May 30, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF J.X.P., SVP 266-02
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-266-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 15, 2007
Before Judges Axelrad and R.B. Coleman.
J.X.P, who is now forty-three years old, 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 5, 2006, continuing his commitment to the STU following a fourth review hearing. On appeal, J.X.P. argues there was insufficient basis for the court to credit the State psychiatrist's testimony and opinion that he was unable to control his sexual urges and would present a high-risk to recidivate if released because the expert's opinion was based on unsubstantiated and irrelevant facts.*fn1 Based on our review of the record, we are not persuaded by this argument 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 5, 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 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.X.P. was initially committed to the STU by an order entered on October 16, 2002. His commitment was continued after yearly reviews, with the prior order entered on February 2, 2004, which J.X.P. appealed and we affirmed in an unpublished opinion. In re Civil Commitment of J.X.P., No. A-3347-03T2 (App. Div. February 14, 2005). A subsequent review hearing was conducted on October 2, 2006, and October 5, 2006, before Judge Perretti and a judgment of continued commitment was entered, which is the subject of this appeal.
Appellant has had a long history of sexually violent offenses against young children. In 1978, he exposed his penis to two girls, age ten and twelve, in the hallway of the apartment building where he lived, for which he was convicted of lewdness and received a probationary sentence of one-year. In 1984, he wrote obscene letters to a ten-year-old girl. J.X.P.'s predicate sexual offenses include repeated acts of sexually deviant molestation of a ten-year-old boy and his eight and nine-year-old neurologically impaired sisters while baby-sitting for them between April 1984 to February 1985, and the abduction, rape and sodomization of a ten-year-old girl on January 23, 1986, accompanied by confessed thoughts of murder to avoid detection. For these predicate offenses, he was sentenced in November 1986 to fifteen years at the Adult Diagnostic Treatment Center (ADTC) for the abduction and rape and two concurrent fifteen-year terms for the assaults upon the two impaired girls that ran consecutive to the sentence for the abduction and rape. Prior to J.X.P.'s "maxing out" on his sentence in August 2002, he was civilly committed to the STU.
At the review hearing, Dr. Brian Friedman, a psychologist and member of the Treatment Progress Review Committee (TPRC), and Dr. Michael R. McAllister, a psychiatrist, testified for the State. J.X.P. presented no witnesses on his behalf. Dr. Friedman testified that the treatment team recommended J.X.P. remain in Phase III of treatment. There was considerable testimony about J.X.P.'s favorable attendance and participation in group sessions, which the court acknowledged but agreed with the psychiatrist that there were significant areas of the treatment that remained unaddressed.
Judge Perretti concluded that J.X.P., whose diagnosis is pedophilia, exhibitionism, history of alcohol and marijuana abuse, history of depressive disorder, NOS and personality disorder, remained highly likely to commit additional sexually violent offenses if not continued in confinement for further care and treatment. The court based its conclusion on the extraordinary nature of J.X.P.'s sexually offensive behavior and his unwillingness to discuss all offenses, including his denial of an alleged attempted rape of a five-year old in approximately 1970, reported in the psychiatrist's clinical certification for commitment, and J.X.P.'s history of deceitfulness with regard to his treatment, as well as his admission to Dr. McAllister that he had last masturbated to sexual thoughts of young girls in January of 2005. Judge Perretti summarized her findings in the following way:
The reports of the treaters . . . appear to lead to the conclusion that [J.X.P.] is doing very well in therapy, making progress on all fronts, and this in spite of his insecurity and lack of self-confidence. This is a matter of concern to the psychiatrist, Dr. McAllister. He testified about an institutional infraction at ADTC. During [J.X.P.'s] reportedly fruitful participation and sex offender specific therapy, [J.X.P.] was found to be simultaneously corresponding with a juvenile female in a highly sexually explicit fashion and was in possession of pornography, which he used for purposes of masturbation.
At the time his therapist thought he was doing well in therapy. This leads Dr. McAllister to the opinion that [J.X.P.] is capable of presenting himself well while continuing to act on his deviant arousal. According to the testimony this is a very important factor in evaluating [J.X.P.'s] progress in therapy, and his risk to recidivate.
The psychiatrist also points out that [J.X.P.] now denies a second rape or attempted rape of a five-year-old victim, which he acknowledged to Dr. Harris in a prior report.
[J.X.P.] now says that not only did he not attempt to rape on a five-year-old, but he never made that statement to Dr. Harris -- who he claimed was lying.
In evaluating the risk the doctor considers that the severity of [J.X.P.'s] sexually deviant offenses escalated with the years. His predicate sexual offenses involved repeated acts of sexually deviant molestation of two neurologically impaired eight and nine-year-old girls and culminated in the abduction and rape of a ten-year-old girl accompanied by thoughts of murder.
He has not recently discussed his sexual offenses at the STU, denying that he made a statement to Dr. Harris about another attempted rape victim.
Thus, Dr. McAllister concludes that there are significant areas of his treatment that remain unaddressed. He recommends that great care be taken to rule out a repeat of his previous deception of treaters.
At the present time there is no way that this Court can rule that out. [J.X.P.] is giving a satisfactory performance, and is commended by his therapists. However, it is a matter of significant concern to the Court that he denies the statement that he made to Dr. Harris.
The Court is aware that [J.X.P.'s] most recent sexual offense included extraordinary violence against the child who was abused in a number of different fashions and was caused to bleed. [J.X.P.] admitted that he thought of killing the victim in order to dispose of the witness.
His risk to re-offend is increased in light of the extraordinary nature of [J.X.P.'s] sexually offensive behavior.
The diagnoses are not contradicted. The evidence presented is clear and convincing. The respondent continues to be a sexual violent predator suffering from abnormal mental conditions and personality disorder that influences cognitive, emotional, and volitional capacities so as to pre-dispose him to commit sexually violent acts.
He has serious difficulty controlling his sexually violent behavior as demonstrated by his criminal history and his attempts to contact juveniles for pen-pals, which continued while he was under treatment at the ADTC. As a result, [J.X.P.] is highly likely to commit additional sexually violent offenses if not continued in confinement for further care and treatment.
The evidence supports the finding that J.X.P. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and that the evidence does not, as Judge Perretti determined, permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The conclusion that J.X.P. continues to suffer from a mental abnormality or personality disorder that presently causes his serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. In re Commitment of W.Z., supra, 173 N.J. at 132.