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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1874-05T21874-05T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.E.G., SVP 188-01

_____________________________

 

Argued March 28, 2006 - Decided May 2, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-188-01.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney).

PER CURIAM

This matter involving the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, returns to us for a second time. Appellant J.E.G. 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 SVPA. See N.J.S.A. 30:4-27.34a. We had previously upheld J.E.G.'s commitment in an opinion in February 2005. He now appeals from a further order entered on November 15, 2005, continuing his commitment. We affirm substantially for the reasons set forth by Judge Freedman in his oral decision of November 15, 2005.

I.

In 1995, after sexually assaulting a fifteen year-old male, J.E.G. was convicted of second-degree sexual assault. In addition, J.E.G. previously pled guilty to criminal sexual contact involving a twenty-one year-old male in 1992, and he pled guilty to endangering the welfare of a nine-year-old boy in 1990. Sexual assault is classified as a sexually violent offenses under N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predator' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005).

In July 2001, J.E.G. was temporarily committed to the Special Treatment Unit ("STU") under the general civil commitment statute, N.J.S.A. 30:4-27.1 to -27.23. In August 2001, Judge Serena Perretti entered a final order for J.E.G.'s initial civil commitment pursuant to the SVPA. J.E.G. was then transferred to the STU, where he has since remained, being periodically re-evaluated and recommitted five times.

In an unpublished opinion we affirmed an order that J.E.G. continued to be a sexually violent predator in need of involuntary civil commitment. In re Civil Commitment of J.E.G. SVP-188-01, No. A-1457-02T2, A-2589-03T2 (App. Div. February 8, 2005). The order from which he now appeals was entered following a plenary review hearing before Judge Freedman on November 15, 2005.

At the October 2005 hearing before Judge Freedman, the State presented one expert witness, Pogos Voskanian, M.D., a psychiatrist. After evaluating J.E.G. on September 30, 2005, Voskanian diagnosed J.E.G. with pedophilia, attracted to prepubescent and postpubescent boys (non-exclusive type); paraphilia not otherwise specified ("NOS"); polysubstance dependence in a controlled environment; a history of psychotic episodes; a history of depression, anxiety disorder, somatoform disorder; a history of a learning disability; and Axis II antisocial personality disorder.

Dr. Voskanian recognized inconsistencies between what J.E.G. had told him in the pre-hearing interview and what J.E.G. had previously told other doctors in earlier reports. For example, J.E.G. claimed in the interview that the incident with the nine year-old was an isolated incident and that there was no penetration, contrary to his prior account of the offense. The psychiatrist further testified that J.E.G. has control issues and sadistic traits that indicate a greater pathology than just pedophilia.

He further stated:

another significance of these offenses is that

[J.E.G.] does not see himself as a pedophile. In . . . one of the recent DPR submittings, . . . he did not consider himself as a sexually violent offender. [J.E.G.] did not believe he needs to be at S.T.U. He did not believe that he had a sexual disorder. And this is in conjunction with three offenses. Additionally, he had admitted touching the buttocks or having some molestation of a 14-year-old for which he was not charged and that issue was not discussed to any extent.

However, on cross-examination, Dr. Voskanian conceded that J.E.G. had acknowledged to the Treatment Progress Review Committee (TPRC) within the STU that he was a sex offender and that "he was going to be doing treatment for the rest of his life".

When asked about the significance of the fact that the 1995 offense against the fifteen year-old victim occurred approximately five months after J.E.G. was released for prior sex offenses and on parole, and the offense on the twenty year-old male occurred while J.E.G. was pending trial for the offense on the nine year-old boy, Dr. Voskanian responded:

[N]either treatment, nor punishment, nor

understanding of legal consequences, had minimal . . . [or] any effect on him. He still continued with the same behavior. He blames this -- on his substance dependence, . . . but that by itself is no good since he knows that when he drinks or uses drugs he is more likely to commit the offense, but nevertheless, knowing his own impulses, he continued to use and he was not concerned about legal consequences and treatment didn't work.

Regarding J.E.G.'s treatment progress, Dr. Voskanian opined:

The progress is not a steady progress. There are periods when [J.E.G.] regresses and he becomes defiant of treatment. He does not participate. He becomes very passive. So it fluctuates. That's the general picture I had reviewing the records.

. . . .

[H]e does not fully acknowledge his pedophilia. . . [h]e tries to minimize this . . . [by saying] that the nine-year-old was only experimentation . . . when the available data points to the contrary that this was ongoing, and he, in fact, got involved with the mother of the child in order to molest the son.

. . . .

[H]e minimizes his own presentation. The

way he presents himself is as I was a confused teenager and I was a homosexual. I just did not know that I'm a homosexual so I was just doing bad things, but the issue is that most of his sexual encounters are young kids. He did not have any meaningful relationships with adults . . . [.]

Dr. Voskanian pointed out that J.E.G.'s minimizations and denials showed that J.E.G. would continue to encounter impediments in his treatment progress.

Dr. Voskanian noted that J.E.G. takes medication, including Paxil and Thrazodone, and at times J.E.G. regresses and needs antipsychotic medications, such as Risperdal, which he has been prescribed in the past. Dr. Voskanian further indicated that an individual that is not in control of his own behaviors to the extent that he requires anti-psychotic medication is likely to act out on his impulses. Dr. Voskanian also observed that J.E.G. has never been able to maintain abstention from drugs and alcohol, which are disinhibitors, outside of an institutional setting. The combination of all these factors, in Dr. Voskanian's opinion, supports a finding that J.E.G. remains a high risk of sexually re-offending.

The hearing testimony of the defense expert, Paul F. Fulford, Ph.D., offered a more positive and optimistic assessment of J.E.G.'s treatment progress. After evaluating J.E.G., Dr. Fulford diagnosed him with paraphilia NOS, polysubstance abuse, in remission in a controlled setting, and a personality disorder NOS. Dr. Fulford felt that pedophilia is not an appropriate diagnosis because it was not J.E.G.'s main pattern of offending. He explained:

[J.E.G.] admits obviously the nine year old boy...I asked him about that...the different ages and what his preferences [were] and why a nine year old. His statement to me was, "In my mind I was thinking for the future. Buying him things." And [J.E.G.] admits

to grooming him for when he got older. And he was not primarily seeking out as some men do a prepubescent boy.

Dr. Fulford further indicated that J.E.G. did not have fantasies about prepubescent children, but only about adult males. Dr. Fulford conceded, when asked by the hearing judge, that he had reviewed the TPRC report, and that in the report J.E.G. evidenced an attraction to young males, in stating that he turns off the television when he feels arousal concerning boys. Dr. Fulford stated J.E.G. told him that he had fondled the nine year-old boy, had bought him things and had tried to penetrate him but did not succeed. However, Dr. Fulford conceded that in the TPRC report dated July 6, 2005, J.E.G. admitted to anally penetrating the boy.

Dr. Fulford further opined that J.E.G.'s interaction with the nine year-old boy was not pedophiliac behavior because it was his understanding that this was a one-time offense. Counsel then pointed out to Dr. Fulford that J.E.G. had told Dr. McAllister, a previous mental health evaluator for the State, that he had abused the boy for two years and had dated the mother in order to gain access to the boy.

When asked about J.E.G.'s sex offense cycle, Dr. Fulford stated:

[J.E.G.] admits that he was anxious and confused about his sexuality in general. He sees his cycle of offending as really not getting in touch with his sexuality, which is that of being an adult male homosexual. And hence, that's just what he feels his early offending pattern or cycle was. That . . . essentially . . . in his words, adults were scary. Minors . . . meaning like the 20, the 19, 14 year old victim[s], [and] . . . the nine year old boy, were less scary than a consenting adult.

With regard to risk assessment, Dr. Fulford deemed the risk factors or markers for J.E.G. to be a "medium high" under the Static 99 scale, with a score of eight. When the court pointed out to Dr. Fulford that a score of six or above is customarily deemed to be in the higher range, the doctor did not disagree.

Notwithstanding these points concerning J.E.G.'s past behavior, Dr. Fulford testified that J.E.G.'s positive response to treatment had mitigated his risk of reoffense to a significant extent. When asked about whether there was potential for J.E.G.'s actuarial scores to change, Dr. Fulford stated:

They're historical. . . they would not change. Many of them are beyond his ability to change now, such as who he lives with, his age. His victims are historical. So he cannot change any of those scores at this point.

Dr. Fulford indicated that the only factors that would reduce J.E.G.'s high actuarial risk would be his age, or if he lived with a partner. Dr. Fulford conceded on cross-examination that if J.E.G. hypothetically returned to substance abuse following discharge, that would also be a risk factor. Dr. Fulford also conceded that J.E.G.'s scores on the HARE scale were significantly high and that J.E.G. does have a personality disorder, which present another risk factor.

Dr. Fulford stressed that the TPRC report had recommended J.E.G. progress to Phase III, a reclassification which he contended suggested treatment progress. He conceded, however, that Phase III is an important part of treatment and cannot be skipped. Dr. Fulford recommended that a discharge plan should be developed for J.E.G., including substance abuse treatment and continued sex offender treatment. He stated that nothing in the record would indicate that J.E.G. would not comply with such treatment.

II.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26.

As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

At the commitment hearing, the State must prove a threat "to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." Id. at 132. The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will re-offend. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32.

After an SVPA offender has been initially committed, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The committed person may petition for discharge at any time. N.J.S.A. 30:4-27.36d. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130; see also In re Commitment of E.D., 183 N.J. 536, 540, 551 (2005)(reaffirming the "highly likely to reoffend" standard for SVPA commitment and re-commitment).

The feasible availability of treatment outside of the STU, if proven, is relevant to the offender's need for continued commitment under the SVPA. If the committed person presents through appropriate testimony a sound discharge plan that permits needed treatment under conditions that substantially reduce the risk of re-offense "to a degree that prevents the State from proving by clear and convincing evidence that the individual is highly likely to engage in acts of sexual violence, then the individual is entitled to a conditional discharge." In re Commitment of J.J.F., 365 N.J. Super. 486, 502 (App. Div.), certif. denied, 179 N.J. 373 (2004).

To protect civil liberties, "[t]he court must not confine an individual indefinitely when the individual with reasonable assurance could live safely in the community with support and supervision." Ibid. However, "if after a fair chance to produce evidence, a conditional discharge from SVPA confinement cannot be granted without undue risks to society," the commitment should be continued "until the prospects for release are more optimistic." Ibid.

The scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

At the end of the proceedings, Judge Freedman placed a comprehensive oral opinion on the record, stating his reasons for continuing J.E.G.'s civil commitment. Judge Freedman specifically found Dr. Voskanian's diagnosis to be more accurate than that of Dr. Fulford, and thus that J.E.G. suffered from pedophilia, non exclusive type, a paraphilia NOS, and antisocial personality disorder.

Judge Freedman further determined that there was no basis at this point for conditional discharge. The judge pointed out that J.E.G.'s record and Dr. Voskanian's testimony demonstrated that J.E.G. is predisposed to engage in acts of sexual violence, and that "if he were released he would have serious difficulty controlling his sexually violent behaviors." The judge further noted that J.E.G.'s behavior is very serious in nature, particularly because it has involved a prepubescent child.

Moreover, Judge Freedman found that J.E.G. has not yet made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators," see N.J.S.A. 30:4-27.34b, a finding which weighs against appellant's contention that he is no longer in need of commitment under the SVPA. In this regard, Judge Freedman did recognize that since his last commitment review and appeal J.E.G. has been progressing in his treatment. However, the judge cautioned that the record indicated that J.E.G. still requires further treatment.

Judge Freedman noted that the most recent treatment notes in the record documented that in a role play session, J.E.G. did not show how he would use relapse prevention tactics to avoid reoffending, but instead J.E.G. presented responses similar to how he would have acted with victims in the past. The judge noted that J.E.G. is still in Phase III, and he had not yet gone far enough in treatment to be considered for Phase IV. However, at the conclusion of his oral decision, Judge Freedman acknowledged that if J.E.G.'s progress in treatment continued, he would have an opportunity to be released from the STU.

At oral argument before us, J.E.G.'s counsel focused upon two main issues. First, he contended that we should not credit Dr. Voskanian's diagnosis of pedophila because, with one exception, J.E.G.'s past sexual misconduct has involved postpubescent rather than prepubescent males. In this regard, counsel argued that all of J.E.G.'s victims were above the age of thirteen except for the nine year-old boy. We do not believe this asserted age distinction undermines the overall force and credibility of Dr. Voskanian's ultimate findings of mental abnormality, with or without pedophilia. Both Dr. Voskanian and the defense expert, Dr. Fulford, determined that J.E.G. still suffers from paraphilia and antisocial personality disorders. We see no reason to disturb the judgment because of a line-drawing disagreement between the experts over pedophilia classification, where there are ample independent diagnoses present here to satisfy the statute.

The second point defense counsel emphasized at oral argument on appeal is the significant progress that J.E.G. has made in his treatment. On this point, we are quite cognizant of the goals of deescalation of custody restraints, as expressed in In re Commitment of V.A., supra, 357 N.J. Super. at 64. To warrant such deescalation, however, the committed individual "must demonstrate successful adjustment to successive reductions of restrictions as a prerequisite to consideration for a conditional release." Id. at 64.

We are also mindful, as defense counsel emphasized, that J.E.G. has been therapeutically discussing his sexual past for fourteen years, that he has progressed in his treatment at the STU to Phase III, and that he is gaining skills that we hope will allow him to reenter society without risking the welfare of others.

Nonetheless, given our limited standard of review, we defer to the considered assessment of Judge Freedman that J.E.G. is not yet ready for that next big step. J.E.G. has only been in Phase III for slightly over a year, and even his own expert Dr. Fulford acknowledged that his risk factor scores remain high, that J.E.G. is vulnerable to substance abuse, and that completion of Phase III is an important part of J.E.G.'s treatment. We also believe that Judge Freedman appropriately took into account the cautionary opinions of Dr. Voskanian about the remaining obstacles to J.E.G.'s rehabilitation, and the negative risk factors otherwise identified by the State's psychiatrist.

We understand that J.E.G.'s next periodic TPRC review should be completed on or before July 2006. We believe that the judgment presently before us should be sustained, anticipating that J.E.G. may well continue on the track to rehabilitation and perhaps present an even better candidate for a discharge plan when his next review session takes place. We do not, of course, preordain any result in that review, but simply observe that if J.E.G. continues to follow his treatment plan faithfully and productively, the statutory criteria for continued commitment should not remain satisfied indefinitely.

For all of these reasons, we sustain the hearing judge's conclusion that J.E.G. 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 re-offend. That conclusion is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132. We find no "clear abuse of discretion" in extending the commitment, J.P., supra, 339 N.J. Super. at 459, nor any manifest deviation from the controlling legal principles under the SVPA.

Affirmed.

 

By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

(continued)

(continued)

17

A-1874-05T2

RECORD IMPOUNDED

May 2, 2006