IN THE MATTER CIVIL COMMITMENT OF J.E.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4425-04T24425-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.E.D., SVP-210-01

_______________________________________

 

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-210-01.

John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

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

PER CURIAM

J.E.D. 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 April 19, 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.E.D. contended that the evidence was inadequate to support his continual commitment. We affirm substantially for the reasons stated by Judge Perretti in her oral decision of April 19, 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 order under 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 evidence and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

J.E.D. was temporarily committed pursuant to the SVPA by order dated November 9, 2001, shortly before the end of a sentence he was serving at the Adult Diagnostic Treatment Center. That sentence was imposed following his plea of guilty to four counts of sexual assault contrary to N.J.S.A. 2C:14-2b. He committed the crimes in 1995. J.E.D. was considered for commitment at the end of his sentence because he expressed concern about the risk that he would commit another sexual offense against a child if he were released into the community. Judgment of commitment was entered on March 26, 2002. Orders continuing J.E.D.'s commitment were entered on September 17, 2002 and June 24, 2003. The June 24, 2003 order was affirmed by this court. In re Commitment of J.E.D., No. A-6164-02 (App. Div. June 29, 2004) (slip op. at 5-6). A third order continuing his commitment was entered on October 13, 2004.

The hearing that preceded entry of the order under appeal was held on April 19, 2005. Dr. Marcantonis and Dr. Apolito testified on behalf of the State and in favor of continued commitment. Dr. Foley testified in favor of J.E.D.'s release to a residential program for sex offenders.

Dr. Marcantonis is a psychologist and 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. The TPRC interviewed J.E.D., consulted with two members of his treatment team and reviewed records of his treatment and progress at the STU. In February 2005, the TPRC concluded that J.E.D. should remain in phase two of the STU's five-phase program. His treatment team had recommended that he advance to phase three of the program. The TPRC disagreed with the treatment team's recommendation because during his interview with them, J.E.D. acknowledged that in December 2004 he had engaged in sexual conduct with another adult resident of the STU. He described that inmate as "cognitively limited."

The TPRC viewed J.E.D.'s violation of the institution's regulations concerning sexual conduct and his minimization of the significance of his recent sexual conduct with the person he described as cognitively limited as indicative of the need for repetition of the STU's basic programs. On that basis, the TPRC concluded that J.E.D had not made sufficient progress in treatment and needed to repeat two programs, specifically programs on "arousal reconditioning," "relapse prevention" and "personal victimization."

Dr. Apolito is a psychiatrist. His diagnosis of J.E.D. was pedophilia, not limited by gender preference. The diagnosis was based upon Dr. Apolito's evaluation of J.E.D., results of testing and risk assessments that he reviewed (MMPI, which was unremarkable; Bumby Cognitive Distrotion Scale and Molest Scale, which showed distortions; a MnSOST-R score of 7 and a STATIC-99 score of 3); and his review of J.E.D.'s treatment records, including his records of treatment at the STU and the TPRC.

The doctor concluded that although J.E.D. had been cooperative and an active participant in treatment, he had not developed "the kind of deep insight into the nature of the severity of his disorder that he needs to build in order to prevent [] reoffense." The doctor concluded that J.E.D., because of his disorder and insufficient progress in treatment, "still" poses "a high risk of reoffending if . . . on his own."

Dr. Foley agreed that J.E.D. suffers from pedophilia. While he was of the opinion that J.E.D. could be released to a supervised residential program, he also agreed that there was work J.E.D. needed to complete prior to leaving the STU. J.E.D. told Dr. Foley that he saw a connection between his recent sexual conduct with the impaired resident of the STU and his sexual conduct with children. In addition, Dr. Foley described J.E.D.'s plan for conditional release as "somewhat vague." The program J.E.D. proposed was a fourteen-week program that was not a supervised residential program, of the sort Dr. Foley recommended, and J.E.D. had not yet found a place to live while attending the program. Dr. Foley also recommended individual psychotherapy, which was not a component of J.E.D.'s plan.

This evidence supports Judge Perretti's finding that J.E.D. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and remains in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. Her conclusion that J.E.D. 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. There is no evidence to support a finding that he has a plan for conditional release that is adequate to reduce the risk of his commission of another sexually violent offense below the level of a "highly likely" risk that requires continued commitment. J.J.F., supra, 365 N.J. Super. at 501-02.

J.E.D.'s next review is scheduled for April 5, 2006. Of course, the judge may consider conditional release at that time.

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.

(continued)

(continued)

8

A-4425-04T2

RECORD IMPOUNDED

December 21, 2005