IN THE MATTER CIVIL COMMITMENT OF C.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3513-07T23513-07T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF C.B.,

SVP-317-03.

________________________

 

Argued May 21, 2008 - Decided

Before Judges Cuff, Simonelli and King.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-317-03.

Beth Leigh Mitchell, Deputy Attorney General, argued the cause for appellant State of New Jersey (Anne Milgram, Attorney General, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; Ms. Mitchell and Lisa Marie Albano, Deputy Attorney General, on the brief).

Joan D. Van Pelt, Deputy Public Advocate, argued the cause for respondent C.B. (Ronald K. Chen, Public Advocate, attorney; Ms. Van Pelt, of counsel and on the brief; Patrick Madden and Justin E. Caso, Assistant Deputy Public Advocates, on the brief).

PER CURIAM

We review the order of the trial court which requires the State to pay for the cost of respondent C.B.'s living arrangements and treatment as an out-patient on a conditional discharge from commitment under the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). The State contends on this appeal that the judge's order is without legal or factual basis. The State claims that the SVPA does not require it or any State agency to pay for the costs of residential placement and treatment for a committee who is conditionally discharged under the SVPA. The respondent's rent is currently $610 per month. He has accumulated arrears of $3600 from nonpayment which Hill's Boarding Home hopes to recoup. The judge did not discuss the arrears. The cost of out-patient treatment is fairly nominal. At oral argument, we were told about $10 per week is the present cost for therapy, certainly on a charity basis.

We entertained the State's application for a stay on an emergency basis on March 25, 2008. We denied the application for a stay on March 25 but accelerated the appeal and placed it on the oral argument calendar for May 21. We now find no legal authority for the court's order that the State fund these expenses of respondent's SVPA conditional discharge, though the order was doubtless well-intended and a very practical interim resolution of the alternative to this dilemma, immediate recommitment to custody in the Special Treatment Unit (STU).

The judge was hopeful that the administrative "problem" would be short-lived. He stated:

I [am going to] direct -- I [am going to] give the State -- the STU [within] 30 days to either place [C.B.] back in -- [C.B.] back in Hill's Boarding Home, or to some other appropriate placement. I'm going to direct that they pay for that placement, and the costs of [C.B.'s] sex offender specific treatment on a temporary basis until the appeal of the denial of his SSI benefits is decided.

At oral argument we were told by counsel that there is currently a large back-log of federal SSI appeals and no prospect for a resolution and restoration of Supplemental Security Income (SSI) benefits for respondent's living expenses in the foreseeable future.

I

Respondent was committed pursuant to the SVPA on May 1, 2003 and conditionally discharged on June 21, 2004. While conditionally discharged respondent initially complied with the court-ordered conditions, but over time he violated more and more of his conditions and engaged in behavior which increased his risk of reoffense. On December 13, 2007 when respondent had been engaged in a pattern of violating his curfew, skipping required treatment, and vocational programs, and was unemployed, he had exhausted or was denied various forms of financial assistance, and finally was evicted from the boarding house where required to live, the State filed a petition to recommit him. The court entered an order returning C.B. to the STU and set a hearing for December 18, 2007. At the hearing the State contended that the record amply demonstrated that respondent was no longer highly likely to comply with the conditions that lowered his risk of offense and again was likely to commit acts of sexual violence.

The judge found that respondent had committed the various violations of conditional release but found he was not highly likely to reoffend and denied the State's petition. As noted the judge also ordered the State to pay for respondent's living expenses and treatment in the community so he again could be conditionally discharged.

Respondent, a pedophile, age thirty-three, had a history in 1995 and 1996 of offending against at least three girls, ages four to fourteen. The offenses involved both attempted and completed oral and vaginal penetration, and breast and other fondling. Respondent pleaded guilty to various charges including aggravated sexual assault. He received an aggregate ten-year sentence to the Adult Diagnostic and Treatment Center (ADTC) and appropriate Megan's Law community supervision.

Respondent was temporarily committed under the SVPA on May 1, 2003 after serving prison time. He then was committed by the judge's August 26, 2003 judgment following his initial plenary commitment hearing. The judge also ordered that the next review hearing be held in six months and that if respondent was accepted into a residential program, the case should be brought back on short notice. The order was based on the finding that with proper structure and supervision, respondent would not be highly likely to commit acts of sexual violence and he could be conditionally discharged.

On June 21, 2004 the judge ordered respondent's conditional discharge. C.B.'s conditional discharge plan required him to live at Christian Recovery Outreach Ministries (CROM) in New York. The conditional discharge order required that respondent abide by parole's rules and regulations, submit to random drug and alcohol testing, attend sex offender specific treatment, attend drug and alcohol treatment, and comply with the rules and regulations of CROM.

Respondent complied with most of his conditional discharge requirements while he was living at CROM. Respondent worked at the Broadway Super Clean Laundromat, Inc., three days per week, complied with the rules at CROM, and after some initial difficulties attending his intake appointment and navigating the New York transit system, attended and participated in his sex offender treatment. While at CROM, respondent temporarily lost food stamp vouchers due to his failure to return a status report of his income and work schedule to the appropriate office. CROM essentially ceased operations in early 2005, and the STU found a new home for C.B., Hill's Boarding House, Inc., in Newark. On February 4, 2005 the judge modified his conditional discharge and required respondent live at Hill's.

Respondent entered Hill's on February 4, 2005. During respondent's first year at Hill's, the boarding house and his day and treatment programs all reported he was doing well except he often failed to communicate with his parole officer, STU case manager, and treatment providers about changes in his schedule, as was expected, and sometimes missed his curfew at Hill's.

By spring 2006 respondent regularly began to miss curfew, skip appointments and his treatment and day program at Hill's, and generally failed to abide by the conditions of his discharge. In August 2006, New Hope Behavioral Health Center, one of respondent's treatment providers, notified the STU case manager that respondent had not been attending the program for two months. Respondent's habit of skipping appointments, treatment and programs, and missing curfew at Hill's improved considerably in early 2007 but dramatically worsened by mid- and late-2007 when he became involved with a girlfriend, K.D.

Respondent put himself in situations where his risk to reoffend was heightened. Respondent twice befriended women with female children with ages similar to his earlier victims. The first time was in June 2005 when respondent met a female peer at his day program. She lived independently in the community with her daughter, age eight. Respondent began visiting her home three times a week or more to "hang out." When respondent spent time with her, he was late for his curfew at Hill's. After a treatment-team meeting respondent agreed to stop visiting her home and to examine his high risk behavior in sex offender therapy.

The second time respondent engaged in this high risk behavior was in April 2007. Respondent met K.D. at his vocational program at Catholic Charities. When they met, K.D. lived at the YWCA with her two teenage daughters, and later K.D. found an apartment. By June 2007 respondent's relationship with K.D. created so much friction at Hill's that K.D. was no longer welcomed. In July 2007, respondent attended a family reunion with K.D. without seeking permission of his STU case worker or his parole officer. There were children at the reunion. K.D. said that C.B. stayed with her for the entire four hours they were at the reunion. In July 2007, respondent and K.D. each maintained that respondent did not go to her apartment where her teenage daughters were and instead the couple met at a hotel to spend time together. By that time, as set forth above, respondent was back into his negative pattern: late for curfew and missing his treatment and vocational programs. His vocational program reported that he was disruptive during sessions and skipped altogether when K.D. was also absent. In September 2007, respondent was reported by staff at Hill's as spending most of his time with K.D. and missing curfews at Hill's. From September 28, 2007 to October 14, 2007 respondent attended none of the programs he was required to attend under his conditional discharge. This high-risk behavior continued.

Respondent received Social Security Disability (SSD) benefits prior to incarceration for the predicate sexual assault in 1996. At some point following respondent's conditional discharge to CROM in New York, he applied to the Social Security Administration (SSA) for renewal of his SSD benefits. This application was denied. A request for reconsideration was filed sometime before April 28, 2005 and was also denied on that date.

Shortly after respondent went to Hill's, the STU case manager accompanied him to the Newark Welfare Office to apply for benefits. In April 2005, respondent received a retroactive grant of financial assistance from February 17, 2005 and was notified that he would continue to receive $210 per month in general assistance. He also received a $65 food allowance grant. He also became eligible for New Jersey FamilyCare on March 9, 2005. His rent at Hill's was $524 per month at this time. In May 2005, Hill's was represented as "supportive until his financial predicament changes."

On May 16, 2005 respondent's STU case worker accompanied him to the Welfare Office to apply for an increase in benefits. On October 20, 2005 respondent was approved for a one-year Temporary Rental Assistance (TRA) of $525 for a period from February 1, 2005 to January 31, 2006. TRA required respondent to reapply every three months and provide the status of his request for SSI and his efforts with Division of Vocational Rehab (DVR).

On November 2, 2005 respondent was given a referral from the Newark Welfare Office for an appointment on November 7, 2005 at the SSA to seek SSI. Respondent's STU case manager accompanied him to an appointment with the SSA on November 18, 2005. Around the same time, respondent filed a request for a hearing by a federal administrative law judge on the issue of his SSD. On November 8, 2006 respondent's claim for SSI was again denied because his condition was not "disabling." Respondent has an attorney who is now appealing his denial of SSI.

TRA is a time-limited program and respondent had exhausted all extensions for TRA by January 2007, after receiving it for two years. In February respondent's STU case manager accompanied him to the Newark Welfare Office to discuss his exhaustion of TRA and determine what other benefits he might be eligible for. That day, respondent applied for "welfare assistance" in the amount of $140 per month and was referred to the Section 8 Housing Office in Newark.

Respondent also received a small stipend from Hill's for assisting at the boarding home. C.B.'s friend, P.L. periodically sent Hill's a check for C.B's rent. K.D., respondent's girlfriend, paid for some of his sex offender treatment sessions.

In summary, respondent's social and economic problems persisted. The State petitioned in December 2007 for recommitment to the STU. As we noted, the judge denied the application because respondent had not reoffended in three and one-half years and his various violations were tied to his precarious financial position. The judge found that there would not have been violations if respondent had been supported financially. Specifically, the judge believed if C.B. had SSI, he would not have the problems on conditional discharge that he has now.

The judge stated that respondent

comes squarely within the rules of a person who is as they call them C.E.P.P. That [is] a person who is conditionally kept wherever he is for a -- for a short period of time while some sort of -- while some sort of plan or financing in this case is tried to be worked out.

The judge refused to recommit C.B. as a SVP but ordered him held pending briefing on the issue of a State-funded conditional discharge.

On February 21, 2008 the judge ordered the State to pay for respondent's living and treatment expenses while on conditional discharge under the SVPA. The judge found that this would be temporary, until respondent could obtain SSI benefits, if and when his appeal was successful. The judge found that it was "clear" that respondent's "lack of financial wherewithal or capabilities put a lot of pressure on [C.B.]" and this continued to be respondent's problem, but when C.B. was financially supported, he did much better on conditional discharge.

The judge concluded that being a sex offender makes it more difficult to find employment, that respondent was not capable of holding a full-time job, and that he could not provide for his own financial needs while on conditional discharge.

After a discussion of a newspaper account of pending litigation involving the State psychiatric hospitals, the judge thought that it was possible that the State was authorized to assume financial responsibility for an individual's conditional discharge under a number of legal theories, including the United States Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999), the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 to 12213, the interim financial assistance to discharged psychiatric patients statute, N.J.S.A. 30:4-27.19, the Equal Protection Clause, U.S. Const. amend. XIV, 1 and fundamental fairness. None of these, however, were the declared basis for the judge's decision.

The judge admonished respondent about his numerous violations of conditional discharge and indicated that if he did so again, he would be back at the STU for a recommitment hearing. The February 22, 2008 judgment provides in pertinent part:

2) The STU shall have 30 days to place Respondent at Hill's Boarding Home or other appropriate placement.

3) The STU shall pay the cost of Respondent's placement and the costs of his sex offender specific treatment on a temporary basis until appeal of the denial of his SSI benefits is decided. If his appeal is denied this matter shall immediately be brought before this Court.

4) All the terms and conditions of the prior orders regarding Conditional Discharge shall remain in effect.

The terms of the judgment provided a thirty-day stay. Another judge extended it until March 26, 2008. As noted, this court reviewed the State's emergency application for a stay on March 24, 2008 and denied same on March 25, 2008 ordering instead that the appeal proceed on an accelerated basis. Respondent was placed at Hill's the next day and this appeal followed.

II

The State contends that there is no provision of the SVPA which permits a court to order that the State pay for respondent's living costs and treatment when he is conditionally released and no longer confined in civil commitment. A related section, N.J.S.A. 30:4-27.19, is found in the general civil commitment statutes (GCC), N.J.S.A. 30:4-27.1 to -27.23, but it does not apply to persons committed under the SVPA, only to patients of a State or county psychiatric facility.

The SVPA, although patterned on the GCC statutes, see N.J.S.A. 30:4-27.25(c), is a separate statutory scheme. There is no requirement that the State pay for the community residential placement or treatment for a person who is conditionally discharged and no longer committed under the SVPA. In the SVPA, the Division of Mental Health Services (DMHS) in the Department of Human Services (DHS) is authorized by the SVPA to:

(1) provide or arrange for treatment of a person committed pursuant to this act, N.J.S.A. 30:4-27.34b, to recommend conditional discharge consistent with the statute, N.J.S.A. 30:4-27.32c(1);

(2) recommend to the court conditions for conditional discharge consistent with the statute, N.J.S.A. 30:4-27.32c(2);

(3) notify the court if the person fails to meet the conditions on discharge imposed by the court, N.J.S.A. 30:4-27.32c(3).

None of these statutory responsibilities require the DMHS to pay for the residential placement and treatment of a person who is conditionally discharged pursuant to the SVPA. A person who is eligible for conditional discharge under the statute must no longer "be likely to engage in acts of sexual violence," N.J.S.A. 30:4-27.32c(1); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63-64 (App. Div.), certif. denied, 177 N.J. 490 (2003), and will no longer be civilly committed.

The only Title 30 statute with language that might provide authority for the judge's order is in the GCC statutes which is not applicable to persons committed under the SVPA. The GCC statute N.J.S.A. 30:4-27.19 (interim financial assistance statute) provides:

The chief executive officer of a State or county psychiatric facility, or his designee, may authorize the payment of interim financial assistance to discharged patients for living expenses, pending determination of public benefits entitlements, when this assistance is necessary and appropriate pursuant to regulations adopted by the commissioner. When public benefit entitlements are received, discharged patients shall reimburse the psychiatric facility for all interim financial assistance provided.

Based on the plain language of the interim financial assistance statute, as well as the applicable regulations, this section would not provide assistance in a situation like respondent's where he had been conditionally discharged from commitment for three and one-half years, but still needed additional financial support. See generally N.J.A.C. 10:38-1.1.(a) to -7.8 (Interim Assistance Procedure Manual); N.J.A.C. 10:38-2.1(a)1 (eligibility criteria requires the client to "[b]e an inpatient of a State psychiatric hospital").]

The funds to implement the interim financial assistance statute are specifically appropriated to the DHS and DMHS in the appropriations designated for each state psychiatric hospital each year. See e.g. L. 2007, c. 111; S-3000 pages 109 lines 2, 20; 110 lines 9, 26 (2007) (FY2007 Appropriations Act). There is no interim assistance appropriation in the FY2007 Appropriations Act for the Anne Klein Forensic Center. See e.g. L. 2007, c. 111; S-3000 page 109 lines 25-37.

The SVPA contains no statute similar to the interim financial assistance statute nor are funds appropriated for such a purpose, see N.J.S.A. 30:4-27.24 to -27.38; see also e.g. L. 2007, c. 111, S-3000 page 48 lines 32. Respondent did receive voluntarily State financial and programmatic assistance. This was not court-ordered. We conclude that the absence of a similar provision in the SVPA shows the Legislature expressly chose not to provide any interim financial out-patient assistance for sexually violent predators within the provisions of the SVPA. If the statutory language is clear, that language ordinarily governs. Bd. of Educ. of Neptune in Monmouth v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 25 (1996). This result may not be good public policy where interim out-patient subsidies may be much less expensive and considerably more efficacious, but this is the will of the Legislature in control of the public finances. Clearly, the Legislature created different community service systems for persons committed under the GCC statute and those under the SVPA.

We have no inherent or implied authority to order the expenditure of funds unappropriated by the Legislature for out-patients care of conditionally discharged SVPA committees. This is a legislative, not a judicial decision. See Crist v. N.J. Div. Youth & Family Servs., 135 N.J. Super. 573, 576 (App. Div. 1975), citing Fitzgerald v. Palmer, 47 N.J. 106, 108 (1966).

The trial court's decision suggests that the State has not been responsible in assisting the respondent to succeed while on conditional discharge. Any actual finding to this effect could not be made on this record. At least five State agencies provided services, programs and financial assistance to respondent, including the DMHS, through all of the case management services offered to respondent; the New Jersey State Parole Board through the Parole Office and the Kintock Program; the DHS, Division of Family Development, which provided General Assistance and other WorkFirst benefits, including a food grant and rental assistance for two years; the New Jersey Department of Labor and Workfore Development, DVR, which provided a job training program, bus passes and food vouchers at no cost; and the DHS, Division of Medical Assistance and Health Services, which provided FamilyCare insurance. The record clearly establishes that respondent was provided with financial and other assistance, in some cases to the limits of the law, and in others, to a point where respondent stopped attending the programs. There is no doubt that more could be done; but there is also no doubt this is a very frustrating undertaking.

III

Conditional Extension Pending Placement (CEPP) is a legal status first recognized by the Supreme Court in In re the Applicants for the Commitment of S.L., 94 N.J. 128, 139-40 (1983). The Court also set out the procedural protections provided to patients who would be placed on CEPP status. Id. at 140-42. In S.L., the Court did not create an affirmative obligation that the State fund or create placements for individuals on CEPP status nor has any subsequent decision found it to create such an affirmative right. Ibid.

S.L. evolved into the procedural protections afforded to mentally ill patients under Rule 4:74-7(h)(2), which describes CEPP as a legal status and the procedural protections thereof. See Pressler, Current New Jersey Court Rules, comment 9 on R. 4:74-7(h)(2) (2008). Neither S.L., supra, 94 N.J. 128, nor Rule 4:74-7(h) require the State to create or fund community placements. As noted, DMHS's creation and funding of community placements for persons with mental illness occurs pursuant to statutory and Appropriations Act authority. There is no similar authority under the SVPA. Nor can we find any other basis for sustaining the judge's order for financial support and treatment in the community pending resolution of his SSI appeal. The judge's order of February 21, 2008 to this effect is vacated and the matter is remanded for any further consideration consistent with this opinion.

Reversed and remanded.

 

(continued)

(continued)

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A-3513-07T2

RECORD IMPOUNDED

June 23, 2008