IN THE MATTER COMMITMENT OF E.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6059-04T26059-04T2

IN THE MATTER OF THE COMMITMENT

OF E.A., SVP-167-01.

________________________________________________________________

 

Argued December 20, 2005 - Decided February 8, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-167-01.

Lisa Marie Albano, Deputy Attorney General, argued the cause for appellant State of New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Albano, on the brief).

John Douard, Assistant Deputy Public Defender, argued the cause of respondent E.A. (Yvonne Smith Segars, Public Defender, attorney; Mr. Douard, of counsel and on the brief).

PER CURIAM

The State appeals from an order conditionally discharging from the Special Treatment Unit (STU) E.A., who was civilly committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. E.A.'s conditional release was to My Brother's Keeper (MBK), a faith-based, residential, secure facility in Camden, which emphasizes treatment and rehabilitative services for substance abusers and homeless individuals. The State argues on appeal that the trial judge's order was not supported by the record and the conditional discharge order constituted a manifestly mistaken exercise of discretion requiring reversal. Subsumed within the argument is the State's contention that MBK is not an appropriate placement for E.A. We reject the State's argument and affirm.

E.A. is now sixty years old. He has been convicted twice, both times for sexual offenses. His first offense occurred in 1985, when E.A. was thirty-nine years old and after he had served twenty-one years in the military. He twice fondled, on the same date, the vagina of a four-year-old neighbor he was babysitting in his home. On each occasion, he placed his hand inside the girl's panties. He pled guilty to criminal sexual contact and was sentenced on September 13, 1985 to a suspended term of 364 days in the county jail and five years probation. Although psychological counseling was ordered as a condition of probation, no sex-offender-specific counseling was ordered.

In 1989, E.A. married a woman with a ten-year-old daughter. In December 1993, E.A. was arrested for ongoing sexual offenses against his step-daughter, which she contended had been occurring on a regular and frequent basis for the previous four years, when she was eleven to fourteen years old. In May 1994, E.A. was indicted for aggravated criminal sexual contact, aggravated sexual assault and endangering the welfare of a child. In March 1995, he pled guilty to second-degree endangering the welfare of a child and on April 28, 1995 was sentenced to ten years imprisonment. The victim did not allege acts of penetration, but reported that E.A. "had been touching her sexually on the breasts and vaginal area, with his hands both under and over her clothing." The conduct occurred in the home while E.A.'s wife was at work or asleep. E.A. had retired from the military and was unemployed during that time. The presentence report recorded E.A.'s version of his sexual contact with his stepdaughter thusly:

I had a very close relationship with her and one thing led to another and we became very intimate, this led to my gratifying myself by hav[ing] contact with her by caressing her breasts and vaginal area. I realized that this was wrong but continued to do so hoping not to get caught.

E.A.'s military record reveals no infractions other than two convictions for driving while intoxicated. He incurred no institutional infractions while incarcerated nor while later confined at the STU. He successfully completed his probationary sentence for his first offense. The State argues, however, that he began his course of offending against his stepdaughter before his five-year probationary term expired, although he was not caught until several years later. E.A. has contended that the conduct with his stepdaughter occurred for only about two years, while she was thirteen and fourteen years old, and did not begin until after his probationary period had expired. The record is not completely clear on this point.

In April 2001, several days before E.A. was scheduled to be released from prison, the Attorney General's Office petitioned the court for his involuntary civil commitment under the SVPA. Two psychiatrists evaluated E.A. and issued clinical certificates. Both diagnosed pedophilia and anxiety disorder NOS. One also diagnosed personality disorder NOS. Both psychiatrists opined that E.A. suffered from a mental abnormality or personality disorder that made him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment. E.A. was temporarily committed, and after a final hearing his commitment was continued. Subsequent review hearings yielded the same result.

The matter came before Judge Freedman for a review hearing, which he conducted on May 17 and 18, 2005, which resulted in the conditional discharge order that is the subject of this appeal. Before discussing the discharge plan that E.A. presented and the other evidence that was considered at that hearing, we comment upon the report of Dr. Rusty Reeves, dated July 24, 2001. Reeves, a psychiatrist, was engaged by the State to evaluate E.A. and render a report and opinion regarding the need for E.A.'s continued commitment as urged by the State at a review at that time.

Reeves examined E.A. on July 24, 2001, and reviewed voluminous documents pertaining to E.A.'s history and prior evaluations. His diagnosis was: (1) pedophilia, sexually attracted to females, non-exclusive type; (2) consider alcohol abuse; and (3) avoidant personality traits. Reeves considered various risk factors indicative of greater or lesser risk in E.A.'s case. He concluded as follows:

If [E.A.] were subject to mandatory lifetime supervision, I would opine that he could be safely released to the community. However, he is not subject to this supervision. Upon his release, he will have, at most, weekly outpatient psychotherapy. No one will make visits to his home or work - and both his offenses occurred in his home. [E.A.] and the community need improved odds. Successful sex offender treatment, and possibly substance abuse treatment, will improve those odds. Until he completes this treatment, [E.A.], as a result of his Pedophilia, is likely to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment.

[Emphasis added.]

Reeves' opinion provided support for the State's request for E.A.'s continued commitment in 2001. By 2005, procedures and protocols changed, and judges were permitted to order parole supervision for life in cases such as this. At the May 2005 hearing, E.A. called Reeves as his witness. Reeves re-examined E.A. on October 15, 2004, and reviewed voluminous materials, including records of E.A.'s activities at the STU. This included treatment progress notes, an annual review report of the Treatment Progress Review Committee (TRPC), monthly and weekly group participation notes, additional evaluation reports rendered since his earlier review and report, and the like. Reeves' current report and his 2001 report were admitted into evidence, and his testimony was consistent with their contents.

In the updated report, and in his testimony, Reeves acknowledged that E.A. made little progress in his sex offender treatment at the STU. He noted, however, that E.A. did attend group sessions regularly, appeared to listen attentively, but spoke infrequently. He also noted that E.A. was not irritable or hostile and was not a sociopath. E.A.'s lack of any other criminal history and lack of antisocial behavior generally was indicative of a lower risk of re-offending. Further, his age, by that time fifty-nine years old, decreased the risk of re-offending. Reeves noted that E.A. had successfully completed at the STU modules other than those that were sex offender specific, such as substance abuse and relapse prevention. Thus, he demonstrated some progress in treatment.

At the 2005 hearing, Reeves adhered to his 2001 opinion. Namely, with adequate supervision, E.A. would not be highly likely to re-offend if released from the STU. The opinion was even stronger because E.A. was now several years older and demonstrated some amenability to treatment at the STU. In his updated report, Reeves explained his conclusion as follows:

[E.A.] is not subject to Community Supervision for Life (CSL). CSL is a provision for sex offenders that is meted by the Court at the time of sentencing. [E.A.] was sentenced before the provision was enacted. At the time of my initial evaluation of [E.A.], New Jersey did not provide parole supervision for SVP detainees who were released from detention and who were not subject to CSL. Given the state's inability at the time to supervise [E.A.] in the community, I recommended that [E.A.] be committed to the STU. However, I also wrote that if New Jersey had provided for lifetime supervision for persons such as [E.A.], I would have recommended that he be released.

New Jersey's courts have since demanded and received parole supervision for SVP detainees such as [E.A.] Therefore, even though [E.A.] has made little progress in treatment these past three years, I recommend he be released and be made subject to parole supervision. Supervision should include outpatient group therapy for sex offenders, random drug screens, and unannounced visits to [E.A.]'s social acquaintances, and work and home sites.

I offer two reasons for my recommendation that [E.A.] be released. Firstly, [E.A.] is approaching 60 years old. As explained above, the recidivism rate for pedophilic sex offenders in their 50's is low. Secondly, [E.A.] complied with his previous probationary supervision following his first sexual offense conviction, and did not re-offend during the five-year period of his probation. [E.A.]'s previous success during probationary supervision suggests [that] he would again comply with supervision, and would again not re-offend during such supervision.

Supervision was effective, and will again likely be effective for [E.A.] because he does not exhibit an antisocial lifestyle, and because he is not an impulsive offender. Aside from his sex offenses themselves, [E.A.]'s behavior demonstrates a capacity to abide by the law. If [E.A.] is subject to the frequent reminder that the law is watching him, he is likely to conform his behavior to the law. In addition, before [E.A.] committed each of his two offenses, he first established a relationship with the caregivers of his victims, and then established a caregiving relationship with the victims themselves. Such relationships take time to establish. The combination of community notification and parole supervision is likely to detect whether [E.A.] is developing a relationship with a young girl. [E.A.]'s parole officer may then either persuade [E.A.] to give up the relationship at threat of re-commitment, or petition straightaway for [E.A.]'s re-commitment.

At the May 2005 hearing, E.A. presented a conditional discharge plan. He proposed release to MBK, where he would participate in classroom education, community meetings and twelve-step group programs. MBK does not presently have on-premises sex-offender-specific therapy, but the plan provided that E.A. would be transported as frequently as directed by the court for sex offender specific treatment. E.A. would be accompanied by an MBK staff member on all transports. The director of MBK testified that E.A. was screened and approved for admission to the MBK program. The witness described that the average stay at MBK for a resident is six to eight months, but the stay could be extended for as long as eighteen to twenty-four months if necessary. The curriculum vitae of a qualified and experienced therapist with sex offender expertise located in Camden, Dr. Amber Samaroo, was submitted to the court for approval as part of the plan. Samaroo agreed to treat E.A.

Conflicting testimony was presented at the hearing regarding the advisability of a conditional discharge pursuant to the proposed plan. The State's witnesses opposed the conditional discharge. The State presented Dr. Allen Levinson, a psychologist, who was on E.A.'s treatment team and his primary facilitator. He explained that E.A. does attend group sessions but does not participate sufficiently. E.A. was placed on treatment probation, which resulted in loss of working privileges, but he still did not participate sufficiently. E.A. was then placed on treatment refusal status, which resulted in the loss of additional privileges. According to Levinson, E.A.'s participation was still inadequate although his participation improved "slightly."

Levinson acknowledged that E.A. has performed adequately in other groups, such as substance abuse, and he acknowledged that E.A.'s anxiety problems might explain why E.A. has difficulty with sex group discussion. Levinson also acknowledged that E.A. complained about his perception that other group members were hostile towards him, which is consistent with E.A.'s avoidant personality disorder diagnosis. Because of those problems, E.A. was recently switched to a different group, and he took the floor on some occasions since then. E.A. recently "open[ed] up" at a treatment team meeting and expressed his understanding of his need to continue sex offender treatment when released.

The State called Dr. Jason Cohen, a psychiatrist. Cohen's two reports were admitted into evidence. In Cohen's view, E.A.'s progress and treatment has been extremely limited. His inadequate participation while confined is a good predictor of future non-participation if released. In Cohen's view, E.A. does best in a structured setting, such as the military, prison, or the STU. Cohen hypothesized that E.A.'s resistance to participation in treatment might be a way of "sabotaging" his own progress to avoid being released because he prefers remaining in a structured environment. Cohen also pointed out that E.A. essentially denies his first offense against the four-year-old neighbor, contending that his hand slipped under the girl's clothing by accident and that he really did not do anything wrong. E.A. minimizes his culpability regarding his second offense with his stepdaughter. Thus, in Cohen's view, E.A. has no incentive to work on issues in therapy because he has not come to the realization that he has a need to do so. Thus, his ability to alleviate risk is impaired. E.A. insists that as long as he stays away from children he will not re-offend, but, according to Cohen, E.A. lacks an understanding of why he cannot be around children.

Cohen expressed his concern that E.A. continues to experience deviant arousal to young girls but denies it. He does not discuss it in treatment and he has not developed techniques to deal with it. E.A. has acknowledged that if he is near a young girl, they get along, and she interests him, he would probably take advantage again. E.A. has shown a lack of empathy for his victims and a lack of remorse, thus increasing the likelihood of re-offense.

Cohen expressed concerns about the discharge plan. He noted there is no sex offender treatment provided at MBK. In his view, the most significant problem is that someone who demonstrated a lack of motivation for treatment in a structured setting would be even less likely to comply with treatment in an unstructured setting such as that proposed in the discharge plan.

Cohen diagnosed E.A. with pedophilia, which predisposes an individual to sexually violent behavior. In Cohen's opinion, E.A. has received insufficient treatment to reduce his risk of re-offending. Pedophilia does not spontaneously remit. Cohen also diagnosed E.A. with a generalized anxiety disorder, which is being treated effectively with Prozac, and alcohol abuse, with sustained institutional remission. He acknowledged that E.A. has done well in treatment for alcohol abuse, which is a positive circumstance lowering his risk of re-offending because alcohol disinhibits. He also diagnosed E.A. with an avoidant personality disorder, which makes the individual less likely to engage in relationships with adult women. However, in Cohen's opinion, this diagnosis makes E.A. more likely to seek out prepubescent girls for relationships.

Cohen acknowledged that age is a factor in reducing risk, but not a significant factor. He also acknowledged that being supervised would reduce the risk of re-offense. Overall, it was Cohen's opinion that E.A. continued to have serious difficulty controlling his urges if not confined and, until he progresses further in treatment at the STU, he continues to be a high risk to re-offend and, even with the conditions proposed in the discharge plan, E.A.'s risk of re-offense would not be reduced below the "highly likely" level for which continued confinement at the STU is required.

With respect to the MBK facility, the State produced Dr. Merrill Main of the STU. He was critical of MBK, pointing out that it is not a very secure environment, although there is some degree of monitoring. The staff members are generally people in recovery, who are unlicensed and not certified as qualified clinicians. He rendered the view that with outpatient, off-premises sex offender treatment, a disconnect will exist between the therapist and the facility's staff. He allowed that MBK could be a suitable discharge facility for an STU resident, but only if the individual were well-motivated and had completed all STU sex offender treatment. E.A. only advanced to phase two of the five phase STU program. In Main's view, the emphasis at MBK on substance abuse treatment might actually undermine the potential for success in sex therapy treatment. He felt the same about the emphasis on spirituality. He felt that the emphasis on these issues might distract the individual into believing that if he stays sober and prays he will be okay, which would make it unnecessary to diligently pursue sex offender therapy.

Main also acknowledged that nothing was being done, due to lack of resources, by the Department of Human Services (DHS) to create halfway houses for individuals proposed for release from the STU, and they try to encourage the utilization of private facilities. He acknowledged that after five years of the STU's existence, only one person had been recommended for release.

The State also produced Dr. Manuel Iser, a psychologist and a member of the TPRC. Iser had previously been E.A.'s group leader. He testified from the TPRC report. He acknowledged that E.A. attends group regularly and offers feedback if prompted, but takes a passive stance and is guarded when taking the floor to discuss his own offenses. Iser acknowledged that E.A.'s anxiety is, at least in part, a factor in his limited participation. He was also of the view that an individual who is not "engaged" in his therapy in a structured environment will be less likely to do so in an outpatient, unstructured setting. Iser was also of the view that E.A.'s progress and treatment was hindered by his denial or minimization of his offenses.

Iser acknowledged, however, that since the most recent TPRC report, E.A. had completed a second relapse prevention module and remained active in substance abuse group. He also acknowledged that before problems developed between E.A. and other group members, E.A. had been more assertive in his group participation.

E.A. also presented the testimony of Dr. Timothy Foley, a psychologist. Foley's report of May 16, 2005 was admitted in evidence. In Foley's view, E.A.'s avoidant personality disorder was an obstacle to his participating in group therapy. Foley emphasized that E.A. is not a predator lurking in the park, and it would be very unlikely that he would approach a stranger. E.A.'s offenses were with victims with whom he had established a relationship. Foley also found E.A.'s age to be a significant risk-reducing factor, as was E.A.'s historical compliance with following rules and orders. Foley diagnosed E.A. with pedophilia and avoidant personality disorder. He opined that the latter diagnosis actually served as a protective device which would inhibit E.A. from entering into relationships with potential victims. Judge Freedman rejected that opinion. Foley also opined that E.A. would not be a high risk even if released without supervision. Judge Freedman also rejected that opinion.

Nevertheless, Foley was of the view that release into a supervised facility would be the most appropriate alternative. He noted that E.A., with his military background, does well in a structured setting and is likely to obey rules and orders. He opined that E.A. would do well in a supervised facility, such as MBK, with which Foley is personally familiar. Foley opined that E.A. would not be highly likely to re-offend and would not have a serious inability to control his behavior.

Based upon this conflicting evidence, Judge Freedman concluded that the circumstances here were rather unique and that E.A. could be conditionally discharged pursuant to his plan with appropriate conditions, and that under those conditions, E.A.'s likelihood of re-offending would be less than highly likely. On June 14, 2005, the judge rendered a thorough oral decision. He ordered a conditional discharge, subject to the following conditions, as set forth in his June 17, 2005 order:

1. [E.A.] must immediately enroll in My Brother's Keeper, an in-patient drug and alcohol program to which he has been accepted, and not to withdraw from that program without Court consent.

2. [E.A.] shall attend out-patient sex offender treatment two times a week with Dr. Amber Samaroo of Haddonfield, N.J., or another out-patient sex offender treatment program acceptable to the Court.

3. [E.A.] shall participate fully in the alcohol treatment program at My Brother's Keeper, and shall attend Alcoholics Anonymous meetings at least three times a week.

4. [E.A.] shall comply with all terms and conditions of parole as if he were subject to Community Supervision for Life.

5. [E.A.] shall be subject to random drug and urine testing.

6. [E.A.] shall be prohibited from using in any way alcohol or other drugs unless prescribed for him personally by a physician.

7. [E.A.] shall have no contact with children under age 18.

Judge Freedman expressed the reasons for his decision, in part, as follows:

In this particular case, as I said, we have an unusual set of circumstances. I'm satisfied to find -- well, I credit the diagnosis. There's no real dispute among any of the experts with regard to the diagnosis. I think Dr. Foley goes too far and I disagree and I do not credit [the] view that [E.A.] would be a low risk if he were just released.

I think that the overwhelming weight of the opinion and the evidence upon which those opinions are based, documentation and so on is that, if released to the community without conditions, [E.A.] without question, well beyond clear and convincing, would be a very high risk with a serious inability to control his behavior.

Dr. Reeves say[s] if you put parole supervision on him, that's enough to control it, and even in his present state of untreatedness so to speak, and I disagree with that.

However, if you add on the kinds of supervision that he's going to get at -- would get at an institution, My Brother's Keeper, I'm of the view that I think that would, in fact, reduce his likelihood below the level required, but it creates a serious question, [E.A.], that My Brother's Keeper is going to keep you there six months or it's going to keep you there a year, and I tell you right now if at the end of six months or nine months or a year they want to boot you out because you've reached the end of their normal program and there is no other situation similar to it and you have no progress at all in treatment so as to decrease your risk by your own effort, you're going to be back here.

But I'm satisfied to credit Dr. Reeves' view to -- to a certain extent. I don't believe that parole -- you know, there was no testimony in this case -- the record doesn't really contain any information as to what parole supervision for life consists of.

I'm familiar of -- there's an onerous set of rules and regulations, but the fact of the matter is that there is not and can't be twenty-four-hour supervision. There is frequent contact. There are lots of rules and regulations you have to comply with, but there's more than ample opportunity particularly if someone gets a job and is out in the world working for someone to -- who has a deviant arousal to engage in deviant sexual contact.

So that I think without -- if the issue were all there was available was parole supervision for life, my opinion would be that it would be insufficient as Dr. Cohen testified and I would credit that view to lower his risk low enough to justify release. I am, however, satisfied that with the conditions that I can impose that supervision as described by [MBK's director] added to the parole supervision for life requirements would be sufficient to reduce [E.A.]'s likelihood below the level required for treatment [sic, confinement?].

I think -- but, of course, it depends on what -- and I think he would be highly likely to follow the rules and regulations that I -- that they give him. The question is -- is it -- is it going to integrate him back into community, and I tell you right now, unless you engage in the treatment, unless you get some benefit out of the treatment, it's not going to. It's not going to.

. . . .

So, for all these reasons, I find that [E.A.] does suffer from a mental abnormality in the form of pedophilia, that he does suffer from a personality disorder as -- as diagnosed by everyone who has testified her[e]. Those two diagnoses are undisputed. I find from his -- from the testimony of Dr. Cohen that he -- he presently does have deviant arousal for young girls, as the doctor described and as I testified -- as I indicated from his testimony, that his lack of antisocial traits or personality which is -- which is a significant driver of deviant arousal in many people where it doesn't exist.

However, his avoidant personality disorder does create problems as the doctor testified to, and I credit his view rather than the view that it's going to protect him. It's certainly less destructive than antisocial personality disorder, but it's not some protection. It also increases the risk somewhat.

I find it affects all three of his areas, cognitive, emotional and volitional, that he would have serious inability to control his behavior if he was released and that he's committable if the -- if the question were let him out the door or keep him here.

However, I'm quantifying by the imposition of conditions. I think he can, in fact, be tried on a release . . . .

Judge Freedman made clear to E.A. the necessity for his active involvement in treatment:

So that I find that with the imposition of these conditions, [E.A.]'s likelihood will be reduced below the point required for commitment, but unless you get some understanding of your offenses, why you committed them, what causes you to commit them, what you can do to prevent yourself from committing them in the future other than saying I have to stay away from kids, I don't see how you're going to get yourself to the point where you can be released into the community to go about, you know, a relatively normal lifestyle subject to the parole board.

So it's really going to be up to you . . . .

. . . .

Because I'll tell you, you know, I don't decide cases on, you know, on my gut feelings, you know, but I have a strong feeling in this case that [E.A.] might just assume stay right where he is because it's not going to be easy to do this, what he's going to do -- what he's going to do, and I'm telling him now, and understand me clearly, [E.A.], unless you get some personal control over -- over how you operate sexually, in my view, you're going to be too dangerous to just be let out into the world. The risk is too high.

So you're going to have to decide what you want to do. You certainly have the capability as I ruled in this case. You have the capability of doing it if you want to. Your intelligence is above the average of a person in this place. You've shown that you have the capability of other kinds of treatment that goes on here, and, you know, you've basically despite your problems lived a relatively successful life until you got caught.

The judge's order directed the STU to make arrangements for the provisions in the conditional discharge order and scheduled a hearing thirty days later "to confirm that the conditions are in place." The judge denied the State's request for a stay, but this court granted a stay. Therefore, the conditional discharge has not occurred and E.A. continues to be confined at the STU.

The SVPA provides for the involuntary civil commitment of an individual if it is found by clear and convincing evidence that the person is a "sexually violent predator in need of civil commitment." In re Commitment of P.C., 349 N.J. Super. 569, 574-75 (App. Div. 2002). New Jersey defines a sexually violent predator as

a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, 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.]

To prove a person is a sexually violent predator it is first necessary to provide proof of past sexually violent behavior. In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The mental capacity abnormality or personality disorder requirement of the statute is required so as to ensure the involuntary commitment of only those persons who have "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." N.J.S.A. 30:4-27.26. To be a person who is "likely to engage in acts of sexual violence" means "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." N.J.S.A. 30:4-27.26.

The ultimate determination of whether an offender will re-offend "is reserved to the sound discretion of the trial court." In re Registrant G.B., 147 N.J. 62, 79 (1996). The scope of our review of a commitment hearing is "extremely narrow," and the "utmost deference" should be afforded the trial court. In re Civil Commitment of V.A. (V.A. I), 357 N.J. Super. 55, 63 (App Div.), certif. denied, 177 N.J. 490 (2003). To reverse, we must find a clear abuse of discretion by the trial court. Ibid.

We are satisfied from our careful review of the record that the conditional discharge of E.A. was not a clear abuse of discretion. The record contains adequate and substantial credible evidence, including expert testimony, from which Judge Freedman was able to conclude that E.A. could be released, with appropriate conditions, without being highly likely to re-offend.

Conditional discharges are controlled by N.J.S.A. 30:4-27.32c:

(1) If the Department of Human Services recommends conditional discharge of the person and the court finds that the person will not be likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community so as to render involuntary commitment as a sexually violent predator unnecessary for that person, the court may order that the person be conditionally discharged in accordance with such plan.

(2) Conditions imposed pursuant to this subsection shall include those recommended by the person's treatment team and developed with the participation of the person and shall be approved by the Department of Human Services. Conditions imposed on the person shall be specific and shall be for the purpose of ensuring that the person participates in necessary treatment and that the person does not represent a risk to public safety. . . .

Although not specifically provided for under the SVPA, the court has the inherent power to conditionally discharge a committee under the SVPA. In re Civil Commitment of E.D., 353 N.J. Super. 450, 453 (App. Div. 2002).

Under the SVPA, to continue to be involuntarily committed it is not required that the offender show an "utter lack of control," but it must be proved by the State that the individual demonstrates "'serious difficulty' with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 128. This means the offender has a "substantial inability to control conduct." Ibid. "[T]he State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." Id. at 133-34.

"If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32. However, "the right must be available to the committed person to demonstrate . . . that he can be released on a conditional discharge with a reasonable likelihood of safety." In re Commitment of J.J.F., 365 N.J. Super. 486, 500 (App. Div), certif. denied, 179 N.J. 373 (2004). A conditional release is permitted if conditions imposed on the committee "substantially reduce the likelihood to a degree that prevents the State from proving by clear and convincing evidence that the individual is highly likely to engage in acts of sexual violence." Id. at 502. The court "must consider the entire circumstances of the individual, including conditions imposed on the individual that affect the safety of the community." Ibid.

In coming to his conclusion, Judge Freedman considered the records from all of E.A.'s proceedings regarding his involuntary civil commitment. See State v. Fields, 77 N.J. 282, 310 (1978). The judge thoroughly and critically analyzed all of the evidence presented.

The judge considered actuarial scores, which predicted E.A. to have a low chance of recidivism, but, in accordance with the overwhelming opinion of the experts, that factor was not deemed a reliable predictor of future risk for a particular individual. The judge considered dynamic risk factors. One was self-control. E.A. has exhibited significant self-control in prison and also showed "good self-control throughout his life, including the times he committed his offenses, lest this factor in [E.A.]'s case is meaningless." The judge considered the potential for alcohol abuse contributing to E.A.'s sex offending behavior, and he noted that E.A. was not offered sex offender treatment during his incarceration. He noted that E.A.'s age was a factor that reduces his risk.

Judge Freedman attributed substantial weight to Dr. Reeves' testimony. He was particularly impressed that Reeves had concluded in 2001, as a witness for the State, that if E.A. was subjected to mandatory supervision for life he could have been released safely into the community at that time, and he would not have been subject to STU commitment in the first instance. Reeves is an experienced and well qualified expert and, upon re-evaluation of E.A. and review of his STU records, several years later, he adhered to the same position. The judge found Reeves' opinions particularly persuasive.

The judge acknowledged that according to Reeves E.A. "doesn't have a clue" regarding his relapse cycle, empathy, and recognizing to whom he is attracted. In 2005, E.A. described his ideal sexual partner to Cohen as a twenty to twenty-five year old female. In October 2004, E.A. described his ideal partner as a sixteen-year old, and in June 2004, he described his ideal partner as being between thirteen and sixteen years old.

Nevertheless, the judge noted that there is no evidence in the record that E.A. has sought out children in the past. He found it significant that with the appropriate level of supervision and other conditions, E.A. would not be highly likely to re-offend. Under the discharge plan, with multiple layers of supervision by way of MBK, parole supervision and community notification, E.A. would constantly be aware that he is being watched and he would not be likely to establish a relationship with a young female. Of course, one of the conditions of his conditional release is to avoid any contact with children under age eighteen. His ongoing treatment would also re-enforce the need to avoid contact with children.

We reject the State's argument that MBK is an inappropriate facility as part of E.A.'s conditional discharge plan. Under the SVPA, a committee should be subjected to "intermediate levels of restraint." E.D., supra, 353 N.J. Super. at 456. This term "envisions a comprehensive treatment program in which the restraints on individual liberties associated with institutional confinement are gradually relaxed, eventually leading to outright release into the community." V.A. I, supra, 357 N.J. Super. at 64. In V.A. I, we ordered DHS to "develop and implement a comprehensive program of intermediate levels of restraints for individuals committed under the SVPA." V.A. I, supra, 357 N.J. Super. at 57.

The purpose of our holding in V.A. I was to "provide the trial judge with a rational and more reliable basis to assess the committee's likelihood of successful reintegration into society." V.A. I, supra, 357 N.J. Super. at 64. In addition, we held in J.J.F. that "the right must be available to the committed person to demonstrate . . . that he can be released on a conditional discharge with a reasonable likelihood of safety." J.J.F., supra, 365 N.J. Super. at 500. Thus, reading V.A. I and J.J.F. together, if the conditional discharge of a committee is a step towards a successful reintegration into society and the committee's likelihood of recidivism is below the required level, the conditional discharge should be approved.

We are satisfied that the discharge plan approved in this case, discharging E.A. into a inpatient program while imposing many other conditions, including sex offender treatment, constitutes a step toward reinstating E.A. into the community in a gradual manner, consistent with V.A. I and J.J.F. Judge Freedman utilized his considerable expertise in hearing SVPA matters to shape the discharge plan to address the particularized needs of E.A. while protecting the safety of the community. E.A. remains under court supervision. Thus, success in the MBK program and compliance with all of the other conditions will not result in unconditional release into the community. Any further de-escalation of conditions will be determined at future hearings, guided by evidence presented and supported by appropriate judicial findings and conclusions. It is contemplated in this case that parole supervision will continue indefinitely for the remainder of E.A.'s life. If E.A. does not successfully complete the MBK program or violates any of the other conditions he will be subject to re-commitment at the STU.

As we have stated, and as the cases make very clear, our standard of review is very limited. The judges hearing SVPA cases on a regular basis acquire substantial expertise in the subject and their findings are entitled to enhanced deference, even beyond that which a reviewing court ordinarily accords to factfinders in general. We may not second guess well-reasoned findings that are based upon substantial credible evidence in the record. Judge Freedman's decision is amply supported by the record, and we have no occasion to disturb it. The stay is vacated and the matter is remanded for further proceedings.

 
Affirmed.

(continued)

(continued)

29

A-6059-04T2

RECORD IMPOUNDED

February 8, 2006