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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

CIVIL COMMITMENT OF D.A.C.,

SVP-16-99.

December 3, 2013

Argued November 12, 2013 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 16-99.

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

Brian Wilson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

D.A.C. appeals from a March 18, 2013 order of the Law Division continuing his involuntary 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.

D.A.C. is currently fifty-five years of age and has been civilly committed to the STU since October 1999. The predicate offenses underlying his civil commitment occurred between 1986 and 1989. In 1986, D.A.C. began sexually assaulting one of his stepdaughters, A.V., who was between nine and ten years old when the first incident occurred. The sexual assaults upon her by D.A.C. continued for the next three years. In 1987, D.A.C. sexually assaulted one of A.V.'s friends, V.E., during a sleepover. The last incident occurred in August 1989, when D.A.C. sexually assaulted his younger stepdaughter, J.V., who was eleven years old at the time.

As a result of these incidents, on March 26, 1990, pursuant to a plea agreement, D.A.C. pled guilty to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). He was sentenced, in accordance with the plea agreement, to the Adult Diagnostic and Treatment Center (ADTC) at Avenel to a term of fifteen years, but was transferred to a prison setting sometime thereafter because he refused to cooperate in the sex offender treatment programs.

Immediately before D.A.C. was scheduled to complete his sentence, the State applied for his commitment to the STU pursuant to the SVPA. After a hearing on this application, D.A.C. was committed to the STU on October 15, 1999. Since then, he has been recommitted on each of several annual review hearings.

The present review was conducted on March 18, 2013. At this hearing, the State presented expert testimony from Dr. Howard Gilman, a psychiatrist, and Dr. Paul Dudek, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC). D.A.C. testified on his own behalf, but presented no other proof.

According to Dr. Gilman, D.A.C. "has been a consistent treatment refuser basically throughout his time at the ADTC and here at the STU[,]" primarily because treatment supposedly conflicts with D.A.C.'s religious beliefs. Dr. Gilman diagnosed D.A.C. with Pedophilia, based on the circumstances surrounding his predicate offenses, and also with multiple substance dependence, alcohol and cocaine, conditions that do not spontaneously remit, and predispose him to sexually reoffend. Dr. Gilman explained that

Pedophilia is a diagnosis in which someone has sexual arousal to prepubescent children. [D.A.C.] has acted on those impulses. And because of that I think that he remains at high risk to do so. It hasn't been mitigated by treatment. Possibly has been mitigated in part by age, but that remains to be seen. And, overall, that illness affects him both cognitively, emotionally and possibly volitionally with regard to acting out again.

The same would be true of the multiple substance dependence. [D.A.C.] has not mitigated that risk at all by treatment. And that one is not necessarily -- well, it probably is mitigated to some degree by age but not -- not as strongly as Pedophilia. And, -- and, again, in my opinion he's at risk to sexually reoffend based upon both of those diagnoses.

The State's other expert, Dr. Dudek, recommended D.A.C. be placed in the initial stage, Phase I, of treatment because he has not participated in any treatment since his placement in civil commitment. Dr. Dudek also diagnosed D.A.C. with Pedophilia, cocaine abuse (in a controlled environment), alcohol abuse (in a controlled environment), and further with personality disorder NOS (with antisocial features), and borderline intellectual functioning. Further, Dr. Dudek opined that:

[T]here's no indication that the deviant arousal that was part of what sustained the offenses has remitted. There's no indication that those thoughts would have changed since then with deviant arousal being a particularly strong indication of higher risk to reoffend.

Also, there's a significant issue of [D.A.C.'s] rejection of supervision which is a factor that's related to his lack of participation in treatment.

However, Dr. Dudek suggested that, based on D.A.C.'s low actuarial score of his offense history, he could quickly be considered for conditional discharge from STU if he were to meaningfully engage in treatment.

At the close of evidence, Judge Mulvihill ordered D.A.C.'s continued involuntary commitment. In so deciding, the judge credited Dr. Gilman's testimony that D.A.C. has refused treatment since his admission to STU in October 1999, that he suffers from Pedophilia and multiple substance dependence (alcohol and cocaine), and that these conditions do not spontaneously remit, but require treatment. The judge also credited Dr. Dudek's testimony, including that D.A.C. is in Phase I of treatment because he refuses treatment, and that he suffers from Pedophilia, multiple substance abuse (alcohol and cocaine), personality disorder NOS with antisocial features, and borderline intellectual functioning.1 Judge Mulvihill reasoned:

So, I find that the State has proven, by clear and convincing evidence, that presently that [D.A.C.] has been convicted of serious sexual violent offenses. Although there's one conviction there's three victims. They were young. That it was over a period of years. That he continues to suffer from a mental abnormality or personality disorder, namely Pedophilia.

Does not spontaneously remit -- remits, but it affects him emotionally, cognitively, volitionally. He's predisposed to sexual violence. Clear and convincing evidence that he, at this time, is still highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment. He's not had any treatment.

That Pedophilia does not spontaneously remit. Can only be mitigated by way of treatment. And, therefore, he is presently still a danger to the community. Everything is basically frozen back to 1999 when he came here because all we know is what we knew then, except what we learned today, which is -- is somewhat hopeful, but he has to be -- he has to submit to evaluations. He has to engage in treatment.

And, therefore, he's still a threat to the health and safety of others because of the high likelihood he will engage in sexually violent acts if he's released into the community. And the State has demonstrated that [D.A.C.] has serious difficulty controlling sexually harmful behavior. It's highly likely he will not control his sexually violent behavior if he's released and will reoffend.

By clear and convincing evidence [there] is a present and serious difficulty with control, and therefore, will be a review date of [March 4, 2014].

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 (emphasis added); 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 In re Commitment of 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 significant amount of 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 March 18, 2013.

1 The judge also found D.A.C.'s testimony to be credible and encouraged him to engage in "treatment because it appears that if he engages in treatment he could be on the fast track to conditional discharge."