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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6217-04T26217-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.A.D.

_____________________________________

 

Argued January 11, 2006 - Decided February 22, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

SVP-176-01.

Joan D. Van Pelt, Assistant Public Defender,

argued the cause for appellant (Yvonne Smith

Segars, Public Defender, attorney; Gina Hunt,

Assistant Public Defender, of counsel).

Lisa M. Albano, Deputy Attorney General,

argued the cause for respondent (Peter C.

Harvey, Attorney General, attorney; Ms.

Albano, of counsel.

PER CURIAM

D.A.D. appeals from an order entered on April 25, 2005, continuing his involuntary civil 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. We affirm.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator . . . ." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

D.A.D. was born in September 1966 and is now thirty-nine years old. In 1992, he pled guilty to sexual assault, N.J.S.A. 2C:14-2b, and endangering the welfare of a child, a ten-year-old disabled boy. N.J.S.A. 2C:24-4. He was sentenced to three years in prison. After he was released in 1994 and while on parole, he had sex with another boy, starting when the boy was twelve and ending when he was thirteen. D.A.D. gave the boy money and clothing in return for oral sex. In 1998, he pled guilty to second-degree prostitution, N.J.S.A. 2C:34-1b(7) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to a four-year prison term along with Community Supervision for Life. In the period between D.A.D.'s convictions on these crimes, he was convicted of several other indictable offenses, most involving controlled dangerous substances.

The State petitioned for D.A.D.'s civil commitment in June 2001, and an order of commitment was entered on June 15, 2001. On June 29, 2004, we denied D.A.D.'s appeal from an earlier review hearing. In Matter of the Civil Commitment of D.A.D., SVP-176-01 (A-1364-02T2).

Appellant refused to attend the review hearing on April 25, 2005. Two witnesses testified at the hearing. Dr. Arnaldo Apolito, a psychiatrist, testified regarding his two attempts to interview D.A.D., both of which D.A.D. refused. The doctor explained that his psychiatric evaluation was necessarily based on D.A.D.'s past history and treatment records, and he adopted the opinions set forth in his written report dated April 20, 2005. Dr. Apolito testified that D.A.D. is sexually attracted to boys, and "the diagnosis is pedophilia." He reviewed D.A.D.'s institutional records, including disciplinary actions with respect to D.A.D. having received a package of marijuana on one occasion and pornographic DVD's on another. Dr. Apolito testified that he has "really regressed and became . . . resistant and defiant." As a result, he was placed on Modified Activities Program (MAP) status. It was Dr. Apolito's opinion that D.A.D. was "not ready for [an outpatient program] He's far from it."

In his written report, Dr. Apolito described D.A.D. as "significantly reluctant to see himself as a true sexual offender." The report includes the following diagnosis and opinions:

[D.A.D.] has a confused sexual identi[t]y. He has not accepted the reality of his sexual deviance and he has not worked at gaining command of his offense dynamics and of his deviant assault cycle and has failed to formulate a relapse prevention plan. He [has] scored high on the Actuarial Instruments. His behavior since August, 04 suggests continued criminal and sexually deviant tendencies and regression to a state of resistance to treatment.

Opinion:

I believe, within a reasonable degree of medical certainty, that [D.A.D.] continues to fall under the purview of the SVP, as his risk of sexually re-offending, if released from STU, remains high. I advise that he be retained at STU for additional custody, care and treatment.

With respect to the conclusions reached in that report, Dr. Apolito testified as follows:

Q Doctor, does D.A.D., in your opinion, have insight into his sexually offending behavior or understand why he committed the offenses and does he accept responsibility for his

A No. He has not shown that kind of progress, no.

Q Doctor, do you believe that he suffers from the mental abnormalities which effect him emotionally, cognitively or volitionally so as to make him predisposed to commit sexual violence.

A Yes, I do.

Q Do you believe he has serious difficult[y] controlling his sexual offending behavior?

A Yes, I do.

Q Doctor, how would you characterize his risk to sexually re-offend if not confined to this facility?

A A high risk.

Q And, Doctor, have you reached these conclusions and opinions by a reasonable degree of medical certain[t]y?

A Yes, I have.

Q And, Doctor, if you were to testify in more detail today, would your testimony be the same as your written report?

A Yes, It would be, yes.

Dr. Eleni Marcantonis, a psychologist, testified concerning her preparation of the Treatment Progress Review Committee (TPRC) annual review report dated September 23, 2004. Dr. Marcantonis was a member of the TPRC Committee and in her testimony, she adopted the "opinion, conclusions, and recommendations" contained in her report. She testified that D.A.D. refused to attend the TPRC evaluation, and to her knowledge, he had not attended prior meetings of the Committee since September 15, 2004. She described "treatment notes [that] do not reflect that he's doing very well" in MAP group sessions, which she explained are aimed at addressing the infractions that led to his institutional disciplinary status and not so much to his sexual offenses.

Dr. Marcantonis reported that he "failed relapse prevention and arousal reconditioning," two of the four treatment modules, having "refused . . . to do virtually all the assignments." Whereas his treatment team had reported the previous September that "he sounded like he was beginning to understand the process a little bit more . . . since then he hasn't really been participating . . . ." She "would not characterize that he has made any kind of significant progress here." He had not complied with any of the Committee's prior recommendations. The Committee's evaluation placed D.A.D. in Phase II of the institution's treatment plan; he had not progressed since being placed in that Phase in 2004.

No witnesses were offered on D.A.D.'s behalf, and he obviously did not testify. It is clear that a committed individual cannot, by refusing to meet with evaluators or to appear at proceedings, deprive the State or the court of the opportunity to meet the responsibilities imposed by the SVP Act.

Judge Perretti noted, with respect to the records and other materials that each of the expert witnesses relied upon, that they contained "a great deal of inadmissible hearsay which would only be admitted as background for the opinions and conclusions" of the TPRC committee, as well as Dr. Apolito.

In her oral decision placed on the record on April 25, 2005, Judge Perretti credited the opinions of both Dr. Apolito and the TPRC "that there has been no progress." The judge's opinion included the following conclusion:

I find, based on the clear and convincing evidence in the treatment notes, that the respondent has made no progress and has done nothing to reduce the risk which has previously been found and which I find exists today. This testimony has and the documentary evidence that I received is clear and convincing and I am clearly convinced that the respondent, [D.A.D.], continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorders that affect his volitional, emotional and cognitive capacities so as to predispose him to commit sexually violent acts.

I find he has serious difficulty controlling his sexually violent behavior and as a result, I find that it is highly likely that he will commit sexually violent acts if not retained here in a confined place for further treatment. I'll sign a one-year order.

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (internal quotation marks omitted). A reviewing court must be mindful that the Legislative intent in adopting the Act was "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." Id. at 64 (internal quotation marks omitted).

We affirm the judgment continuing D.A.D.'s involuntary commitment substantially for the reasons expressed by Judge Perretti in her oral opinion on April 25, 2005. The record fully supports her findings and her conclusion that the State met its burden of proving, by clear and convincing evidence, that D.A.D. continues to suffer from a mental abnormality or personality disorder, which causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend. See W.Z., supra, 173 N.J. at 132.

 
Affirmed.

On psychological and actuarial instrument tests, Dr. Apolito reported that D.A.D.'s intellectual level was assessed at the average range by Dr. LoBiondo. Other psychological tests were non-contributory. He scored 8 on the Static 99 and 9 on the MnSOST-R. Both scores place D.A.D. at a "high risk for sexual reoffense."

(continued)

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9

A-6217-04T2

RECORD IMPOUNDED

February 22, 2006