IN THE MATTER CIVIL COMMITMENT OF D.Z.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0677-050677-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.Z.C., SVP-128-00

__________________________________

 

Argued October 24, 2006 - Decided December 4, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-128-00.

Mary T. Foy, Assistant Deputy Public

Advocate, argued the cause for appellant

(Ronald K. Chen, Public Advocate,

attorney).

Lisa M. Albano, Deputy Attorney General,

argued the cause for respondent (Stuart

Rabner, Attorney General, attorney).

PER CURIAM

D.Z.C. 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 March 16, 2005, entered after the annual review required by N.J.S.A. 30:4-27.35. That order continued his commitment until February 27, 2006. The parties have agreed that this appeal should be determined on the record and oral argument presented on October 24, 2006.

D.Z.C. argues that the judge failed to give sufficient consideration to evidence indicating that he has reduced his risk of committing another sexually violent offense and erred in continuing his commitment. Because the judge's decision is supported by the evidence and consistent with the controlling legal principles, we affirm.

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 unless the person is confined "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 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. 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 commitments 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)). This record shows no such abuse with respect to the order under review. It is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

D.Z.C. was born in 1947. His criminal history is detailed in this court's decision affirming prior orders of continued commitment entered on September 5, 2002 and August 3, 2003. In re Commitment of D.Z.C., No. A-0957-02 and No. A-1071-03 (App. Div. Nov. 17, 2004) (slip op. at 2). That record includes a conviction for two crimes that qualify as predicates for commitment pursuant to N.J.S.A. 30:4-27.26. One conviction is for impairing the morals of a six-year-old boy, which is based on an incident in 1975. Ibid. The second set of convictions involving a sexual offense against a child are based on an incident in 1979. Those convictions are for kidnapping, lewdness and impairing the morals of a nine-year-old girl. Ibid. Following his convictions for the crimes against both children, D.Z.C. was found to be a repetitive and compulsive sex offender. For that reason, he served at least a portion of both sentences at the Adult Diagnostic and Treatment Center.

D.Z.C. was first committed to the STU in December 2000. Ibid. His most recent conviction made him eligible for commitment pursuant to the SVPA, and he did not dispute that fact. The orders continuing his commitments were based on findings that it was highly likely that he would commit another sexually violent crime unless confined at the STU for treatment of pedophilia, with attraction to both male and female children, which predisposed him to commit sexually violent offenses and seriously interfered with his ability to control his sexually violent behavior. Id. at 3-6.

The hearing that preceded entry of the order of continued commitment that we review was conducted on March 11 and 16, 2005. Dr. Luis Zeiguer and Dr. Thomas Schattner testified for the State. Dr. Paul Fulford testified for D.Z.C.

Dr. Zeiguer is a psychiatrist. His opinion was based on a recent evaluation of D.Z.C., his review of notes made by those involved in his treatment and psychiatric and psychological evaluations by other experts and treating doctors. He explained that his opinion was his own, informed by but not an adoption of the prior opinions included in the materials he reviewed, which were the type of materials relied upon by experts in his field. His diagnosis of D.Z.C. included pedophilia with attraction to both male and female children. D.Z.C. told Dr. Zeiguer that he had two victims in addition to the victims of the conduct that led to his convictions. He also told the doctor that he still had a lot of work to do in therapy. Dr. Zeiguer concluded that D.Z.C.'s "very high risk" of commission of a sex offense had not been mitigated by age or treatment.

Dr. Schattner 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 August 2004, the TPRC recommended D.Z.C.'s continued participation in phase two of the STU's five-phase program.

Dr. Schattner testified about D.Z.C.'s recent progress. D.Z.C. declined to meet with the TPRC. According to Dr. Schattner, D.Z.C. said "he [was] not ready to present to the TPRC." The TPRC reviewed treatment progress reports and notes and prior evaluations. Dr Schattner described D.Z.C.'s participation in treatment as variable, inconsistent and indicative of low internal motivation, but he acknowledged that D.Z.C. is somewhat introverted and experiences difficulty in group sessions. He further explained that D.Z.C.'s ability to participate would likely be enhanced with assertiveness training, which was not yet but soon would be available to D.Z.C.

Dr. Schattner noted that D.Z.C. had demonstrated promising insight into his offending behavior by recognizing that he has more work to do in therapy and noted that D.Z.C.'s recent completion of his autobiography, which is an important part of treatment, was a significant and positive factor. He explained that completion of that work put D.Z.C. in a position to begin to address risk factors and relapse prevention.

There was no evidence of D.Z.C. demonstrating or expressing a present interest in children. There was no evidence of institutional infractions that reflected negatively on D.Z.C.'s risk of recidivism.

Dr. Fulford is a licensed psychologist. He concluded that D.Z.C.'s treatment at the STU was hampered by D.Z.C.'s bipolar condition and borderline intelligence. He recommended that these impediments to progress in treatment be considered in determining whether D.Z.C. should advance to phase three of the STU program. He also concluded, without further explanation, that D.Z.C. could be managed in the community. He provided no details explaining his reasons for that conclusion or living arrangements or treatment that he envisioned. He simply referenced D.Z.C.'s acceptance of his need for treatment and his "release plan of initially residing with his sister in Wisconsin."

Judge Perretti reviewed the treatment records for the most recent year. She noted the instances on which D.Z.C. had participated in group sessions and his progress in preparing his autobiography. She also referenced notes indicating D.Z.C.'s need to process his offenses and recognize his deviant arousal patterns.

The judge found no support for Dr. Fulford's conclusion that D.Z.C. suffered from untreated bipolar disorder or borderline intelligence that interfered with his ability to participate in or benefit from treatment at the STU. She accepted Dr. Zeiguer's diagnosis and his opinion that D.Z.C's pedophilia predisposes him to commit sexually violent offenses and causes him serious difficulty in controlling his sexually violent behavior. Recognizing that age may mitigate the risk of recidivism, the judge accepted Dr. Zeiguer's conclusion that neither age nor progress in treatment had diminished the risk posed by D.Z.C.'s release from the STU to a level less than a highly likely risk of recidivism.

We note that D.Z.C. himself expressed the view that he had additional work to do before release. He gave his need for additional treatment as the explanation for his decision to decline an interview with the TPRC. When he met with Dr. Zeiguer, he again said he needed more treatment.

With respect to Dr. Fulford's opinion about D.Z.C.'s release plan, Judge Perretti found:

[T]he details of any proposed release were not presented to the court. And Dr. Fulford does not know any of the details of any ideas for his release that [D.Z.C.] may have. There has been no suggestion, never mind detailing, of any conditional release plan which could be considered by the court as a mitigator of the risk.

Our review of Dr. Fulford's two-and-one-half page report leads us to the same conclusion.

Judge Perretti determined that D.Z.C. remained in need of commitment under the standards of the SVPA. Her determination is supported by the record, consistent with the legal standards and entitled to deference. Accordingly, we find no abuse of discretion that would warrant reversal or modification of the order under review. See V.A., supra, 357 N.J. Super. at 63.

Affirmed.

 

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)

9

A-0677-05

RECORD IMPOUNDED

December 4, 2006