IN THE MATTER OF THE CIVIL COMMITMENT OF E.L.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1335-11T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF E.L.C.,

SVP-301-03.

______________________________

Argued March 19, 2012 Decided April 11, 2012

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-301-03.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Andrew J. Sarrol, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

E.L.C. appeals from an October 11, 2011 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30: 4-27.24 to -27.38. We affirm.

Forty-seven year old E.L.C. was initially committed on February 14, 2003, at the expiration of his ten-year term for the predicate offense of aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and endangering the welfare of a child, N.J.S.A. 2C:24-4. Those offenses involved his sexual penetration of an eight-year old female in 1996, which followed his earlier convictions for sexual assault and endangering the welfare of a child, involving his sexual penetration of a nine-year old female in 1987.

On or before his initial commitment, E.L.C. was diagnosed with pedophilia, females, non-exclusive type; cocaine, heroin, and alcohol dependence in institution remission; and mild mental retardation. Since his initial commitment, E.L.C. has had multiple review hearings, in which the court found he satisfied the requirements for continued commitment. E.L.C. appealed from two of those orders June 5, 2003 and September 14, 2005, and we affirmed on both occasions. In re Civil Commitment of E.L.C., No. A-6136-02(App. Div. Nov. 30, 2004) and In re Civil Commitment of E.L.C., No. A-0688-05(App. Div. Feb. 15, 2006).

The present appeal arises from E.L.C.'s most recent review hearing on October 4, 2011. At the hearing, the State presented two witnesses, Dr. Alberto Goldwaser, a psychiatrist, and Dr. Doreen Stanzione, a psychologist and member of the Treatment Progress Review Committee (TPRC).

Goldwaser interviewed E.L.C. and diagnosed him with pedophilia based upon prepubescent victims, polysubstance dependence, and Personality Disorder NOS, with narcissistic and antisocial features. According to Goldwaser, E.L.C.'s personality disorder coupled with his pedophilia "will encourage him to do whatever he feels like doing, or whatever he has the urge of doing, and substance dependence will, one, embolden him to do whatever he wants or/and at the same [time] decrease [his] self-control and impair his judgment."

E.L.C. expressed depression and suicidal thoughts. He also has a long history of drug abuse, dating back to the age of twelve. E.L.C. reported that he sees his child victims as women not children, and described his sexual attraction to prepubescent girls, "how they look, their skin, . . . [and] their smell . . . ." During the evaluation, he also told Goldwaser that he did not care about the girls, that he did not think what he was doing was wrong or hurtful, and that it was for his self-gratification.

E.L.C. also has not made sufficient progress in treatment. According to Goldwaser, E.L.C. "did not get positive results and did not develop insight, did not improve judgment or did not apply Relapse Prevention skills" at the Adult Diagnostic and Treatment Center (ADTC). Goldwaser specifically noted that "psychiatric treatment . . . was discontinued because it was determined that [E.L.C.] was using health services in an attempt to manipulate the system."

As his treatment notes reflect, E.L.C. recognizes that "he needs to understand his sexual offensive behavior more and needs to develop skills to prevent this from happening again." Although some progress is being made in attending meetings and being involved in a Therapeutic Community (TC), E.L.C. still remains in Phase Three of treatment, as arousal reconditioning, anger management, and family of origin, were all incomplete due to poor attendance. According to Goldwaser, these modules needed to be completed to reduce his risk of re-offending, as does his Sexual History Questionnaire and polygraph exam. Also, E.L.C. has only a "rudimentary knowledge of a deviant cycle" and Relapse Prevention concepts. Significantly, during the evaluation, when Goldwaser began speaking about his lack of progress in treatment, E.L.C. became very upset and terminated the interview. Goldwaser thus concluded that E.L.C.'s treatment is progressing very slowly as he tends to repeatedly focus on his mistreatment as a child rather than on his actions as an adult, seeing himself as the victim instead of trying to understand the painful feelings of his victims. Based on his interview and review of E.L.C.'s records, Goldwaser opined that E.L.C. was highly likely to re-offend.

Dr. Doreen Stanzione, a clinical psychologist, diagnosed E.L.C. with pedophilia, polysubstance dependence, depressive disorder NOS, and a provisional mild mental retardation. She agreed with Goldwaser that E.L.C. failed to complete several modules that were necessary for his release. According to Stanzione, E.L.C.'s transition to TC has been challenging as he has not been making use of its resources or attending the appropriate self-help groups. His current treatment providers noted that E.L.C. focuses on personal victimization and presents himself and his feelings differently to different staff members.

Stanzione recommended that E.L.C. continue to function in Phase 3; that he continue in the Mental Health Wellness Group and engage in a brief set of individual sessions for his depression; enroll in Relationships Skills, Family Origin, and Sexual Education modules; continue with the Substance Abuse Modules; start with Relapse Prevention 2; and complete and present his autobiography to the treaters. According to Stanzione, E.L.C. remains at high risk.

At the close of evidence, Judge Freedman concluded that E.L.C.'s commitment should continue, and set the next review hearing for September 21, 2012. The judge reasoned:

The actuarial tests shows [E.L.C.] to be a relatively low risk,1 but, I think his risk is substantially higher than is show[n] . . . by that actuarial. The . . . testimony of these two experts is . . . basically uncontradictd. I think that the evidence in this record clearly supports the conclusions that they came to. And . . . as I indicated, our Rules of Evidence allow experts of this kind to rely on hearsay if, in fact, they're in . . . the normal course, experts of this type do, in fact, do so and I don't think there's any question that that's the case here.

And they relied on a lot of the documents that I referred to, as well as additional documents. And I think these documents are of a kind that they normally rely on in doing these kinds of opinions and clearly support their opinions. I credit their opinion.

I've looked into the issue of conditional discharge here and I don t think there's any basis to consider it at this time. No real plan was presented, first of all. There's clear indications that [E.L.C.] would not comply with issues of treatment. He was resistant to it. And when he dealt with it at the ADTC he lied to therapists when he was given a chance to do treatment after his offense. He's lied to therapists since. And has really done very little treatment on the issue of his deviant arousal . . . .

And perhaps his problem with his past history, which is clearly justified, he just needs to deal with that, and . . . until he can deal with that, he really can't move [on]. It seems . . . to me to be probably what one of his problems [is]. . . .

In any event, if you utilize the balancing test . . . you find that what [E.L.C.] tends to do is very, very, very dangerous. And that he groomed young girls. He sought out people . . . who gave him access to young girls. He clearly was aroused [by] the children. He engaged in grooming and then engaged in numerous events of sexual abuse with both victims. It was not just . . . one event, as he likes to try to create . . . in his statements. It was multiple events. He admitted that. And the record supports that.

. . . And I don t think there's any question that he's a high risk, within the reasonably foreseeable future. He has a high propensity and therefore, under the balancing test, clearly a dangerous person, continues to be a dangerous person. . . . Pedophilia does not go away. It needs to be controlled by treatment. And, unfortunately, [E.L.C.], despite a lengthy period of treatment has not gotten to the point where has a . . . sufficient grasp on the . . . relapse prevention that he can even be considered for conditional discharge.

So, for all those reasons, I find the State has met its burden and I will continue [E.L.C.]'s commitment and give him a review date of one year.

This appeal follows.

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(b).

[T]he State must prove [a] threat [to the health and safety of others because of the offender's likelihood of 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 over dangerous sexual behavior[,]" 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 Civil 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. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge

Freedman in his oral opinion of October 11, 2011.

1 E.L.C.'s risk category on the Static-99R was low to moderate with a score of three.