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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5695-04T25695-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.A.H., SVP-104-00.

________________________________________

 

Argued December 7, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-104-00.

Mary T. Foy, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Amy L. Duff, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

D.A.H. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of May 25, 2005, that continues his commitment after an annual review required by N.J.S.A. 30:4-27.35. In accordance with an agreement of the parties, this appeal is to be determined on the record as supplemented by oral argument, but without briefs. At argument D.A.H. contended that the evidence was inadequate to support his continual commitment. D.A.H. also argued that the judge considered expert testimony that was discredited and unreliable. We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of May 25, 2005.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A. 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 132-33; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. Release subject to conditions is appropriate if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

In 1989, D.A.H. plead guilty to two counts of aggravated sexual assault and one count of endangering the welfare of a child. The victims of these crimes were two young boys. He was sentenced to the Adult Diagnostic Treatment Center (ADTC). In 1993, while still confined at ADTC and serving his sentence for the 1989 convictions, D.A.H. plead guilty to another crime committed before his incarceration. As a result, he was convicted of sexual assault. The victim of that crime was a young girl. D.A.H.'s sentence for sexual assault was made concurrent with the sentences he was serving at the ADTC. D.A.H. has acknowledged that he has committed additional sexual crimes against children for which he has not prosecuted. He claims as many as thirteen additional victims.

In 1994, D.A.H. was released from ADTC on parole. He did not comply fully with outpatient treatment, and in 1999, he acknowledged that he was again experiencing urges to molest children. As a result, he was civilly committed to Trenton Psychiatric Hospital.

On August 23, 2000, D.A.H. was committed to the STU pursuant to the SVPA. Prior orders continuing his commitment under the SVPA after annual review hearings were entered on February 23, 2001, August 27, 2001, August 23, 2002 and June 22, 2004. The order of August 23, 2002 was affirmed by this court. In re Civil Commitment of D.A.H., No. A-625-02T2 (App. Div. May 13, 2004) (slip op. at 5).

The hearing that preceded entry of the order that we review on this appeal was held on May 25, 2005. Dr. Marcantonis and Dr. Apolito testified for the State. D.A.H. did not present any testimony and did not submit a plan for conditional release.

Dr. Marcantonis is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU. The TPRC met to consider D.A.H.'s progress on March 16, 2005.

The TPRC interviewed D.A.H., consulted with members of his treatment team, and reviewed prior evaluations of his mental status and his current treatment records. He admitted that he was violating institutional rules by engaging in sexual conduct with another resident of the STU. After meeting with the TPRC, D.A.H. acknowledged that his sexual partner at the STU shared certain characteristics with one of his child victims. During his meeting with the TPRC, D.A.H. told the members of the committee that he needed help and needed to learn about himself.

Dr. Marcantonis completed the TPRC's report on March 17, 2005. The TPRC accepted the recommendation of D.A.H.'s treatment team, i.e., that he remain in phase two of the STU's five-phase program. The TPRC noted that D.A.H. had failed a module known as "arousal reconditioning." Dr. Marcantonis explained the importance of that module for D.A.H.:

It's important because he's had some very long-term deviant arousal toward children. So it's important for him to try to, for lack of a better word, undue that, become more -- change his arousal patterns to not involve children. And he's having a difficult time doing this . . . insight into knowing that he has a problem might be helpful to him in the future.

Dr. Marcantonis also explained the steps essential for D.A.H. to gain sufficient control of his behavior to reduce his highly likely risk of committing another sexually violent crime. The TPRC recommended that D.A.H. do the following: "discuss the rest of his sexual offenses"; "maintain his attendance" at group session; discuss how his present relationship "is impacting his treatment"; "continue to identify specifics of his sexual offense cycle"; develop a "relapse prevention plan"; and take or retake several modules including arousal reconditioning, anger management II, family or origin, relapse prevention II, victim empathy and substance abuse.

Dr. Marcantonis did not view D.A.H.'s development of a relationship with an adult resident of the STU as positive. She explained that if that relationship was designed to combat feelings toward children, that strategy only made sense on the surface and was in itself not healthy. She stressed that failure to comply with the prohibition against sexual conduct at the STU "speaks to poor volitional control."

Dr. Apolito, a psychiatrist, testified about D.A.H.'s diagnoses and risk level. His diagnoses and opinions were based upon his recent assessment of D.A.H. and his review of D.A.H.'s treatment records and prior psychiatric evaluations. When D.A.H. met with Dr. Apolito, he admitted continued fantasies about children and inability to stop his sexual impulses.

Dr. Apolito diagnosed D.A.H. as suffering from pedophilia, A.D.H.D. and a personality disorder. He concluded that D.A.H.'s pedophilia left him at high risk of reoffending and in need of additional treatment before release from the controlled environment of the STU. He explained that impulsivity attributable to A.D.H.D. would contribute to and increase D.A.H.'s "inability to control himself from acting out in a sexually deviant manner, if he were on his own and this condition had not been treated." Dr. Apolito's opinions were given within a reasonable degree of medical certainty.

The evidence presented amply supports Judge Freedman's conclusion. Although Judge Freedman rejected Dr. Apolito's diagnosis of personality disorder, he found that clear and convincing evidence established that D.A.H. suffers from pedophilia and A.D.H.D. that leave him with a serious inability to control his impulses and make him highly likely to recidivate if not confined to the STU. See W.Z., supra, 173 N.J. at 132. We note, as did Judge Freedman, that D.A.H. did not present a plan for conditional release.

We reject D.A.H.'s claim that Judge Freedman erred in relying on Dr. Apolito's testimony. D.A.H.'s argument is that because Judge Freedman rejected the doctor's diagnosis of personality disorder, he was required to discredit the remainder of the doctor's conclusions as unreliable.

We begin by noting that there was no real dispute about D.A.H.'s pedophilia. That condition is one that has been established in numerous proceedings. The real issue in this case was D.A.H.'s present dangerousness and continued need for commitment.

With respect to D.A.H.'s likelihood of recidivism, Judge Freedman's conclusion that D.A.H. was highly likely to recidivate by committing another sexually violent crime was supported by Dr. Apolito's testimony about D.A.H.'s continuing fantasies about children, attributable to his pedophilia, and his impulsivity, attributable to his untreated ADHD. Judge Freedman's finding was also supported by D.A.H.'s acknowledgement of his need for additional help and his admission that his sexual partner at the STU shared certain characteristics of one of his child victims. It was further based upon the assessments of D.A.H.'s treatment team and the TPRC.

Judge Freedman was free to credit some but not all of Dr. Apolito's testimony. Indeed, the judge's careful and critical assessment of the value of the expert's testimony demonstrates that the judge engaged in an independent evaluation of that testimony, in light of the legal criteria, as required by decisional law. See Matter of D.C., 146 N.J. 31, 59 (1996).

 
Affirmed.

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

9

A-5695-04T2

RECORD IMPOUNDED

December 21, 2005