June 8, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF J.X.H., SVP-54-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-54-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2007
Before Judges Axelrad and R. B. Coleman.
J.X.H., a fifty-five year old man with a history of sexually violent crimes, appeals from two judgments. The first was entered on October 28, 2005, by Judge Philip M. Freedman following a hearing on October 27, 2005 and the second was entered on October 16, 2006, by Judge Serena Perretti following a hearing on October 11, 2006. Both judgments conclude and provide that J.X.H. is a sexually violent predator who continues to be 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 October 28, 2005 judgment provided for a review hearing on October 11, 2006. The Notice of Appeal from the October 2005 judgment was not filed until September 5, 2006. On September 20, 2006, J.X.H.'s motion to file the appeal as within time was granted. Thereafter the scheduled review hearing was conducted resulting in the October 16, 2006 judgment. That judgment ordered that J.X.H. be committed to the Special Treatment Unit (STU) for care, custody and treatment of sexually violent predators and scheduled the next review hearing for September 28, 2007. By an order of consolidation, entered on December 1, 2006, the two appeals were consolidated for all purposes.*fn1 We affirm both judgments.
J.X.H.'s predicate offenses were first degree aggravated sexual assault and second degree sexual assault to which he pled guilty in 1990 and received a seven year prison term. The offenses were committed over a three year period with an eleven year old boy and a nine year old boy. During treatment, J.X.H. disclosed that he committed additional acts of sexually offensive behavior beginning at the age of thirteen up until he was arrested for the predicate offenses at the age of thirty-six years old.
In 2000, J.X.H. was transferred to the STU in Kearny from Greystone Park Psychiatric Hospital. Periodic review hearings since that time have resulted in his continued commitment to STU. On December 1, 2004, a hearing stipulation of continued commitment was entered into, but was mistakenly appealed. That appeal was withdrawn. Thereafter, J.X.H. appealed from the October 27, 2005 judgment continuing his commitment for one year, and that matter remained unresolved when he appealed from the judgment entered at the conclusion of the hearing in October 2006.
In the separate civil case information statements filed on these consolidated appeals, J.X.H. outlines the following arguments:
1. The Attorney General failed to prove by clear and convincing evidence that J.X.H. was "highly likely" to re-offend if not confined at the Special Treatment Unit.
2. The Attorney General failed to establish by clear and convincing evidence that J.X.H. suffers from a mental or emotional condition which may cause him to re-offend sexually.
3. The Attorney General failed to prove by clear and convincing evidence all of the elements necessary to commit J.X.H. pursuant to the Sexually Violent Predator statute.
4. The Rules of Evidence, including N.J.R.E. 703, 803(c)(6), 803(c)(8) and 808, were repeatedly and egregiously violated by the court by its admission into evidence of a volume of hearsay documents which were either completely or partially inadmissible or the contents of which were considered for purposes not permitted by the rules of evidence.
At oral argument before this panel, counsel emphasized more particularly that J.X.H. has been at STU for about seven years, that he has not been involved in any sex offenses during that time, and that he has not been given credit for all the progress he has made. Counsel pointed out there has been a seventeen year span of time since J.X.H. engaged in any act with a minor. In sum, counsel argues that J.X.H.'s civil commitment is not supposed to last forever.
The State responds that J.X.H. has not re-offended against a minor in the seventeen year interim because he has been in custody. The State notes further that J.X.H. is an admitted pedophile, and it contends he has not made significant progress because he is a treatment refuser. Though the State acknowledged that J.X.H. has shown some progress in that he began to attend treatment sessions during the latest period of review and was able to discuss his issues, it maintains he still was in need of custody, care and treatment to address his inability to control his sexually violent tendencies.
In the October 2005 review hearing, Judge Freedman pointed out that both experts - Dr. Vivian Schnaidman, a psychiatrist who testified for the State, and Dr. Paul K. Fulford, a psychologist whose report was stipulated into evidence in lieu of testimony on behalf of J.X.H. - agreed that J.X.H. suffered from pedophilia.*fn2 The judge noted that J.X.H. had not progressed far in treatment and acknowledged he still had an ongoing arousal to children and refused to do homework in arousal reconditioning.
In October 2006, Judge Perretti noted that J.X.H. was in Phase 3 of treatment and only participated on a minimal basis. She found, based on Dr. Schnaidman's testimony and the exhibits admitted at the hearing, that J.X.H's risk for recidivism continued to be very high if he was not confined for further care. Although Dr. Schnaidman conceded that J.X.H. takes medication that he says completely eliminates his sex drive, an assertion Dr. Schnaidman could neither confirm nor refute, she noted that the risk of sexual re-offense would be diminished, but she also noted that "medication is something you can take or stop taking so that by itself is not really something that [she] would consider as ameliorating his risk." J.X.H. did not present his own psychiatrist or psychologist in the second review hearing.
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 committee 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. 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.), 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." 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." J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvass . . . 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).
As already noted, an order was entered on September 20, 2006, permitting J.X.H.'s appeal from the October 28, 2005 judgment to proceed as within time. That order was entered approximately three weeks before the then scheduled review hearing was to take place on October 11, 2006. Since the October 28, 2005 judgment merely ordered that J.X.H. be committed for custody, care and treatment pending the further review hearing of October 11, 2006, and since that hearing did take place, resulting in the continued commitment of J.X.H., we question whether the appeal from the 2005 order is moot. "Mootness is ordinarily defined as the inability of a court because of attendant circumstances to grant judicial relief." Pressler, Current N.J. Court Rules, comment 1.21a on R. 2:8-2 (2007). However, since the parties did not raise that issue and since the issues relating to both orders of commitment are virtually the same, we decline to rest our decision on that ground.
In the first review hearing on October 27, 2005, Dr. Schnaidman testified she had examined J.X.H. several times during his commitment and diagnosed him with pedophilia and personality disorder NOS with avoidance, schizoid and dependent features. J.X.H.'s expert, Dr. Fulford, issued a report agreeing with the pedophilia diagnosis, and finding that defendant suffered from schizoid personality disorder. Judge Freedman found that J.X.H. had made very little progress in his treatment, did not seem motivated to leave the commitment, and continued to be only sexually attracted to children.
In the review hearing conducted before Judge Perretti on October 11, 2006, the judge found, based on Dr. Shnaidman's testimony and exhibits, that J.X.H.'s risk continued to be "very high" for recidivism if not confined for further care since there had not been any substantial progress in treatment. In her oral opinion rendered on October 16, 2006, Judge Perretti reviewed the uncontroverted testimony of Dr. Schnaidman and the treatment notes charting J.X.H.'s progress. She stated:
The treatment notes make it clear that the respondent has not benefited from treatment at the STU and has participated on a minimal basis out of choice.
The testimony received and the exhibits are clear and convincing. The Court is clearly convinced that the respondent continues to be a sexually violent predator who suffers from abnormal mental conditions and personality disorder that influences cognitive, volitional and emotional functioning so as to predispose him to commit sexually violent acts.
This respondent has serious difficulty controlling his seriously violent behavior, as has been established by his sexually violent acts against significant numbers of prepubescent children. His risk continues, according to the psychiatrist, to be, quote, "very high," closed quote. The Court finds that he is highly likely to recidivate if not confined for further care.
We have carefully reviewed the record in light of the applicable law, and we are satisfied that each judge's decision to continue J.X.H.'s commitment is supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). J.X.H. pled guilty to two sexual offenses, arising from the abuse of two young boys. J.X.H. suffers from pedophilia and a personality disorder. Dr. Schnaidman provided clear and convincing evidence that J.X.H.'s mental condition predisposes him to commit acts of sexual violence. Furthermore, Dr. Schnaidman's opinion, accepted by the court, was that J.X.H. is at a high risk for re-offending if he is not committed.
We are also satisfied that Judge Freedman and Judge Perretti properly permitted the State's testifying experts to utilize Treatment Progress Review Committee reports, treatment notes, reports from the Adult Diagnostic and Treatment Center (ADTC), and the clinical certificates supporting the petition. The use of hearsay as a basis for expert testimony and the judge's evaluation of expert credibility is permissible. In re Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div. 2005); In re Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004); In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). Generally, "[t]he reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth[.]" A.X.D., supra, 370 N.J. Super. at 202.
An expert who relies in part or even substantially "on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information 'was of a type reasonably relied on by experts in the particular field in forming opinions . . . on the subject.'" J.H.M., supra, 367 N.J. Super. at 612 (quoting N.J.R.E. 703); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div.), aff'd, 177 N.J. 229 (2003)). Here, the State's expert offered her own opinions based on a detailed examination of J.X.H.'s criminal history, police reports, reports written during J.X.H.'s incarceration, and interviews with J.X.H.
We find no error in the courts' evidentiary rulings which are entitled to deference absent a showing of an abuse of discretion, "i.e., that there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). We are satisfied that the substantial competent credible evidence supports the court's findings.