IN THE MATTER OF THE CIVIL COMMITMENT OF G.I.D.
(NOTE: The status of this decision is .)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3889-08T23889-08T2
IN THE MATTER OF THE CIVIL
COMMITMENT OF G.I.D.
Argued May 28, 2009 - Decided
Before Judges Stern and Lyons.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
Mary Foy, Assistant Deputy Public Advocate-
Mental Health, argued the cause for appellant
(Ronald K. Chen, Public Advocate, attorney).
Lisa Marie Albano, Deputy Attorney General,
argued the cause for respondent (Anne Milgram,
Attorney General, attorney).
G.I.D. appeals from an order of February 18, 2009 continuing his commitment to the "Special Treatment Unit [(STU)], the secure facility designated for the custody, care and treatment of sexually violent predators," pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. A further review hearing was scheduled for June 29, 2009.
G.I.D. was initially committed to the STU on October 5, 2000 after serving a sentence for an aggravated sexual assault on a thirteen-year old girl. He pled guilty to one charge of aggravated sexual assault and one count of endangering the welfare of a minor, his paramour's daughter. This predicate act occurred in 1991, about one and a half years after having been paroled following service of a sentence for a prior sexual assault upon a twenty-five year old at knifepoint. G.I.D. had prior adjudications as a juvenile. He had been diagnosed with paraphilia, antisocial personality disorder and alcohol and marijuana dependency.
In the proceeding under review, the State presented the testimony of Dr. Maryanne DeSantis, a psychiatrist, and Dr. Doreen Stanzione, a psychologist member of the Treatment Progress Review Committee (TPRC). G.I.D. presented Dr. Jeffrey Singer, a psychologist. According to Dr. DeSantis' report:
[G.I.D.] has made some progress in his sexual offense treatment. He acknowledges the official version of his offenses; he recognizes his cycle and has thought about relapse prevention techniques. However, [G.I.D.] still has some problems fully acknowledging his responsibility for his actions. In my opinion, [G.I.D.] would benefit from entering the therapeutic community before advancing to Phase four.
In my opinion with a reasonable degree of medical certainty, [G.I.D.] suffers from a mental abnormality and a personality disorder that places him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment.
Her testimony was consistent with her report and noted G.I.D. "withdrew from the Therapeutic Community" ("TC") in August 2008, and "needs to work further on accepting responsibility."
G.I.D. points to Dr. DeSantis' testimony where she initially stated that his risk to "sexually re-offend" was only "medium to high." However, she clarified her answer in response to the next question:
High risk would be because he has even though he had been incarcerated as a child and as an adolescent in 1984, he had raped his first victim. He was released from prison. And within two years he he had another sexual assault on a child this time. There was not any learning from his incarceration in the first place. He had two different kinds of victims, one was an adult, one was a child. And they were and both of his and both of his victims were familiar towards him. That places him at slightly less risk than someone who with non- non-familiar victims.
Dr. DeSantis also referred to "the medium-to-high risk" projection on cross-examination.
Dr. DeSantis and Dr. Stanzione also reported the same diagnosis as prior experts. The latter added, however, that it was "unclear whether this arousal is pervasive and continual enough to rise to a true paraphilia level." In her testimony, Dr. Stanzione expressed concerns about G.I.D.'s need for therapy about his "paraphilia arousal," stating "that it seems if he's going to use relapse prevention techniques effectively, he kind of needs to be open to what his arousal really is."
Dr. Singer met with G.I.D. in January 2009, as he did in January 2008. He diagnosed him with "an anti-social personality disorder" with "borderline intellectual functioning," but rejected "paraphilia." Dr. Singer felt his age, then 44, reduced the risk of reoffense.
On cross-examination it was developed that G.I.D. did not participate in the TC but, in Dr. Singer's view, that does not impact on the risk to reoffend.
In essence, Dr. Singer adhered to his report which concluded:
[G.I.D.'s] cohort is associated with the general ASPD "burnout" effect also known as criminal desistance (Appendix C) as well as with ever declining rates of sexual reoffense rates (Appendices D & E). There is no compelling data to underscore the presence of paraphilic urges or drives. Increase in age is associated with decease [sic] in impulsivity. A currently unusual finding that will be more common, static risk has dropped. Relevant risk factors indicate a low risk to sexually reoffend. [G.I.D.] has no substance abuse issues. His polygraph results suggest sexual self-control. Despite cognitive limitations and verbal problems, [G.I.D.] has demonstrated significant treatment gains and impresses as complaint [sic] with treatment recom-mendations as well as the ability to exercise good judgment.
In light of the above noted variables, [G.I.D.] does not have a mental abnormality, which predisposes him to engage in behavior that creates a link to sexual offending behavior. [G.I.D.] does not evince current impairments in self-control. His risk for sexual offense recidivism is within the lower ranges. Stated differently, he is more likely to not, let alone highly likely, commit another sexual offense and therefore does not meet the criteria as a SVP. These findings are given within a reasonable degree of psychological certainty, that for the reasonably immediate future.
In his oral opinion of February 16, 2009, Judge Philip M. Freedman reviewed the prior proceedings including the fact the State produced different doctors over the years who found a "high risk" of recidivism. He indicated that he considered the prior reports and evaluations only for purposes of evaluating the opinions of the experts to explain why he found the State's experts to be credible.
Judge Freedman concluded that G.I.D. "has in fact come a substantial distance with regard to his treatment," as noted by Dr. DeSantis. Age was found to be part of the reason. He began to accept responsibility for his crimes. The judge noted Dr. Stanzione's report that the TPRC's recommendation that G.I.D. was not ready for phase IV and that he participate in the T.C. However he had passed his "sexual history polygraph."
Judge Freedman also reviewed Dr. Singer's testimony and his discussion of debatable diagnoses in the DSM IV manual.
Judge Freedman found G.I.D.'s "inability to adjust to the therapeutic community" and complete treatment related to the risk of recidivism and acceptance of responsibility which affect the risk of recidivism if released. He disagreed with Dr. Singer's belief that no more treatment was necessary before discharge. The judge found "by clear and convincing evidence," "based primarily on his antisocial personality disorder as well as the probable paraphilia," "that he's predisposed to engage in these . . . acts of sexual violence." The judge felt that G.I.D. "needs to go the other 10 or 20 percent of the way to to take full responsibility and to understand why he did it so that his relapse prevention techniques can ... hold ... and [he can] be able to use them." However, as of the hearing G.I.D. "would be highly likely to engage in these acts if he were released now." In sum, while G.I.D. was "clearly working ... he hasn't gotten far enough to justify a conditional discharge yet."
The judge concluded as follows:
But in the meantime I'm satisfy [sic] to find by clear and convincing evidence that [G.I.D.] does in fact suffer from a mental abnormality in the form of paraphilia N.O.S. as has been diagnosed by numerous. [sic] Although there's some question about it and is I don't believe is, as Dr. Desantis testified, the diagnosis.
I think his antisocial personality disorder is the driving force of the offending. He has a high level of psychopathy as is noted and expert testified to. High enough to affect his his risk. I don't think he has completed treatment sufficiently to justify a reduction in his risk. His age is is in his favor. But I'm satisfied to find that if he if released now he still would have a serious difficulty controlling his sexually violent behavior.
His attitude towards needing treatment, once he's released, has not been good. There's no evidence that that that has improved. And I'm satisfied to find that he would be highly likely to engage in in the antisocial conduct and including sexual violent conduct in the reasonably foreseeable future if he were released now.
But I think, as I said, he's getting closer to the line and that that he should be that the T.P.R.C. should review his case in May of 2008 2009 and that the case should be put on for a review at the end of June.
As Judge Freedman considered the testimony and all the relevant factors, and concluded that G.I.D. had a "mental abnormality" and was "highly likely" to reoffend, we cannot disturb the present judgment. To the contrary, the trial judge has observed G.I.D. for nine years. He knows the case and has a special expertise in the area. Whether the State met its burden was a legal issue for him to decide, and the judge gave specific reasons for finding that the State met that burden notwithstanding Dr. DeSantis' reference to a "moderate to high risk." The judge did so "primarily [because of] his antisocial personality disorder." While finding that the commitment must continue, he also accelerated the next review hearing to reevaluate the situation later this month. At that hearing particular attention should be paid to the degree of risk.
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. At a commitment or review 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). Thus, 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 the Matter of the Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). Judge Freedman so found.
As already noted, our scope of review is very narrow and we must give "utmost deference" to the committing court. See In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007), aff'd, 197 N.J. 563 (2009); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Under this scope of review, the order of commitment must be affirmed, and we affirm the judgment substantially for the reasons stated in Judge Freedman's oral opinion of February 16, 2009.
Dr. Stanzione's report had noted that G.I.D.'s score of 5 on the STATIC 99 placed "him in the medium- high-risk category."
June 18, 2009