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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6693-04T26693-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.X.B.

__________________________________

 

Argued January 11, 2006 - Decided March 2, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

SVP-61-00.

John W. Douard, Assistant Deputy Public

Defender, argued the cause for appellant

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Douard, of counsel).

Lisa Marie Albano, Deputy Attorney General,

argued the cause for respondent (Peter C.

Harvey, Attorney General, attorney; Ms.

Albano, of counsel).

PER CURIAM

D.X.B. appeals from an order entered on August 12, 2005, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (the Act), N.J.S.A. 30:4-27.24 to -27.38. D.X.B. contends that he should have been conditionally discharged to a rehabilitation facility in Camden, known as My Brother's Keeper. We affirm.

D.X.B. was temporarily committed on March 21, 2000. Thereafter, review hearings were held on March 20, 2001, June 25, 2002, and January 16, 2004. After each of those reviews, D.X.B. was found to be a sexually violent predator still requiring commitment under the Act. In our prior opinion of December 17, 2004, affirming the order of involuntary commitment dated January 16, 2004, we set forth D.X.B.'s criminal history in detail. In re Civil Commitment of D.X.B. SVP #61-00, No. A-2979-03T2 (App. Div. Dec. 17, 2004). The predicate offense for D.X.B.'s commitment was his 1988 conviction for aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (6), for which he was sentenced to a twenty-year state prison term with seven and one-half years of parole ineligibility. He was paroled in 1996, and in 1997, while still on parole, D.X.B. was found to have committed an act of lewdness and returned to prison on a parole violation. He also was tried in North Carolina on charges of sexual assault and rape. His conviction was overturned on appeal, and he was acquitted of those charges on retrial. He was convicted only under a North Carolina statute criminalizing certain sexual acts, irrespective of consent. See N.C. Gen. Stat. 14-177; State v. Poe, 252 S.E.2d 843, 844 (N.C. App. 1979), appeal dismissed, 259 S.E.2d 304 (1979), appeal dismissed, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980). Nonetheless, D.X.B. has previously admitted forcing the adult female victim in that case, who was six months' pregnant, to perform fellatio.

We will not repeat here a detailed review of the evidence that was before us in 2004. There we agreed that "D.X.B. suffers from a mental abnormality and a personality disorder," D.X.B., supra, slip. op. at 14, having been diagnosed with paraphilia N.O.S. and personality disorder N.O.S., and that the evidence supported Judge Perretti's finding at that time that he was predisposed to commit acts of sexual violence. D.X.B., supra, slip. op. at 12-13. We noted then that "[a]lthough D.X.B.'s treatment is progressing, he is only at the beginning of phase three of his treatment[, whereas a] sexually violent predator is not considered for conditional discharge until phase five." D.X.B., supra, slip. op. at 13. We noted a pattern in D.X.B.'s criminal sexual conduct, in which he has placed blame on someone else the victim in the violent sexual assault for making him angry, and a girlfriend in the lewdness case for daring him to act as he did. Slip op. at 14.

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).]

Two witnesses initially testified on behalf of the State at D.X.B.'s review hearing on August 9, 2005. Dr. Thomas Schattner, a psychologist and a member of D.X.B.'s Treatment Progress Review Committee (TPRC), testified concerning preparation of the Committee's annual review report dated February 2, 2005. D.X.B. had declined to meet with the Committee because he sought a polygraph test before the meeting, although his treatment team advised him to attend. A review of the details of D.X.B.'s commitment revealed that he completed multiple treatment units, but it also revealed limitations in D.X.B.'s recognition of his own responsibility for plainly violent conduct. The Committee therefore recommended that D.X.B. remain in Phase Three of the program.

In answer to the question whether D.X.B.'s version of his sex offense history has been internally consistent and consistent with the history on record, Dr. Schattner testified:

There are there have been inconsistencies throughout the record. When we reviewed him, his index offense was consistent except for the threat. He's both admitted to and recanted the threat at different times. His prior offenses he has not taken full responsibility, but again the TPRC thought that he could hash that out in treatment. He there has been questions about that that have not been addressed, unfortunately.

As to whether D.X.B. has expressed remorse for what he did to his victims, Dr. Schattner answered, "Yes, there is some element of remorse. He has made statements. The inconsistent manner in which he presents his version of the offenses would bring that into question and that's something I would like to see addressed in treatment." While D.X.B. has some "basic understanding of remorse," his experience of remorse is "limited."

The psychologist agreed that D.X.B. is "a productive member of the STU community . . . . [and] is doing very well in this monitored, structured environment . . . ." Dr. Schattner addressed D.X.B.'s good disciplinary record in the STU, but conditioned his answer:

Again, there's questions as to the amount of self control that's being employed which seems to be little and the amount of external control seems to be much more which according to his treatment providers from this last review, I was unable to interview him for this review, he is he's relying too much on external controls.

In cross-examination, the psychologist offered this opinion with respect to D.X.B.'s readiness for release:

A I don't think he's far enough along in treatment to be released.

Q Into a structured supervised environment?

A Not without not not into an out-patient or an institution that does not provide intense sex offender treatment like the STU. He's still in the core phase, working on mitigation [of] his risk. And I even had as I said before, I even had questions about the trajectory of [his] treatment because of the recent six-month report. So he needs to still work on sex offender specific issues.

In conclusion, with respect to the question whether sex offender treatment and a structured environment could impose such external controls, the doctor responded:

Intensive sex offender treatment that is similar to what is provided at the STU is what we're talking about.

. . . .

Not once a week, or twice a week out-patient group. Intensive sex offender treatment with other sex offenders in an in-patient environment at this point is what I would recommend.

Q Well, it could be intensive sex offender treatment without it being an in-patient environment, couldn't it?

A Again, with the level of risk and the nature of the crimes I would if I was asked, I would recommend in-patient treatment.

Dr. Vivian Shnaidman, a psychiatrist, testified for the State regarding a psychiatric evaluation of D.X.B. on July 28, 2005, and a written report dated August 1, 2005. That report included this "psychiatric-legal opinion":

[D.X.B.] has a mental abnormality (Personality Disorder, NOS, with Antisocial Features) that predisposes him to acts of sexual violence as defined by N.J.S.A. 30:4-27.26 et seq. His additional diagnosis of Paraphilia, NOS, makes his specific sexual deviancy difficult to isolate and address. Mr. [B.] still presents as an individual who is highly likely to commit acts of sexual violence if not confined to a secure facility. Therefore, continued commitment to the STU is recommended.

Dr. Shnaidman explained her diagnosis:

Paraphilia, not otherwise specified is defined in the DSM4 as it's used for coding paraphilias that do not meet the criteria for any of the specific categories. DSM which the Court is well aware is lists certain paraphilia, pedophilia, fetishism, sexual sadism, but rape or coercive sex is not listed as a paraphilia. So we generally use this diagnosis, paraphilia, NOS in order to code for rape or coercive or non-consent sex.

With respect to the record of D.X.B.'s inconsistent versions of his offenses, Dr. Shnaidman explained:

His versions of his offenses were not as serious as the versions contained in official record. So when you have somebody who is so convincing and charming and who has this really violent criminal record and doesn't present that way in one-on-one interaction, you know, right away the bells and whistles go off and you think, you know, clinically you think psychopathic traits. This isn't like you know, it's not a death sentence to say okay you have psychopathic traits. It's like okay, here is the challenge, let's work on it.

The doctor responded to questions about D.X.B.'s progress:

Q Do you believe that Mr. [B.] can develop an appropriate sex offense cycle without understanding the dangers and the severity of that offense?

A I think that Mr. [B.]'s sex offense cycle, understanding of his cycle is still rudimentary. So I think there's other things also he has to work on. But certainly the impact on his victim and the severity of what he's doing is an important part of his understanding.

Q Doctor, how would you categorize Mr. [B.]'s progress and treatment?

A Well, I'll tell you. I think that Mr. [B.] can do certain things in treatment very well. He's very good at giving feedback to other peers. I think he's very good at seeing other people's, you know, treatment deficits and getting them to work on them. But I also think he's very good at convincing his group that he's done more in treatment that he has. And I think that he has been able to do that at least with one [of] his therapists as well. So I think that he has a long way to go in treatment.

Dr. Shnaidman gave these opinions on the ultimate questions before the court:

Q What is your opinion as to his readiness to leave the STU?

A Well, I don't think he's ready to leave the STU. And I also think that even as I said, you know, he does have a history of substance abuse and it is important to control the substance abuse. But he knows, even Mr. [B.] himself said to me that drugs are not his main problem. So to send him to a program where the focus is on, you know, drug relapse prevention is kind of missing the point.

Q Doctor, how would you categorize Mr. [B.]'s current risk to sexually reoffend?

A I think that his risk to sexually re-offend remains high. I think that he has a good deal of treatment to do in front of him before he can begin to mitigate that risk.

Dr. Roger Harris, a psychiatrist, testified for D.X.B. He recommended continued treatment, but opined that appropriate treatment could be provided outside the STU. Dr. Harris agreed with Dr. Shnaidman's diagnosis of "paraphilia NOS non-consent," explaining that he uses the terms "non-consent" and "coercive" "interchangeably." Dr. Harris admitted that paraphilia does not "spontaneously remit," that the diagnosis requires a finding of "some type of deviant arousal," and deviant arousal does not spontaneously remit. Dr. Harris, however, disputed Dr. Shnaidman's additional diagnosis of "personality disorder NOS" and instead described D.X.B. as having "anti-social traits." He testified, contrary to the State's experts, that inconsistencies in D.X.B.'s versions of his past offenses do not elevate the risk of reoffense, and that although he "need[s] to continue with treatment . . . he is not sufficient risk [sic] for him to be in treatment involuntarily in a prison."

With respect to D.X.B.'s discharge plan, Dr. Harris admitted that he had never visited My Brother's Keeper, but believed that the plan for D.X.B. to have out-patient treatment as he proposed, with Dr. Amber Samaroo, a psychologist with South Jersey Counseling Associates, would be appropriate. Dr. Samaroo would see D.X.B. for individual counseling eight to ten times, and then D.X.B. would be placed in a group "after-care" program with others similarly situated.

D.X.B.'s second witness was Minister Oscar Hernandez, the administrator of operations at My Brother's Keeper. Reverend Hernandez testified that he does not have expertise in sex offender treatment. He described the facility as "a recovery ministry which has various programs and recovery for substance abuse, anger management, sexual abuse treatment," and "a locked-in facility" with "24-hour security." Staff personnel would have to accompany D.X.B. outside the facility. Spirituality is the foundation of the program at My Brother's Keeper.

According to Reverend Hernandez, only one sex offender was then a resident of My Brother's Keeper. That individual had been released from the STU, and was presently living in what the witness described as a separate area of the facility designed for sex offenders. The facility had contracted only days before the hearing with a private consulting agency, Armstrong and Barrios, to provide the residents with services recommended by the court, including the services of Dr. Samaroo. D.X.B. would be the first client to be served under that contract. Programs at this facility are generally between four months and a year, but he would make an exception to allow D.X.B. to stay for up to eighteen months, and the private contractor would follow up with him for up to two years. Finally, Reverend Hernandez testified that he had been in contact with D.X.B.'s family, and that if he were at some point to leave My Brother's Keeper, "a family member has given [him] a letter saying that she would be responsible for him . . . ."

Dr. Merrill Mahne, a psychologist, testified for the State on rebuttal. Dr. Mahne visited My Brother's Keeper, and his "impression was that it was not a very secure setting, but a minimally secure setting at least to protect against the impulsive but not the planful." In his view, My Brother's Keeper has not worked well for the one individual who went there from the STU:

My Brother's Keeper has unfortunately while I still find no reason to believe that they don't intend well, it's hard to explain their misrepresentation at times. It's hard to explain their instability at times. We've received 11th hour notices I think on two occasions of intent to discharge despite court orders to the contrary. We've had to intervene on an emergent basis on several occasions. Parole has had concerns about lack of supervision despite promises to provide supervision. We that individual is being assessed and will be his case will be reviewed by the Court, I think relatively soon however it's our impression that it's not any benefit.

This was Dr. Mahne's general assessment of the program:

The program that My Brother's Keeper has put together seems put together from too many varied pieces coming from too many directions. We certainly regard them as a viable discharge resource and are actually currently looking into that possibility for a case that has completed treatment or is hovering on our system of agreeing that the person has completed treatment and in that in such a case, we will regard it as a viable and supportive transition into society.

We have great misgivings about putting men there who have not completed treatment.

Dr. Mahne's conclusion was that D.X.B. is

inappropriate for this treatment facility . . . . On the basis of the generally accepted clinical judgment that a primarily substance abuse focused program even though this will have the adjunct of Dr. Samaroo that a primarily substance abuse focused program is contraindicated for a sexual offender who has not completed sex offender specific treatment.

In her oral decision on August 12, 2005, Judge Serena Perretti credited Dr. Shnaidman's diagnoses of "paraphilia NOS, predominantly rape, marijuana abuse in institutional remission, and personality disorder NOS with anti-social features" and noted the record evidence supporting those diagnoses. The judge noted: "According to Dr. Mahne, Mr. [B.] is not a completely treated sex offender and Dr. Harris would appear to agree with that." Judge Perretti concluded as follows:

I am satisfied from the testimony that I heard and the absence of information that the discharge plan submitted by [D.X.B.] does not reduce [his] risk of re-offense so as to permit a conditional release along the lines suggested.

. . . .

There is adequate reliable evidence in the record to support these diagnoses and Dr. Harris does not substantially disagree with them. Dr. Shnaidman testified that [D.X.B.] is predisposed to commit sexually violent acts and this predisposition has been made clear by the fact that he has, in fact, committed sexually violent acts over the course of years.

It is the opinion of [Dr. Shnaidman] that [D.X.B.] has serious difficulty controlling his sex offending behavior because he does not have in place those restraints which would permit him to interdict his sexually violent impulses without such restraints, his difficulty controlling himself would continue according to her.

There is no question that [D.X.B.] is making progress at the ADTC. He is being considered for the therapeutic community. He has served on a committee, a planning committee for the establishment of a therapeutic community. He has opened up considerably in his recent interview with Dr. Harris which may be the basis of further development in his process group.

Be that as it may, based on the State's evidence as I have reviewed it, I am clearly convinced that [D.X.B.] continues to be a sexually violent predator who suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional, and cognitive capacities so as to predispose him to commit sexually violent acts.

I find that he has serious difficulty controlling his sexually violent behavior as a result of which it is highly likely that he will recidivate within the foreseeable future if not continued for further care as a sexually violent predator confined at the STU.

I'll sign a one-year order of review.

D.X.B.'s attorney argued on his behalf that the judge erred in rejecting the conditional discharge plan proposed by D.X.B. and that his own expert, Dr. Harris, supported. D.X.B.'s attorney noted that he was a "low risk" on the actuarial risk assessment, and that he was "working hard" at the time of his review hearing.

The State's response in oral argument was that any discharge plan requires the judge to consider whether the specific living and treatment conditions are sufficient. Because My Brother's Keeper is primarily an alcohol rehabilitation facility, and its program is spiritually based, the State argues that the judge appropriately questioned the lack of evidence that D.X.B. was amenable to its spiritual approach. The State contends that the record demonstrates that D.X.B. minimizes and denies his deviant sexual arousal pattern, which interferes with successful treatment.

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) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). 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 (quoting In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002), rev'd and remanded, 183 N.J. 536 (2005)).

We affirm the judgment continuing D.X.B.'s involuntary commitment substantially for the reasons expressed by Judge Perretti in her oral opinion placed on the record on August 12, 2005. The record fully supports her findings, as well as her conclusion that D.X.B.'s proposal for conditional discharge, to which fair consideration was given, see In re Commitment of J.J.F., 365 N.J. Super. 486 (App. Div.), certif. denied, 179 N.J. 373 (2004), was inappropriate. As Judge King esplained in J.J.F., conditional discharge is appropriate "once the court determine[s] the person no longer meets the SVPA criteria as a sexually violent predator;" until that time, no release, with or without conditions, is appropriate. Id. at 498. The record also supports Judge Perretti's conclusion that the State met its burden of proving, by clear and convincing evidence, that D.X.B. continues to suffer from a mental abnormality or personality disorder that presently 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.

We described that offense in our 2004 decision:

On April 4, 1988, when D.X.B. was a twenty-six-year-old hotel and restaurant employee, he telephoned a twenty-two-year-old female, C.A., and asked that she meet him near the kitchen of the restaurant fifteen to twenty minutes later. When they met, he asked her to go to the side of the building, indicating that he had something to show her. When C.A. refused, D.X.B. reached down the front of his pants and exposed his penis. C.A. refused his advances, and turned to walk away. From behind, D.X.B. grabbed her around the neck, and forcibly dragged her across the parking lot and down a flight of stairs. He forced her to the ground, where she passed out due to a lack of oxygen because of D.X.B.'s hold on her neck. While C.A. was passed out, D.X.B. raped her. He then sat beside her, waiting for her to regain consciousness, and when she did, he told her several times that if she reported the incident he would kill her.

We previously described that incident:

D.X.B. had entered a video store, approached the counter, and rubbed his private area with his hand. He then went to the rear of the store and pulled down his zipper and started pulling on his private area. S.H., a twenty-three year old employee of the video store, called the police and upon arrival, they observed D.X.B. with his belt buckle undone. D.X.B. was found guilty and sentenced to three years, four months and twenty-one days for the parole violation.

Dr. Shnaidman's name is incorrectly spelled "Snaidman" in the August 9, 2005 transcript.

Dr. Samaroo's named is misspelled as "Samaru" in the transcripts.

The judge expressly stated that she did not accept the "conclusion that [D.X.B.] is a psychopath if that indeed was [Dr. Shnaidman's] conclusion."

The State's evidence indicates that one explanation for the low risk score is the inconsistent history of defendant's trials in North Carolina on the 1984 charges, which we detailed in our previous opinion.

(continued)

(continued)

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A-6693-04T2

RECORD IMPOUNDED

March 2, 2006