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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6695-04T26695-04T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

D.A.C., SVP-16-99.

______________________________________

 

Submitted March 8, 2007 - Decided April 24, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

SVP-16-99.

Ronald K. Chen, Public Advocate, attorney for appellant D.A.C. (Patrick Madden, Assistant Deputy Public Advocate, on the brief).

Stuart Rabner, Attorney General, attorney for respondent State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Caitlin A. McLaughlin, Deputy Attorney General, on the brief).

PER CURIAM

D.A.C. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order of July 15, 2005, which continued his commitment after the annual review required by N.J.S.A. 30:4-27.35. His next review was scheduled for July 14, 2006. However, D.A.C. waived that review pending the outcome of this appeal. We affirm substantially for the reasons stated by Judge Serena Perretti, J.S.C., in her oral opinion of July 15, 2005.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment, despite treatment, are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004), certif. denied, 186 N.J. 607 (2006); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

D.A.C. was initially committed to the custody of the STU on October 15, 1999. Subsequent to the initial order, there have been four annual reviews with orders entered continuing his commitment. The hearing that preceded entry of the July 15, 2005 order under appeal was held the same day.

Drs. Alicio Caputo and Arnaldo Apolito testified for the State. No witnesses testified on behalf of D.A.C. The parties stipulated to Dr. Caputo's qualifications as a psychologist. The primary basis for Dr. Caputo's testimony was her Treatment Progress Review Committee (TPRC) report dated June 27, 2005. The members of the TRPC are psychologists responsible for reviewing the progress and treatment of persons committed to the STU. Before making a recommendation, the TPRC reviews legal and psychiatric records, written records prepared by the treatment team, and treatment progress notes. The TPRC also conducts interviews with the treatment team as well as with the resident, to the extent the resident agrees to be interviewed.

Dr. Caputo testified that the treatment phases at STU consisted of five phases, with Phase I representing the treatment orientation phase, which "introduc[es] the resident to the process of treatment, the need for treatment, how treatment works at [the] facility, process groups, modules -- basic introduction." Dr. Caputo testified that D.A.C. has been in Phase I since his initial commitment in 1999 because he has "consistently refused to participate in any treatment programming since he came to the S.T.U." On cross-examination, Dr. Caputo acknowledged that D.A.C. has never exhibited any behavioral problems since his commitment, has not acted out sexually, nor attempted to hurt himself or anyone else.

The parties also stipulated to the qualifications of Dr. Apolito. Dr. Apolito testified primarily based upon his July 8, 2005 report, which was prepared after he attempted to interview D.A.C., and the opinions and conclusions contained therein, although he also addressed other reports.

Dr. Apolito testified that the risk that D.A.C. would re-offend was very high because of the history of severe sexual deviance and his refusal to accept help to decrease the risk of re-offending. Additionally, Dr. Apolito opined that there were other "impairing factors, which are known to increase the risk of re-offending through disinhibition and decreased judgment and self-control." He indicated that D.A.C. admitted he lacked self-control over his urges and could not resist them.

In conclusion, Dr. Apolito diagnosed D.A.C. as suffering from a mental abnormality or personality disorder that affected him either emotionally, cognitively or volitionally, so as to predispose him to commit acts of sexual violence. He diagnosed D.A.C. with specific disorders of pedophilia, delusion, paranoid personality, and adult anti-social personality. In addition, he testified that D.A.C. had a history of substance and alcohol abuse. Dr. Apolito testified that all of his opinions were held to reasonable degree of medical certainty, but his opinion that D.A.C. has a high risk to re-offend in the foreseeable future was held to a "high degree of medical certainty."

On cross-examination, Dr. Apolito disagreed that the diagnosis of pedophilia requires reflection upon the current thoughts and feelings of the person being examined because, in his opinion, the disorder does not vanish. He did agree that with advanced age, the ability to follow through with urges decreases, but opined that D.A.C., at forty-five years old, was not considered at advanced age. Dr. Apolito also acknowledged that there was no evidence in any record that D.A.C. exhibited any behavioral problems of any sort during his initial sentence to the Adult Diagnostic Treatment Center (ADTC) or while committed to the STU.

D.A.C's counsel argued that the State failed to meet its burden of proving the risk of re-offense by clear and convincing evidence, pointing out that there is a distinction between someone who has acted like a pedophile in the past and someone who will act like a pedophile in the future. Counsel acknowledged that although past behavior may be a strong indicator of future behavior, D.A.C.'s behavior since his commitment in 1999, even without treatment, is a strong indicator that he is not likely to re-offend. Counsel noted that D.A.C. was seventeen years older than he was when he committed his sexual offenses and there has been absolutely no recurrence of any sexual offenses. Additionally, counsel maintained that the evidence indicated that D.A.C. has not abused substances, has followed all the rules of STU, and his refusal to participate in treatment is attributed solely to his religious beliefs.

Judge Perretti found that "[i]t is clear beyond any possible argument that [D.A.C.] is a very deliberate, persistent treatment refuser." The judge did not "question the sincerity of [D.A.C.'s] religious beliefs," but concluded that those beliefs "are clearly insufficient to keep him from molesting little children repeatedly for untold numbers of times by his own admission," noting that D.A.C. was a "churchgoer before he was convicted" and also while "he was offending against these children." She concluded that she was

[c]learly convinced that [D.A.C.] continues to be and is now a sexually violent predator as a result of his abnormal mental conditions and personality disorders. His cognitive, volitional and emotional capacities are affected so as to predispose him to commit sexually violent acts. He has very serious difficulty controlling his sex offending behavior, as a result of which I find it highly likely that he will recidivate if not confined.

I would say confined for treatment, except [D.A.C] refuses treatment. In [D.A.C.'s] case, it seems that he is being confined for the protection of the public against an untreated, violent sexual predator who refuses treatment.

The evidence supports the finding that D.A.C. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). The conclusion that he 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 re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.

Affirmed.

 

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36(a).

(continued)

(continued)

8

A-6695-04T2

RECORD IMPOUNDED

April 24, 2007