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

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NOT FOR PUBLICATION WITHOUT THE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.B., SVP-235-02.

_________________________________

December 1, 2015

Argued November 16, 2015 - Decided

Before Judges Sabatino and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-235-02.

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

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

PER CURIAM

Appellant, D.B., who is presently confined to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38, seeks to overturn the trial court's June 16, 2014 order continuing his civil commitment under the statute after a review hearing. Finding credible the State's two expert witnesses at the hearing, the trial court concluded that appellant continues to be a sexually violent predator in need of involuntary commitment. We affirm.

We have already canvassed the pertinent details of appellant's predicate sexual offense history, his criminal convictions, and his ensuing civil commitment in our prior unpublished opinions. See In re Commitment of D.A.B., No. A-1334-02 (App. Div. June 8, 2004) ("D.A.B. I"); In re Civil Commitment of D.A.B., No. A-4353-05 (App. Div. November 21, 2006) ("D.A.B. II"). Briefly, in May 1995, appellant pled guilty to portions of two indictments, charging him with aggravated sexual assault, N.J.S.A. 2C:14-2a(1), aggravated assault, N.J.S.A. 2C:14-2a(1), and sexual assault, N.J.S.A. 2C:14-2(b). One of the indictments involved appellant sexually assaulting a nine-year-old-boy on multiple occasions in 1993, forcing his penis into the youth's buttocks and mouth. The other indictment involved appellant pushing an eleven-year-old girl onto a bed, pulling down her pants and underpants, and sexually assaulting her. At the time of these offenses, appellant was a juvenile on probation, after having been previously adjudicated delinquent for sexual offenses he committed with a six-year-old girl in 1992.

Appellant, who had been waived to adult court for these predicate offenses, was sentenced in October 1995 to an aggregate term of ten years, to be served at the Adult Diagnostic and Treatment Center ("ADTC").

In February 2002, shortly before his scheduled release on parole for the predicate offenses, the State filed a petition seeking appellant's civil commitment under the SVPA. Appellant was temporarily committed to the STU in March 2002. He was committed by a final order in September 2002 after an initial hearing.

Appellant's first review hearing occurred in March 2003. In June 2004, this court affirmed the trial court's commitment decision, with appellant stipulating in that appeal "that the State's proofs at that time did establish by clear and convincing evidence that he is a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment[.]" D.A.B. I, supra, slip op. at 1.

Annual review hearings occurred in September 2004 and September 2005. D.B. then appealed subsequent hearings that occurred in 2006. We affirmed the trial court's continued commitment of appellant in our unpublished opinion in November 2006. D.A.B. II, supra, slip op. at 1, 14.

The present appeal arises out of review hearings before the trial court that were conducted over two days in June 2014. The State presented expert testimony from Dr. Indra Cidambi, a psychiatrist, and Dr. Zachary Yeoman, a psychologist and a member of the STU's Treatment Progress Review Committee ("TPRC"). Appellant presented in his defense expert testimony from Dr. Timothy P. Foley, Ph.D, a clinical psychologist. The qualifications of all three experts are undisputed, and their respective written reports were all admitted into evidence without objection.

Dr. Cidambi traced appellant's treatment history at the STU from the time of his admission in 2002. She noted that his attendance and participation in treatment was initially poor but seemingly improved between 2005 and 2006. However, according to Dr. Cidambi, "[i]n 2007 his treators saw [appellant] as being superficially engaged in treatment that was intended to be deceitful and manipulative." Nevertheless, appellant was admitted to the therapeutic community in August 2007, where he "demonstrated some understanding of his sexual assault cycle." During 2007, appellant "received an institutional infraction for veiled threats against a staff member," and asked to leave the therapeutic community in early 2008, ostensibly due to a "poor relationship with one of the clinicians."

In February 2011, appellant's treators noted that appellant's "version of the index offense was still not in congruence with the official version . . ., [that he] acknowledged disregard for all victims' agony while sexually assaulting them and he did not demonstrate a command over his sexual assault cycle." Appellant made some progress later that year, but then appeared to regress in his attendance and participation in 2012.

A subsequent report in November 2013 indicated that appellant had made marginal progress. Even so, in April 2014, it was reported that appellant had "not in any meaningful way address[ed] his sexual compulsivity or his continued arousal to children despite [his] good attendance."

In her expert report, Dr. Cidambi concluded that, although appellant "has made some progress in treatment in the 12 years he has spent at the STU," he has not made "nearly enough [progress] to mitigate his risk of re-offending if released into the community." She elaborated on this conclusion in her report as follows

[Appellant's] progress in treatment to date has been marginal. He has not gained uniform mastery over key sex offender treatment concepts, has not engaged in self-help groups and has shown little empathy for his victims. He still is aroused to minor children . . . . [Appellant] has a number of factors associated with a high risk to re-offend: repeated offenses, offenses after prior sanction, male victims, penetration, early age of offending behavior, sexually offending while on probation for a sexual offense and marginal treatment gains. Additionally his sexual assaults can be of high impact as it can involve threats.

Dr. Cidambi concluded

In my opinion, within a reasonable degree of medical certainty, [appellant] suffers from a mental abnormality and a personality disorder that affects his emotional, volitional, and cognitive capacity such that he is highly likely to sexually re-offend if not confined in a secure facility for control, care, and treatment.

The State's testifying psychologist, Dr. Yeoman, reached a similar assessment. He noted in his expert report that the TPRC had diagnosed appellant with pedophilia, sexual sadism, "Learning Disorder NOS [(Not Otherwise Specified)] (reading, writing, spelling)," "Depressive Disorder NOS," and antisocial personality disorder.

The TPRC noted that appellant's "engagement in treatment continued to be inconsistent" during the "current review period" and that he has "not made enough treatment gains to warrant advancement [in the treatment program]." The TPRC recognized that appellant was "overtly cooperative during his TPRC interview," but the committee expressed the view that "it is apparent that [appellant] continues to struggle with negative emotionality and cooperation with supervision."

Dr. Yeoman's report indicated that appellant scored a five on the Static-99R test, "which places him in the Moderate-High Risk Category for being charged or convicted of another sexual offen[s]e." The TPRC also observed that appellant requires further treatment to address his "understanding of the connection between his anger and the sadistic nature of his sexual offenses."

Dr. Yeoman testified that appellant has an ongoing problem of noncompliance with recommended treatment courses, which stymies his progress. The psychologist also elaborated

I think [appellant] (indiscernible) started very early on with a . . . significant pedophilic arousal that . . . contributed to him being unable to conform his behavior to . . . what was expected of him in the community . . . while under significant legal scrutiny and after receiving sanctions, which speaks, I think, to the intensity of that arousal[.]

Of . . . most concern currently . . . is that deviant arousal as it's highly related to sexual recidivism. The ongoing issues with cooperation for supervision are . . . a major concern, which I think is underlied [sic] by . . . his negative emotionality, both of which are empirical dynamic risk factors or really just recidivism.

I think [appellant's] ongoing approach to his commitment speaks to a rigidity and poor ability to problem solve. So he's . . . kind of stuck to this approach since the beginning despite repeated efforts to help him see that we really want him to comply. . . .

In addition, . . . his acknowledgment that he's had . . . little regard for his victims and their anguish over time is another major concern that has yet to be sufficiently addressed in treatment that continues to contribute to his risk as well.

On the whole, Dr. Yeoman agreed with Dr. Cidambi that appellant remains highly likely to reoffend, and that he continues to qualify for commitment at the STU under the criteria of the statute.

Appellant's expert, Dr. Foley, agreed in part with the State's experts that there is "sufficient data" for the diagnoses of pedophilia and sexual sadism. However, Dr. Foley disagreed that appellant exhibits a condition of antisocial personality disorder. Dr. Foley also recognized that appellant himself was sexually abused as a child, but deemed that history to not be a "strong predictor" of sexual misconduct as an adult. Dr. Foley also cited to certain studies indicating that recidivism rates of juvenile offenders are not as high as for adult offenders, suggesting that the State's experts had overestimated appellant's probability of reoffending. Overall, although Dr. Foley acknowledged appellant's past wrongful behavior, he concluded that appellant has "spent his highest risk years in treatment at the STU," and that his present risk of re-offense is "manageable and less than highly likely."

In his extensive oral opinion issued on June 16, 2014, Judge Philip Freedman adopted the State's experts' conclusions and found less persuasive those of Dr. Foley. The judge observed that appellant's diagnoses have been "relatively consistent" over the years, and have persisted into adulthood. This indicated to the judge that appellant's "deviant arousal continues to exist to the present time," and that his mental health issues "do not just go away." This, coupled with appellant's lack of progress in several areas, "clearly support the [State's] view . . . that [appellant] has not progressed to the point where he has sufficient knowledge to control [his] deviant arousal[.]"

Judge Freedman concluded that there was "clear and convincing evidence" that appellant suffered from pedophilic disorder with "elements of sexual sadism." He further noted that the "large number" of victims and offenses combined with those diagnoses showed appellant is "predisposed" to sexually violent behavior he would have "serious difficulty" controlling should he be released.

On appeal, appellant contends that Judge Freedman erred in his appraisal of the proofs and failed to appreciate sufficiently appellant's reduction of his risk of re-offense. Appellant disputes the State's experts' reliance upon his juvenile wrongdoing as a predictor of sexual re-offense as an adult, and that there is insufficient proof that he has a current difficulty in controlling his sexual urges.

The governing law is clear. An involuntary civil commitment under the SVPA can follow an offender's service of a custodial 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. As defined by the statute, a "mental abnormality" consists of "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. The mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 129; see also In re Commitment of R.F., 217 N.J. 152, 173-74 (2014).

At a commitment hearing, the State has the burden of proving under the SVPA that the offender poses a threat

to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.]

The court must address the offender's present "serious difficulty with control over dangerous sexual behavior." Id. at 132-33. To commit or continue to commit the individual to the STU, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 33-34; see also R.F., supra, 217 N.J. at 173.

As the Supreme Court emphasized in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." R.F., supra, 217 N.J. at 174 (internal citations omitted). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to special deference." Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). On appeal, we must give deference to the judicial findings from the commitment hearings, not only in recognition of the SVPA judge's expertise, but also because the judge has "the 'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Applying these well-settled standards, we affirm the order for appellant's continued commitment at the STU, substantially for the cogent reasons detailed in Judge Freedman's oral opinion. The judge was entitled to find the State's experts' assessment of appellant's risk of re-offense more persuasive than the more optimistic views of Dr. Foley. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961) (recognizing the fact-finder's prerogative to accept the opinions of certain testifying experts and to reject competing opinions of an opposing expert). As the testimony revealed, appellant is only in "Phase 3A" of treatment at the STU, which is the core phase in the facility in which active treatment is undertaken. Although we are mindful, as was Judge Freedman, that appellant's predicate sexual offenses were committed when he was a juvenile and that he is now in his thirties, the gap in time itself does not signify that he has the ability to control his sexual urges as an adult if he were released. There is ample credible evidence in the record to support the judge's findings.

Affirmed.