IN THE MATTER OF THE CIVIL COMMITMENT OF H.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6154-11T2

IN THE MATTER OF THE CIVIL COMMITMENT OF H.B.,

SVP-252-02.

_____________________________

November 13, 2012

Argued October 15, 2012 - Decided

Before Judges Parrillo and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-252-02.

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

Erin M. Greene, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

H.B. appeals from an April 2, 2012 order of the Law Division continuing his civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

H.B., born on September 4, 1958, has a longstanding history of sexually violent and other criminal offenses. In February 1989, he pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2a(1), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, for which he was sentenced to five years in prison. The victim was H.B.'s nine-year old daughter, who stated that H.B. sexually assaulted her approximately six times between 1987 and 1988, forcing her to perform fellatio and sexual intercourse. The child also reported that H.B. physically assaulted and threatened her on several other occasions. H.B. has also admitted to forcibly raping three or four other victims, although he has never been charged with those crimes. In addition, while in treatment at the Adult Diagnostic and Treatment Center (ADTC), he reported a history of incestuous relationships dating back to his childhood with various family members, including his sister and adult nieces.

The predicate offense for which H.B. is currently committed occurred on June 14, 1993. H.B. had been living with the victim, M.E., an adult female, for two months. M.E. stated that on the day of the incident, they were having an argument, during which H.B. pulled out a knife. H.B. left the residence and returned later and asked M.E. to come into the bedroom. When she did, he grabbed her arm, and pulled her down onto the bed. He then sat on her chest and forced his penis into her mouth. He also forcefully performed vaginal and anal intercourse with her. On October 26, 1993, he pled guilty to three counts of sexual assault, N.J.S.A. 2C:14-2C(1), and one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4D. He was sentenced to ten years at the ADTC, with five years parole ineligibility. While incarcerated, H.B. received at least six institutional charges including assault on an officer.

At about the time of the expiration of his sentence, the State filed a petition for H.B.'s civil commitment on June 28, 2001. He was temporarily committed to the STU on July 5, 2001. However, he was then transferred to administrative segregation at East Jersey State Prison for 400 days on an institutional charge for assaulting a corrections officer. After returning to the ADTC, he incurred another institutional charge for assault, serving another term in administrative segregation, before again being civilly committed by order of March 17, 2005. Since that commitment, H.B. has been subject to multiple review hearings, in which the court found he satisfied the requirements for continued treatment.

The present appeal arises from H.B.'s most recent review hearing on April 2, 2012, at the close of which the trial court continued his involuntary commitment. At the hearing, H.B. presented no testimony on his behalf. The State, on the other hand, presented the testimony of Dr. Dean De Crisce, a psychiatrist, and Dr. Paul Dudek, a psychologist and member of the STU's Treatment Progress Review Committee (TPRC).

H.B. declined to be interviewed for the evaluations and therefore both of the State's experts relied on a variety of other sources of information, including STU treatment records as well as previous psychiatric and psychological evaluations. Based thereon, Dr. De Crisce found that H.B. suffers from a paraphilia, not otherwise specified. H.B. also had "some sadistic elements to his crimes, choking and beating on his child, as well as performing anal penetration on a rape victim, and then causing her to perform fellatio after that." However, Dr. De Crisce did not make a full diagnosis of antisocial personality disorder because H.B.'s juvenile history is unclear. Nevertheless, Dr. De Crisce opined that H.B. "clearly has displayed over an extended period of time a persistent, maladaptive and pervasive pattern of personality dysfunction, evidenced by repeated assaults, impulsivity, disregard for the welfare of others, repeated behaviors that are the grounds for arrest and lack of remorse."1 Dr. De Crisce further opined that this personality disorder "is seen to significantly contribute to [H.B.'s] high risk for sexual recidivism." H.B. also has a history of cocaine, marijuana, alcohol, and amphetamine abuse.

Although while incarcerated at the ADTC, H.B. had advanced to a level 4 process group and had entered into the therapeutic community as of 1999, his treatment prognosis at the STU has not been promising. According to Dr. De Crisce:

Since his institutionalization at the STU, [H.B.] has been a minimal participant in treatment over close to 10 years. He has completed few modules, no written requirements, and has shown little motivation or initiative in treatment.

[H.B.] has had a number of institutional infractions at the STU, involving assaults on officers in 2002 and reportedly in 2007, and threats to assault an officer in 2008. He has been seen to be irritable, and unpredictable in the past, and mostly resistant, detached and guarded presently. To his credit he has been consistent in his attendance to groups, and offers some helpful feedback, but mostly avoids his own issues. He remains in phase 2 of treatment, and it could be reasonably argued that he is mostly a treatment refuser that has avoided that designation by simply attending group.

Moreover, while H.B. has completed some modules in substance abuse, he has shown no interest in self-help groups and his "poor insight, dysphoric mood, and social detachment strongly suggests [sic] that he is at high risk to return to substance abuse in the community, adding to his risk of sexual recidivism."

In conclusion, Dr. De Crisce reported:

[H.B.] has a number of features which contribute to a high risk of sexual re-offense: multiple victims, re-offense shortly after prior incarceration, antisocial traits, history of violence, impulsivity, poor participation in treatment, substance abuse, unrelated victims, poor problem solving skills, negativistic attitudes, and few positive social influences. The actuarial risk predicted by the Static 99R is seen to significantly underestimate [H.B.'s] risk based on consideration of the aforementioned factors. Furthermore consideration is given to the fact that [H.B.'s] offenses represented high victim impact, and his motivation and ability to comply with supervision requirements would be considered to be superficial at best.

Therefore, it is my opinion with a reasonable degree of medical certainty that [H.B.] suffers from mental abnormalities and a personality disorder which affect his volitional, emotional and intellectual capacity such [that] he is highly likely to sexually reoffend if not kept under the care, control and treatment of a secure facility such as the STU.

The State's other expert, Dr. Dudek, diagnosed H.B. with paraphilia, pedophilia, intermittent explosive disorder, post-traumatic stress disorder, depressive disorder, substance abuse, sexual sadism (provisional), and personality disorder with antisocial and schizoid features. The pedophilia diagnosis was supported by the fact that H.B. molested his nine-year old daughter not just once but multiple times over a period of over six months.

According to Dr. Dudek, H.B. "generally tends to be fairly remote and indifferent," demonstrating "only a minimal level of motivation to actually engage in treatment," and that historically H.B. "has presented as somewhat volatile in terms of his verbal and physical behavior," although his behavior generally has remained stable since around 2009. Dr. Dudek recommended that H.B. remain in phase 2 of treatment, based on the following assessment:

[H.B.'s] trajectory in treatment since his civil commitment in 2002 has been generally flat, unproductive, and with only incremental hints of progress that are displayed inconsistently. Over the course of his treatment he has been impulsive, physically aggressive, self-injurious, suicidal, selectively compliant with psychotropic medications and generally defiant of authority. He has maintained in the past a perception of injustice and maltreatment where he blames others for his problems. . . . Cyclical patterns in adjustment to serious decompensation that have resulted in admission to Ann Klein Forensic Center in the past have been detrimental to his ability to make and sustain forward momentum. This is compounded by his perception that he will never be discharged resulting in only minimal motivation to remain engaged. Much to his credit, however, [H.B.] has not been placed in MAP status in the last year. However, this may be related to a sustained period in inactivity in group settings on his housing unit which may have decreased the frequency and intensity of what he perceives as noxious stimulation.

[H.B.] was able though, to complete the Relapse Prevention 1A module in April 2011. His participation should serve as an indication that he is quite capable of engaged and meaningful participation in group settings. Additionally, he has been able to maintain consistent attendance to group settings and provide appropriate feedback to his peers. . . . Additionally, [H.B.] appears to have done well in his past participation in substance abuse modules

. . . .

[U]ntil the above concerns can be fully address[, H.B.] is an individual who has yet to significantly lower his risk of recidivism to warrant recommendation of discharge.

At the close of evidence, Judge Mulvihill concluded that H.B.'s commitment should continue. In so deciding, the judge credited Dr. De Crisce's testimony about H.B.'s altercations with corrections officers, inactivity in group, refusal to participate in most evaluations, substance abuse, and mental abnormalities that predispose him to sexual violence. The judge also credited Dr. Dudek's testimony, including that H.B. has completed some modules, but as of the last review H.B. was refusing to take additional modules, and that he is minimally motivated to engage in treatment. Judge Mulvihill concluded:

[T]he State has proven by clear and convincing evidence, number one, that [H.B.] has been convicted of sexual violent offenses . . . . Number 2, that [H.B.] suffers from a mental abnormality, personality disorder, paraphilia . . . . That these do not spontaneously remit. Can only be mitigated by way of treatment.

He's still in the introductory phase of treatment. He's attending group, starting recently to participate, but [has] not even gotten to the core phase of treatment, and clear and convincing evidence that, presently, [H.B.] is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care, and treatment. That his personality disorder issues are still strong, although he's been stable for the last year-and-a-half. That his not coming to court, his not submitting to interviews, not taking modules is unfortunate, and plays into his personality disorder.

. . . . [T]he State has proven, by clear and convincing evidence, that [H.B.] has serious difficulty controlling sexual harmful behavior, and that it's highly likely that he will not control his sexually violent behavior, and highly likely he will reoffend if not confined in the STU. And this is a present serious difficulty with

control . . . .

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. "[T]he State must prove that 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." 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 individual 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 individual 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 individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126-32. "[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 Civil 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 Mulvihill in his oral opinion of April 2, 2012.

1 A 2003 evaluation noted that in October 2002, while officers attempted to safely contain H.B., he threw a word processor at one officer, stabbed one with a pen, and bit another. In 2008, H.B. reportedly threatened to kill officers if he needed to do so to protect himself.