IN THE MATTER OF THE CIVIL COMMITMENT OF W.Y.H.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3349-07T23349-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF W.Y.H. SVP 361-04

__________________________________

 

Argued October 27, 2008 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 361-04.

Patrick Madden, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

W.Y.H. appeals from the February 28, 2008 judgment 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.

In 1973, W.Y.H. pled guilty in North Carolina to assault with intent to commit rape and armed robbery of a sixty-nine-year-old woman. In 1995, W.Y.H. was convicted of sexually assaulting and endangering the welfare of his nine-year-old niece.

W.Y.H. was adjudicated a sexually violent predator and committed to the STU on September 23, 2004. He appealed and we affirmed. In re Civil Commitment of W.Y.H., No. A-2028-04T2 (App. Div. March 9, 2007). Judge Perretti held a review hearing on February 28, 2008, and ordered W.Y.H. to remain committed to the STU. This appeal followed.

At the review hearing, the State presented the expert testimony of Evan Feibusch, M.D., a forensic psychiatrist. Dr. Feibusch attempted to evaluate W.Y.H. prior to the hearing, but W.Y.H. refused to participate. W.Y.H. has also refused to engage in any treatment and will not discuss his sex offense issues. He maintains his innocence for both convictions and insists that his appeals will exonerate him.

From Dr. Feibisch's review of numerous documents and historical information, he diagnosed W.Y.H. as suffering from pedophilia and a personality disorder NOS with antisocial traits. The doctor opined in his report that:

The diagnosis of pedophilia means that the individual has experienced recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child over a period of at least 6 months. The person must have acted on the urge or it has caused marked distress or interpersonal difficulty. [W.Y.H.'s] most recent conviction involves sexual activity or attempted sexual activity with his niece when she was between the ages of 8 and 10. This occurred while he was on parole for a prior sex offense. In my opinion, this is indicative of the presence of sexual urges and qualifies [W.Y.H.] for the diagnosis. The presence of Pedophilia predisposes [W.Y.H.] to acts of sexual violence.

. . . .

I have also diagnosed [W.Y.H.] with Personality Disorder, NOS with Antisocial Traits. [W.Y.H.] has a long-standing pattern of problematic behavior characterized by difficulties with perception of himself, interpersonal functioning, control of his impulses, engaging in unlawful behaviors, and lack of remorse.

Dr. Feibusch also noted W.Y.H. had a score of 5 on the Static 99, which placed him in the moderate high risk category as compared to other male sex offenders. However, the doctor opined that treatment has not moderated W.Y.H.'s risk, that he participates in treatment but does not apply treatment principles to himself, that he does not acknowledge committing these significant offenses, and that his approach has been to attempt to return to the community via legal means. The doctor concluded "with a reasonable degree of medical certainty that [W.Y.H.] suffers from a mental abnormality making him highly likely to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment."

The State also presented the testimony of Doreen B. Stanzione, Ed.D., a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC). Dr. Stanzione noted in her report that W.Y.H. has attended all of his process group sessions, but he does not discuss his own issues within the group. W.Y.H. maintains his innocence and states that his appeals preclude him from doing the clinical work. The doctor concluded that W.Y.H. has not appreciably progressed on his own sexual offending and should engage in sex offender treatment on a more meaningful level. She recommended that he complete written assignments, including the Sexual History Questionnaire, Autobiography, and Relapse Prevention Maintenance Contract and enroll in appropriate modules.

Dr. Stanzione testified W.Y.H. is in Phase Two of treatment and had been on treatment refusal (TR) status. The doctor also testified that W.Y.H. has not done anything in treatment and that he did not pass Relapse Prevention 1.

Judge Perretti rendered a decision on the record in which she reviewed the evidence and concluded that the State proved clearly and convincingly that W.Y.H. continues to be a sexually violent predator. The judge found as follows:

The Court finds that [W.Y.H.] suffers from abnormal mental condition and personality disorder, that combined to predispose to commit sexually violent acts.

The Court finds that [W.Y.H.] has serious difficulty controlling his sexually violent behavior as he has demonstrated in the community by re-offending while on parole for a prior sex offense, and while he continues to refuse sex offending specific treatment while in the Institution.

It is clear that it is highly likely that this respondent will commit a sexually violent offense if not continued in commitment for further treatment. The high likelihood level is supported by respondent's refusal to address his sexual offending behavior even that to which he entered a guilty plea.

The judge entered an order on February 28, 2008, continuing W.Y.H.'s civil commitment and ordered that another review hearing occur on February 13, 2009.

W.Y.H. argues that the State failed to clearly and convincingly prove that he is highly likely to re-offend and that he presently suffers from a mental or emotional condition which may cause him to re-offend sexually. We disagree.

Our scope of review of a trial court's decision in a commitment proceeding is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We afford "special deference" to a committing judge's decision. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). We must defer to the committing judge's decision unless "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)).

We are satisfied from our review of the record that there is clear and convincing evidence supporting Judge Perretti's findings that W.Y.H. remains a sexually violent predator requiring civil commitment pursuant to the SVPA. The record also fully supports the judge's findings that W.Y.H. continues to suffer from an abnormal mental condition and personality disorder that predispose him to commit sexually violent acts, and that it is highly likely he will commit a sexually violent offense if not continued in commitment.

Affirmed.

In 2004, W.Y.H. refused to meet with Luis Zeiguer, M.D., the State's expert forensic psychiatrist, to be evaluated for the initial civil commitment hearing. Nevertheless, from Dr. Zeiguer's review of documents, he was able to diagnose W.Y.H. as suffering from pedophilia NOS, paraphilia NOS and a personality disorder NOS with antisocial features. W.Y.H.'s test results also placed him at high risk for re-offending.

Dr. Feibusch found there was not enough information to also diagnose W.Y.H. as suffering from paraphilia NOS.

For example, W.Y.H. was offered the relapse prevention module a number of times and refused it.

W.Y.H. refused to attend the TPRC clinical interview on August 29, 2007.

W.Y.H. was off TR status at the time of the hearing.

(continued)

(continued)

7

3349-07T2

RECORD IMPOUNDED

November 18, 2008