IN THE MATTER CIVIL COMMITMENT OF E.L.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0688-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.L.C., SVP #301-03

____________________________________________

 

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. 301-03.

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

Lisa Marie Albano, Deputy Attorney General argued the cause for respondent (Zulima V. Farber, Attorney General).

PER CURIAM

E.L.C. 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 14, 2005, which continues his commitment. We affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of September 14, 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 to the STU. 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.

E.L.C. was initially committed by order of February 14, 2003. Prior orders continuing his commitment were entered on June 5, 2003 and March 18, 2005. The order of June 5, 2003 was affirmed by this court by way of an unpublished opinion filed on November 30, 2004. In re Civil Commitment of E.L.C., Docket No. A-6136-02T2.

The hearing that preceded entry of the order under appeal was held on September 14, 2005. Dr. Stanley Kern, a psychiatrist, and Dr. Eleni Marcantonis, a psychologist, testified for the State. No expert or other witness testified on E.L.C.'s behalf.

Dr. Kern testified that he had diagnosed E.L.C. as suffering from pedophilia, with a preference for females, non-exclusive type. The record demonstrates that E.L.C. was convicted as a result of his sexual penetration of a nine-year old female in 1987 and his sexual penetration of an eight-year old female in 1996. Dr. Kern also testified about E.L.C.'s polysubstance dependence history and that, during an interview he conducted, E.L.C. acknowledged past use of alcohol, crack cocaine, heroin and marijuana. In addition, Dr. Kern diagnosed a personality disorder NOS, which he defined as a maladaptive way of dealing with his environment. Judge Perretti concluded that it was not clear to her and, thus, she did not find, that E.L.C. suffers from a personality disorder.

The evidence supports the finding that E.L.C. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators," a fact which does not weigh in favor of a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. In this regard, Judge Perretti stated:

Dr. Kern does not find that there has been any substantial progress in treatment which could cause the respondent to have mitigated the risk that he poses as a result of the diagnoses which have been discussed. This risk, according to Dr. Kern, is elevated by [E.L.C.'s] polysubstance dependence, which lowers his ability to resist the impulses of his pedophilia, and thus make it more apt that he will act upon them.

The judge also considered the testimony regarding E.L.C.'s spotty involvement in therapy, observing there were a "number of unexcused absences, together with early departures, and the lack of discussion of the respondent's criminal offenses." The judge correctly recognized that "[past] offenses must be discussed in the process group" so that the committee can "understand the motivation for the crimes [and that] [w]ithout such discussion no[] progress can be made in treatment." Judge Perretti also agreed with Dr. Kern's assessment of E.L.C.'s progress: "According to the doctor, he would be generous to call the progress, quote, 'poor,' close quote." In addition, the judge observed that:

The respondent had outpatient treatment for at least six months twice a day after his first offense, and clearly it was of no use to him, [since] he reoffend[ed] a second time. According to the interview [conducted by Dr. Kern, E.L.C.] said that he learned nothing from the outpatient treatment, which demonstrates [his] extraordinary difficulty controlling his sex offending behavior.

In addition, to demonstrate the lack of progress in sex offender therapy, the psychiatrist points out [E.L.C.'s] reported flat affect upon learning that a daughter of his had been raped.

The judge's conclusion that E.L.C. 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)

7

A-0688-05T2

RECORD IMPOUNDED

February 15, 2006