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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.C. SVP-423-06.

__________________________________

July 19, 2016

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-423-06.

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

Kevin Dronson, Deputy Attorney General, argued the cause for respondent State of New Jersey (Robert Lougy, Acting Attorney General, attorney).

PER CURIAM

T.C. appeals from an August 26, 2015 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. T.C. argues that the trial court improperly evaluated his progress in treatment because he has cognitive deficits that cannot be overcome and that impede his treatment progress.1 Finding no support for T.C.'s argument in the record, we affirm.

T.C.'s sexual offense history has been discussed in our two prior unpublished decisions affirming his initial and continued commitment to the STU pursuant to the SVPA. We incorporate the facts and procedural history set forth in those decisions. See IMO Civil Commitment of T.A.C., No. A-5770-05 (App. Div. July 13, 2007); IMO Civil Commitment of T.A.C., No. A-5493-09 (App. Div. Dec. 29, 2010). This is T.C.'s third appeal of his commitment following a review hearing conducted on August 26, 2015.

It has been conclusively established that T.C. committed the predicate sexually violent offense required under the SVPA. See N.J.S.A. 30:4-27.26. Specifically, from 1984 to 1999, T.C. sexually assaulted four different girls, ranging from eight to thirteen years of age, and was convicted in connection with those offenses after entering pleas of guilty. His sexual offending included fondling, cunnilingus and penile penetration. T.C. selected and groomed his victims by offering them items in exchange for their secrecy. He also sought out opportunities to be near potential victims, such as a church where he was an usher and a boarding house where he rented a room.

T.C. committed his second sex offense while he was on probation for the first. After undergoing several years of treatment at the Adult Diagnostic and Treatment Center (ADTC) while serving a five-year prison sentence for his second sex offense, T.C. committed additional sex offenses on the latter two victims over a two-year period. For the latter two sexual assault convictions, T.C. served six-and-a-half years of a ten-year sentence at the ADTC. He was transferred to the STU in 2006, where he has remained as a result of the State s successful petition for initial commitment pursuant to the SVPA and continued commitment following annual review hearings. T.C. has since admitted to sexually assaulting three other minor victims, aged eight to thirteen, including his step-daughters, for which he was never charged. His limited non-sexual offending criminal history consists of theft related offenses.

At the review hearing that is the subject of this appeal, the State presented the expert testimony of Dr. Roger M. Harris, a psychiatrist, and Dr. Laura Carmignani, a psychologist and member of the Treatment Progress Review Committee (TPRC),2 both of whom testified in favor of continued commitment. T.C. presented no witnesses. T.C. stipulated to the qualifications of the experts. Their respective reports, along with T.C.'s treatment notes, were admitted into evidence without objection. As a member of the TPRC, Dr. Carmignani participated in the most recent evaluation of T.C. However, when Dr. Harris attempted to interview T.C. on August 10, 2015, T.C. declined to be interviewed, prompting Dr. Harris to formulate his opinion and diagnosis from his evaluation of T.C. the year before as well as his review of documents customarily used by experts in the field.

Dr. Harris diagnosed T.C. with pedophilic disorder and other paraphilic disorder based on his strong sexual arousal to children and teenagers, particularly girls. Dr. Harris also diagnosed T.C. with anti-social personality disorder and post-traumatic stress disorder (PTSD) as a result of an abusive childhood. According to Dr. Harris, T.C. also has a history of poly-substance abuse, involving alcohol, cocaine, marijuana, and prescription pills, in remission within the institutional setting. Further, although T.C. does not fall within the developmentally or intellectually impaired range, Dr. Harris noted that he has borderline intellectual functioning.

Dr. Harris testified that T.C. s various mental abnormalities and personality disorders affect him cognitively and volitionally and predispose him to sexual violence. He opined that the combined effect of T.C.'s diagnoses increases his risk to sexually re-offend, and the addition of drugs or alcohol use would further "erode whatever remaining behavioral controls [T.C.] has[.]" According to Dr. Harris, these disorders do not spontaneously remit but require treatment to control the impulses generated by them.

Dr. Harris noted that T.C.'s nineteen years of treatment between the ADTC and the STU has been marred by T.C.'s consistent dishonesty, misrepresentations and falsehoods. For example, T.C. summarized his ten years of treatment at the ADTC for Dr. Harris by stating that he (T.C.) "was involved in treatment, if you called it that[,]" and that he (T.C.) "faked treatment just to get out."

According to Dr. Harris, T.C. continues to have and act on his deviant thoughts. Most recently, in May 2015, when pressed in group, T.C. eventually admitted having deviant thoughts "all the time[,]" after initially claiming that he had not experienced deviant thoughts in "six or seven years." T.C. was quoted as saying "I cannot control my sexual [deviance] and I won't stop until God takes me from this earth," and "[e]ven if I say I'm going to stop doing what I'm doing, I'm lying. I'm not going to change my deviance. I like what I m doing."

Dr. Harris added that T.C. masturbates to his deviant thoughts. Again, when pressed in group in May 2015, T.C. admitted that just several months prior, "[w]hen he was thinking about one of his victims, he grabbed a jar of Vaseline, got under the covers and began masturbating to images of the victim, when [he] was interrupted by a corrections officer."

Dr. Harris noted that T.C. received his most recent MAP3 placement in April 2014 for fostering relationships with his step-daughters and other STU residents and for sexually acting out with his peers at the STU. Dr. Harris was gravely concerned about T.C.'s sexual activity with other residents because T.C. "targets men who are . . . intellectually impaired and he grooms them by giving them food and doing them favors[,]" thereby closely mimicking his deviant sexual arousal and related sexual assault cycle. As a result, Dr. Harris questioned the wisdom of placing T.C. in the cognitive life skills (CLS) group for his cognitive impairment because the residents in that group are the men T.C. targets at the STU. According to Dr. Harris, placing him in that group creates "a network for him to gain access to more of these men." Based on Dr. Harris' 2014 interview with T.C., Dr. Harris believed that placement in the CLS group was unnecessary because T.C. had the cognitive capacity to be in a "regular group."

Dr. Harris reported that, in 2014, T.C. claimed that he did not understand the meaning of his "deviant arousal" and was unable to describe his "sex offense cycle." Dr. Harris disputed T.C.'s claim of ignorance, explaining that T.C. "knows his deviant arousal well" since he "practices it regularly" and thinks about it "all the time." Dr. Harris pointed to this example as illustrative of T.C.'s resistance to addressing his deviant arousal and unwillingness "to yield and give up [his] gratification." As a result of T.C.'s limited progress and level of engagement in treatment, T.C. remains in Phase 2 out of five possible treatment phases. According to Dr. Harris, T.C.'s behavior is alarming because, after nineteen years of treatment, T.C. is still "profoundly resistant" to treatment, acts on his deviant arousal, misrepresents himself in group, and targets weaker residents.

Dr. Harris opined that T.C. is "highly likely" to act on his deviant arousal and sexually re-offend in the foreseeable future if released into the community based on his "fantasizing about the children and masturbating within a treatment facility." Although T.C., now age fifty-five, scored a three on the Static-99R,4 which places him at a "low-to-moderate" risk for sexual recidivism, Dr. Harris testified that this classification does not adequately capture T.C.'s risk which is "far outweigh[ed] and dramatically increase[ed]" by his paraphilia to children and adolescents, "his poor cognitive problem solving, his poor self-regulation, [and] his antisocial personality attitudes and behaviors."

Dr. Carmignani's testimony was generally consistent with that of Dr. Harris. She also diagnosed T.C. with pedophilic disorder, non-exclusive type, sexually attracted to females, not limited to incest; other specified paraphilic disorder, hebephilia; other specified personality disorder, with antisocial features; alcohol use disorder in a controlled environment; cannabis and stimulant (cocaine) use disorder in a controlled environment; and borderline intellectual functioning. Like Dr. Harris, Dr. Carmignani opined that T.C.'s disorders do not spontaneously remit but require treatment to learn impulse control.

Dr. Carmignani reported that the only sex offender specific module T.C. has successfully completed to date is relapse prevention. Dr. Carmignani agreed that T.C. "continues to be manipulative, to lie in treatment and contradict himself." For example, Dr. Carmignani learned from the team that T.C. fabricates stories, minimizes his index offense, provides discrepant accounts and has insinuated that he had consensual sexual relationships with his child victims.

According to Dr. Carmignani, although T.C. has glimpses of "better treatment engagement" and "positive progress[,]" overall, "he's struggling in treatment to remain honest and to be fully compliant and engaged." In addition, Dr. Carmignani pointed out that T.C. has limited insight, lacks awareness of his sexual assault cycle and does not have a relapse prevention plan. According to Dr. Carmignani, T.C. is not fully compliant with treatment because he fails to "implement and utilize" what he is being exposed to in groups.

Dr. Carmignani did not share Dr. Harris' reluctance to place T.C. in CLS because she believed that a change in treatment is warranted. According to Dr. Carmignani, although the treatment team noted that a reduction in T.C.'s negative behavior indicated that "he may likely have the cognitive resources to fully engage in treatment," T.C. has demonstrated an inability to "grasp the concepts" because of his "borderline intellectual functioning." While Dr. Carmignani understood the concerns associated with placing T.C. in a group with residents he reportedly acts out with sexually, she believed that "something does need to change with [T.C.'s] case to get him more stable and more behaviorally compliant in the facility."

Dr. Carmignani also scored T.C. as a three on the Static-99R, and assigned T.C. a score of twenty on the PCL-R, a test that evaluates the range of psychopathy and places T.C. in the moderate range. However, Dr. Carmignani testified that T.C. has had insufficient treatment to enable him to adequately control his impulses. She opined that T.C. would have serious difficulty controlling his sexual offending behavior and believed that T.C.'s risk to sexually re-offend in the foreseeable future would be high if released at this time.

The court found the State's experts to be credible and concluded that the State demonstrated by clear and convincing evidence that T.C. was convicted of sexually violent offenses, and continues to suffer from "mental abnormality [and] personality disorder that does not spontaneously remit . . . [and] can only [be] mitigated by way [of] treatment." The court determined that T.C.'s disorders affect him emotionally, cognitively and volitionally and predispose him to sexual violence. As a result, the court found that, at present, T.C. is "highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment." The court signed a memorializing order continuing T.C.'s commitment to the STU and this appeal followed.

We begin with a review of basic principles. 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 R.F., supra, 217 N.J. at 173-74.

At the 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." W.Z., supra, 173 N.J. at 132. The 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." Ibid. To commit or continue to commit the individual, the court must address the offender's present "serious difficulty with control over dangerous sexual behavior[,]" and the State must establish "that it is highly likely that" the individual will re-offend "by clear and convincing evidence." Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126-32. However, "an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

Our Supreme Court has recently reaffirmed that an appellate court's scope of review of a judgment for commitment under the SVPA "is extremely narrow." R.F., supra, 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We must "give deference to the findings of our trial judges because they have 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)). Moreover, "[t]he 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)). Accordingly, a SVPA trial judge's determination either to commit or release an individual is accorded substantial deference and should not be modified by an appellate court "unless the record reveals a clear mistake." R.F., supra, 217 N.J. 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 this limited scope of review here, we affirm the court's order of continued commitment. The proofs adduced by the State clearly demonstrate by the requisite quantum of proof that T.C. continues to suffer from a mental abnormality and personality disorder that affects his emotional, cognitive and volitional capacity in a manner that predisposes him to commit acts of sexual violence. Further, given his unrelenting "deviant thoughts" and limited progress in treatment, T.C. has demonstrated serious difficulty in controlling his sexually harmful behavior such that it is highly likely that he will re-offend if not confined for continued treatment. The court's conclusions to that effect are amply supported by the record and consistent with the law governing SVPA proceedings.

T.C. argues that the court improperly evaluated his progress in treatment because he has cognitive deficits that cannot be overcome and impede his treatment progress. While both experts acknowledged T.C.'s cognitive deficits, neither opined that these deficits prevented him from attaining treatment goals or making progress in treatment. On the contrary, Dr. Carmignani testified that T.C. has glimpses of "better treatment engagement" and "positive progress[,]" and has successfully completed the relapse prevention module. Further, Dr. Harris attributed T.C.'s limited progress in treatment to his dishonesty and unwillingness to relinquish his deviant arousal, rather than any cognitive deficits. The court had the prerogative as the fact-finder to accept the testimony and opinion of the experts, as occurred here. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). On this record, the court's determination to continue T.C.'s commitment does not reveal any mistake, much less "a clear mistake," warranting our intervention. R.F., supra, 217 N.J. at 175.

Affirmed.

1 By agreement of the parties and with the permission of the court, the appeal was argued without briefs.

2 The members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU.

3 Modified Activities Program (MAP) is a "component of the clinical treatment program at the STU that focuses on stabilizing disruptive or dangerous behaviors." M.X.L. v. N.J. Dep't of Human Servs., N.J. Dep't of Corr., 379 N.J. Super. 37, 45-6 (App. Div. 2005).

4 The Static-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See Andrew Harris, et al., Static- 99 Coding Rules Rev.sed-2003 5 (2003). Our Supreme Court explained that actuarial information, including the Static-99, is "simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA." In re Commitment of R.F., 217 N.J. 152, 164 n. 9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).