May 30, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF J.H.S., SVP-324-03.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-324-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 15, 2007
Before Judges Axelrad and R.B. Coleman.
J.H.S., who is now sixty-two years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of October 25, 2006, continuing his commitment to the STU following a first review hearing. On appeal, J.H.S. argues that based on his low actuarial risk score, advanced age, and lack of criminal history other than the predicate offenses, for which he has continued to maintain his innocence, he is not at the level of risk required by the SVPA and is amenable to conditional discharge despite his refusal to attend treatment while at the STU.*fn1 Based on our review of the record, we are not persuaded by these arguments and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of October 25, 2006.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, 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." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, 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. Both an order of commitment and order of continued commitment must be based on clear and convincing evidence that an individual who has been convicted of a sexually violent offense suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; 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 individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, 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." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
The feasible availability of treatment outside of the STU, if proven, is relevant to the offender's need for continued commitment under the SVPA. If the committed person presents, through appropriate testimony, a sound discharge plan that permits needed treatment under conditions that substantially reduce the risk of re-offense "to a degree that prevents the State from proving by clear and convincing evidence that the individual is highly likely to engage in acts of sexual violence, then the individual is entitled to a conditional discharge." In re Commitment of J.J.F., 365 N.J. Super. 486, 502 (App. Div.), certif. denied, 179 N.J. 373 (2004).
To protect civil liberties, "[t]he court must not confine an individual indefinitely when the individual with reasonable assurance could live safely in the community with support and supervision." Ibid. However, "if after a fair chance to produce evidence, a conditional discharge from SVPA confinement cannot be granted without undue risks to society," the commitment should be continued "until the prospects for release are more optimistic." Ibid.
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "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).
The order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. J.H.S. was initially committed by an order entered on March 15, 2004, which he appealed and we affirmed in an unpublished opinion. In re Civil Commitment of J.H.S., No. A-4354-03T2 (App. Div. February 8, 2006). After our affirmance, an initial review hearing was held on October 19, 2006, and October 20, 2006, before Judge Perretti and a judgment of continued commitment was entered, which is the subject of this appeal.
J.H.S.' predicate offense involved convictions in 1986 and 1987 of sexual offenses involving two separate victims, each a boy under the age of ten, with whom he was in a position of trust. On or between January 1, 1983, and April 30, 1983, J.H.S. molested a seven-year-old boy, R.H., on two separate occasions, resulting in a conviction of two counts of aggravated assault. According to R.H., on both occasions J.H.S. called him into a garage, and the first time he fondled the boy's genitals through his clothes. The second time, he directed R.H. to pull down his pants and underpants and fondled the boy's private parts, instructing him to keep it a secret.
On or between July 1, 1983, and July 31, 1984, J.H.S. molested another young boy, nine-year-old J.K., and was convicted of one count of aggravated sexual assault and one count of endangering the welfare of a child. J.K. testified that the initial contact occurred when J.H.S. took him and his friends on a fishing trip, during which he instructed J.K. to go inside the house and get a fishing pole while the other boys remained outside. J.H.S. lured J.K. in the bedroom, directed him to remove his clothes, and laid the boy on the bed, where he anally penetrated J.K. and then placed his mouth on J.K.'s penis. J.K. testified that similar incidents occurred on twenty-five to thirty occasions. J.H.S. was sentenced for both convictions on the same day. He received consecutive terms of twenty-years imprisonment with a parole ineligibility of eight years as to J.K. and ten-years imprisonment with a parole ineligibility of two years as to R.H. J.H.S. served approximately seventeen years and was civilly committed when he was due to "max out" in May 2003.
At the review hearing, Dr. Vivian Shnaidman testified for the State and Dr. Donald Reeves testified on behalf of J.H.S. Both doctors are board-certified in psychiatry and neurology. Dr. Shnaidman diagnosed J.H.S. with pedophilia; alcohol abuse in institutional remission; personality disorder NOS, with paranoid anti-social, and schizotypal features; somatization disorder; and asthma and related respiratory problems. Dr. Reeves provided a similar diagnosis of pedophilia, history of poly-substance abuse, undifferentiated somatization disorder, paranoid personality traits, and asthma and related respiratory problems. The parties stipulated that J.H.S. suffers from a mental abnormality/personality disorder and has been convicted of a sexually violent offense pursuant to N.J.S.A. 30:4-27.26. It is also undisputed that J.H.S. has denied any guilt for the predicate offenses from the time of his arrest and continues to maintain his innocence. He has provided numerous explanations of why he might have been wrongfully accused, including claiming that J.K. might have resented him because his parents gave J.H.S. his dog and that the authorities brought the charges against J.H.S. in retaliation for exposing illegal toxic waste dumping in the community.
J.H.S. has also refused all treatment during his confinement at the STU. He attempts to justify his refusal to participate by reference to his severe allergies and to his sensitivities to environmental contaminants and to odors emanating from others and further denies committing the offenses and being a sex offender. Dr. Shnaidman's concern was that J.H.S.' diagnosis of pedophilia as a mental disorder does not "disappear" but is controlled with sufficient treatment. Because of his treatment refusal status, coupled with his history of alcohol and substance abuse, and denial that he committed either offense and refusal to discuss his criminal history, J.H.S. remained highly likely to be unable to control his sexually violent behavior if not confined to a secure facility, notwithstanding his age and low/moderate risk range.
Dr. Reeves was of the opinion that J.H.S.'s low score on the Static 99 test and his advanced age made him less likely to commit another sex offense and he should therefore be released on conditional discharge, although Dr. Reeves conceded that if J.H.S. failed to abide by any of the conditions, he would be a "high risk" of re-offending. The court found it "inconceivable" that J.H.S. would be any more willing to participate in therapy anywhere else than he had been at the STU, for example, as perfumes are used outside of the institution. Judge Perretti indicated her "lack of understanding of the opinions" of Dr. Reeves and her "total disagreement [with his unsubstantiated position] that this treatment refuser [J.H.S.] should be put out into the public and then tested to see whether or not he would comply with the conditions of release," stating:
It is Dr. Reeves' recommendation that [J.H.S.] be discharged conditionally. He recommends that [J.H.S.] should be under the supervision of parole, should not be allowed unsupervised access to children, should be required to remain abstinent from drugs and to submit to random drug screenings. He should be required to participate in outpatient group substance abuse counseling and outpatient group sex offender psychotherapy.
According to the psychiatrist, [J.H.S.] would be a high risk if he were to return to drugs. It's pointed out that [J.H.S.] currently denies all drug use and inasmuch as he does not admit to himself that he is a user, he needs continued treatment according to Dr. Reeves.
He is also of the opinion that [J.H.S.] would present a high risk if he did not accept sex offender treatment. This is because Pedophilia is ingrained, does not go away and one seeks to control it through therapy.
It's Dr. Reeves' speculation that [J.H.S.] would comply with the conditions of a release, but could state no specific reasons behind that opinion.
The Court seriously questions the validity of that opinion inasmuch as [J.H.S.] has given two reasons for refusing treatment. First, that he is not a sex offender, and second, that he can't get near people because of the way that they smell. . . .
A further reason for the Court's serious questioning of Dr. Reeves' recommendation is that it appears to the Court to be a method to determine the real level of risk by experimenting in the community. This is hardly the scheme devised by the legislature in the S.V.P.A.
It's Dr. Reeves' suggestion that [J.H.S.] should be released on these conditions, and then if he violates the conditions, he could be re-committed as then meeting the criteria of the statute.
This Court simply does not understand that recommendation.
There is absolutely no likelihood that [J.H.S.] would comply with the conditions of a release. His history at the S.T.U. is dispositive of this issue. In addition, Dr. Reeves concedes that therapy on the outside, even if accepted, would do [J.H.S.] no good. However, it would serve as a reminder not to reoffend under pain of being recommitted to the S.T.U.
It's pointed out that if [J.H.S.] reoffends and is caught, he would go to prison and certainly needs no reminder as to that. . . .
The record supports the court's findings that the State's evidence taken as a whole was clear and convincing, that J.H.S. continues to be a sexually violent predator and continues to be in need of commitment under the SVPA. We are satisfied the judge did not abuse her discretion in concluding that J.H.S. failed to produce sufficient evidence that a conditional discharge from SVPA confinement could not be granted without undue risks to society at this time.