IN THE MATTER CIVIL COMMITMENT OF D.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3605-05T23605-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.F.

SVP-139-00

_____________________________________

 

Argued September 25, 2006 - Decided October 11, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-139-00.

Lewis P. Sengstacke, Assistant Deputy Public Advocate, argued the cause for appellant

(Ronald K. Chen, Public Advocate, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Acting Attorney General, attorney).

PER CURIAM

D.F. (also known as D.H.F.) appeals from the order of March 10, 2006, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record and considering argument of counsel, we are satisfied that the State has met its burden in this case.

D.F. was first committed to the STU in 2000. We affirmed his continued commitment in a previous opinion, In re Civil Commitment of D.H.F., Docket No. A-1916-03T2 (App. Div. October 13, 2004). In our 2004 opinion we reviewed at some length D.F.'s lengthy history of sexual offenses, which we will not repeat here in detail. To summarize, beginning in 1962, D.F. had a nineteen-year history of molesting children and young teens. He was incarcerated and treated at the Adult Diagnostic and Treatment Center (ADTC), but after his 1975 release from the ADTC, he sexually molested a fifteen-year old boy in 1976. In 1981, he was convicted of sexual assault on another fifteen-year old boy and received a thirty-six year sentence with eight years of parole ineligibility. At the completion of his sentence, he was committed to the STU.

At his 2006 review hearing, the State presented the testimony of Dr. Voskanian, a psychiatrist, who interviewed D.F. and diagnosed him as having "[p]edophilia, . . . alcohol and marijuana dependency, in controlled environment; [and] personality disorder, with antisocial and borderline traits." Dr. Voskanian based the diagnosis of pedophilia on D.F.'s "history of molesting both boys and girls."

Dr. Voskanian also concluded that D.F. had not made any significant progress in therapy, based on the continued inconsistencies in his descriptions of, and explanations for, his offenses. In particular, according to Dr. Voskanian, D.F. denied that he was a pedophile and attempted to explain his behavior

by saying now that he is not a pedophile, he was just homosexual, was ashamed of his homosexuality in [the] '50's and '60's, and, therefore, he was engaged in sex only with boys, and in light of [the] discrepancy that he was sexually aroused with prepubescent girls [his explanation] doesn't make sense.

In opining that D.F. remained at high risk to reoffend if released, Dr. Voskanian offered the following explanation:

Because there is no progress. Over the five years, he has made only to Phase 2. He continues to deny and minimize his offenses. He continues to maintain a fa ade over his sexuality. Instead of dealing with pedophilia and attraction to children, he maintains that his past behaviors . . . were not really pedophilic acts, but he was homosexual, and, therefore, it was safe to molest boys, but he was always homosexual. So he [has] . . . not addressed his treatment issues. . . . Personality issues have not resolved. He continues to display impulsive behaviors and there is no progress in treatment.

D.F. testified at the hearing, primarily attempting to explain the 1981 incident with the fifteen-year old boy. D.F. claimed the victim was a prostitute who attempted to extort money from him by threatening to tell the police that D.F. had sex with a minor. D.F. testified that he responded to this extortion attempt by beating the victim with a belt and urinating in his mouth in an effort to so humiliate the victim that he would be ashamed to carry out his threat to report their sexual encounter to the police.

In a cogent and thorough oral opinion, placed on the record on March 10, 2006, Judge Perretti credited Dr. Voskanian's "diagnosis [of pedophilia]. It is clear and convincing." She also accepted his diagnosis of "personality disorder with antisocial and borderline traits," which included "a lack of remorse, a lack of empathy, and impulsivity." She concluded that D.F had not made sufficient progress in therapy. He "does not grasp the nature of his behavior. He puts his pedophilia at the door of what he claims is his homosexuality." She also noted that he had not presented a written relapse prevention plan, a sex offense history or a written autobiography. She concluded:

Dr. Voskanian's opinion as to the respondent's lack of progress is clearly supported by the treatment notes . . . . The evidence presented was clear and convincing that the respondent suffers from abnormal mental conditions and personality disorders that influence his cognitive, emotional, and volitional capacities, so as to predispose him to commit sexually violent acts.

The respondent has serious difficulty controlling his sexually violent acts, as has been seen by his record of offending, his number of victims, his impulsivity, which is part of his personality disorder, which was clearly demonstrated when he testified. As a result of his serious difficulty controlling his sex offending conduct, it is highly likely that he will recidivate, if not continued for further care.

The respondent continues to see himself as a victim who was unfairly convicted. He was clearly seen to see no wrong in his involvement with a 15-year-old male prostitute. He is a victim of the system, in his own eyes.

Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 31l (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We find no basis in this record to disturb Judge Perretti's factual findings or legal conclusions, and we affirm, substantially for the reasons stated in her opinion.

Affirmed.

 

(continued)

(continued)

6

A-3605-05T2

RECORD IMPOUNDED

 

October 11, 2006