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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5493-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT

OF T.A.C. SVP-432-06.

__________________________

December 29, 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-432-06.

Jo Astrid Glading, 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

T.A.C. appeals from an April 23, 1010 order continuing his civil commitment to the Special Treatment Unit, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

I

T.A.C's sexual offense history began on November 11, 1984, when he sexually molested a twelve-year-old girl who was attending the church where he worked as a janitor. T.A.C. pled guilty to endangering the welfare of a child and was sentenced to three years probation.

While he was on probation for the November 1984 offense, T.A.C. was arrested and charged with second degree sexual assault when C.B. (another twelve year old female) reported to the Essex County Prosecutor's Office that he raped her at the church where he then worked. He pled guilty to second degree sexual assault on September 15, 1986 and was sentenced to five years imprisonment in the Adult Diagnostic and Treatment Center (ADTC).

On February 4, 1999, T.A.C. was arrested on three counts of sexual assault and two counts of endangering the welfare of a child. At the time, he had been living for several months as a boarder in the home of a woman and her five children. The woman reported to the Trenton Police that two of her children informed her they were sexually abused by the defendant. T.A.C. admitted to performing sexual acts on a nine-year-old girl and her thirteen-year-old sister. On March 27, 2000, T.A.C. pled guilty to two counts of sexual assault. He served six and a half years of a ten year sentence at ADTC on that conviction.

On January 19, 2006, the State petitioned for T.A.C.'s involuntary civil commitment under the SVPA. On June 26, 2007, Judge Perretti ordered his civil commitment. T.A.C. appealed the commitment, arguing that the State failed to prove he was a sexually violent predator in need of civil commitment or, alternatively, that he should be enrolled in a conditional discharge program. We affirmed the trial court's decision to civilly commit him. IMO Civil Commitment of T.A.C., No. A-5770-05 (App. Div. July 13, 2007).

At the next review hearing, on February 21, 2008, T.A.C. stipulated that the State's proofs provided clear and convincing evidence that he was a sexually violent predator in need of involuntary civil commitment. At the May 1, 2009 review hearing, T.A.C. again stipulated that the State had adequately proven he was in need of involuntary civil commitment. Judge Freedman ordered his continued commitment but also ordered that T.A.C. be enrolled in the Relapse Prevention 2, Personal Victimization, and Victim Empathy therapeutic modules. He further ordered that the Special Treatment Unit (STU) assist the defendant in exploring discharge options and consider T.A.C. for placement in the Therapeutic Community if appropriate.

The present appeal stems from T.A.C.'s next hearing, on April 23, 2010. At that hearing, the State presented the following evidence. Dr. Alberto M. Goldwaser, a psychiatrist, evaluated T.A.C. on April 12, 2010. In addition to this in-person interview, Dr. Goldwaser considered various psychiatric and psychological reports dating back to 1986, T.A.C.'s criminal justice records, and his STU data sheet and treatment plans. He testified that those are the normal sources of information which professionals in his field review in making a diagnostic report.

T.A.C. reported abuse of alcohol and cocaine to Dr. Goldwaser, indicating that he drank before committing his criminal offenses. In the past, he reported beginning to consume alcohol at the age of thirteen, and drinking daily by the age of nineteen. T.A.C. reported that he stopped drinking in 1997. He also indicated that he began smoking marijuana daily at the age of seventeen. At the age of twenty five, he began to abuse pills and inhaled two to eight highballs of cocaine daily. When he reached thirty five, he was smoking crack cocaine three times weekly in addition to inhaling cocaine, and was involved in illegal activities to fund his drug habit.

Dr. Goldwaser concluded that T.A.C. suffers from pedophilia (female, not exclusive), poly-substance dependence in a controlled environment, and antisocial personality disorder. That diagnosis means that, over a period of more than six months, T.A.C. experiences recurrent and intense sexual urges, fantasies and behavior that involves pre-pubescent and adolescent girls. T.A.C. has a history of multiple substance abuse that has interfered with his ability to function in activities of daily living. Finally, he has a stable, long-term pattern of perceiving himself, others and events in a way that "deviates markedly from the expectations of the individual's social milieu." T.A.C. also has inappropriate emotional and behavioral responses to his surroundings based on his difficulty controlling his impulses.

Dr. Goldwaser described T.A.C. as evidencing "total disregard for the wellbeing of his young victims, or remorse afterward. . . . [H]e acted on his sexual deviant behavior despite being aware that it hurt his young victims physically and psychologically." Dr. Goldwaser noted that T.A.C. has a history (before and after institutionalization) of lacking respect for others, manipulating, deceiving and exploiting people to get what he wants, and severe difficulty establishing normal relationships.1 His substance abuse problem makes him further vulnerable to "significant regressions, impaired self-control, and upsurges in deviant sexual behavior."

Dr. Goldwaser also considered T.A.C.'s history of sexual offenses, which included convictions involving four female victims ranging from eight to twelve years of age. T.A.C. also admitted to sexually assaulting three other minor victims aged eight to thirteen, for which he was never charged. T.A.C. carefully chose, planned and groomed his victims, and was undeterred from his sexually deviant behavior despite prolonged incarceration and legal supervision. T.A.C. sought out opportunities to be near potential victims, such as renting a room in a residence with children, whom he victimized. Furthermore, during his in-person evaluation with Dr. Goldwaser, T.A.C. did not express any remorse for his deviant behaviors or any sense that he was working hard to avoid reoffending, but rather seemed to be "bragging" about his actions. Dr. Goldwaser also testified that, although T.A.C. admitted his past offenses, he gave different details to Dr. Goldwaser than he did to previous examiners.

During his evaluation of T.A.C., Dr. Goldwaser administered two polygraph exams, one involving his sexual history and the other involving his current arousal, in order to determine if T.A.C. was experiencing problematic sexual urges. Dr. Goldwaser testified that there was no indication of untruthfulness in either of those exams, but that this alone is not evidence that T.A.C. was being honest. He testified that a pathological liar, such as T.A.C., would have different physiological reactions to deception than a normal individual, and that a polygraph might therefore not register the typical signs of lying.

Dr. Goldwaser also noted that T.A.C. "is still quite reluctant to openly explore different possibilities for his sexually offending behavior." His therapists believe he has no remorse or victim empathy, and he admits freely that he continues to lie and manipulate those around him. "[A]t this point, he has very little motivation to change his behaviors." T.A.C. is not, Dr. Goldwaser testified, submitting to his treatment; instead, he "tried to - - to run from it."

Dr. Goldwaser reported that "[k]ey elements of sex-offender specific treatment include work on taking responsibility for behaviors, developing empathy for victims, and developing skills to prevent re-offending." He found that T.A.C. had achieved none of these goals, and that "[h]is risk of re-offending has not been, thus far, reduced through treatment."

Dr. Goldwaser scored T.A.C. as a 4 on the Static-99, an actuarial measure of relative risk for sexual offense recidivism, which placed him at a moderate to high risk of reoffending. However, Dr. Goldwaser opined based on his entire evaluation of T.A.C. that he had a high risk of reoffending if released.

The State also presented Dr. Jamie R. Canataro, an expert in the field of psychology. She worked as a member of the STU Treatment Progress Review Committee (TPRC) that conducted T.A.C.'s annual review, and she authored the committee's recommendation report. The TPRC based its recommendations upon information in T.A.C's STU file, reports by his treatment team, and a clinical interview on March 10, 2010.

According to Dr. Canataro and the TPRC, T.A.C. suffers from pedophila (non-exclusive, female), polysubstance dependence, borderline intellectual functioning, and personality disorder with antisocial features. The strength of his pedophilic arousal is evidenced by the fact that he continued to offend while on probation, planned elaborate ruses to come into contact with his victims2, and "engaged in goal directed behavior" such as living in a home where several children resided. T.A.C.'s chronic use (more than twelve months) of multiple substances despite the negative impact such use had on his life supported the diagnosis of polysubstance dependency. Intelligence testing resulted in scores indicating borderline mental retardation. The diagnosis of antisocial personality disorder is supported by his repeated failure to conform to social norms, criminal behavior, habitual lying and manipulative interpersonal style. "[T.A.C.] has engaged in a long-standing antisocial lifestyle since he was a juvenile," and his dishonesty resulted in his removal from the Therapeutic Community.

Dr. Canataro noted that T.A.C. is not receptive to feedback given by group members regarding his lying and pattern of seeking out potential victims. She also noted that he offered contradictory information about his arousal patterns. The TPRC scored T.A.C. as a 3 on the Static-99, which placed him at a low to moderate risk of reoffending. One point was deducted from his initial score of 4 because his age, forty nine, was determined to reduce the risk of recidivism. Despite this lower risk categorization, the TPRC recommended that T.A.C. remain in treatment at Phase 2, the rapport-building phase of treatment. The goal of Phase 2 is for offenders to develop internal motivation to address his mental illnesses before advancing to the next stage of treatment.

In an oral opinion placed on the record on April 23, 1010, Judge McLaughlin concluded that T.A.C. should remain committed to the STU. The judge considered T.A.C.'s criminal history of sex offenses, as well as the opinions of Dr. Goldwaser and Dr. Canataro that T.A.C. suffers from exclusive, female pedophilia; polysubstance dependence in a controlled environment (including marijuana, alcohol, and cocaine); and anti-social personality disorder. He also credited the experts' testimony that T.A.C. does not perform well in treatment and has tendencies to be a pathological liar. Judge McLaughlin credited Dr. Canataro's testimony that although T.A.C. has participated in twenty two "floors," his level of involvement was superficial and he continues to need more work on his core treatment.

Although the two experts reached slightly different results on the Static-99 test, Judge McLaughlin accepted Dr. Goldwaser's testimony that his clinical evaluation of T.A.C. led to the conclusion that the defendant's impulsivity, pedophilia, general pattern of deceit, substance abuse history, and lack of substantive treatment elevated his risk category to high risk. Judge McLaughlin concluded that the State satisfied its burden to provide clear and convincing evidence that T.A.C. has been convicted of a sexually violent offense, that he suffers from abnormality or personality disorder, and that he will reoffend in the reasonably foreseeable future. The judge's conclusion was primarily "based on the unrefuted opinion of Dr. Goldwaser, based upon his analysis of [T.A.C.'s] pathology and his lack of response to treatment." Therefore, Judge McLaughlin ordered T.A.C.'s continued commitment to the STU.

II

A criminal offender may be involuntarily committed 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. The State bears the burden to prove a threat to the health and safety of others because of the likelihood the offender will engage in sexually violent behavior "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 the offender's "present serious difficulty with control," and the State must establish that it is highly likely the offender will reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Based on our review of the record, we conclude that the State has met its burden in this case.

Our review of Judge McLaughlin's decision is "extremely narrow," and we must defer to his decision unless the record shows an abuse of discretion. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In the Matter of the Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We find no abuse of discretion here. His decision is supported by substantial credible evidence, including testimony by two expert witnesses who agreed on their diagnosis of T.A.C. as a pedophile, polysubstance abuser, and having a personality disorder. T.A.C. minimized his offenses, offered conflicting information to different interviewers about the crimes he had committed, and appeared to lie about his current level of pedophilic arousal. He has not made sufficient progress in treatment to reduce the high likelihood that he will reoffend if released. The record amply supports Judge McLaughlin's decision to continue T.A.C.'s commitment under SVPA.

Affirmed.

1 For example, to elicit sympathy from his fellow therapy group members, T.A.C. pretended to have a brother who died during the September 11th terror attacks. Dr. Goldwaser noted in his testimony that pathological lying of the type in which T.A.C. engages is typical of antisocial personalities.

2 For example, T.A.C. contrived to place an "Out of Order" sign on the bathroom door in the church where he worked as a janitor in order to have a secluded place to bring his victim.