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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2474-05T22474-05T2

IN THE MATTER OF

THE CIVIL COMMITMENT

OF V.A., SVP-25-99

________________________

 

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-25-99.

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

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

PER CURIAM

Appellant, V.A., who is now forty-four years of age, appeals from a judgment entered on December 27, 2005, ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant was initially committed to the STU in 2000. The judgment now under appeal was entered after a review hearing. On appeal, appellant argues that the State presented insufficient evidence to support his continued commitment. As part of his argument, appellant contends there was insufficient basis for the court to credit the State's psychiatrist's testimony and opinion that appellant was unable to control his deviant sexual urges because it was based on a focus on the negative aspects of his record and an underestimation of appellant's treatment progress. We have thoroughly reviewed the record and find appellant's arguments lacking in merit. We are satisfied the judge's findings are amply supported by competent evidence. Accordingly, we affirm.

Appellant has a sexual offending history spanning more than twenty years. On June 12, 1984, he was arrested and charged with two counts of sexual assault and two counts of criminal sexual contact on a thirteen-year-old girl. He gained access to the victim's residence by subterfuge and while there, fondled and kissed the child, while attempting to have sexual intercourse with her. Pursuant to a plea agreement, V.A. pled guilty to one count of third-degree criminal sexual contact, N.J.S.A. 2C:14-3a, and received a five-year prison term. In re Civil Commitment of V.A., 357 N.J. Super. 55, 57 (App. Div. 2003) (V.A. I). One week after being released from prison he became involved with a fourteen-year-old girl who was a friend of the victim from the prior incident, whom he eventually married. He was initially charged with a sexual offense but the charges were dismissed when he produced a copy of the marriage certificate.

In 1994 V.A. was charged with aggravated sexual assault, endangering the welfare of a child and child abuse of his four-year-old niece. In 1995, pursuant to a plea agreement, V.A. pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and admitted that while babysitting, he touched the child's buttocks and vagina. He was sentenced to a seven-year prison term at the Adult Diagnostic and Treatment Center (ADTC) as a compulsive and repetitive sex offender. N.J.S.A. 2C:43-7.

On May 5, 1999, prior to his release from the ADTC, V.A. was civilly committed to the Anne Klein Forensic Center, pursuant to the provisions of N.J.S.A. 30:4-27.10(c) and Rule 4:74-7, as a stopgap measure since V.A. was scheduled to be released from the ADTC before the effective date of the SVPA. See L. 1998, c. 71, 18, (providing August 12, 1999 as the effective date of the SVPA). On November 9 1999, the State filed a petition seeking V.A.'s continued commitment under the SVPA based on the predicate offense of aggravated sexual assault. The court temporarily committed V.A. to the STU.

At the initial hearing on January 20, 2000, V.A. stipulated that the State's proofs established, by clear and convincing evidence, that he was a sexually violent predator in need of commitment. V.A. I, supra, 357 N.J. Super. at 58. At the first review hearing on July 9, 2000, V.A. again stipulated he was in need of continued treatment and commitment. A second review hearing was conducted on February 6, 2001, and a judgment of continued commitment was entered. The two subsequent review hearings each resulted in V.A.'s continued commitment. Ibid.

Following a fourth review hearing on August 1, 2002, the trial court discharged appellant in the face of two experts' testimony that he was ill-equipped to suppress his predisposition on the outside world. Id. at 60-61. After a discharge plan was adopted by the trial court, we stayed appellant's discharge pending an accelerated appeal. Id. at 63. We then vacated the conditional discharge order, holding:

Here, despite the uncontraverted testimony from the two State's experts, the court found insufficient evidence to conclude that it was highly likely that V.A. will be able to control his sexually violent behavior if released. The court's findings were based on its positive assessment of V.A.'s response to inpatient treatment. Relying on his track record at the STU, the court found no basis to question V.A.'s continued ability to control his sexually violent behavior if released into the community. We find such a conclusion unsupported by the evidence and against our directive in E.D. that modification in the terms of confinement follow a gradual de-escalation of restraints.

[Id. at 64.]

The fifth review hearing that is the subject of this appeal was held on November 14, 2005 before Judge Freedman. A judgment of continued commitment was entered on December 27, 2005. The State presented the testimony of psychologist Dr. Manual Iser, a member of the Treatment Progress Review Committee (T.P.R.C.), and psychiatrist Dr. Jason Cohen. The T.P.R.C. conducted an assessment of appellant in February 2005 and recommended him to Phase Three of treatment, which was consistent with the recommendation of appellant's treatment team. Dr. Iser testified that the treatment team conducted an accelerated six- month review on August 15, 2005 and noted that V.A. "maintained previous treatment gains during this reporting period" and "worked on completing some of the T.P.R.C.'s recommendations;" however, the T.P.R.C. did not recommend changing the treatment phase at that time.

Dr. Cohen testified that he interviewed appellant for four and one-half hours on October 26, 2005. When asked about the tenor of the interview and appellant's responsiveness, Dr. Cohen said, "what [he] found unusual was often [the questions V.A. did not understand or had difficulty answering] were very basic, and . . . there were other times where he answered very complicated, very nuanced questions with ease and very quickly."

The psychiatrist also noted how V.A. gave discrepant accounts of his sexual assaults, plus appeared to tell different versions of the story to different people, either for the purpose of entertaining or manipulating. For example, in one therapy session V.A. expressed remorse for the damage he caused his family and four-year-old niece for having committed an aggravated sexual assault upon her and two weeks later he claimed the assault never happened and his niece was willing to come forward to his defense. He also told Dr. Cohen that he was on twenty bags of heroin a day at the time and he mistook his niece for a women and the drugs gave him the courage to perpetuate the assault. Appellant further described working that day, providing the doctor with the specifics as to when and where, what kind of work, and provided a narrative as to an interaction he had with his wife, all of which were at variance with his claim of not being volitional on account of heroin abuse.

Along the same lines, appellant disclosed to Dr. Cohen that he had a one-time sexual encounter with a male at the STU three years prior to the interview, which caused him to realize he was homosexual. He told Dr. Cohen he was now attracted to adult men, and was no longer attracted to young girls, the class of victim that he offended against on several occasions. He changed the story of his change in sexual orientation later in the interview, telling Dr. Cohen it switched seven years earlier. Dr. Cohen stated that one's sexuality does not change so dramatically, so rapidly and offered possible reasons for the discrepancies:

One is that [V.A.'s claim of being homosexual] is not, in fact, accurate in that [V.A.] still has thoughts of females. It's also very possible that he has significant thoughts that he's not dealing with for years and years and years, and what this had lead to is absolutely no use of, or at least no outward use of relapse prevention skills, for example . . . dealing with these thoughts of females when they come up because he says they don't happen. So we don't know truly . . . what his sexual interests are, the full scope of them, and we have no demonstration that he's able to deal with any sexual thoughts about females at this point. He just hasn't done so in years . . . [V.A. had] two convictions and there are two [ ] other victims who brought allegations, and a third that described to police having been victimized . . . so you have five allegations and all female . . . this is his risk group by history, so it's concerning.

Dr. Cohen also referenced V.A.'s non-sexual crimes, indicating a propensity for violence and antisocial personality disorder, which he found to be highly significant in terms of prognostication of risk to re-offend in the future. Dr. Cohen also diagnosed V.A. with psychopathy, an infliction that causes people to not feel empathy, which is one of the most "robust predictors of risk of . . . violent recidivism." The psychiatrist further testified that appellant scored twenty-six and thirty on the HARE psychopathy evaluations and emphasized that the latter score indicated a "highly significant number of psychopathic traits which lead to a higher risk of re-offending than otherwise. . . ."

Dr. Cohen did not just concentrate on the negative treatment notes. He testified that V.A. attended the sessions, was an active participant and showed motivation. In fact, V.A. was considered by many people "to be doing quite well and a model for other residents . . . that gains can be made." Dr. Cohen noted that in the treatment settings V.A. gives appropriate answers; however, "these contradictory statements that he gives to me during the interview are just completely not in keeping with -- with someone who is on target, as he's perceived by many in treatment." Dr. Cohen continued:

And, you know, I highlight that these inconsistencies can't be understood as being because of stress or anxiety or being tired or confused, because these are key features of his life, you know. . . . If his self report is not to be believed, as I raise questions, you know, clearly here then that's what is being assessed in treatment. What he reports -- no one can read his mind -- and if he's not being truthful about all the stuff he talks about, including what his current sexual interests are, is it of two underage girls, it is to men, is it both? . . . Again, he's not apparently using any of the skills toward the object of his sexual interest, which is [underage females] for his whole life up to the last three years, by his report. You can't have confidence that he's able to -- he would be able to do so going forward because he just hasn't demonstrated that. And -- and that's the key point to me, this -- this treatment is based on self report. If you can trust the self-report you can't trust the appearance of improvement in treatment.

The psychiatrist reported:

There are several issues of importance that have not been addressed sufficiently or at all in [V.A.'s] current treatment. He reports realizing that his true sexual orientation is homosexual after one sexual encounter with a fellow resident. There is no indication in the record that he has processed how he made such a radical, extraordinarily uncommon shift in orientation. His report of no longer having sexual thoughts about underage females, has led to a failure to utilize the tools of relapse prevention in this regard for many years. There is thus no way of knowing whether he would be able to resist sexual urges and prevent commission of additional offenses against the group he has committed multiple offenses against in the past. Of note, many of the details he provides regarding his sexual offenses and his life are completely contradicted by other statements he has made or by official documents. Some are simply too fantastic to be credible. Since much of his treatment revolves around his self-report, this issue is of even more concern.

Dr Cohen concluded that based on the diagnosis of pedophilia, non-exclusive type, attracted to females, and Axis II antisocial personality disorder and polysubstance dependence in sustained institutional remission, V.A. was highly likely to re-offend if released at the current time.

After carefully reviewing the evidence presented during the hearing on November 14, 2005, Judge Freedman stated his findings, which included the following:

Based on all [the] information, based on my review of the record in the past, as well as the documents submitted, the treatment record and the T.P.R.C. report submitted with regard to this particular hearing, I am satisfied by clear and convincing evidence that [V.A.] remains committable, that he still suffers from the same mental abnormality and personality disorder that has been diagnosed throughout these hearings, that he has a severe anti-social personality disorder, as shown by his scores on the HARE Psychopathy Checklist, as they affect volitionally and emotionally, as well as probably cognitively, and that . . . the record shows, they predispose him to engage in acts of sexual violence.

There are some questions in the record where the Abel Screen didn't support pedophilia, but he was engaged in pedophilic acts . . . or hepophilic acts with young teenage girls, and it may very well be that it's more the drive of his anti-social personality disorder than his Axis 1 diagnosis, but it's clear that in combination they predispose him to engage in acts of sexual violence and that he would be highly likely, in my view, based on a finding that he would have a serious inability to control his behavior if he were released now.

In rendering his opinion, Judge Freedman noted the HARE psychopathy revised checklist score of twenty-six, indicating a high number of psychopathic traits and score of thirty as "characteristic of an individual at the low end of the severe range of psychopathy," which characterized him as "impulsive, deceitful, selfish, sensation-seeking, and irresponsible." The court stated:

[a]ccording to the literature psychopathic sex offenders pose the greatest risk for sexual recidivism and generally progress poorly in treatment. This score [of 30] in combination with other tests and archival data suggest a diagnosis of a severe anti-social personality disorder.

Regarding appellant's sudden declaration of being homosexual and how it was addressed by Dr. Cohen, Judge Freedman stated:

[V.A.] told [Dr. Cohen] he is a homosexual, and according to the doctor, how he came to this conclusion has never been addressed in treatment, and the doctor has testified that [V.A.] told him that he realized he was a homosexual three years ago after a one-time encounter with another male, and that as a result he had no further thoughts of girls or women. At first, when he first reported this, he said it happened immediately. Later he said it took a substantial period of time . . . .

As far as the record is concerned, back in 2002 during treatment he was still associating sex with young females. That's only three-and-a-half years ago, [according] to a [treatment note] of June 21, 2002. And the doctor's conclusion, which seems totally reasonable to this court that there are certain common understandings of sexuality, how it develops, and that the explanation that [V.A.] was relying on just doesn't fit into the common understanding of sexuality and its development.

[B]ecause [V.A.] didn't want to discuss it [with Dr. Cohen] he really doesn't know the scope of his sexual interest and what his present fantasies with regard to young girls are. However, [Dr. Cohen] clearly testified that these type of fantasies which he has acknowledged in the past don't go away by themselves, in fact don't go away at all but need to be controlled by treatment. [V.A.] had two convictions for sex offenses. There were five allegations involving sex offenses, and all of the victims were female. . . .

The court discussed appellant's report of homosexuality to Dr. Cohen, and its effect on his treatment:

[Dr. Cohen] diagnosed pedophilia. He has clearly indicated in the past his interest in underage girls, but in his interview he told the doctor [he was homosexual].

The doctor again testified pedophilia does not spontaneously remit. You need to actively work to control it. This attraction that he admitted in the past would not disappear just because you have sex -- relations with a man on one occasion, or even on multiple occasions. He felt that [V.A.] was way over the threshold for the diagnosis of an anti-social personality disorder, that the anti-social personality disorder reduces his controls over his urges, as does his high substance dependence. The doctor's opinion was that [V.A.] suffers from the personality disorder and mental abnormality, that he has an interest in young girls and that his anti-social personality disorder will allow him to act it out and, therefore, he will have serious difficulty controlling his behavior if he were released, and that he would be likely to engage in acts of sexual violence if released, and that he needs additional treatment. [Dr. Cohen testified] that it has never been addressed in treatment is how at 40 years of age [V.A.] just decided that he was homosexual. The doctor testified again that this is not in keeping with how normal sexuality develops. You don't just throw a switch one day and have a new group as your sex object and forget about the others. That was his testimony. And the doctor again repeated that [V.A.] told him different things, two different things, and had told others different things at different times, and that all of these stories couldn't possibly be true. He did indicate that homosexually can affect his risk. If it were true he wouldn't be a risk for underage girls, but the doctor doesn't feel it is true, and that [V.A.] does not have skills he needs to deal with his urges with regard to underage girls.

Judge Freedman clearly recognized the strides that V.A. made and noted at several places within his oral ruling the positive reports found in the treatment notes. The court was satisfied, in view of V.A.'s inconsistent statements, alleged newly discovered homosexuality and unexplained change as to his radical shift in arousal, and lack of completion of the T.P.R.C.'s recommendations, that V.A. was not yet ready to be discharged into the community. The court gave significant weight to the T.P.R.C. report prepared only a few months before the hearing, which did not recommend that V.A. advance to a higher level. The judge read the report into the record as follows:

[V.A.] has maintained previous treatment gains during this reporting period. Although he has worked on completing some of the T.P.R.C.'s recommendations a change in treatment phase is not recommended at this time. He needs to demonstrate a significant period of [relapse prevention.] He will also need to complete his work on victim impact letters unsent. [V.A.] has given sporadic feedback to peers, as well as addressed some personal issues. He has been appropriately approaching therapists when he is in need of assistance. [V.A.] has taken the polygraph in regard to previous victims with no deception indicated. He has written one of his victim impact letters and presented it to his process group. [V.A.] became somewhat defensive in response to the revision recommendations of this letter, that he displays an understanding of victim's reactions and takes responsibility for his deviant sexual behaviors towards them. [V.A.] has not presented the revisions, nor has he completed victim impact letters for his other victims. He has been working on increasing his reading and writing skills as part of his self-motivated and goal-directed behaviors. However, he continues to need to develop and increase self-directed treatment goals. [V.A.] needs to increase his ability to cope with novel and complex social situations. He has recently become part of the therapeutic community and will be expected to learn and demonstrate and increase his ability to handle sometimes vague and complex social situations.

Both an order of commitment and order of continued commitment 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 re-offend if not committed to the STU. In Re Commitment of W.Z., 173 N.J. 109, 132 (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.

Once initially committed, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. A committee 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 committee "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." In Re Commitment of W.Z., supra, 173 N.J. at 130.

To be found a sexually violent predator, a person must "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence" if not otherwise constrained. N.J.S.A. 30:4-27.26. Under the SVPA, 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., supra, 173 N.J. at 127. The 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.

The scope of appellate review "of a trial court's decision in a commitment proceeding is extremely narrow." In Re Commitment of J.P., 339 N.J. Super. 443, 459 (2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also, In Re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "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).

We have examined the record in light of the arguments advanced by V.A. and our standard of review. We are fully satisfied that Judge Freedman's finding that appellant continued to qualify for SVPA commitment by clear and convincing evidence is amply supported by the record. The evidence presented at the review hearing on November 14, 2005 confirmed that V.A.'s continued commitment was warranted based on his history of sexually violent offenses, present diagnosis, and failure to honestly and consistently self-report and discuss his prior sexual offenses and his sexual fantasies and urges, and effectively utilize the tools of relapse prevention.

 
Affirmed.

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

In Re the Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002).

Appellant later unsuccessfully challenged our directive from V.A. I to Department of Human Services to develop and implement within a reasonable amount of time the programs and protocols necessary to bring about the gradual de-escalation of restraints was not being followed. In Re Commitment of V.A., 378 N.J. Super. 1 (App. Div. 2005), (V.A. II).

(continued)

(continued)

17

A-2474-05T2

RECORD IMPOUNDED

May 2, 2006