IN THE MATTER CIVIL COMMITMENT OF D.G.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5695-04T26219-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.G.H., SVP-

98-00.

 

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-98-00.

Heather S. Ellis, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Jung W. Kim, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

D.G.H. 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 September 23, 2004 judgment entered in the Law Division, continuing 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, D.G.H. 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 Serena Perretti in her oral opinion delivered on September 23, 2004.

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 132-33; 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. 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 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 factual and procedural history is relevant to that conclusion.

D.G.H. was initially temporarily committed to the STU by order of June 30, 2000, after the filing of a petition seeking commitment under the SVPA. Dr. Chandrika Napipuram and Dr. Victorio Garde, both psychiatrists, submitted certifications in support of the State's petition, stating that their examinations of D.G.H. disclosed that he was a sexually violent predator in need of involuntary commitment.

The predicate offense for D.G.H.'s commitment was his conviction on June 12, 1996, of the crime of criminal sexual contact of an adult female; he was also convicted of stalking that victim. After serving a term of imprisonment at the Adult Diagnostic Treatment Center (ADTC), on or about December 31, 1998, D.G.H. was involuntarily civilly committed at Trenton Psychiatric Hospital. D.G.H. has a longstanding history of involvement with the criminal justice system reflecting a pattern of sexual or other criminal conduct, including his conviction in 1986 of sexual assault, resulting in imposition of a seven-year term of imprisonment. That incident occurred on September 1, 1985, when D.G.H. sexually assaulted an eighteen year-old female on the grounds of a hotel. Additionally, the record reflects that D.G.H. had engaged in inappropriate sexual behavior during his commitment at Trenton Psychiatric Hospital.

Prior orders of involuntary commitment under the SVPA were entered by the Law Division after an evidentiary hearing on March 26, 2001; on February 7, 2002, upon D.G.H.'s stipulation that the State's proofs established by clear and convincing evidence that he is a sexually violent predator in need of continued commitment; on August 7, 2002, after an evidentiary hearing, see In re Civil Commitment of D.G.H., S.V.P. 98-00, A-1585-02T2 (May 2004), affirming the August 7, 2002 order; and on July 17, 2003, after an evidentiary hearing.

The evidentiary hearing that preceded entry of the order under appeal was held on September 23, 2004. Dr. Arnaldo Apolito, a forensic psychiatrist, and Dr. Thomas Schattner, a clinical psychologist, testified for the State. No witnesses were produced by D.G.H.

Dr. Schattner is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are psychologists and therapists responsible the review of the progress and treatment of persons committed to the STU. On June 18, 2004, Dr. Schattner issued the TPRC's annual report concerning the status of D.G.H.'s treatment and his progress. Dr. Schattner testified that the TPRC unanimously recommended that D.G.H. remain at phase I of the STU's five-phase treatment protocol.

D.G.H. declined the TPRC's invitation to participate in the annual review. Dr. Shattner explained that although D.G.H. regularly attends group therapy sessions he only verbally participates to vent against "the system," and has not demonstrated any mastery over his sexual assault cycle or a relapse prevention plan.

Dr. Apolito attempted to conduct an examination of D.G.H. on September 15, 2004, but he refused to be interviewed. On Axis I, Dr. Apolito diagnosed D.G.H. as suffering from Voyeurism; Frotteurism; Paraphilia, NOS; and marijuana and alcohol abuse in institutional remission. On Axis II, Dr. Apolito testified that D.G.H. suffers from an antisocial personality disorder. Dr. Apolito stated that D.G.H. has shown a very poor response to treatment, and that there is a high likelihood that he would reoffend in the foreseeable future unless his involuntary commitment continued.

In considering an evaluating the evidence, Judge Perretti stated, in pertinent part:

Again, as he has done in the past, [D.G.H.] did not interview with the State's psychiatrist. He also, as has occurred in the past, did not appear for interview or conversation with the TPRC group. It's important to note this because [D.G.H.] not only does not interview and talk about his criminal history and his feeling and emotions about it with interviewing evaluators, he also does not do that with his treaters, thereby ensuring for himself that he will remain here.

* * * *

This respondent has a long history of refusal to participate in sex offender specific therapy. I have to find, as a fact, as was testified by Dr. Apolito, that he is a little-treated sex offender. . . .

* * * *

And as explained by [Dr. Apolito], the characteristics of an antisocial personality disorder made it easier for [D.G.H.] to commit crimes. Among the characteristics are a lack of remorse, which has been demonstrated in the treatment records. The current condition of paraphilia NOS, antisocial personality disorder, are based on [D.G.H.'s] continuing non-conforming behavior in custody, his general rebellious oppositional behavior in the institutional setting, and his refusal to participate in treatment is an example of his oppositional behavior.

He has not demonstrated any insight. He does not admit having a problem. He does not accept the necessity for treatment in order to avoid recidivism.

These [findings] led the psychiatrist to testify that there's a serious difficulty controlling himself, and the history of repetitive crimes would certainly support that. And nothing has happened to change it. The psychiatrist evaluates the risk as high, based on the history, and based on the antisocial personality disorder, which included impulsivity to satisfy one's own pleasure.

In support of his evaluation of the risk the psychiatrist testified that the actuarials, which do have high risk scores, combined with antisocial personality disorder, are the best predictors of risk, according to the literature.

These diagnoses by the psychiatrist are not contradicted. They are clearly supported by reliable information in the record, such as [D.G.H.'s] own statements, [and] the judgments of convictions. His current condition is certainly adequately supported by his long history of refusal to participate in therapy.

The State's proofs have been clear and convincing. I am clearly convinced that [D.G.H.] continues to be a sexually violent predator[.] . . .

As a result thereof I find he has serious difficulty controlling his sex offending behavior, and it is highly likely he will reoffend if not continued here for further treatment.

The judge issued a judgment on September 23, 2004, continuing the commitment of D.G.H. at the STU.

The evidence supports the judge's finding that D.G.H. 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. 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 is released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

9

A-6219-04T2

RECORD IMPOUNDED

December 19, 2005