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

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2007-08T22007-08T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.M.B.S.,

f/k/a A.E.P.

SVP-12-99

__________________________________

 

Argued May 28, 2009 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-12-99.

Patrick Madden, Assistant Deputy Public Advocate, argued the cause for A.M.B.S., f/k/a A.E.P. (Ronald K. Chen, Public Advocate, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

A.M.B.S. appeals from a December 8, 2008, judgment continuing his involuntary commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

A.M.B.S., formerly known as A.E.P., has been involuntarily committed under the SVPA since June 29, 2000. On December 23, 1988, A.M.B.S. was arrested and charged with three counts of first-degree aggravated sexual assault and one count of fourth-degree endangering the welfare of a child. The victim was the three-year-old niece of his girlfriend. On December 14, 1990, pursuant to a plea agreement, A.M.B.S. was convicted of one count of aggravated sexual assault and one count of fourth-degree endangering the welfare of a child, a sexually violent offense pursuant to N.J.S.A. 30:4-27.26(a). He was sentenced to a ten-year term of imprisonment.

Prior to A.M.B.S.'s release, the State filed a petition seeking involuntary commitment under the SVPA. On June 29, 2000, an order was issued committing A.M.B.S. to the New Jersey Special Treatment Unit (STU), a secure facility designated for the custody, care, and treatment of sexually violent predators.

Review hearings have been held annually, beginning in July 2001. The same result was reached each time and A.M.B.S. has remained civilly committed.

A.M.B.S. now appeals the decision from his most recent hearing, held on December 4 and December 8, 2008. At the hearing, the State presented the expert testimony of Drs. Roger Harris and Nicole Palillo.

Dr. Harris, a psychiatrist, attempted to interview A.M.B.S. in conjunction with his upcoming review hearing, but A.M.B.S. refused to cooperate. Consequently, Dr. Harris relied on documents and reports in A.M.B.S.'s file, including an evaluation Dr. Harris had conducted of A.M.B.S. in December 2007, A.M.B.S.'s criminal history, treatment notes, and reports written by other psychologists and social workers.

Dr. Harris began his testimony by explaining that A.M.B.S. maintained his innocence, though he had previously admitted to committing the assault as an act of revenge against his daughter's mother, his former girlfriend. A.M.B.S. explained during a therapy session that he intended to harm his own child as a way of upsetting her mother, and his victim reminded him of his daughter because the two children were close in age. A.M.B.S. admitted that he did not care who he hurt because he was using drugs and alcohol at the time.

However, since making this admission, A.M.B.S. now claims he was not the perpetrator of the assault. At times, he asserts he was incarcerated when the offense occurred and wishes to have DNA evidence prove he was not the perpetrator, while in other instances, he claims that he pled guilty in order to save his cousin, the true offender, from punishment. Dr. Harris explained that, by not admitting to the subject offense, A.M.B.S. is "now essentially holding himself hostage from treatment."

A.M.B.S.'s history of sexual behavior includes a sexual relationship when he was seventeen-years old with a twelve-year-old girl, which resulted in pregnancy. A.M.B.S. did not consider the girl's age to be significant when he was asked to explore this relationship during therapy. A.M.B.S. was arrested as a juvenile and charged with aggravated sexual assault for vaginally penetrating his twelve-year-old sister. This charge was dismissed.

Dr. Harris noted that A.M.B.S. claimed he did not like discussing his sexual history during therapy because "some female staff get turned on." He testified that during his interview with A.M.B.S. in December 2007, A.M.B.S. refused to discuss his past because he said it was "not relevant."

Dr. Harris diagnosed A.M.B.S. with paraphilia NOS, anti-social personality disorder, and poly-substance abuse, in remission in an institutional setting. He based this diagnosis on A.M.B.S.'s tendency towards anger and belligerence, as well as his suspicion of others, especially women. Dr. Harris testified this diagnosis was a "strong component to . . . [A.M.B.S.] reoffending." He explained that A.M.B.S. has very "distorted" views of people and has "great antipathy to the idea that he has sexually offended." He opined that A.M.B.S. would have "serious difficulty" controlling his sexual offending behavior if released.

Dr. Nicole Palillo, a member of the Treatment Progress Review Committee (TPRC or Committee), conducted a clinical interview with A.M.B.S. on November 19, 2008. She also interviewed A.M.B.S.'s treatment team. Her report referenced the Committee's treatment recommendations for A.M.B.S., which included that A.M.B.S. be maintained in Phase II treatment. During Phase II treatment:

residents generally begin the transition from being motivated more by external gains (such as institutional privileges) to internal gains (such as a desire to become a psychologically healthier person). This transition is reflected in a high level of group attendance and appropriate participation. . . . It is anticipated that many residents will complete the requirements of Phase II in one year.

[In re Commitment of V.A., 378 N.J. Super. 1, 4 (App. Div. 2005).]

Dr. Palillo explained that A.M.B.S. is capable of progressing in his treatment, but until he cooperates more fully, he remains a high risk for recidivism:

The panel is intending to convey to A.M.B.S. that if he were to follow the recommendations in the report, which specifically address how to go about his - - his one sex offense conviction, the presence of an arousal during that day . . .; if he were to also discuss his substance abuse, relapse prevention, and just, generally, begin the process of engaging in treatment, we would definitely be more conformable viewing from a risk perspective as - - as in some way a viable candidate for discharge planning.

Dr. Palillo also testified concerning A.M.B.S.'s treatment team reports. According to his treatment team, A.M.B.S. still has trouble controlling and understanding his feelings of anger, and, while he has made some progress in his therapy, he is still "frequently argumentative and . . . easily provoked." In keeping with the observations of Drs. Harris and Palillo concerning A.M.B.S.'s lack of dedication to his therapy, the treatment reports noted that A.M.B.S. did not pass his anger management module due to poor attendance. The reports also stressed A.M.B.S.'s sabotage of his treatment through his denial that he ever committed a sexual assault.

In discussing her interview with A.M.B.S. prior to his hearing, Dr. Palillo testified that he appeared "quick to snap" and insisted on having a "very superficial kind of interview." A.M.B.S. stated that he was not interested in going to his self-help group because he was not willing to discuss any kind of deviant sexual arousal and he admitted to withdrawing himself from his anger management group. When asked if A.M.B.S. seemed "willing to try" to progress through therapy, Dr. Palillo answered "[i]t really didn't feel that way."

Dr. Palillo stated that, based on A.M.B.S.'s psychological evaluations, he suffered from pedophilia, poly-substance dependence in institutional remission and borderline personality disorder. Based on this diagnosis and A.M.B.S.'s refusal to genuinely pursue treatment, Dr. Palillo opined that A.M.B.S. posed a high risk for recidivism.

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 132-33. See also In Re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, 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. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n 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." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where 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, 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 canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of December 8, 2008.

 

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9

A-2007-08T2

RECORD IMPOUNDED

June 22, 2009