IN THE MATTER OF THE CIVIL COMMITMENT OF M.F.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6063-11T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.F.C.,

SVP-303-02.

_______________________________

November 19, 2012

Argued October 15, 2012 - Decided

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-303-02.

Brian Patrick Hughes, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

M.F.C. appeals from an order entered on July 25, 2012, continuing his civil commitment at the Special Treatment Unit ("STU") pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Appellant, who is presently sixty-one years of age, has a history of multiple convictions for sexual crimes and other offenses. Between 1981 and 1986, M.F.C. committed four aggravated sexual offenses on women who were between the ages of fifty and eighty-three. Appellant also has been found guilty of several drug-related crimes and other offenses. After he was convicted of the sexual offenses, appellant was initially imprisoned at East Jersey State Prison. In 1997, he was transferred to the Adult Diagnostic and Treatment Center ("ADTC").

Shortly before appellant's custodial sentence ended in 2003, the State petitioned for and obtained an order for his civil commitment to the STU pursuant to the SVPA. Appellant's commitment has been periodically reviewed since that time, resulting in orders continuing his commitment. We have affirmed those orders several times on appeal. See In re Commitment of M.F.C., No. A-4684-08 (App. Div. Oct. 6. 2009); In re Commitment of M.F.C., No. A-2611-06 (App. Div. May 8, 2007); In re Commitment of M.F.C., No. A-6312-03 (App. Div. May 25, 2005). In each such prior appeal, we sustained the trial court's finding that M.F.C. continues to meet the criteria for commitment under the SVPA and is "highly likely" to reoffend if released. See In re Commitment of W.Z., 173 N.J. 109, 132 (2002) (holding that to commit an individual under the SVPA, the State must prove he or she is highly likely to be unable to control his or her sexually violent behavior and will reoffend).

M.F.C.'s present appeal arises out of a review hearing conducted on July 25, 2012 before the Hon. James F. Mulvihill, J.S.C. The State presented two expert witnesses, Dr. Marta Scott, a psychiatrist, and Dr. Nicole Paolillo, a psychologist. The State also relied upon a May 3, 2012 annual evaluation of appellant prepared by the Treatment Progress Review Committee ("TPRC") within the STU. Appellant presented a competing expert witness, Dr. Christopher Lorah, a psychologist, and also a series of written reports prepared by Dr. Lorah.

Appellant's sexual history, as described within Dr. Scott's report, indicates that he was abused by an older woman when he was four or five and also was abused while in juvenile detention at the age of fourteen. He still reported an urge to masturbate, although he has trouble doing so because of his anti-depressant medication. He denied, however, entertaining violent rape fantasies or fantasizing about his rape victims.

Dr. Scott's report also indicated that appellant has a girlfriend, who at the time the report was prepared was under probation for drug trafficking and was sharing a household with her son who is a drug addict. A discharge planning assessment form dated June 19, 2012 indicated that the appellant had listed this individual as his "best friend/girlfriend." This disclosure concerned Dr. Scott as a high-risk situation, as Dr. Scott anticipated that appellant would likely rely heavily on the girlfriend for support if he were to be discharged from the STU, and because appellant failed to see the danger in such reliance given his predisposition to drug abuse.

Dr. Scott reviewed appellant's treatment reports from the STU since he was admitted in 2003, which revealed that in 2006 he had advanced to Phase Three of his treatment. However, in December 2007, appellant was placed on the Modified Activities Program ("MAP"), as a result of the discovery of marijuana in his room and also because he had repeatedly refused to comply with urine drug screening tests. In 2008, appellant again refused a urine drug screening.

By 2009, appellant was considered for advancement to Phase Four of treatment, but the TPRC recommended that he remain in Phase Three. That same year, the appellant was scored as being in the moderately high range of psychopathy.

In 2010, appellant was admitted to the Therapeutic Community ("TC") at the STU. Although he had consistent attendance in the TC, he failed the treatment module on Substance Abuse Relapse Prevention. On April 8, 2011 and April 11, 2011 appellant again refused to comply with a urine drug screening.1

Because of his refusal to comply with the drug screening, on April 11, 2011, appellant was placed on MAP. After attending several MAP groups, his placement was extended for a failure to take responsibility for his behavior, resulting in his removal from the TC program in May 2011. Since that time, appellant indicated to Dr. Scott a desire to return to TC, but he also expressed that he does not feel there is anything he could gain from it.

Dr. Scott noted that the appellant's risk of re-offending has been scored "low to moderate," but that this classification reflects a recent score reduction as a result of the appellant reaching the age of sixty. Dr. Scott testified that this score is "grossly underestimating [appellant's] risk [of reoffending]." According to Dr. Scott, there are other factors that should be considered, which include a demonstrated strong deviant arousal, the fact that appellant was living with his wife during the years of the assaults (indicating he had a consenting adult sexual partner available), and that he was actively looking for victims.

These findings led Dr. Scott to render the following current diagnoses of the appellant: (1) paraphilia not otherwise specified ("NOS"), nonconsent type, which predisposes him to sexually reoffend; (2) depression NOS; (3) amphetamine and marijuana dependence, as well as alcohol, cocaine, and heroin abuse; and (4) antisocial personality disorder ("ASPD"). According to Dr. Scott, the combination of ASPD with a sexual pathology makes it much more likely that appellant will engage in sexual offending behavior in the future. Compounding that risk is appellant's drug and alcohol abuse. Given those factors, Dr. Scott ultimately concluded that appellant should be recommitted to the STU. That conclusion derives mainly from appellant's inability to recognize and manage high-risk situations, which makes him "highly likely to reoffend in the foreseeable future."

Dr. Paolillo, a member of the TPRC that last reviewed appellant in 2012, agreed with Dr. Scott that appellant's commitment should be continued. Dr. Paolillo noted that although appellant had increased his participation in the treatment modules, historically he has maintained an inconsistent track record in treatment. This inconsistency stems from Dr. Paolillo's assessment that, while appellant is very intelligent and sophisticated in understanding "his cycle," his MAP placements are reflective of an "antisocial nature, noncompliance, and poor judgment at times." Dr. Paolillo noted that appellant indicated a willingness to re-enter the TC and that he still has work to do there.

Based on her interview with appellant, and upon a review of pertinent documents, Dr. Paolillo rendered a diagnosis of paraphilia NOS, of the nonconsent type. Dr. Paolillo recommended that appellant remain in Phase Three, where he must demonstrate a higher level of participation, or at least show evidence that his participation is both meaningful and productive.

The trial judge also considered the opposing views offered by appellant's expert, Dr. Lorah. Dr. Lorah interviewed appellant several times, culminating in a report dated December 13, 2011 and a more recent report dated July 20, 2012. According to Dr. Lorah, "at the current time," appellant does not "suffer from a mental illness, or abnormality, or personality disorder that affects his emotional, cognitive, or volitional capacity in a manner that predisposes him to commit acts of sexual violence." According to Dr. Lorah, appellant's proper diagnosis should be "paraphilia NOS by history and antisocial personality disorder," which Dr. Lorah submits does not predispose appellant to reoffend. Dr. Lorah testified that because of appellant's age and his "demonstrated . . . significant benefit from sex offender specific treatment on all three occasions" apparent to her in their interviews, he is not likely to reoffend in the reasonably foreseeable future. On cross-examination however, Dr. Lorah acknowledged appellant's sexual victims are mostly elderly and that despite his present age, it would still be much easier to overpower and rape a woman in her seventies or eighties.

Upon considering these proofs, the trial judge found the conclusions of the State's two experts more persuasive than those of Dr. Lorah. The judge found the testimony of both Dr. Scott and Dr. Paolilla to be "very credible" and "very knowledgeable," more so than that of Dr. Lorah. The judge agreed with Dr. Scott and Dr. Paolilla that the appellant's paraphilia and ASPD predispose him to sexual violence and that "he has not had sufficient treatment." The judge found that it is the combination of these two disorders that make his risk of reoffending higher.

In sum, the judge found that the State's evidence was clear and convincing that appellant is "highly likely to engage in further acts of sexual violence," especially given his substance abuse history, because resuming use of such substances would make recidivism even more likely. Given appellant's background, evidence, and the expert testimony presented, the judge reasoned that the appellant has a "serious difficulty controlling sexual harmful behavior," and therefore it is "[h]ighly likely he will not control his sexually violent behavior and highly likely he will reoffend" if not confined to a secure facility for control, care, and treatment.

In reviewing the trial court's determination to continue appellant's commitment at the STU, we bear in mind several controlling legal principles. Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.

As defined by the statute, 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." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127; see also In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 24 (App. Div.), certif. denied, 188 N.J. 492 (2006). A finding of a total lack of control is not necessary. W.Z., supra, 173 N.J. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid.; see also In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35 (App. Div.), certif. denied, 192 N.J. 296 (2007).

At the commitment hearing, the 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." W.Z., supra, 173 N.J. at 132; see also In re Civil Commitment of J.P., 393 N.J. Super. 7, 11 (App. Div. 2007). The State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. W.Z., supra, 173 N.J. at 133-34; 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).

After an SVPA offender has been initially committed, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator . . . ." N.J.S.A. 30:4-27.32(a).

It is well established that the scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). The judge's decision will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Applying these standards, we sustain the continuation of appellant's commitment, substantially for the cogent reasons recited in Judge Mulvihill's oral decision dated July 25, 2012. The judge carefully considered the testimony of the opposing experts, and articulated sound reasons for crediting the opinions of the State's experts over the more optimistic views of appellant's expert. The judge was free to accept the assessments of the State's experts over the expert presented in opposition. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961); see also Becker v. Baron Bros., 138 N.J. 145, 160-64 (1994) (in which the Supreme Court instructed the judge on remand to allow the factfinders to weigh the "hotly disputed" opinions of two medical experts). Despite appellant having turned the age of sixty and his years of treatment, the State's experts presented ample reasons for regarding appellant as maintaining a high risk of reoffense, particularly given that his prior victims were also elderly and his continued substance abuse issues.

1 There is a suggestion in the record that this was due to an involuntary inability to urinate because of appellant's prescription medicines for depression. However, this asserted justification is undermined by the evidence that appellant also drank a quart of water on one of the days the screenings were being administered, and that there is no indication he ever saw a physician about the urination issue.