IN THE MATTER CIVIL COMMITMENT OF J.R.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3638-04T23638-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.R.M.,

SVP-140-00.

 

Argued: December 7, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number SVP-140-00.

John Vincent Saykanic argued the cause for appellant.

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

J.R.M. is involuntarily civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons determined to be sexually violent predators in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the February 17, 2005 judgment entered in the Law Division that continues his commitment after an evidentiary review hearing conducted on that date. See 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.R.M. contended that the decision of the trial court that he is a sexually violent predator who suffers from an abnormality that causes serious difficulty in controlling sexual violent behavior such that commission of another sexually violent offense is highly likely without continued involuntary commitment in a secure facility for custody, care and treatment is not adequately supported by clear and convincing evidence in the record. We disagree, and affirm substantially for the reasons articulated by Judge Philip M. Freedman in his oral opinion delivered on February 17, 2005. Another review hearing is scheduled for January 27, 2006.

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, 132 (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 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63 (App. Div.). 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 Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record discloses no such abuse with respect to the order under review. The February 17, 2005 order of continued commitment is adequately supported by the record and consistent with these controlling legal principles. R. 2:11-3(e)(1)(A). The following informs our conclusion.

J.R.M. was initially temporarily committed to the STU by order of December 5, 2000, after the filing of a petition seeking his commitment under the SVPA. Dr. Alvin Freidland and Dr, Vivian Schnaidman, psychiatrists, submitted certifications in support of the State's petition stating that their examinations disclosed that J.R.M. was a sexually violent predator in need of involuntary commitment. The predicate offenses were J.R.M.'s convictions on December 10, 1993 of first-degree aggravated sexual assault, second-degree sexual assault, second-degree attempted sexual assault, and third-degree aggravated sexual contact based on J.R.M.'s sexual molestation of minor males.

Orders continuing his commitment were entered on March 27, 2001 and October 17, 2001, upon J.R.M.'s stipulation that the State's proofs established by clear and convincing evidence that he is a sexually violent predator in need of involuntary civil commitment. Additional orders continuing his commitment were entered on October 27, 2002 and September 25, 2003, after evidentiary hearings.

The evidentiary hearing that preceded entry of the order under appeal was held on February 17, 2005 before Judge Freedman. Dr. Luis Zeiguer, a forensic psychiatrist, and Dr. Thomas Schattner, a clinical psychologist, testified for the State. No witnesses were produced by J.R.M.

Dr. Schattner is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are psychologists and therapists responsible for continuing review of the treatment and progress of persons committed to the STU. Dr. Schattner issued the TPRC's annual report concerning J.R.M.'s treatment and progress on September 14, 2004. Dr. Schattner stated that J.R.M. was continued at phase II of the STU's five-phase treatment protocol. Although given an opportunity to meet with the TPRC, J.R.M. declined. Dr. Schattner explained the TPRC's decision was based on the fact that J.R.M. had not actively participated in group therapy or in sex-offender specific topics like the sexual assault cycle or relapse prevention plan, and has refused to work on his deviant arousal. Dr. Schattner further testified that J.R.M. continues to watch television programs and DVDs with inappropriate themes that are contraindicated to his treatment.

Dr. Zeiguer testified that he attempted to examine J.R.M. on January 18, 2005, but he refused to be interviewed. Using all available sources of information, Dr. Zieguer diagnosed J.R.M. as being afflicted with pedophilia and a personality disorder, NOS, with narcissistic, histrionic, borderline and antisocial traits. Dr. Zeiguer stated J.R.M.'s "personality style, totally egocentric, is his main pathology[,]" describing it as "unshakable." Dr. Zeiguer explained that J.R.M.'s pedophilia is a mental abnormality that predisposes him to sexually reoffend, and that his personality disorder elevates his risk to reoffend. Dr. Zeiguer characterized J.R.M.'s progress in treatment as "zero."

In considering and evaluating the evidence, Judge Freedman stated, in pertinent part:

[A]ll of the people who have evaluated [J.R.M.] have . . . indicated a diagnosis of pedophilia.

* * * *

A recent case in the Appellate Division dealt with the reliance on hearsay. I want to make it clear for the record that unless I particularly indicate that I am relying on something because it is in evidence as a result of being admissible itself or being an exception to the hearsay rule, I am referring to it, documents, reports, evaluations, and the like, to point out things in the record which, in my view, support the opinion of the expert or experts I find credible and to explain in part why I find the expert or experts credible. I am not relying on the hearsay itself to . . . make my conclusions -- or to come to my conclusions.

I have reviewed . . . this all, and I'm satisfied by . . . clear and convincing evidence. The . . . proof of the fact that there was a . . . commission of a . . . sexually violent offense is found in the evidence submitted at the time of the initial hearing[.] . . .

After reviewing the treatment record, progress notes and reports, the judge concluded:

I am satisfied beyond clear and convincing evidence that these records clearly support Dr. Zeiguer's opinion that [J.R.M.] has virtually made no progress in treatment[.] . . . That is, he certainly has attended. He certainly knows -- has learned some of the information from various modules, but he has not made any progress toward dealing with a relapse prevention plan that could justify letting him out of here.

The testimony of Dr. Zeiguer is basically uncontradicted. . . . Dr. Schattner testified about his . . . treatment, which is basically what I've just gone over. . . . As Dr. Zeiguer pointed out, [J.R.M.] does not want to give up his deviant arousal. He's fighting, in effect, to keep it.

He did just what he needed to do to get back some of his privileges, which makes it clear to me that he's perfectly capable of doing the treatment if he wants to do it. . . .

* * * *

The . . . record, without any doubt, supports the diagnosis made by Dr. Zieguer of pedophilia. It's his view, having been here for some time, that this is the most entrenched case of . . . pedophilia that exists in this institution. And while it's true that . . . sexual desire does decrease with age, the . . . literature clearly indicates that one of the paraphilias where age does not affect sexual desire as much as others is pedophilia. . . .

And pedophilia is . . . not something that can be cured or eliminated. It does not remit on its own. In a case such as this, where it's been entrenched for many years, it can only be controlled. And the only way to control it is to understand why you do it, what motivates you to do it and then developing a plan that can . . . help you from relapsing, thereby reducing your . . . risk down below the level that's required.

* * * *

In my view, Dr. Zieguer's opinions are amply supported by this record. I accept them, and I credit him. . . .

* * * *

In find that he would if . . . released now, he would have serious difficulty controlling his sexually violent behavior and that he would be highly likely, within a reasonably foreseeable period of time, to engage in these activities which he has engaged in all of his life. There's an indication in this record that [J.R.M.] never had sexual relations with anyone other than a child.

Based on these findings, Judge Freedman issued an order on February 17, 2005, continuing J.R.M.'s commitment as a sexually violent predator and ordered a review hearing for January 27, 2006.

The evidence supports the finding that J.R.M. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The conclusion that he 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 in the record on appeal. W.Z., supra, 173 N.J. at 132.

 
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.

Although there is not an order contained in the record on appeal, it appears that an order of continued commitment, upon J.R.M.'s stipulation, was also entered in April 2002.

(continued)

(continued)

10

A-3638-04T2

RECORD IMPOUNDED

December 19, 2005