IN THE MATTER OF THE CIVIL COMMITMENT OF J.H.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1573-07T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.H.R., SVP-465-07.

________________________

March 28, 2012

Submitted: March 7, 2012 Decided:

Before Judges Axelrad and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-465-07.

Joseph E. Krakora, Public Defender, attorney for appellant J.H.R. (Patrick Madden, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

PER CURIAM

J.H.R. appeals from the November 13, 2007 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.1 We affirm.

Appellant is a forty-nine-year-old convicted serial molester of pre-pubescent children. In l987, appellant was accused of sexual acts against his six-year-old niece, after the child was found with her pants down, but charges were never pressed. On October 12, 1989, appellant pled guilty to one count each of second-degree and fourth-degree sexual assault, N.J.S.A. 2C:14-2b, in connection with an incident occurring in June 1988, involving the same victim and her four-year-old sister. They reported that appellant had entered their room and touched their private parts, causing pain in the areas of contact. The four-year-old stated that appellant stuck his finger in her "hole" and put his hands in her shorts. She then watched him do the same to her sister, who reported that appellant unzipped her pants and digitally penetrated her vaginally and then anally. Appellant refused to stop when requested to do so by the young girls. A medical examination confirmed the molestation. Defendant was sentenced on March 26, 1990 to two concurrent three-year custodial terms.

On December 22, 2003, appellant pled guilty to second-degree sexual assault on T.A., the ten-year-old daughter of a friend of his, who had Down Syndrome. While she was visiting her father in July 2002, appellant took T.A. into the bathroom, pulled down her pants, made her lay on the floor, and penetrated her vaginally with his penis. Appellant admitted to having sexual contact with T.A. by rubbing his penis against her but claimed T.A. approached him and rubbed her buttocks against his penis. He was unsure how his penis became exposed during the encounter. Appellant was sentenced on April l6, 2004 to five years at the Adult Diagnostic and Treatment Center (ADTC). This was appellant's predicate sexually violent offense for civil commitment under the SVPA. See N.J.S.A. 30:4-27.26.

In July 2007, the State filed a petition for civil commitment pursuant to the SVPA. The State presented the testimony of Dr. Brian Friedman, a psychologist, and Dr. Luis Zeiguer, a psychiatrist, at the hearings conducted on October 30 and November 7, 2007. Appellant elected not to present any witnesses or expert testimony on his behalf.

Dr. Friedman performed a clinical interview of appellant on October 22, 2007, and reviewed a variety of medical evaluations and reports, including appellant's treatment records and related documents from ADTC, criminal records and DYFS investigations, and educational reports. Dr. Friedman's most significant diagnosis of appellant was pedophilia, sexually attracted to females, not limited to incest, as well as personality disorder N.O.S. with schizotypal, paranoid, and anti-social features, and mild mental retardation. Dr. Friedman concluded that appellant suffered from a mental abnormality or personality disorder affecting him emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence.

While crediting appellant with having the ability to function in an apparent crime-free manner between his release from his l989 conviction and his 2002 offense, Dr. Friedman noted that the passage of time clearly did not extinguish appellant's arousal toward pre-pubescent girls. The psychologist expressed a concern that appellant "escalated and expanded his [] potential victim pool" from related children to unrelated victims, which "creates a potentially larger pool of victims that need to be safeguarded against [appellant's] deviant sexual urges" and "makes even closer . . . observation necessary."

Dr. Friedman was also concerned by appellant's behavior at the ADTC, during which he exhibited "poor judgment," "aggressive[]" behavior, and no "ability to accurately interpret situations and see them through [to] their logical consequence."

Dr. Friedman scored appellant in the medium-high range of offenders in the Static-99 test. Dr. Friedman noted that appellant denied having committed sexual offenses when he entered the ADTC, when he left, and during their interview. Accordingly, appellant's participation in treatment was minimal and, as emphasized by Dr. Friedman, appellant did not learn "interventions" and "ways" to mitigate his risk to sexually reoffend.

Appellant refused to be interviewed by Dr. Zeiguer on two occasions, July 24 and October 26, 2007; nevertheless, the psychiatrist was able to render an opinion within a reasonable degree of medical certainty based on his review of source documents. His opinion remained unchanged after he read Dr. Friedman's October 2007 report, which included an account of the psychologist's interview with appellant. He rendered a similar diagnosis as Dr. Friedman and also expressed the opinion that appellant's personality disorder predisposed him to commit acts of sexual violence. Based on appellant's criminal history, the psychiatrist concluded that "if [appellant were] given unsupervised access to children, he would molest them."
Dr. Zeiguer opined that appellant would reoffend if he were not confined to a secure facility for treatment, explaining that appellant "has nothing close to insight, guilt, [or] remorse," is "deceitful and manipulative," has "[r]eckless disregard" for the victims, and is "irresponsible."

Judge Philip M. Freedman rendered a comprehensive oral opinion on November l3, 2007, which canvassed the procedural and documentary record, and case law. He also outlined in detail his findings regarding the testimony and opinions of Drs. Friedman and Zeiguer, which he credited. The judge found the State demonstrated "by clear and convincing evidence that [appellant] does suffer from a[n] Axis-l diagnosis, pedophilia, and a personality disorder on Axis-2 that individually and in conjunction with each other [] predispose him to engage in acts of sexual violence." He additionally found that if appellant "were released within the reasonably foreseeable future, he would have serious difficulty controlling this sexually violent behavior so as to be considered highly likely to commit these offenses again."

Regarding the approximate decade during which appellant was not alleged to have committed new sexual offenses, the judge concluded that,

it might show he has some type of self-control, but I don't think we can [] know that. But even assuming that's true [that appellant had self-control and was offense-free], it doesn't change my conclusion.

As noted by the State's experts, the passage of a long period of time, followed by the commission of another sexual offense, "showed [appellant's] arousal to the children continued to exist." Judge Freedman recognized that appellant's crimes against children were "very serious" even though "his offenses were sort of one-shot deals where he was immediately caught." He concluded that appellant had a "high propensity" to commit the offenses, rendering him dangerous and in need of commitment in a secure facility.

Judge Freedman entered an order on the same date committing appellant to the STU, with a one-year review.2 The order also directed the STU to make both a Social Security Supplemental Security Income (SSI) and a Division of Developmental Disabilities (DDD) benefits application for appellant. This appeal ensued.

On appeal, appellant raises the following arguments:

POINT I

THE ATTORNEY GENERAL FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT MEETS THE CRITERIA FOR COMMITMENT UNDER THE SVPA.

POINT II

WHEN THE STATE DETERMINES THAT AN INDIVIDUAL NO LONGER MEETS THE "HIGHLY LIKELY" THRESHOLD IF APPROPRIATE PLACEMENT WERE AVAILABLE, THIS COURT HAS THE AUTHORITY TO ORDER THE STATE TO CREATE AN APPROPRIATE FACILITY IN ORDER TO REMEDY THIS SEVERE VIOLATION OF THE INDIVIDUAL'S FUNDAMENTAL LIBERTIES.

A. FUNDAMENTAL FAIRNESS REQUIRES THE STATE TO PROVIDE APPROPRIATE RESOURCES FOR J.H.R. WHEN SUCH PLACEMENT WOULD RENDER J.H.R. BELOW THE "HIGHLY LIKELY" THRESHOLD REQUIRED FOR INVOLUNTARY CIVIL COMMITMENT.

B. FAILURE TO PROVIDE APPROPRIATE COMMUNITY PLACEMENT VIOLATES THE EQUAL PROTECTION CLAUSES OF BOTH THE FEDERAL AND NEW JERSEY CONSTITUTIONS AND THE AMERICANS WITH DISABILITIES ACT RENDERING J.H.R.'S CONTINUED CONFINEMENT UNCONSTITUTIONAL.

C. THE AMERICANS WITH DISABILITIES ACT REQUIRES THAT THE STATE NOT DISCRIMINATE AGAINST J.H.R. BASED ON HIS PERCEIVED COGNITIVE LIMITATIONS AND OFFER HIM THE BENEFIT OF PUBLIC ACCOMMODATIONS OFFERED TO SIMILARLY SITUATED INDIVIDUALS.

Our Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality. See W.X.C., supra, 204 N.J. at 188. Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See In re Commitment of W.Z., 173 N.J. 109, 125 (2002).

Under the SVPA, an involuntary civil commitment can be ordered following 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. 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." W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32(a).

The range of our appellate review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial court's "determination should be accorded '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) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). "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. 31, 58-59 (1996).

Appellant does not dispute that he met the first two prongs of the test for civil commitment - that he committed a sexually violent offense and suffers from a mental abnormality (pedophilia). He disputes, however, that there was clear and convincing evidence the State met the third prong, namely, that appellant would be "highly likely" to commit a sex offense if not confined for care, custody, and treatment at the STU. Appellant contends that both of the State's experts testified that commitment to the STU would not be necessary if a placement in the community could be found to meet his special needs and thus Judge Freedman erred by failing to require the State to actively pursue an alternative placement. Appellant segues into the argument that he is constitutionally entitled to treatment in a less restrictive setting and the State is obligated to provide it, even though such programs are unavailable.

We disagree. Judge Freedman's findings are well-documented and supported by the record as to all three of the statutory prongs. The uncontroverted testimony of the two experts supports that appellant poses a significant risk to sexually reoffend based on his mental abnormalities, coupled with his continued refusal to acknowledge his offenses and propensities, and ensuing lack of meaningful participation in sex offender treatment. Moreover, as Dr. Friedman emphasized, the fact that appellant failed to acknowledge that being around children is problematic for him is a grave concern, further rendering it necessary to securely commit appellant to protect the community. We further note that appellant presented no expert testimony or release plan supporting conditional discharge for analysis by the court. Thus, Judge Freedman correctly ordered appellant's commitment to the STU based on the record before him.

Appellant's constitutional arguments have no merit. Civil commitment statutes for sexually violent predators have been upheld by the United States Supreme Court and our Supreme Court on constitutional grounds. See, e.g., Kansas v. Crane, 534 U.S. 407, 409, 122 S. Ct. 867, 868, 151 L. Ed. 2d 856, 860 (2002); W.Z., supra, 173 N.J. at 133-34. The SVPA has also been upheld on equal protection grounds. See W.X.C., supra, 204 N.J. at 200-01; J.H.M., supra, 367 N.J. Super. at 606.

Moreover, the Americans with Disabilities Act (ADA) does not apply to this matter. See 42 U.S.C. 12132 (stating the ADA protects a "qualified individual with a disability"). The status of sex offender does not qualify as a disability under the ADA. See 28 C.F.R. 35.104(5)(i) (stating that the "term disability does not include . . . pedophilia . . . or other sexual behavior disorders").

1 We note that appellant's brief was not filed until March 31, 2010.

2 Appellant elected to waive his right to an annual review hearing pending the results of this appeal.