IN THE MATTER CIVIL COMMITMENT OF T.A.T.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0683-05T20683-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.A.T., SVP #117-00

____________________________________________

 

Argued February 6, 2006 - Decided February 15, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 117-00.

Joan D. Van Pelt, Assistant Deputy Public Defender argued the cause for appellant (Yvonne Smith Segars, Public Defender).

Zoe McLaughlin, Deputy Attorney General argued the cause for respondent (Zulima V. Farber, Attorney General).

PER CURIAM

T.A.T. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to 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 entered on September 7, 2005, which continues his commitment. We affirm substantially for the reasons stated by Judge Serena Perretti in her oral decision of September 7, 2005.

I

A person who has committed a sexually violent offense may be confined only if suffering 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).

Annual review hearings to determine whether the person remains in need of commitment despite treatment are also 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 upon "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. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see also W.Z., supra, 173 N.J. at 132; In re Civil 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 also W.Z., supra, 173 N.J. at 133; 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 pursuant to the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense -- that is, 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 -- the plan is relevant to the adequacy of the proof that the person is in need of commitment under the SVPA. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of such a commitment 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 Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

II

The record on appeal reflects that the judge did not mistakenly exercise her discretion. The order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above.

T.A.T. was initially committed by order of September 14, 2000. Prior orders continuing his commitment were entered on February 21, 2001, February 6, 2003 and September 7, 2005. T.A.T. has appealed the last of these orders, which continues his commitment to the STU. The order in question scheduled the next review for August 22, 2006.

The hearing that preceded entry of the order under appeal was held on September 7, 2005. Dr. Stanley Kern testified for the State. T.A.T. presented no expert testimony. He did testify on his own behalf.

Dr. Kern is a psychiatrist. His undisputed diagnosis of T.A.T. was pedophilia, non-exclusive type, i.e., T.A.T. is attracted to both males and females. Dr. Kern also diagnosed, without contradiction, an antisocial personality disorder and recognized, as well, that T.A.T. had a history of drug and alcohol abuse. All these circumstances and conditions, according to Dr. Kern, created a high risk of reoffense. Dr. Kern concluded that T.A.T. had "made some progress, but it's minimal [and T.A.T.] still has much, much further to go." Dr. Kern also testified that T.A.T. either denied or refused to discuss his prior offenses, a critical factor because, as Dr. Kern explained, if "he doesn't admit to the offense there's no way [he] can deal with it." The record also reflects that T.A.T. had been offered but rejected assistance with regard to substance abuse. He has also, according to Dr. Kern, "no remorse or victim empathy," another factor that militates against an improvement of his condition.

This uncontradicted evidence supports the finding that T.A.T. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators," and, thus, precludes 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 T.A.T. 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 if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

5

A-0683-05T2

RECORD IMPOUNDED

February 15, 2006