IN THE MATTER CIVIL COMMITMENT OF E.Z.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1453-06T21453-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.Z.C. SVP-155-01

_________________________________

 

Argued April 18, 2007 - Decided May 3, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-155-01.

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

David DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (Stuart Rabner, Attorney General, attorney).

PER CURIAM

E.Z.C. appeals from the October 30, 2006 order continuing his 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. He was initially committed to the STU on February 13, 2001. His commitment has been reviewed and continued on March 15, 2002, October 8, 2003, April 22, 2004, and April 13, 2005.

The predicate offense is an adjudication of delinquency on October 30, 1997, on two counts of sexual assault, in violation of N.J.S.A. 2C:14-2(b). The victim was E.Z.C.'s eight-year-old male cousin. The petition for involuntary civil commitment under the SVPA specifies that E.Z.C. fondled his cousin's penis and performed fellatio on him. As a result, E.Z.C. was committed to the Youth Reception Center at Jamesburg for an indeterminate term not to exceed three years. Seven months after his release from Jamesburg, E.Z.C. was returned there following violations of his post-incarceration supervision conditions. The violations consisted of failing to attend sex offender therapy, missing scheduled appointments with his Youth Advocate Program officer, using the Internet at a public library to try to find victims, and showing deception in his polygraph examination when asked questions concerning recent sexual contact with anyone under the age of eighteen.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove [a] threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

At the time of his October 2006 hearing, Dr. Vivian Shnaidman, a psychiatrist, diagnosed E.Z.C. as suffering from pedophilia, boys, non-exclusive type; polysubstance dependence in institutional remission; possible transvestic fetishism; antisocial personality disorder; and learning disability NOS. Shnaidman opined that E.Z.C. is "still a very high risk" for re-offending. She explained the basis of that conclusion, stating that when E.Z.C. had been given the opportunity on parole to return to the community, he failed to cooperate with parole supervision, refused to attend treatment sessions, and "was devious" because he "tried to find other victims on the Internet [at a public library] and then lied about it," claiming he "didn't know that they were underage."

Shnaidman further opined that there was no evidence demonstrating that E.Z.C. had at all mitigated his risk of reoffending. She explained that "[h]e does not seem to be engaged in treatments. He is in Phase II of treatment. He fails modules. He doesn't show up to group. . . . He just seems to be mocking the whole process." Shnaidman also commented that "[t]aking responsibility for one's own actions is a critical component of recovery, and [E.Z.C.] has not even begun to express a glimmer of responsibility or meaningful remorse."

In response to a question about whether E.Z.C.'s pedophilia would "spontaneously remit or . . . go away" Shnaidman answered "not usually, no . . . . [P]eople's primary attraction doesn't change." She opined that E.Z.C. has a "strong deviant attraction to young boys" and reported that:

He has not made any significant treatment gains, and does not present as particularly insightful or motivated. His deviousness while in the community, his attempts to groom victims while in Jamesburg, his methodical compilation of lists of other inmates' younger brothers who might become potential victims, and his repeated denial of all of these risk factors do not bode well for a reoffense-free future. There is nothing in [E.Z.C.'s] five-year-stint at the Special Treatment Unit to indicate that he has lowered his reoffense risk. . . . [He] meets the criteria for continued civil commitment to the [STU], where he should remain for control, care and treatment.

The Treatment Progress Review Committee (TPRC) Annual Review Report was introduced into evidence. The TPRC recommended that E.Z.C. continue at Phase 2 of treatment, an early stage in the five stage treatment progression. Its members concluded that E.Z.C. "has not fully acknowledged the extent of his pedophiliac arousal" and demonstrates only a "minimal" participation in group therapy. The TPRC also reported that E.Z.C. scored a 2 on a recent Static-99, a score considered to place him in the medium-low risk to reoffend category. Commenting on E.Z.C.'s score, Dr. Shnaidman cautioned that instruments such as the Static-99 must be utilized with extreme caution in juvenile offenders.

In addition to reporting E.Z.C.'s Phase 2 status and his score on the Static-99, the TPRC observed that E.Z.C. had made limited gains in the past year and had a poor record of attendance, and an indifferent attitude, during treatment sessions. The TPRC concluded that E.Z.C. must develop an understanding of his deviant arousal pattern and develop methods of coping with it before the TPRC would even consider recommending release.

Dr. Roger M. Harris, a psychiatrist, testified on behalf of E.Z.C. and opined that E.Z.C. did not meet the criteria of a sexually violent predator. Harris pointed out that it had been ten years since there was a documented sexual assault or any pedophiliac activity by E.Z.C. Although Dr. Harris agreed that the original diagnosis of pedophilia was accurate, he testified that only a small percentage of juvenile sex offenders go on to become adult sex offenders. Dr. Harris opined that keeping E.Z.C. in the STU for offenses that were committed ten years earlier was unnecessary.

Judge Freedman found that the existence of mental abnormalities which predispose E.Z.C. to engage in acts of sexual violence is clearly documented in the treatment records. He discounted the opinion of Dr. Harris and proceeded to find by clear and convincing evidence that E.Z.C. "does in fact suffer from a mental abnormality in the form of pedophilia, and probably substance dependence and it affects him emotionally, cognitively and volitionally. And that he would have a substantial inability to control his sexually violent behavior if he . . . were released." The judge additionally held that E.Z.C. "would have a substantial inability to control his deviant arousal and would be highly likely to engage in this conduct within the reasonabl[y] foreseeable future if he was released."

On appeal, E.Z.C. argues that the record does not support the finding that he is highly likely to reoffend. Moreover, he contends that in the more than five years that he has been at the STU, he has engaged in none of the problematic behavior that led to the revocation of his parole. The State, in contrast, argues that the record fully supports the finding that E.Z.C. is highly likely to reoffend if released.

Our scope of review is "extremely narrow," and we must defer to the trial judge's determination 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)). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

Measured by this standard, the October 30, 2006 order must be affirmed. Our review of the record and of Judge Freedman's findings and conclusions demonstrates that Dr. Shnaidman and the TPRC appropriately evaluated both the actuarial and treatment evidence. E.Z.C.'s diagnosis is unchallenged, his participation in treatment has been indifferent and his progress has been slight. Based on our review, the record amply supports Judge Freedman's findings and satisfies the State's heavy burden of proof that E.Z.C. continues to qualify as a sexually violent predator and remains subject to involuntary civil commitment.

 
Affirmed.

(continued)

(continued)

8

A-1453-06T2

RECORD IMPOUNDED

 

May 3, 2007