IN RE THE CIVIL COMMITMENT OF M.N.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4354-09T2

IN RE THE CIVIL COMMITMENT

OF M.N.A. SVP-307-03.

________________________________________________________________

December 17, 2010

Argued December 13, 2010 Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-307-03.

Lewis P. Sengstacke, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

M.N.A., now twenty-nine years of age, appeals from Judge McLaughlin's April 28, 2010 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed 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. Appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend if not confined to the STU. We disagree and affirm.

In addition to the predicate offense, which we will describe in the next paragraph, appellant had several juvenile sexual offenses, in which he victimized very young children. In February 1997, at age fifteen, he was charged with stalking an eight-year-old boy in a restroom, asking to see the boy's "dick." Appellant was charged with harassment, which was ultimately dismissed. In August 1997, at age sixteen, charges were brought against appellant for engaging in oral and anal sex with a minor. Appellant admitted having oral sex with his adoptive father's eight-year-old grandnephew, repeatedly abusing his six-year-old male cousin, and had sexually abusing his adoptive father's six-year-old grandniece. Based on these charges, appellant was adjudicated delinquent on February 11, 1998 for endangering the welfare of a child. He was placed in a residential sex offender program, but was discharged for touching other boys in the program. He then violated probation and was committed to the Juvenile Medium Security Facility at Bordentown. While there, appellant committed the predicate offense.

On September 9, 2000, at age nineteen, while confined at Bordentown, appellant performed oral sex on two fifteen-year-old inmates. On February 19, 2003, he pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. He was sentenced to the Adult Diagnostic and Treatment Center (ADTC) for a term of eighteen months. On March 11, 2003, just prior to his scheduled release, the State filed a petition for appellant's commitment under the SVPA. After a hearing on June 23, 2003, appellant was found eligible for SVPA commitment. A judgment was entered on that date.

A first review hearing was conducted on September 7, 2004, and appellant's commitment was continued by judgment of that date. In consolidated appellate proceedings, we affirmed the June 23, 2003 and September 7, 2004 judgments in a single opinion. In re Civil Commitment of M.N.A., Nos. A-5775-02, A-0425-04 (App. Div. January 4, 2006), certif. denied, 187 N.J. 81 (2006). A second review occurred on August 21, 2006, and appellant's commitment was again continued. We affirmed the August 21, 2006 judgment. In re Civil Commitment of M.N.A., No. A-0693-06 (App. Div. February 15, 2007), certif. denied, 192 N.J. 492 (2007). A third review occurred on August 4, 2008, and resulted in appellant's continued commitment.

The hearing that is the subject of this appeal occurred on March 1 and April 8, 2010. The State presented the testimony of Dr. Howard Gilman, a psychiatrist, and Dr. Christine Zavalis, a psychologist and member of the Treatment Progress Review Committee (TPRC).

Dr. Gilman interviewed appellant and consulted other sources, including police reports, treatment notes, and prior reports by psychologists and psychiatrists. He produced a report detailing his clinical opinion, and testified accordingly. He found that appellant was having difficulty controlling his sexual impulses, both deviant and healthy, and his temper toward the staff. These difficulties resulted in appellant repeatedly being placed in the Modified Activities Program (MAP), a program designed to respond to patients' behavioral problems. Conversely, appellant had made progress in some aspects of his treatment. For example, where, in the past, appellant had engaged in sexual contact with other patients and maintained that there was "nothing wrong with being sexually active with other consenting adults . . . at the STU," he had begun to acknowledge that he does need to follow the rules.

Dr. Gilman diagnosed appellant "as suffering from paraphilia, not otherwise specified [(NOS)], primarily attracted to adolescent and pre-adolescent boys, with a rule-out of pedophilia, sexually attracted to boys, and the diagnosis of a Narcissistic Personality Disorder." He opined that appellant was at high risk to sexually reoffend. He based this opinion on appellant's inability to control his sexual behavior, appellant's angry outbursts with staff, and appellant's history of reoffending, despite legal supervision.

Dr. Zavalis and the TRPC recommended that appellant remain in phase three of the treatment program. The TPRC produced its report and recommendations after it interviewed appellant and consulted his treatment providers, treatment records, and other reports produced over the course of appellant's incarceration and treatment. According to the TRPC, appellant had made some progress in his treatment. He recognized that his sexual behavior was inappropriate, and abstained from sexual intercourse since December, 2008, although he had engaged in some over-the-clothes genital fondling as recently as March, 2009, and kissing and hugging as recently as December, 2009.

Dr. Zavalis noted difficulty in fully evaluating appellant's progress because he spent the majority of the evaluation period on MAP status, where he was taken away from his regular treatment groups, and instead participated in groups designed to address the behavior necessitating the MAP placement. Dr. Zavalis diagnosed appellant with pedophilia (sexually attracted to males), paraphilia NOS (hebephilia, non-exclusive type, sexually attracted to males), depressive disorder NOS, impulse control disorder NOS, and personality disorder NOS (with anti-social features). She said that appellant scored a seven on the Static 99-R test, which is designed to predict the likelihood that a sex offender will reoffend. That score indicated that he was highly likely to reoffend.

Dr. Zavalis also noted that the treatment providers wanted appellant to focus on several areas of concern, including an overly sexualized view of himself as a sexual object, as evidenced by his statement that "[s]ex is what I had to offer, became my self-worth, what I was good at." The TPRC recommended that appellant continue to participate in process groups, take floors, and most importantly, continue to control his behavior, avoid MAP placements, and continue to abstain from sexual activity.

Appellant presented the testimony of Dr. Vivian Shnaidman, a psychiatrist who interviewed him on December 9, 2009 and March 4, 2010, and had experience with him prior to his commitment. She opined that appellant did not meet the criteria for commitment, that appellant was not a sexually violent predator, and that he was unlikely to victimize children or adults. She did not believe that appellant has paraphilia. This opinion was inconsistent with her own prior opinions, that appellant had paraphilia, and that he was highly likely to reoffend. These opinions were offered in support of appellant's commitment while she was employed by the STU in 2003 and 2004. Dr. Shnaidman testified that she changed her opinion after further contact and evaluation of appellant over a period of time.

Appellant also testified, stating that he had abstained from sexual intercourse for fourteen months, and that, while he did kiss another patient, there is no policy against kissing in the STU.

On April 28, 2010, Judge McLaughlin found that

the State has clearly and convincingly proven that . . . [appellant] suffers from a personality disorder. Dr. Gilman diagnosed him with a narcissistic personality disorder, Dr. Zavalis with personality disorder NOS with antisocial traits, and Dr. Shnaidman also diagnosed him with a personality disorder.

I also find that he suffers from paraphilia, as diagnosed by Dr. Gilman and Dr. Canataro, and had previously been diagnosed by Dr. Shnaidman.

The issue boils down to whether or not these personality disorders . . . present[] . . . serious difficulty to [appellant] to control his harmfully, sexually violent behavior, such that it's highly likely that he will reoffend in the reasonably foreseeable future.

There is a dispute between the opinions of Dr. Shnaidman and Dr. Gilman. Dr. Shnaidman finds he's not likely to reoffend because, in her opinion, he no longer suffers from paraphilia. And he has not acted out in a sexual way in the past 14 months.

Dr. Gilman opined that [appellant] continues to be highly likely to reoffend and unable to control his violent sexual behavior. He bas[e]s that upon the history of the current sexual offending by [appellant], his wide range of victims, the fact that he has offended even while under legal supervision, that he has engaged in sexual activity at the STU, which may not qualify as a legal offense, but it shows that knowing it is against the rules he is compelled -- he is compulsed to engage in that sexual activity. And they -- his actuality scores are elevated.

I find that the State has clearly and convincingly proven that [appellant] is highly likely -- presently highly likely to reoffend in the reasonably foreseeable future. And they have proved that clearly and convincingly.

Accordingly, the judge ordered appellant's continued commitment.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.

As defined by statute, 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). A 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 128.

At the commitment 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of appellate review of judgments of civil commitment 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). An appellate court should give the "utmost deference" to the reviewing judge's determination. In re Commitment of J.P., 339 N.J. Super. 443, 359 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 58-59 (1996).

We are satisfied from our review of the record that Judge McLaughlin's finding that appellant continues to be highly likely to reoffend and otherwise meets all criteria for continued SVPA commitment is well supported by the record, and we defer to that finding. We affirm substantially for the reasons stated by Judge McLaughlin in his thorough and well-reasoned oral opinion of April 28, 2010.

Affirmed.