causes the patient to be dangerous to self, to others, or to

property." Raymond S., 263 N.J. Super. at 431 (citing N.J.S.A. 30:4-27.9(b);

N.J.S.A. 30:4-27.15(a); R. 4:74-7(f)). Clear and convincing evidence "should

produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations sought to be established." In re Purrazzella, 134 N.J. 228, 240

(1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div.

1960)).

The points raised by A.P. do not require extended discussion. A.P. was

admitted voluntarily on the petition of her mother. The judge rejected A.P.'s

contention that her mother did so just to obtain medication for A.P. The credible

evidence demonstrated that A.P. suffered from depression and anxiety with

psychotic features. She had recently been admitted after attempting suicide by

overdosing. She exhibited cutting on her thigh. Her conditions required

medication and psychotherapy. Until stabilized, she was a danger to herself.

The judge's credibility and factual findings are supported by substantial

credible evidence in the record. His determination that the County proved by

clear and convincing evidence that A.P. had a childhood mental illness that

caused her to be a danger to herself was likewise supported by sufficient credible

evidence. We discern no error.

13 A-4441-19

We next discuss the procedural issues raised by A.P. The court conducted

the commitment hearing within fourteen days of admission. See R. 4:74-

7A(b)(2). Counsel was provided voluminous discovery, albeit shortly before

the hearing, 1 and was provided a full opportunity to cross-examine the County's

witnesses and to present witnesses on behalf of A.P. We agree that A.P.'s

counsel did not receive discovery in a timely fashion. See R. 4:74-7(e)

(requiring reports to be made available at least one day before the hearing).

However, the judge offered, without objection from the County, to adjourn the

hearing to allow time to file a motion to dismiss. Counsel rejected the offer.

"Not every discovery violation results in exclusion of testimony." In re

Commitment of G.D., 358 N.J. Super. 310, 315 (App. Div. 2003) (citing Thomas

v. Toys "R" Us, Inc., 282 N.J. Super. 569, 581 (App. Div. 1995)). "Sanctions

for a discovery violation must be just and reasonable." Ibid. (citing Ratner v.

Gen. Motors Corp., 241 N.J. Super. 197, 202-03 (App. Div.1990)). "Whether

to impose the ultimate sanction of exclusion is guided by whether there was (1)

a design to mislead, (2) surprise, and (3) prejudice if the evidence is admitted."

Ibid. (citing Ratner, 241 N.J. Super. at 202). None of those circumstances were

1

The judge noted that a major storm had recently caused widespread electricity

problems throughout the State.

14 A-4441-19

present here. We discern no abuse of discretion in denying the motion to

dismiss. See id. (finding no abuse of discretion in denying motion to bar expert

from testifying based on late service of report).

A.P. also argues it was error to commit her without testimony from her

treating psychiatrist. We disagree. Prior to the hearing, Dr. Chiodo reviewed

A.P.'s medical records, including Dr. Shah's diagnoses and reports, spoke to Dr.

Shah and A.P.'s social worker, and personally examined A.P. The judge

correctly determined that Dr. Chiodo was a psychiatrist on A.P.'s treatment team

as defined by N.J.S.A. 30:4-27.13(b) and Rule 4:74-7(e). "Other members of

the patient's treatment team and any other witness with relevant information

offered by the patient or the persons presenting the case for civil commitment

shall be permitted to testify at the hearing." N.J.S.A. 30:4-27.13(b). See also

R. 4:74-7(e) (same).

N.J.R.E. 703 provides:

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those

perceived by or made known to the expert at or before

the proceeding. If of a type reasonably relied upon by

experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not

be admissible in evidence.

15 A-4441-19

In addition to personally examining A.P. within five days of the hearing,

Dr. Chiodo reasonably relied on A.P.'s medical records and patient chart, and

consultations with Dr. Shah and the social worker, all of which were properly

considered under N.J.R.E. 703. See also In re Commitment of E.S.T., 371 N.J.

Super. 562, 572 (App. Div. 2004) (noting that medical experts may rely upon

the opinions of prior treating physicians).

Dr. Chiodo was qualified as an expert in child psychiatry and was

competent to testify about A.P.'s mental health history, diagnoses, treatment

plan, medication, and the need for continued commitment. Testimony by A.P.'s

primary treating psychiatrist, who was unavailable, was not required.

Finally, we do not countenance the judge's decision to render the

remainder of his decision without an interpreter participating. By that point,

however, the testimony and closing arguments had already concluded. P.C. had

participated in the hearing with the aid of an interpreter during the opening

statements, motion arguments, testimony, summations, and part of the judge's

oral decision. The lack of translation of the remainder of the judge's decision

did not alter the outcome. Accordingly, A.P. suffered no prejudice and we

discern no reversible error. In addition, A.P.'s counsel had no objection to the

judge completing his decision in her absence. "[I]f an issue was not raised below

16 A-4441-19

by a party's trial counsel, relief is not warranted unless that party demonstrates

plain error by showing on appeal the error was 'clearly capable of producing an

unjust result.'" Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494,

502 (App. Div. 2017) (citing R. 2:10-2). Because there was no prejudice, we

discern no plain error.

Affirmed.

17 A-4441-19