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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0729-08T20729-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

B.A., SVP-199-01.

_________________________

 

Argued: April 1, 2009 - Decided:

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-199-01.

Joan Van Pelt, Deputy Public Advocate, argued the cause for appellant B.A. (Ronald K. Chen, Public Advocate, attorney).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

B.A., who is now fifty-nine years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil 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 of August 18, 2008 continuing his commitment to the STU following a sixth review hearing. On appeal, B.A. asserts a general challenge to the court's finding that the State met its burden with clear and convincing evidence that he continues to be a sexually violent predator in need of civil commitment. In particular, B.A. argues the court did not take into account his exemplary behavior while at the STU and his increased participation in treatment during the past year, which he contends significantly reduces his risk to re-offend. Based on our review of the record, we are not persuaded by appellant's argument and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of August 18, 2008.

I.

A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. 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., 173 N.J. 109, 127 (2002). 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.

Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. 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., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual 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; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).

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

II.

The August 18, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. B.A. was initially committed to the STU by an order entered on May 3, 2002. B.A. filed an appeal of this order, which was dismissed on February 24, 2003. (A-5299-01T3). Review hearings were held in 2003, 2004, 2005, 2006, and 2007, in which judgments of continued commitment were entered, none of which were appealed. Following the last evidentiary review hearings conducted on August 12 and August 18, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.

B.A. has a long history of sexual and criminal offenses dating back to 1972. The predicate offense for B.A.'s commitment involved a charge of four counts of sexual assault and four counts of endangering the welfare of a child, occurring on June 29, 1982. Four males, ages thirteen to sixteen, reported to police that B.A. and a man named "Vito" whom they met in a park showed them pictures of naked boys. B.A. then solicited them to make pornographic movies and performed oral sex on them, bribing them with money and promises of entertainment. On August 6, 1982, B.A. pled guilty to two counts of sexual assault, N.J.S.A. 2C:14-2c(4), and was sentenced to an indeterminate term not to exceed ten years to be served at the Adult Diagnostic and Treatment Center (ADTC), from which he was released on November 12, 1991.

While at the ADTC, B.A. became the subject of a New Jersey State Police investigation for his alleged involvement in a child pornography ring operating out of the ADTC. During the investigation, an undercover agent met with B.A., and during the meeting B.A. reportedly described an extensive history of involvement with an organized child pornography ring in several New Jersey counties.

The police began surveillance of B.A.'s home in 1994. On October 7, 1994, the undercover agent with whom B.A. had spoken at the ADTC met with him under the guise of entering into a business arrangement of child pornography. During this meeting, B.A. produced several photographs of minors in prohibited sexual acts and showed the agent a homemade video of a fourteen-year-old boy masturbating. B.A. admitted he procured juvenile males for pornography. In the course of their interaction, the undercover agent agreed to provide boys of approximately that age to B.A. to take part in pornographic filming. After arranging to return with a twelve-year-old boy, the police placed B.A. under arrest and confiscated a significant amount of child pornography from his apartment. On September 15, 1995, B.A. pled guilty to conspiracy to commit aggravated sexual assault, conspiracy to endanger the welfare of a child, and endangering the welfare of a child. On March 18, 1996, he was sentenced to a term of ten years' imprisonment with a five-year period of parole ineligibility to be served at the ADTC. Prior to his release, the State filed a petition for civil commitment and he was transferred to the STU and temporarily committed by order of September 13, 2001.

At the review hearing that is the subject of this appeal, the court heard testimony on behalf of the State from Dr. Marta Scott, a psychiatrist, who had interviewed B.A. on April 29 and August 5, 2008, and Dr. Doreen Stanzione, a psychologist and member of the Treatment Progress Review Committee (TPRC), who performed an evaluation of B.A. in July of 2007. The court also accepted into evidence Dr. Scott's report of August 10, 2008; the TPRC report of Dr. Stanzione of April 3, 2008; and B.A.'s treatment progress notes from May 24, 2007 through July 28, 2008. B.A. presented no evidence on his own behalf.

Scott diagnosed B.A. with paraphilia NOS and antisocial personality disorder, the combination of which increase B.A.'s overall risk for sexually re-offending behavior. The expert explained the reason for her diagnosis:

[B.A.] has experienced recurrent, intense, sexually arousing fantasies and sexual urges that caused him clinically significant distress and impairment in his functioning over a period of at least six months.

In his particular case, the object of his interest is adolescent males. And he has a long history of engaging in this kind of behavior with that particular population and -- that qualifies him for that diagnosis of paraphilia N.O.S.

. . . .

[B.A.] has a history of conduct disorder, which is one of the requirements to -- to diagnose an anti-social personality disorder in -- in adulthood.

Conduct disorder means that prior to age 15, he had behavioral disturbances including fire setting. He had been described as lying to his parents, getting into trouble due to that.

And after -- and -- and, again, during his adult years, if you look at his general arrest history, he clearly demonstrated a pervasive pattern of disregard for the rights of others and that qualifies him for that diagnosis.

He's also been irresponsible in -- in a sense that he never had any meaningful or consistent work activity. His sex offenses involve intimidation, according to the statements of his victims. He alluded to being affiliated with the Mafia, having a gun and, in fact, several of his non-sexual related crimes were gun possession, gun trade charges.

Further support[ing] the diagnosis of anti-social personality disorder is that he lacks any remorse about his offenses, manipulative and several evaluators described him as -- as pathological liar.

Dr. Scott testified at length about B.A.'s sexual and non-sexual criminal history, and her report provided a very detailed account of B.A.'s predicate offense that he provided during both of his interviews with her. According to B.A., he performed felatio on fifteen-year-old S.S. (who committed suicide four years later), "in order to make him feel better" because he sensed that S.S. was upset. He repeatedly denied any sexual contact with the three other boys who were listed as victims in the 1982 pre-sentence investigation report, and during the most recent interview denied even knowing the three other victims. He also denied involvement in other offenses for which he had either pled guilty or been convicted.

Dr. Scott testified that, throughout B.A.'s treatment records as well as during his interviews with her, he failed to take responsibility for his actions. Rather, he continued to present himself as a victim and he spent a tremendous amount of time trying to convince his group members that S.S. deceived him into believing that he was much older. She was also concerned that B.A.'s description of his predicate offense was discrepant with the official version and he continued to minimize responsibility for that offense. Dr. Scott's view, consistent with the treatment team's, was that the core issue B.A. had to address in order to fully benefit from treatment and step forward was his arousal by underage males, which he continued to deny despite his consistent acting out with them and his admission to masturbating to fantasies of them in 2005. Dr. Scott concluded that B.A.'s failure to take responsibility, along with his apparent lack of progress and treatment, demonstrated that he had not yet had sufficient treatment to reduce his risk to re-offend. Accordingly, the State's psychiatrist concluded, to a reasonable degree of medical certainty, that B.A. would be highly likely to re-offend sexually if not recommitted for further treatment.

Dr. Stanzione testified about B.A.'s continuation in Phase Two of treatment. She noted a concern that during B.A.'s interview with the TPRC, he denied being involved in child pornography and stated that he had thought S.S. was older than fifteen. The initial interview further indicated that B.A. had refused to take responsibility for his actions, portrayed himself as a victim of the system, and refused to take part in certain aspects of treatment. The TPRC's diagnoses of B.A. were identical to Dr. Scott's, leading to its recommendation that B.A. continue at Phase Two of treatment.

At the conclusion of the hearing, Judge Serena Perretti placed a thorough and comprehensive decision on the record. Citing Dr. Scott's uncontradicted expert report and the TPRC's evaluation, as well as B.A.'s treatment notes, the judge detailed at length B.A.'s diagnosis, his minimization of his role in his criminal behavior, his portrayal of himself as a victim of the system, his high Static 99 score that placed B.A. in a high risk group to recidivate, and B.A.'s failure to take the floor to discuss his own sex offending issues. The judge further noted that B.A. justified his predicate offense in 1982 by claiming he was simply trying to comfort S.S., and attempted to persuade the group during one floor discussion that his activities with the young boys were consensual, that no one was forced, and they enjoyed the sexual contact.

Judge Perretti noted a conclusion in Dr. Scott's report that she found particularly compelling, which the expert had highlighted in testimony, stating:

"Based on my current interview with [B.A.], it is evident that he lacks any insight into his sex offender cycle. He cannot put his feelings into risk cycle and he does not believe that they are dangerous. His plan lacks details and does not appreciate his risk and he could identify no realistic interventions.

As evidence for the above, when I asked [B.A.] about what feeling or moods would put him at risk for sexually offending again, he replied, 'I can't think of anything.' He gave the same response to the question, "'In what situations are you most likely to re-offend?'"

Judge Perretti summarized her findings in the following way:

The evidence presented by the State was clear and convincing and undisputed. The Respondent who has a substantial history of repetitive sexually violent offenses against young teenage boys suffers from abnormal mental conditions and personality disorder[s] that influence his volitional, cognitive and emotional functioning so as to predispose him to commit sexually violent acts.

He has serious difficulty controlling his sexually violent behavior as appears from his actions in the community of repetitive sexually violent behavior and, in particular, his continuing in his activities, even knowing of the investigations that began when he was still in custody at A.D.T.C.

The Respondent is still in the very early stages of therapy and denies most of his sexual offending, even back to which he entered guilty pleas. It is clear that this Respondent will commit sexually violent offenses if not confined for further treatment based on the clear, convincing and uncontradicted testimony of the State's witnesses, substantially supported by the treatment records contained in the exhibit. . . . It is clear that this Respondent remains an untreated sexually violent predator.

The court ordered a review in one year.

Clear and convincing evidence of record in this case supports the trial judge's conclusion that B.A. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and that he remains in need of continued treatment under the SVPA. See N.J.S.A. 30:4-27.34b. B.A.'s criminal history specifically his history of sexual offenses against young teenage boys and his continued failure to admit all of his offenses and conduct his failure to accept responsibility for his wrongdoing, as well as his failure to acknowledge and address his core problem of deviant arousal, clearly indicate that B.A. has done little to reduce the risk of his sexually re-offending if released. As the conclusion that B.A. 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 is supported by clear and convincing evidence, In re Commitment of W.Z., supra, 173 N.J. at 132, we discern no abuse of discretion by the court in continuing to confine him to a secure facility for treatment.

Affirmed.

 

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

(continued)

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A-0729-08T2

RECORD IMPOUNDED

April 23, 2009