IN THE MATTER OF THE CIVIL COMMITMENT OF F.X.V.

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NOT FOR PUBLICATION WITHOUT THE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 F.X.V.

SVP-130-00.

_________________________________

November 6, 2013

Submitted October 16, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-130-00.

Joseph E. Krakora, Public Defender, attorney for appellant F.X.V. (Nancy C. Ferro, Designated Counsel, on the brief).

John J. Hoffman, Acting 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

F.X.V. appeals from the June 28, 2010 judgment that ordered his involuntary 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. F.X.V. contends that the State failed to prove by clear and convincing evidence that he requires involuntary commitment as a sexually violent predator and that he is entitled to appropriate community placement. We reject F.X.V.'s contentions and affirm substantially for the reasons expressed by Judge Philip M. Freedman in his comprehensive oral opinion.

In June 2009 we decided F.X.V.'s appeal from the previous order continuing his involuntary commitment to the STU. In Re Civil Commitment of F.X.V., Docket No. A-3467-08 (App. Div. June 19, 2009). We incorporate here F.X.V.'s extensive history of sexual offenses related in that opinion. Id., (slip op. at 1-2). We note that, although an admitted child molester of many children over many years, including his two siblings, his most recent conviction occurred in 1992 when F.X.V. was fifty-eight years old and sexually assaulted an adult blind woman he knew. At the time of the 1992 assault, F.X.V. was disabled as a result of several prior accidents. In his youth he lost an eye and fractured his skull, suffering a permanent injury to his brain. He also lost a leg in a train accident as an adult. F.X.V. has a history of substance abuse and mental illness, including a long-term psychiatric hospitalization.

F.X.V. was first committed to the STU pursuant to the SVPA in 2001. We affirmed F.X.V.'s continued involuntary commitment in our 2009 opinion, modifying the judgment to delete the requirement that "the STU shall continue to search for an appropriate transitional placement for F.X.V." Id., (slip op. at 1). We explained why that provision was inappropriate:

As to the STU being ordered to continue its search for appropriate transitional placement, we find that to be premature with respect to F.X.V. The issue raised by him, that the court should order the State to find and fund an appropriate place for his discharge, is (1) unwarranted because F.X.V. has been found to still be highly likely to re-offend and, therefore, not eligible for release, and (2) beyond our authority. The STU is not recommending conditional discharge because F.X.V. meets the statutory criteria for such, but rather is simply attempting to transfer him to another facility because he has received the "maximum benefit of treatment" at the STU. All parties have agreed such a facility does not exist.

[Id., (slip op. at 10)]

In June 2010 the State presented the testimony of a psychiatrist, Dr. Michael Kunz, M.D. and a psychologist, Rosemarie Stewart, Psy.D. Dr. Kunz interviewed F.X.V., reviewed his entire file, and diagnosed him with pedophilia and other sexual and mental health disorders, as well as substance abuse disorders. Dr. Kunz testified that the combination of these disorders rendered F.X.V. at a high risk to sexually reoffend. Dr. Kunz also opined that F.X.V. would benefit from further treatment within the STU. Dr. Kunz further stated that F.X.V. could not safely be discharged into a community-based treatment program, although a facility with around-the-clock supervision might be appropriate.

Dr. Stewart, a member of the STU's Treatment Progress Review Committee (TPRC), also interviewed F.X.V. and reviewed his file. She diagnosed him similarly to Dr. Kunz and reported that it was the unanimous view of the three-member TPRC and the STU treatment team that F.X.V. remain in core treatment partly because no appropriate discharge location with sufficient twenty-four hour a day supervision could be found. Dr. Stewart testified that F.X.V. continues to need a structured and supervised environment.

Dr. Stewart reported that F.X.V. is engaged in treatment and continues to progress slowly. She testified that his frontal lobe damage makes it difficult for him to control his impulsivity and that he continues to experience rape fantasies.

F.X.V. called the following witnesses: 1) a psychologist, Jeffrey B. Allen, Ph.D., 2) the clinical director of STU, Merrill Main, Ph.D., 3) an STU social worker, Samantha Ames, and 4) Ann Portas, L.C.S.W., Deputy Director of the Division of Mental Health Advocacy. Dr. Main testified that F.X.V.'s treatment gains are limited because of his frontal lobe damage. He said that F.X.V. needed full-time supervision due to his high likelihood of reoffending, but did not require the level of barbed-wire professional security provided by the STU. Dr. Main testified that the STU had reached out to all potential discharge resources with no success. Ms. Ames confirmed the calls made to outside facilities. Ms. Portas testified that due to his disabilities, F.X.V. could access various government subsidies and services while living on his own in a community placement.

After a thorough review of the record, Judge Freedman found by clear and convincing evidence that all of the requisite criteria were present pursuant to the SVPA to continue F.X.V.'s commitment to the STU.

F.X.V. raises the following issues on appeal:

POINT I: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT IS A SEXUALLY VIOLENT PREDATOR AND THAT THE RISK OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY CONTINUED CIVIL COMMITMENT UNDER THE CURRENT TREATMENT PLAN.

POINT II: RESPONDENT AND OTHERS SIMILARLY SITUATED ARE ENTITLED TO APPROPRIATE COMMUNITY PLACEMENT TO BE PROVIDED BY THE STATE TO ENSURE THAT THEIR LIBERTY INTERESTS ARE NOT VIOLATED.

The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators." In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (2009) (citing N.J.S.A. 30:4-27.25), cert. denied, J.M.B. v. New Jersey, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). Thus, the SVPA provides for the involuntary commitment of any person the court deems to be a sexually violent predator within the meaning of the statute. N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as:

[A] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and 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.]

"The phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26).

The State must prove by clear and convincing evidence that the individual poses a threat to the health and safety of others because of a "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 the "reasonably foreseeable future." Id. at 132; see also In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33 (emphasis in original). "Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" J.M.B., supra, 197 N.J. at 571 (alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

Appellate review of a commitment under the SVPA is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003), certif. denied, 177 N.J. 490 (2003). We have "recognized that 'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div. 2007) (certif. denied, 192 N.J. 296 (2007) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination will be subject to modification on appeal "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630 (citing J.M.B., supra, 395 N.J. Super. at 90). Accordingly, a reviewing court must "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Id. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).

After reviewing the testimony and documents in detail, Judge Freedman found by clear and convincing evidence that F.X.V. suffers from a mental abnormality and "that if he were released now, he would have serious difficulty in controlling his sexually violent behavior to such a degree that he would be highly likely to engage in sexual[ly] violent behavior, or commit sexually violent offenses within the reasonably foreseeable future[.]" Judge Freedman also found that F.X.V. would continue to benefit from treatment within the STU and that no safe discharge plan, affording the constant supervision F.X.V. requires, could be devised given the available placements. Judge Freedman's findings were well-supported by the record before him.

Affirmed.