IN THE MATTER OF THE CIVIL COMMITMENT OF J.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5857-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.S. SVP-456-07.

April 16, 2012

Argued March 19, 2012 - Decided

 
Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-456-07.

Joan D. Van Pelt, Designated Counsel, argued the cause for appellant J.S. (Joseph E. Krakora, Public Defender, attorney).

Justin L. Conforti, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

J.S. appeals from a June 7, 2011 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

J.S. is a thirty year-old male, who, between December 26, 2001, and January 3, 2002, sexually assaulted a seven-year-old child. He was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and on January 17, 2003, was sentenced to six years at the Adult Diagnostic and Treatment Center (ADTC). While at ADTC, defendant's treatment was unsuccessful. He often rejected treatment and refused to participate in components of the course of treatment. Despite being HIV and Hepatitis B positive, he regularly engaged in unprotected sex with other inmates. In re Civil Commitment of J.S., No. A-6568-06 (App. Div. Dec. 16, 2008) (slip op. at 3).

In 1997, J.S. was adjudicated delinquent of the charge, had he been an adult, of second-degree sexual assault, N.J.S.A. 2C:14-2(b). Id., slip op. at 2. The adjudication resulted from J.S. being discovered lying on top of a three-year old, both with their pants down. J.S. was thereafter sentenced to probation, including three years at the Training School for Boys and Girls, suspended, as well as individual and group therapy for sex offenders. On February 19, 1998, J.S. violated the terms of his probation and was "sentenced to an indeterminate term until his eighteenth birthday."

The State filed for involuntary temporary civil commitment by way of a petition dated April 5, 2007. J.S. was initially committed on August 17, 2007, and subsequent review hearings conducted on June 1, 2009 and June 11, 2010, resulted in continued treatment. J.S. appealed the initial commitment order of August 17, 2007, which we affirmed. Id.

The most recent review hearing, and the subject of this appeal, was conducted on June 1, 2011. At the hearing, the State presented the testimony of Dr. Martha Pek Scott, a psychiatrist, and Dr. Debra Roquet, a clinical psychologist and member of J.S.'s Treatment Progress Review Committee (TPRC).

Scott, in formulating her opinion, met with J.S. for approximately one hour, in addition to reviewing his TPRC report, treatment reports, psychiatric evaluations, clinic certifications, the petition for civil commitment, progress notes, and J.S.'s discovery file. Scott diagnosed J.S. as suffering from non-exclusive pedophilia, attracted to girls; cannabis abuse; rule out dysthymic disorder; and antisocial personality disorder with borderline features. She found that both the pedophilia and antisocial personality disorder diagnoses predisposed defendant for "future acts of sexual violence." She also noted that J.S.'s progress was marginal. He had joined a therapeutic community program but was later placed on treatment refusal status.

Scott reported J.S.'s own account of his sexual offenses: that he was committed to the STU for "[h]aving sex with a minor." When Scott discussed J.S.'s treatment with him, she noted that he was "able to identify some high risk situations[,]" but not corresponding coping mechanisms and skills. She stated that his Static-99R test score placed him at a high-moderate risk of recidivism.

Scott testified that J.S.'s major obstacle "is his impulsiveness; impulsively acting up on his sexual urges . . . ." Although J.S. acknowledged his offenses, he did not show any remorse whatsoever. "He didn't show any empathy for his victims." Scott also said that she "didn't detect a lot of effect of treatment[,]" particularly regarding his lack of awareness of high risk situations and his sex offense cycle.

In Scott's view, J.S.'s pedophilia is pervasive in that it "doesn't spontaneously remit and predisposes him to future acts of sexual violence . . . ." Also relevant to her analysis was that J.S.'s pedophilia manifested itself at a young age, indicating a deeper deviant arousal. He met the criteria for a conduct disorder, which fulfills the requirements for antisocial personality disorder, also predisposing him to future sexual violence.

Scott's report concluded that J.S. "continues to suffer from a mental abnormality that affects his cognitive, emotional and volitional capacity in a manner that results in serious difficulty with controlling his sexually dangerous behavior and predisposes him to commit future acts of sexual violence." She said that in the absence of continued confinement, J.S. would be at high risk to reoffend.

Roquet testified about the TPRC's February 9, 2011 annual review report, which unanimously recommended that J.S. continue in Phase 2 of treatment. She explained that the TPRC had reached that decision because he had "not really made progress in treatment to the point where he is consistently focusing on the core treatment issues." Roquet said J.S.'s engagement in the group was often lacking, and he did not adhere to all the basic treatment recommendations. Roquet said that what stood out in particular was that there was no change in how defendant presented his offense history. It was also unclear whether he had made any progress controlling his sexual urges.

The TPRC report found that J.S. tended "to be inactive and withdrawn in his process group" but "does not demonstrate any problem behaviors . . . ." He took the floor four times over the year and on one of those occasions, offered an explanation for his sexual promiscuity at STU. J.S.'s treatment team theorized that his sexual promiscuity resulted from dependent personality features. The report found that J.S. does not have "command over his sexual assault cycle[,]" does not have a relapse prevention plan, and fails to demonstrate empathy for his victims. The treatment team did not consider defendant a candidate for discharge.

The TPRC report also detailed a clinical interview with J.S., during which he acknowledged having emotionally harmed his victims. He said he was no longer acting out sexually. J.S. understood that his sexual activity impeded his treatment progress and that he needed to show he could control his urges upon discharge. The TPRC report diagnosed J.S. as suffering from non-excusive pedophilia, sexually attracted to females; depressive disorder; antisocial personality disorder; a learning disorder; and borderline intellectual functioning.

When the court placed its opinion on the record on June 7, 2011, the judge stated that there was ample evidence on the record from which "the expert could infer that there was evidence of [c]onduct [d]isorder prior to the age of [f]ifteen." The judge summarized the evidence, including reports by a guidance counselor and probation officer, and a psychological evaluation conducted in 1997. After reviewing the record in depth, the court said:

I'm satisfied that the record, and the documents that were previously submitted, plus the documents submitted at this hearing, clearly support the testimony of the State's experts, which I credit. And based upon my review of the reports, and based on their testimony, I'm satisfied to find that . . . without any question, certainly by clear and convincing evidence - - [J.S.] does, in fact, suffer from mental abnormality in the form of pedophilia and [p]ersonality [d]isorder in the form of [a]ntisocial [p]ersonality [d]isorder, and that these conditions affect him, certainly volitionally, at least, and predispose him to engage in acts of sexual violence, as his record shows. The conditions that he has don't go away, they can only be controlled by treatment, and it's clear that he hasn't progressed far enough to even consider whether or not the treatment has reduced his risk to the point where he can be considered for a conditional discharge.

I'm satisfied that if released he would have serious difficulty controlling his sexually violent behavior, and that he would be highly likely to engage in sexually violent behavior within the reasonably foreseeable future. . . .

So, I think there is no question that he is a sexually violent predator in the meaning of the statute, by clear and convincing evidence, and I will continue his commitment and set a review date of May 24, 2012.

. . . .

And, so, without question, he is a dangerous individual, and as the Supreme Court of New Jersey in Fields[1] and the Supreme Court of the United States in Hendricks[2] clearly consider [sic] the nature of his offending with regard to future potentiality, I will continue his commitment . . . .

Involuntary civil commitment may follow the completion of a sentence 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).

In order to establish grounds for commitment, the State must prove that an individual poses a threat to the health and safety of others because it is likely he will engage in sexually violent acts. The individual must have "serious difficulty in controlling sexually harmful behavior such that it is highly likely that he . . . will not control his . . . sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002).

In rendering its decision, the court must address the committee's "present serious difficulty with control over dangerous sexual behavior[,]" id. at 132-33, and the State must prove by clear and convincing evidence that it is highly likely that the committee will reoffend. Id. at 133-34. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Annual reviews are conducted to determine whether the committee should be released or remain in treatment. N.J.S.A. 30:4-27.35. At those hearings, the State must 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. Release is warranted "when a court is convinced that [the committee] 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.

Our scope of 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 Fields, supra, 77 N.J. at 311); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We search the expert testimony on the record only to "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. See State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 199 (1964)). We therefore affirm substantially for the reasons stated by Judge Freedman in his oral opinion of June 7, 2011.

A

1 State v. Fields, 77 N.J. 282, 311 (1978).

2 Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997).