May 31, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF J.E.D., SVP-210-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-210-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2007
Before Judges Axelrad and R. B. Coleman.
J.E.D. appeals from an order of judgment entered on January 8, 2007, finding that he continues to be a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment ordered that J.E.D. be committed to the Special Treatment Unit (STU) for the custody, care and treatment of sexually violent predators and that a review hearing be conducted on December 13, 2007. We affirm.
J.E.D. is a thirty-four year old man who has a history of sexually violent crimes. On February 10, 1997, J.E.D. pled guilty to four counts of sexual assault in the second degree, based on charges involving four girls between the ages of seven and sixteen. On May 30, 1997, J.E.D. was sentenced to the Adult Diagnostic and Treatment Center (ADTC) for a seven year concurrent term on each of the four counts. In addition, on June 21, 2001, J.E.D. was evaluated at ADTC, and he admitted he had previously been treated for about six weeks in 1992 as an inpatient in a California hospital for sexually abusing three male relatives ranging in age between six and sixteen. His history also includes treatment at St. Claire's Psychiatric Hospital in 1986, following an offense committed by J.E.D. upon a four year old girl who was a friend of the family.
Upon the State's petition seeking J.E.D.'s civil commitment, pursuant to the SVPA, J.E.D. was temporarily committed to the STU on November 9, 2001. A final hearing was held on March 26, 2002, where the court found that the State's evidence established that J.E.D. was a sexually violent predator and, as a result of which, the court ordered that he was remanded to the STU. Subsequent review hearings were held and orders were entered on September 17, 2002, June 24, 2003, October 13, 2004 and April 19, 2005. J.E.D. appealed the June 24, 2003 order and the April 19, 2005 order and both orders were affirmed by unpublished per curiam opinions of this court, issued on June 29, 2004, and December 21, 2005, respectively. In re Civil Commitment of J.E.D., No. A-6164-02T2 (App. Div. June 29, 2004) and No. A-4425-04T2 (App. Div. December 21, 2005). The review hearing that is the subject of this appeal was conducted on December 4, 2006, and January 8, 2007. At the conclusion of the hearing, the court found that J.E.D. continued to be a sexually violent predator and ordered that he remain confined at the STU for custody, care and treatment.
On his current appeal, J.E.D. argues that the court erred in determining that the State proved by clear and convincing evidence that J.E.D. met the criteria for SVP commitment and that the State failed to show that J.E.D. continues to suffer from a mental abnormality which would predispose him to committing acts of sexual violence.*fn1 More particularly, counsel for J.E.D. argues that J.E.D. is not currently having difficulty controlling his sexual tendencies as a diagnosed pedophila. He points out that J.E.D.'s actuarial risk is low and he is not comporting himself as one would anticipate for a person previously diagnosed with pedophilia because he now engages in age-appropriate relations with consenting adults at STU. Thus, he argues the testimony of Dr. Luis Elliot Zeiguer, the psychiatrist who testified for the State at the review hearing, conveys the wrong impression, to the extent it is understood to suggest that J.E.D. would act on pedophilic tendencies if he were released.
The State's response is that pedophilia does not go away and that J.E.D. has merely sublimated his preferences as a result of his custodial status. J.E.D. has been denied access to the group that triggers his sexual impulses. In light of the denial of access to prepubescent subjects, J.E.D. has knowingly broken the rules of the STU to engage in inappropriate sexual activity, even if that activity is with a consenting adult resident of STU.
Judge Perretti, based on her review of the testimony and report offered by Dr. Zeiguer, but also the treatment records and the Treatment Progress Review Committee (TPRC) report, found that J.E.D. had exhibited problems with judgment and impulse control. Although his sexual conduct at STU was consensual sex, J.E.D. was aware that it was contrary to the rules, that breaking the rules would lead to adverse consequences and J.E.D., nevertheless, was unwilling or unable to control his impulses regarding sexual activity. The judge concluded:
It is clear that the -- the respondent has demonstrated, over the course of this review period, an inability or unwillingness to control his impulsive participation in prohibited sexual involvement.
He has also demonstrated an inability or unwillingness to understand the risk that he wishes to undertake by resuming a relationship with young relatives. He has demonstrated an inability or unwillingness to understand that this is contrary to the concepts of sex offender specific therapy.
The evidence presented was clear and convincing. The Court is clearly convinced that the respondent continues to be a sexually violent predator, suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional, and volitional functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexual behaviors. And is highly likely to commit sexually violent acts if not continued in a custodial setting for further care.
We have carefully considered J.E.D.'s arguments in light of the record and the applicable law, and we affirm substantially for the reasons expressed by Judge Perretti in her oral opinion announced on January 8, 2007.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.
In reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . [is] extremely narrow," and the trial court's decision should be "accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
At the hearing held on December 4, 2006 and January 8, 2007, the State presented the testimony of Dr. Zeiguer, who evaluated J.E.D. on November 28, 2006. The TPRC report was stipulated in as evidence. Dr. Zeiguer testified that he diagnosed J.E.D. with pedophilia, based on his repeated sexual acts against prepubescent children. Dr. Zeiguer acknowledged that J.E.D. had a low static 99 score, has been active in treatment and has completed several modules in treatment. However, J.E.D. has been in MAP placement a number of times, and has had sexual relations -- though consensual -- with other residents, which exhibits an inability or unwillingness to control his impulsive participation in prohibited sexual involvement.
The judge recognized that J.E.D. had been active in treatment and had a low static score, but found that these factors did not result in any diminution of J.E.D.'s risk of reoffending. She noted that Dr. Zeiguer testified that J.E.D.'s behavior in the STU indicates his continuing inability to control his impulses regarding sexual activity. The judge also noted that the TPRC report reflected concern about J.E.D.'s desire to reconnect with his young relatives, and though the referenced relatives are not those who were the victims of J.E.D.'s prior offenses, J.E.D. "is blinded to the problematic nature of his presence in the lives of . . . children who fit his victim profile." The judge found that J.E.D. "continues to be a sexually violent predator, [and] suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional, and volitional functioning so as to predispose him to commit sexually violent acts."
We are satisfied from our review of the record that the judge's decision to continue J.E.D.'s commitment is supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999).