IN THE MATTER OF THE CIVIL COMMITMENT OF W.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5003-14T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF W.T., SVP-39-00.

__________________________________

December 7, 2015

Before Judges Sabatino and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-39-00.

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

Brad Reiter, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

W.T. appeals from a June 30, 2015 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA) N.J.S.A.30:4-27.24 to -27.38. We affirm.

I

W.T., currently thirty-nine years old, has been committed to the STU since February 2000. The predicate offenses for which he was committed occurred in December 1994 and February 1995 when he was eighteen years of age. On two separate occasions, W.T. forcefully penetrated a fifteen-year-old boy anally. On three other occasions he fondled the genitals of another fifteen-year-old boy. W.T. threatened to harm both victims if they told anyone about the assaults. At the time of these assaults, W.T. and both victims were residents of a residential group home for boys. As a result of these offenses, in October 1995 W.T. pled guilty to two counts of sexual assault, and was sentenced to concurrent seven-year terms at the Adult Diagnostic Treatment Center (ADTC) at Avenel.

Before he committed the predicate offenses, W.T. was adjudicated a delinquent in 1992 on charges of aggravated sexual assault for digitally penetrating the vagina of a five-year-old. As for non-sexual offenses, W.T. was adjudicated a delinquent for theft in 1989, and for aggravated assault, criminal mischief, and simple assault in 1990.

Although not prosecuted for the following acts,1W.T. admitted that when he was twelve or thirteen years of age, he anally penetrated and forced a six-year old boy to perform oral sex upon him. When W.T. was ten and thirteen years of age, he digitally penetrated the vagina of a four-year-old girl. When W.T. was twelve years old, he forced a seven-year-old boy to perform fellatio upon him. Finally, W.T. revealed that when he was ten years of age his uncles forced him to penetrate his seven-year-old sister's vagina with his penis.

Just before he committed the predicate offenses, W.T. was admitted into the Pretrial Intervention Program (PTI) in October 1994 for possession of a weapon for an unlawful purpose. PTI was terminated when W.T. was convicted of the predicate sexual offenses in 1995. The court then re-sentenced W.T. to a five- year prison term, with a three-year period of parole ineligibility, to run concurrently with the sentence imposed for the predicate sexual offenses.

Since 2000, W.T. has completed various modules and has participated in the Therapeutic Community (TC), which is considered an advanced step in treatment and is generally required before being released. Because of his progress, in June 2007, the Treatment Progress Review Committee (TRPC) began to plan his discharge. In December 2007, he moved into Phase 5, signaling his transition back into the community.

However, in July 2008, discharge preparation and furloughs ceased when W.T.'s coping skills deteriorated and he developed an attachment to another resident. W.T. became uncooperative and refused to discuss his relationship with the other resident. Finding he needed additional treatment, the TRPC put W.T. back into Phase 3 in November 2008.

In April 2009, W.T. left the TC and joined a non-TC support group. Although W.T. was actively engaged in this group and completed additional modules, his new treatment providers noted he still struggled to learn new coping and relationship skills. By June 2010, however, he rejoined the TC and successfully completed additional modules. By August 2011, he was promoted to Phase 4 with a recommendation for discharge planning. In December 2011, W.T.'s treatment providers completed a comprehensive discharge plan. In January 2012, the TPRC determined that if W.T. successfully interviewed with a transitional housing program, it would promote W.T. to Phase 5 and again begin the furlough process.

However, W.T. then refused to participate in TC, maintaining the TC staff had confronted him with allegations he had sexually assaulted another resident, which W.T. denied committing. In July 2012, the TPRC noted W.T. could not "maintain active engagement under pressure and confrontation" and, consequently, decided to slow his transitional process. In response to W.T. becoming increasingly withdrawn and exhibiting a mistrust of his treatment providers, in February 2013 the TPRC put W.T. back into Phase 3 to give him time to learn how to react to the allegations he had sexually assaulted another.

Between February 2013 to April 2014, W.T. did participate in emotional regulation modules, but still remained "adamantly opposed to rejoining the TC." In his November 2014 interview, the TPRC noted W.T. still struggled with anger and trust issues towards the TC staff and his peers. Just before the most recent review hearing, W.T. still remained opposed to rejoining the TC.

At the most recent review hearing, held on June 18, 2015, the State called two witnesses, psychologist Rosemarie Vala Stewart, Ph.D., and psychiatrist Michal Kunz, M.D. Appellant called psychologist Christopher P. Lorah, Ph.D. The reports of all three experts were admitted into evidence without objection.

Dr. Stewart opined W.T. is "highly likely" to reoffend if he is released into the community. Although presently W.T. claims he sexually fantasizes about adult women and not young children or teenagers, Dr. Stewart diagnosed W.T. with other specified paraphilic disorder (hebephilia), and made a provisional diagnosis of paraphilic disorder (pedophilia). Her diagnoses were based upon the age range of his victims, which were prepubescent to pubescent children.

Dr. Stewart also found W.T. exhibits traits of dependent personality disorder. These traits, when combined with his paraphilia, exacerbate the risk he will reoffend if reintroduced to the community. Although W.T. had made strides toward being released, W.T. had to be returned to Phase 3 when he refused to discuss the relationship he had with the other resident, became increasingly withdrawn, isolated himself from others, and became mistrustful of the staff to the point of borderline paranoia.

W.T.'s aversion to participating in the TC also concerned Dr. Stewart, because he himself had said that he engaged in self-isolating behavior just before he sexually acted out. Without treatment that focused upon teaching him self-coping skills, Dr. Stewart opined his offending behavior would likely resurface if reintegrated in the community. Dr. Stewart did acknowledge W.T. had been exposed to STU treatment for fifteen years and possessed an understanding of the intellectual aspects of the treatment. However, W.T. has "used the language of feeling victimized," and without targeted treatment, these feelings put him at risk of reoffending.

Ultimately, Dr. Stewart recommended W.T. continue to work on learning problem-solving skills and how to deal with negative emotions. She further recommended he repeat the emotional regulation modules, participate in self-help groups, and reapply to the TC, which has a "challenging confrontational environment" that would force W.T. to learn the emotional skills necessary to handle the inevitable stress that will come with reintegrating into the community. She noted his success in the TC hinges on his "willingness to engage in the process."

Dr. Kunz testified that the fact W.T. committed the predicate offenses while under supervision, compounded by the fact he had previously committed other sexual offenses, indicates that such behavior is highly compulsive and that he will have difficulty controlling his urges. He also is emotionally fragile, easily angered, and has difficulty coping when under stress. Although he has progressed in treatment over the years, since 2012 he stopped advancing because he is unwilling to confront uncomfortable feelings. He continues to struggle with anger and feeling mistrustful even paranoid of others, which has impeded his ability to "move on."

Because he reported feeling intense anger when he assaulted his victims, given the level of anger he was experiencing at the time of the review hearing, Dr. Kunz believed that, if released into the community, W.T. will be tempted to express his anger in the form of committing a sexual assault. Further, because he does not trust his current treatment providers, with whom he has worked for many years, it is unlikely he will be able to trust and form a relationship with the treatment providers to whom he will be assigned once he is discharged. Dr. Kunz's concern is that W.T. will not have anyone he can rely upon if he needed help with handling feelings of arousal when he is discharged.

Dr. Kunz opined that W.T. suffers from a mental abnormality or personality disorder that impacts his volitional, emotional, or cognitive functioning so as to predispose him to engage in acts of sexual violence. Dr. Kunz diagnosed W.T. with hebephilia and personality disorder, not otherwise specified, with borderline paranoid and self-defeating traits. Having hebephilia predisposes him to reoffend, because he is aroused by and has an urge to sexually act against juveniles. His personality disorder decreases his ability to restrain his sexual urges. Neither condition will spontaneously remit, although treatment can reduce the risk that he will reoffend. But at this time the risk that he would reoffend if released is high.

Dr. Christopher Lorah did not agree W.T. has paraphilic disorder because, when W.T. sexually assaulted the two fifteen- year-old boys, he had only recently become an adult, turning eighteen years of age within three to four months of the assaults. Dr. Lorah opined that that the risk W.T. would reoffend falls below the "highly likely threshold." He believes W.T. will likely comply with "stipulations in the community" because he has taken and passed his modules, has been an active participant in process groups, and consistently engaged in treatment but for the TC.

The trial court found the conclusions of the State's experts to be supported by the record and credited their testimony. The court found that if W.T. were to be released back into the community, it is highly likely he will engage in acts of sexual violence. The trial court stated, in pertinent part

I'm satisfied . . . by clear and convincing evidence, based on my review of the records, and and the fact that I find that the records support the opinions of the state's experts, and I, therefore, credit the state's expert's opinion that that the respondent suffers from a paraphilia, and a personality disorder, and that in combination they predispose him, affecting him in all three areas, emotionally, cognitively, and volitionally, and they predispose him to engage in acts of sexual violence, and if that released he would have serious difficulty controlling his sexually violent behavior, and would, in the reasonably foreseeable future, be highly likely to engage in acts of sexual violence . . .

Taking into account his propensity, which I think is still high, as Dr. Kunz testified[,] [t]hose conditions do not spontaneously remit, and do not go away. They can be . . . through treatment, controlled, and the opinion of the state's experts is that he has not had sufficient treatment, and I credit that, and I do find by clear and convincing evidence, and I have considered whether, at this point, he could be conditionally discharged, and given his problems dealing with conflict, dealing with people in positions in authority, or his theaters, I find that he is not at this point, a candidate for conditional discharge, and I make that finding by clear and convincing evidence.

II

Pursuant to the SVPA, an involuntary civil commitment can follow an offender's service of a custodial 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" consists of "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. The mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 129; see also In re Commitment of R.F., 217 N.J. 152, 173-74 (2014).

At an SVPA commitment hearing, the State has the burden of proving that the offender poses a threat

to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . . [T]he State must prove that threat 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.]

To commit or continue to commit an individual to an STU, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id.at 133-34; see also R.F., supra, 217 N.J.at 173.

Here, the trial court correctly applied these standards to the evidence adduced at the June 18, 2015 review hearing. The testimony of both of the State's experts clearly demonstrates that appellant continues to have mental abnormalities that pose a serious danger that he will sexually reoffend if released.

As the Supreme Court recently emphasized in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." Id.at 174 (internal citations omitted). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to special deference." Ibid.(quoting In re Civil Commitment of T.J.N., 390 N.J. Super.218, 226 (App. Div. 2007)). On appeal, we must give deference to a trial judge's findings from commitment hearings, not only in recognition of the judge's expertise, but also because the judge has "the 'opportunity to hear and see the witnesses' and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.(quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

An appellate court cannot modify the SVPA trial court's determination either to commit or release an individual "unless the record reveals a clear mistake." Id.at 175 (internal citations omitted). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid.(quoting Johnson, supra, 42 N.J. at 162); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).

Applying these deferential principles here, we affirm the judgment directing appellant's continued commitment. Judge Freeman's decision to continue W.T.'s commitment is supported by substantial, credible evidence in the record and the applicable law.

1 We surmise that none of the following acts was brought to the attention of any law enforcement authority.