IN THE MATTER OF THE CIVIL COMMITMENT OF D.A.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6572-06T26572-06T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF D.A.C.

SVP 16-99.

___________________________

 

Submitted January 5, 2009 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-16-99.

Mark R. Talarico, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

D.A.C. appeals from an order entered on August 6, 2007, continuing his involuntary civil commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.

D.A.C., who is now fifty years old, entered a guilty plea to two counts of aggravated sexual assault and one count of sexual assault on March 26, 1990. He was sentenced in accord with the plea to fifteen years at the Adult Diagnostic and Treatment Center (ADTC). When D.A.C. refused treatment, he was transferred to a prison setting. D.A.C. was first committed to the Special Treatment Unit (STU) on October 15, 1999. He has been recommitted on each of several review hearings.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. A court shall order an involuntary civil commitment under the SVPA when the State proves by clear and convincing evidence that a sexually violent predator requires continued confinement. N.J.S.A. 30:4-27.32(a). The standard for involuntary commitment under the SVPA is as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

A person confined under the SVPA must be afforded an annual review hearing to determine whether involuntary commitment as a sexually violent predator should continue. N.J.S.A. 30:4-27.35. The purpose of a commitment review hearing is "to decide if confinement under the SVPA and W.Z. standards is proper." In re Commitment of K.D., 357 N.J. Super. 94, 99 (App. Div. 2003). "[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 the plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130.

The scope of appellate review of a trial court's SVPA commitment decision has been described as "extremely narrow, with the utmost deference accorded the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may be modified "'only where the record reveals a clear abuse of discretion.'" In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

At D.A.C.'s commitment review hearing on August 6, 2007, the State presented one witness, Evan Feibusch, M.D., a psychiatrist. D.A.C. presented the testimony of one lay witness.

Dr. Feibusch testified that D.A.C. suffers from a mental abnormality, specifically, pedophilia and personality disorder, which predisposes him to commit acts of sexual violence. He also stated that pedophilia is a "chronic, life-long type of illness." His basis for the diagnosis was D.A.C.'s history of sexual assaults upon his step-daughter, including fellatio, beginning when she was eight or nine and continuing for several years. D.A.C. also sexually assaulted on at least one occasion a second stepdaughter who was eleven years old. A third victim was a friend of D.A.C.'s oldest stepdaughter. That child was thirteen years old when D.A.C., at a minimum, molested her.

The personality disorder diagnosis arose from, as Dr. Feibusch stated it, D.A.C.'s

history of problematic interpersonal functioning related to his offending and also within the institution. His inability to change his strategy in dealing with this problem over the last 15 years is really striking.

Also, he was engaged in anti-social behavior at the time of his arrest. He was also arrested and convicted on a drug charge.

The doctor testified that D.A.C. has not engaged in sexual offender treatment in "any way, shape or form," during his years of commitment. Although the doctor acknowledged that treatment does not necessarily decrease the risk of reoffense, D.A.C.'s steadfast refusal to participate, in the expert's view, was at least a symptom of his personality disorder. Dr. Feibusch also explained that D.A.C.'s cocaine dependence and alcohol abuse are intertwined with his sexual offenses as those behaviors "disinhibit the individual." D.A.C. was using cocaine and drinking when he committed the offenses, was aware of the wrongfulness of his conduct, but was unable to stop or control his behavior. He has not participated in treatment for substance abuse either. Dr. Feibusch concluded from his personal contact with D.A.C. and his review of D.A.C.'s history and personal contacts with him that D.A.C. was "highly likely" to reoffend. It is noteworthy that in addition to Dr. Feibusch's difficulty in engaging D.A.C. in discussion regarding his sexual offending, anyone who has attempted to interview D.A.C. on the subject or to engage him in treatment has been refused.

Although in the early years of his sentence at ADTC, D.A.C. may have participated briefly in treatment, he stopped by 1992. In the past, D.A.C. explained his refusal as attributable to his offenses being "over and done with." He also said that the treatment providers were attempting to turn him into a homosexual, which was against his religious beliefs. When Dr. Feibusch asked D.A.C. to participate in an interview, D.A.C. merely shook his head and walked away without speaking. All of Dr. Feibusch's conclusions were therefore based on his review of prior reports, court documents and D.A.C.'s conviction history.

D.A.C.'s witness was Ben Logan, his former pastor in Atlantic City, who proposed that D.A.C. be released into his care. Reverend Logan testified that D.A.C. had been a member of his church for approximately ten years before his incarceration. Reverend Logan, who is semi-retired, now lives in Newport News, Virginia and has maintained contact with D.A.C. only by phone. Reverend Logan is currently starting a "jail ministry" for the benefit of inmates in Newport News. He envisioned D.A.C. as being of "great use" to such a ministry as he is familiar with the prison experience. Reverend Logan said that, in his opinion, between the time when D.A.C. was a bus driver for the church, and otherwise actively involved, and the time of the hearing, there had been a "big change in [D.A.C.'s] attitude towards the Christian life." The pastor said that D.A.C. appeared more dedicated and had always been a "great person to work with." He considers D.A.C.'s faith to be strong and consistent, making him potentially very helpful in his jail ministry project. Reverend Logan claimed that he would be able to make appropriate living arrangements for D.A.C. if he was released to his custody.

The trial court's findings and conclusions made reference to this court's two unpublished opinions regarding D.A.C.'s continued commitment. See In re Civil Commitment of D.A.C., No. A-6695-04T2 (App. Div. April 24, 2007); In re Civil Commitment of D.A.C., No. A-7070-03T2 (App. Div. January 27, 2005). She determined that D.A.C.'s criminal history, his "consistent[] and methodical[] violat[ion] [of] his two little stepdaughters, one beginning when she was eight years old, the other at approximately eleven years of age," established the diagnosis of pedophilia. Although she acknowledged Reverend Logan's willingness to offer himself as an alternative placement, the court found the obvious that because D.A.C. has not participated in sex offender, alcohol or drug treatment, no serious consideration could be given at this time to other alternatives to continued commitment. The court noted that while D.A.C.'s sexual criminal conduct was ongoing, he was involved in the church in Atlantic City. D.A.C.'s involvement with his faith did not prevent him from engaging in criminal conduct. The court concluded:

It's crystal clear from the clear and convincing evidence that this respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional and volitional functioning in such a way as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sex behavior as he has established in the past from his long-term repeated sexual criminal behavior.

As a result, I find that it is highly likely that he will commit sexually violent offenses if not continued in custody for the protection of the public. Treatment is available if he wishes to participate.

We conclude from our review of the record that the court's decision to continue D.A.C.'s involuntary commitment as a sexually violent predator is supported by clear and convincing evidence and is consistent with controlling legal principles. We affirm substantially for the reasons stated by Judge Perretti on August 6, 2007.

Affirmed.

(continued)

(continued)

8

A-6572-06T2

RECORD IMPOUNDED

February 24, 2009