IN THE MATTER CIVIL COMMITMENT OF J.L.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2913-04T22913-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.L.S., SVP-11-99.

_______________________________________

 

Argued December 7, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-11-99.

Mary T. Foy, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Cindi S. Collins, Deputy Attorney General,

argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

J.L.S. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of February 3, 2005, that continues his commitment after an annual review required by N.J.S.A. 30:4-27.35. In accordance with an agreement of the parties, this appeal is to be determined on the record as supplemented by oral argument, but without briefs. At argument J.L.S. contended that the evidence was inadequate to support his continual commitment. We affirm substantially for the reasons stated by Judge Freedman in his comprehensive oral decision of January 26, 2005.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 132-33; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. Release subject to conditions is appropriate if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

In 1988, J.L.S was convicted of sexual assault of his daughter. His 1999 conviction for endangering the welfare of his son was based on his plea of guilty: he admitted that when he sexually assaulted his daughter in 1988, his son was present. J.L.S. was initially committed by order of July 6, 2000, after serving a three-year sentence for endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. Prior orders continuing his commitment were entered on August 2, 2001, May 28, 2002 and December 12, 2002. The December 12, 2002 order was affirmed by this court on June 1, 2004. In re Commitment of L.Q.S., No. A-2773-02T2 (App. Div. June 1, 2004) (slip op. at 4-5).

The hearing that preceded entry of the February 3, 2005 order which we review on this appeal was held on December 8 and 13, 2004. Dr. Schnaidman and Dr. Iser testified for the State. Dr. Foley testified on behalf of J.L.S.

Dr. Schnaidman is a psychiatrist. Her diagnosis of J.L.S. was pedophilia, with a preference for girls and a possibility of other sexual paraphilias that should be ruled out. That diagnosis was based upon her evaluation of J.L.S., results of risk assessments she conducted (MnSOST-R and the STATIC-99) and her review of J.L.S.' treatment records, including his records of treatment at the STU. The doctor concluded, within a reasonable degree of medical certainty, that J.L.S. continued to pose a high risk of recidivism because he had not "made the leap to acknowledge his own deviant cycle in such a way that he can utilize [his general knowledge of deviant cycle and arousal] to prevent relapse." She noted that J.L.S. recently had been found in possession of a DVD that included deviant material. In addition, he recently had become angry when asked to consider a possible connection between pedophilia and his expressed preference for women with shaven pubic areas. The doctor's opinion was that J.L.S. continued to minimize rather than recognize the details of his prior offenses and the triggers for deviance so as to permit himself to avoid future sexually violent offenses.

Dr. Iser is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU. In April 2004, the TPRC approved J.L.S.' admission to phase three of the STU's five-phase program. In Dr. Iser's opinion, J.L.S. had not yet reached the point where he could recognize what he had done in the past so as to avoid repetition of his conduct in the future. In the doctor's view, J.L.S. required additional treatment.

Dr. Foley, J.L.S.' expert psychologist, recommended that Judge Freedman discharge J.L.S. pursuant to a conditional release plan. Although Dr. Foley recognized that J.L.S. had not fully completed treatment, he concluded that J.L.S. had developed sufficient control to avoid repeat crimes if released and required to follow the plan he proposed. He noted that J.L.S. had a place to live and a plan for outpatient therapy and assistance with employment and substance abuse.

Judge Freedman reviewed the expert testimony, conducted a detailed review of J.L.S.'s treatment records and concluded:

[J.L.S.] continues to have serious difficulty in controlling his sexually violent behaviors and as a result he's highly likely to commit these offenses again if he were released within the reasonably foreseeable . . . I believe as Dr. Schnaidman testified, that he is highly likely [to reoffend within the meaning of] W.Z.

. . . .

Dr. Schniadman I think put her finger exactly on the problem; he has not yet made the leap to internalize what he intellectually has learned . . . . And that's her view because he has shame and embarassment which prevent him from doing so. She testified he does not want to go back and look at events because he will find out how bad they really were. And as Dr. Iser pointed out . . . you have to do that in order to make the leap that [J.L.S.] has not made.

. . . .

. . . [I]f [J.L.S.] could complete the treatment, would probably be a person who could go out on a conditional discharge. He has indicated a desire to do that . . . . His own statements that . . . he has had enough treatment . . . that all would mitigate against him participating adequately if he were released . . . .

The evidence supports the finding that J.L.S. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to support the conclusion that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. Judge Freedman's conclusion that J.L.S. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. See W.Z., supra, 173 N.J. at 132. Judge Freedman's conclusion that the plan for conditional release in this case was not adequate to reduce the risk of reoffense to a degree that would permit release is also supported. J.J.F., supra, 365 N.J. Super. at 501-02.

 
Affirmed.

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

J.L.S. has changed his name since his initial commitment.

We stress that neither Dr. Schnaidman nor Judge Freedman considered J.L.S.' consistent denial of allegations that he had had committed a sex offense against his son in evaluating the significance of his tendency to minimize his prior crimes. See In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 577 & n.7 (App. Div. 2004) (discussing the problem raised by considering denials when guilt has not been acknowledged). Rather both expressly noted their acceptance of his denial of the unsubstantiated allegation.

(continued)

(continued)

8

A-2913-04T2

RECORD IMPOUNDED

December 20, 2005