IN THE MATTER CIVIL COMMITMENT OF A.M.B.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2959-06T22959-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.M.B.S.

(FORMERLY KNOWN AS A.E.P.)

SVP-12-99.

__________________________________

 

Argued: April 18, 2007 - Decided April 27, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-12-99.

Joan D. Van Pelt, Deputy Public Advocate, argued the cause for appellant A.M.B.S., f/k/a A.E.P. (Ronald K. Chen, Public Advocate, attorney).

Amy L. Duff, Deputy Attorney General, argued the cause for respondent State of New Jersey (Stuart Rabner, Attorney General, attorney).

PER CURIAM

A.M.B.S., formerly known as A.E.P., appeals from the January 2, 2007 order that continues his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). We affirm.

A.M.B.S. was initially committed to the STU in June 2000. Four subsequent orders have continued his commitment. Two of those orders, the April 23, 2003 and the July 25, 2005, have been affirmed by this court in two separate appeals. The January 2, 2007 order, the subject of this appeal, is the product of the fifth review of his continuing status as a sexually violent predator and his continuing commitment to the STU.

The predicate offense is a conviction of first degree aggravated sexual assault to which A.M.B.S. pled guilty in December 1990. The victim was the three-year-old niece of his girlfriend. He was sentenced to a ten-year term of imprisonment. At the completion of his term, the State filed a petition pursuant to the SVPA for involuntary commitment of A.M.B.S.

On appeal, A.M.B.S. argues that the State failed to prove all elements required by the SVPA by clear and convincing evidence. Specifically, he contends that Dr. Shnaidman did not diagnose A.B.M.S. with any mental abnormality or personality disorder which makes him highly likely to engage in sexually violent behavior unless confined. He further argues that the trial judge improperly focused on A.M.B.S.'s anger management problems and should have discredited the testimony presented by the psychiatrist. He requests that he be granted a new hearing or that this court direct the STU staff to explore conditional discharge.

The State contends that a committee need not be diagnosed as suffering a sexual compulsion disorder, such as pedophilia or paraphilia. Moreover, the State argues that the personality disorders of which he has been diagnosed are sufficient foundation for an opinion that A.M.B.S. is highly likely to engage in prohibited sexual activity unless confined.

Vivian Shnaidman, M.D. and Brian Friedman, Ph.D. testified at the January 2, 2007 hearing in support of the continuing commitment of A.M.B.S. as a sexually violent predator. Dr. Shnaidman's testimony was based on her review of A.M.B.S.'s treatment notes and a clinical interview on December 21, 2006. In a diagnostic impression of A.M.B.S., Dr. Shnaidman opined that it was necessary to rule out psychosis NOS pedophilia. She also opined that he suffered from intermittent explosive disorder, antisocial personality disorder and mild mental retardation. She explained that these personality features increased the likelihood that A.M.B.S. would sexually reoffend because "the person doesn't care about the rights of others so if he has a desire to have sex with somebody who doesn't desire to have sex with him, he'll just go ahead and do what he wishes."

Dr. Shnaidman testified that A.M.B.S. participates little in treatment. After six years, he still is in Phase II of treatment, an early stage of the treatment progression. His lack of progress does not inhibit treatment. She observed that many persons at the STU are similarly afflicted but are able to participate in treatment and progress through the treatment stages.

Ultimately, Dr. Shnaidman concluded that A.M.B.S. was "highly likely to sexually reoffend," even though he has only one conviction for a sexual offense because he has a prior criminal history of robbery and a prior accusation of inappropriate sexual contact. Furthermore, his lack of cooperation, his hostility to staff, his recent infraction history, his threatening behavior towards Dr. Shnaidman, his refusal to accept supervision if released, and his recitation of different versions of events in accordance with his mood, led Dr. Shnaidman to conclude that "this is somebody that if we permitted him to have access to potential victims, he would victimize them."

Dr. Friedman, a clinical psychologist, testified that A.M.B.S. continued to meet the criteria of a sexually violent predator and recommended that he should remain in Phase II of treatment. He described the review process and noted that he and Raymond Terranova, another clinical psychologist, had reviewed treatment records, met with the treatment team, and interviewed A.M.B.S.

Dr. Friedman related that A.M.B.S. still has coping and anger management issues but has made improvements. He also stated that A.M.B.S. becomes frustrated when the issue of his chewing on fabric containing cartoon characters is discussed. A.M.B.S. seems to believe that this incident, which was the cause of an infraction, had and continued to receive too much attention. He related that the treatment team recommended that he continue in Phase II due to his hostility, defensiveness and lack of participation. The latter is characterized by non-attendance or walking out of sessions.

The Annual Review Report authored by Dr. Terranova reported that A.M.B.S. elected to participate in his annual treatment progress review. A.M.B.S. reported that others thought he was dealing with his anger better. He conceded that he became angry at a cousin but denied threatening her. He also reported that he did not believe that he was doing well in treatment because he resisted exploring family issues. When the team declined to advise him whether he would be advanced to Phase III, he became irritated.

Dr. Terranova opined in the report that A.M.B.S. suffered from the following psychiatric conditions: pedophilia, sexually attracted to females, non-exclusive (provisional); polysubstance dependence (in remission in a controlled environment); borderline personality disorder (with antisocial features); borderline intellectual functioning (rule out); and mild mental retardation (rule out). Although A.M.B.S. demonstrated some treatment gains, Dr. Terranova related that he continues to incur infractions at the STU and continued "to struggle with identifying the components of his arousal pattern." Therefore, he cannot develop a full understanding of his sexual offense cycle. A.M.B.S. also continued to have anger management problems.

The team related that discipline imposed at the end of 2005 was still being addressed in 2006. A.M.B.S. explained to team members that he was not in possession of children's underwear. Rather, he explained that his girlfriend had sent a piece of fabric to him. He said that she had wiped it against her vagina to leave her scent on it. He did not seem to understand staff concern about his behavior. Accordingly, considerable time was consumed in 2006 addressing this infraction rather than his past conduct and efforts to avoid further sexually violent acts.

Based on the testimony and the documentary evidence, Judge Perretti opined that A.M.B.S. continued to meet the statutory criteria of a sexually violent predator and remains subject to involuntary commitment at the STU. Referring to a July 10, 2006 treatment report, A.M.B.S. "presented in his process group as defensive, angry, and a victim of the system." He demonstrated inadequate coping skills. He also had not discussed his sexual assault cycle, relapse prevention concepts and was enrolled in the relapse prevention module for the second time. She also noted that A.M.B.S. had failed the anger management module twice.

Notwithstanding reports that A.M.B.S. had made some progress dealing with anger and frustration, Judge Perretti identified several treatment records that recorded that A.M.B.S. would leave the group or respond in an angry manner when confronted in group. She also noted that his participation in a relapse prevention module was discontinued in August 2006 because he refused to acknowledge his criminal acts. She concluded her opinion as follows:

The testimony of the witnesses for the State was uncontradicted. The medical records or therapy records contained in Petitioner's Exhibit 5 clearly show that the respondent has made no progress in treatment. The evidence taken together is clear and convincing that the respondent continues to be a sexually violent predator.

He suffers from abnormal mental conditions and personality disorder that influences cognitive, volitional, and emotional functioning in such a way as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior. This is particularly demonstrated by the respondent's recent bizarre behavior resulting in his MAP placement and it is aggravated by his continued hostile, threatening behavior demonstrated toward Dr. Shnaidman and the therapy staff. It is clear that this behavior is not limited by gender or race and is indiscriminate.

It is highly likely that the respondent will commit an act of sexual violence in the reasonably foreseeable future if not continued for further care.

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 that 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).

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

Here, the record clearly establishes that A.M.B.S. suffers from a combination of personality disorders that makes it highly likely that he will reoffend. Contrary to A.M.B.S.'s argument, the diagnosis does not require a diagnosis of sexual compulsion. In re Commitment of W.Z., 173 N.J. 109, 129 (2002).

We, therefore, affirm the January 2, 2007 order continuing the involuntary civil commitment of A.M.B.S. as a sexually violent predator.

 
Affirmed.

(continued)

(continued)

9

A-2959-06T2

RECORD IMPOUNDED

April 27, 2007