IN THE MATTER OF THE CIVIL COMMITMENT OF T.H.M. SVP-480-07

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4322-07T24322-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.H.M. SVP-480-07

 

Submitted November 2, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP- 480-07.

Ronald K. Chen, Public Advocate, attorney for appellant T.H.M. (Nancy C. Ferro, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

T.H.M. appeals from his civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.

Judge Perretti's thorough and well-reasoned forty-page oral decision was rendered on April 22, 2008, after three days of hearings. T.H.M. is twenty-three years old and has been in treatment at the New Jersey Special Treatment Unit (STU) since December 2007. He was transferred there from the Adult Diagnostic and Treatment Center (ADTC) after the completion of his sentence for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1).

As required by N.J.S.A. 2C:47-1, T.H.M. was evaluated at the ADTC by Jeffrey C. Singer, Ph.D., on December 29, 2004 and again on March 16, 2005 to determine prior to sentence "whether [his] conduct was characterized by a pattern of repetitive, compulsive behavior" and to assess his "amenability to sex offender treatment and willingness to participate in such treatment." Initially during the evaluation, T.H.M. insisted he only had sex with the victim of the aggravated sexual assault "[t]wo or three times," significantly fewer than the number alleged by the child. While describing the assaults, T.H.M. said he "couldn't stop," "felt bad," and "knew that it was wrong . . . but [] couldn't control" himself. Despite knowing his conduct was "wrong" and experiencing guilt after each assault, T.H.M. was unable to resist his compulsive sexual urges. Dr. Singer found T.H.M. to be an offender whose conduct was "characterized by a pattern of repetitive, compulsive behavior," willing to participate in and amenable to sex offender treatment. Accordingly, he was sentenced to the ADTC pursuant to the New Jersey Sex Offender Act, N.J.S.A. 2C:7-1 to -11.

The child victim, ten-year-old J.C., was the younger sister of T.H.M.'s best friend. When it was discovered the child had contracted a sexually transmitted disease and a yeast infection, she disclosed to an aunt that T.H.M. forced her to have sex on more than ten occasions and that she feared him. She said during the encounters he covered her mouth so she would not scream and threatened to have her physically assaulted if she were to report the incident. T.H.M., then seventeen, was initially charged as a juvenile but waived to adult court. He entered a guilty plea to aggravated sexual assault, and was sentenced in accord with the terms of the plea agreement to five years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on September 24, 2004.

T.H.M. was first charged with sexual assault when he was thirteen years old after he allegedly attempted to engage in anal intercourse with A.J., an eight-year-old child. T.H.M. was only adjudicated delinquent of simple assault, but was nonetheless required to attend juvenile sex offender counseling while on probation. T.H.M. has never admitted engaging in any sexual act with A.J.

In the four years between the simple assault adjudication and the conviction for first-degree aggravated assault, T.H.M. was charged with juvenile delinquency on several occasions. The offenses included criminal mischief, terroristic threats, aggravated assault, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. Most were dismissed; however, he was sentenced to a six-month probation extension for violating his probation, and a criminal mischief complaint triggered an "intake services conference," a form of juvenile diversion.

As T.H.M. approached the end of his imprisonment at ADTC, Jennifer Gambuti, LCSW, and Cori Feiner-Escoto, Psy.D., prepared a termination report dated July 23, 2007. They noted that T.H.M. rarely discussed his offense and that his participation in program activities was poor. While at ADTC, he was disciplined on April 12, 2007 for engaging in anal sex with another inmate, and was disciplined again on July 18, 2007 for the same offense. Despite perceiving T.H.M. to have acquired only a "very basic understanding of relapse prevention strategies necessary to prevent reoffense," Gambuti and Dr. Feiner-Escoto felt his "risk level" did not require screening for civil commitment.

On December 5, 2007, Roger M. Harris, M.D., a psychiatrist, prepared an ADTC termination report arriving at the opposite conclusion. T.H.M. initially told Dr. Harris that he only had one sexual encounter with J.C., but later acknowledged having two or three. He explained that his attraction to her began when she was eight or nine years old and characterized it as "greater, stronger, and overpowering. . . ." T.H.M., then twenty-one, told Dr. Harris that he was attracted to girls between ten and eighteen. He later amended this statement by saying he was attracted to girls between ten and twenty-five years old. After interviewing T.H.M. and reviewing his records, Dr. Harris diagnosed him with the following: pedophilia, girls, non exclusive; cannabis abuse, in remission in an institutional setting; conduct disorder, by history; and antisocial personality disorder. T.H.M. scored a six on the Static-99 test, placing him in a category of men at high risk to reoffend.

Dr. Harris considered T.H.M. to meet the criteria for involuntary civil commitment and recommended that when his sentence ended, that he be transferred to a secure facility for treatment specific to sex offenders. On December 18, 2007, a probable cause hearing was conducted as to whether T.H.M. was a sexually violent predator in need of commitment, and he was temporarily admitted to the STU on the State's petition.

Over the three days of the initial commitment hearing, the State presented the testimony of Michael R. McAllister, D.O., Dr. Harris and Brian Friedman, Ph.D. T.H.M. presented the testimony of Timothy P. Foley, Ph.D.

Dr. McAllister diagnosed T.H.M. with pedophilia and an antisocial personality disorder based upon both his interview with T.H.M. and his review of records, including discovery, ADTC documents and reports prepared by other experts. He opined that neither condition would "spontaneously remit" because they are "enduring qualit[ies] to [a] person's personality." The doctor also noted that T.H.M.'s sexual infractions while at the ADTC were indicative of his inability to control his sexual impulses. While being interviewed, T.H.M. changed his account of the offense involving J.C., and denied any penetration. Dr. McAllister opined that T.H.M. was at a high risk to sexually reoffend as he seemed unaffected by the sex offender treatment he received at the ADTC, was unable to control sexual urges despite serious consequences, and admitted to experiencing sexual arousal towards girls as young as ten years of age.

Dr. Harris's testimony was essentially corroborative of his prior report. This included the diagnosis of pedophilia and antisocial personality disorder.

Dr. Friedman, who interviewed T.H.M. and reviewed the same documents as the other experts, said the assault on J.C. was particularly significant because it occurred after T.H.M.'s treatment for sexually offending behavior while on juvenile probation. T.H.M. misrepresented his history to Dr. Friedman, denying that he had ever received sexual offender treatment as a juvenile, denying penetration with J.C., asserting that J.C. gave him a sexually transmitted disease, and denying any interest in young girls even while acknowledging his interest in the prepubescent characteristics of J.C.'s body. T.H.M. also denied making the statements included in Dr. Singer's ADTC evaluations regarding his sexual conduct and feelings towards J.C. Dr. Friedman, like Dr. McAllister, expressed concern that T.H.M. had twice violated the rules at ADTC by engaging in intercourse with a fellow inmate. Dr. Friedman also thought it was important that T.H.M was not deterred from assaulting J.C. by the fact that she was the younger sister of his best friend. Dr. Friedman diagnosed T.H.M. with pedophilia, female exclusive, and antisocial personality disorder. It was his opinion that this combination elevated T.H.M.'s risk to reoffend.

Dr. Friedman found that the Static-99 test, which scored T.H.M. in the high risk category, would "be informative" in assessing T.H.M.'s likelihood to reoffend even though he was a juvenile at the time of the commission of the aggravated sexual assault. Although the test scoring manual indicates test outcomes may not be valid if the test subject was a juvenile offender, it also indicates that the score is useful in assessing overall risk where the individual was sixteen or seventeen at the time of offense. Here, T.H.M. was seventeen. The manual also indicates that the validity of the score is enhanced, even if the subject was a juvenile, where the offenses appear "adult" in nature. Dr. Friedman considered the offenses here to be "adult" in nature. Hence, he did not rely on the Static-99 score exclusively in reaching his opinion, but concluded in T.H.M.'s case it was helpful in the assessment of his likelihood to reoffend.

Dr. Foley, who testified on behalf of T.H.M., acknowledged that after two and one-half years at ADTC, "there is no semblance of any treatment effect." Dr. Foley interviewed T.H.M. and relied on the same records as the other experts. During the interview, T.H.M. reported that he had only been attracted to J.C. for three or four months prior to the sexual encounters, that there were only two contacts, and that there was no penetration. When Dr. Foley administered the Hare Psychopathy Checklist test, T.H.M. scored a moderately high score of 24.7, which Dr. Foley explained was "not indicative of a psychopathic categorization," but which established "a fair amount of antisocial traits." Dr. Foley also opined that it is difficult to predict recidivism from adolescence to adulthood in those who commit sexual offenses as juveniles. He acknowledged that when T.H.M. committed this offense, he was several months over the age of seventeen. He ruled out pedophilia despite stating in his report that T.H.M. "meets the diagnostic criteria for Pedophilia with corroboration of associated intense sexually arousing fantasies, urges, and behaviors for at least six months. . . ." He did not diagnose personality disorder primarily due to T.H.M.'s age and lack of exposure to the community as an adult.

Judge Perretti found that the State had proven the diagnoses of pedophilia and antisocial personality disorder by clear and convincing evidence. And as she went on to say, "[t]he combination of these two conditions is a robust predictor of repetitive sexually violent behavior." Judge Perretti also noted that T.H.M. "has demonstrated little [] ability to control his sex offending behavior and has not learned sufficient techniques to control it as a result of therapy at ADTC." Accordingly, Judge Perretti concluded that T.H.M. is a sexually violent predator likely to reoffend if not involuntarily committed, thereby meeting the statutory standard for civil commitment.

The SVPA requires that a person suffer "from a mental abnormality or personality disorder" to be adjudicated a sexually violent predator. N.J.S.A. 30:4-27.26. A mental abnormality is "a mental condition that affects a person's emotional, cognitive, or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26. This abnormality "need not include a diagnosis of 'sexual compulsion[,]'" In re Commitment of W.Z., 173 N.J. 109, 129 (2002); however, "there must be proof of serious difficulty controlling behavior." Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870, 151 L. Ed. 2d 856, 862 (2002). "Serious difficulty" is defined as "a substantial inability to control conduct." W.Z., supra, 173 N.J. at 128. A convicted sex offender whose pedophilia seems untouched by treatment, who suffers from antisocial personality disorder, and who has serious difficulty controlling sexual impulses, is an individual who should be civilly committed. See In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 466-67 (App. Div. 2005).

In order to meet its burden, the State must first present evidence that defendant was "convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial" for civil commitment under the SVPA. N.J.S.A. 30:4-27.26. Aggravated sexual assault is among the listed "sexually violent offense[s]," or predicate offenses, under N.J.S.A. 30:4-27.26.

The State must also demonstrate by clear and convincing evidence that the individual is a threat to the health and safety of others because he "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. See also W.Z., supra, 173 N.J. at 132. That threat must be proven "by demonstrating that the individual has serious difficulty 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." Ibid. See also In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (2009) (citation omitted).

Evidence is clear and convincing where it creates "'a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the fact-finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'" In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (quoting State v. Hodge, 95 N.J. 369, 376 (1984)) (holding that testimony of two psychiatrists from outside defendant's treatment center who met with defendant on only one occasion was insufficient to support the trial court's decision to involuntarily commit defendant). "Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

The review of a trial court's decision following a "commitment hearing is extremely narrow." In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Appellate review must give the utmost deference to the trial "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)). See also V.A., supra, 357 N.J. Super. at 63. The trial court's ruling should be "'modified only where the record reveals a clear abuse of discretion.'" V.A., supra, 357 N.J. Super. at 63 (quoting In re Commitment of J.P., 339 N.J. 443, 459 (2001)). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311). "[T]he ultimate determination of a [sex offender's] risk of re-offense . . . [should be] reserved to the discretion of the trial court." In re G.B., 147 N.J. 62, 79 (1996). See also In re C.A., 146 N.J. 71, 109 (1996).

T.H.M. contends that the State did not prove by clear and convincing evidence that he suffers from a mental abnormality that would cause him "to commit [further] act[s] of sexual violence." In support of that contention he attacks the testimony of Dr. McAllister, for example, by claiming that he relied excessively on the opinions of others. To the contrary, Dr. McAllister formulated his opinions in significant part based upon his own interviews with T.H.M., not just his review of the record.

During Dr. McAllister's meetings with T.H.M., T.H.M. denied statements made to Dr. Singer about the aggravated sexual assault and denied that he had difficulty resisting his sexual impulses, despite his disciplinary infractions while at the ADTC. Dr. McAllister noted that when interviewed, T.H.M. attributed his wrongful conduct to being rejected by age-appropriate females and believed that he would gain greater acceptance from a ten-year-old child. He denied having been attracted to J.C., with the exception of a "day or two," and insisted that the sexual encounter occurred over a one- or two-day period. He also denied using force, although conceding that he knew J.C. was afraid and that she did not consent. The pivotal information thus gained made clear that T.H.M.'s treatment had been entirely ineffective. He is unaware of the factors that contributed towards his commission of the offense. Dr. McAllister reached these conclusions from his conversation with T.H.M., not from secondary sources.

Dr. McAllister, as did all the experts, also relied upon the discovery, other evaluations, test results and Department of Corrections documents in formulating his opinion. Experts are entitled to a limited extent to incorporate hearsay information "'of a type reasonably relied upon'" in their particular field in reaching their conclusions. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div.), certif. denied, 179 N.J. 312 (2004), limited by, In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div. 2005); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229, appeal dismissed, 177 N.J. 494 (2003).

T.H.M. attacks the conclusions of Dr. Harris on the basis that his report was prepared a year earlier and that his recall of the questions he posed to T.H.M. was poor. This criticism also lacks merit. For example, T.H.M., then twenty-one, confided in Dr. Harris that he was attracted to girls between ten and eighteen years old, but then changed his answer later to girls between ten and twenty-five years old. That the statement was made months prior to the hearing does not make it per se unreliable, nor is anything about its content affected by the passage of a relatively brief period of time. That Dr. Harris may not have remembered the questions he posed which elicited those answers does not undermine their significance.

T.H.M. attacks Dr. Friedman's opinion because of his acknowledgment that T.H.M.'s age at the time the aggravated sexual assaults occurred makes diagnosis more difficult. The acknowledgment does not make the diagnoses invalid. Dr. Friedman's testimony, like that of Dr. McAllister and Dr. Harris, was based on the same key factors: J.C., the ten-year-old victim, was the younger sister of T.H.M.'s best friend; T.H.M. received sex offender treatment in 1999 but could not control his impulses four years later; T.H.M. could not control his sexual impulses while at ADTC after three years of sex offender treatment; he has not internalized anything he has learned from treatment; and he misrepresents key facts when interviewed. Dr. Friedman concluded that T.H.M. possessed the characteristics of sexual deviancy and extreme minimization/denial of sexually offending behavior. This minimization/denial of sexually offending behavior he considered highly relevant to his diagnosis of T.H.M.'s "personality disorder, the failure to accept responsibility," and "the lack of remorse for . . . offending."

The only doctor who disagreed with the diagnosis of pedophilia was T.H.M.'s expert, Dr. Foley. Judge Perretti rejected his conclusion in light of the overwhelming evidence to the contrary, including the other evaluations as well as T.H.M.'s own statements, which contributed significantly to the diagnosis. Her decision not to rely upon Dr. Foley's findings was warranted.

In support of the proposition that his commitment issued in error, T.H.M. points to the report by Gambuti and Dr. Feiner-Escoto to the effect that his risk level did not require screening for civil commitment. Gambuti and Dr. Feiner-Escoto made that recommendation, while simultaneously concluding that the therapy T.H.M. received at the ADTC was ineffective, that his participation while there was poor, that he engaged in improper sexual behavior while at the ADTC, and that he had only acquired a "very basic understanding" of the strategies necessary to prevent reoffense. This argument is a slender reed upon which to urge us to find that Judge Perretti's judgment issued in error. Gambuti and Dr. Feiner-Escoto's report lacks internal consistency; their observations of T.H.M. conflict with the conclusions they reached.

Lastly, T.H.M. contends that he should be discharged subject to conditions, as he is not a present danger to the community. This argument lacks merit because T.H.M. did not present any "expert testimony or other evidence of a discharge plan to the judge." In re Commitment of J.J.F., 365 N.J. Super. 486, 502 (App. Div. 2004). J.J.F. requires the committing court to consider a conditional release only where it has been "properly documented and supported." Id. at 501. T.H.M. directs our attention to a passing reference in a report prepared by ADTC therapists that T.H.M. could return home to reside with family, and that if he did so, he could obtain a job. That is simply not a sufficient basis for a conditional release. Certainly, it is not a basis for reversal of Judge Perretti's decision.

Affirmed.

(continued)

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A-4322-07T2

RECORD IMPOUNDED

December 24, 2009