July 13, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF T.A.C.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-432-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 27, 2007
Before Judges Skillman and King.
This is an appeal from a civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). T.A.C. engaged in sexual assaults on four different girls, age eight to thirteen. He committed multiple assaults on two of the victims over a two-year period. Those assaults were committed after several years of treatment at Avenel, the Adult Diagnostic and Treatment Center, while serving prison time for his earlier sex offenses.
A psychiatrist, Dr. Zeiguer, testified that T.A.C. clearly satisfied the requirements for commitment under the SVPA. The report of a psychologist, Dr. Barone, who reached similar conclusions was admitted into evidence without objection. The appellant did not present any medical evidence to dispute the diagnosis and conclusions of the State's experts. The trial judge found the State's expert's conclusions persuasive under these circumstances.
On this appeal defendant raises two points:
POINT I - THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT T.A.C. IS A SEXUALLY VIOLENT PREDATOR IN NEED OF CIVIL COMMITMENT.
POINT II - T.A.C. SHOULD BE ALLOWED TO ENTER A PROGRAM WHICH WOULD INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.
We affirm for the reasons stated by Judge Perretti in her oral decision of July 11, 2006, which are amply supported by the record. The judge stated in part in her seventeen-page decision:
From the respondent's own mouth, together with the judgments of conviction, it is clear and convincing that this respondent has most grievously sexually offended against these children.
Dr. Barone in her report goes on to disclose the results of a testing program. She discusses the M.M.P.I. two, a structured personality test, and according to her report, the profile strongly suggests that respondent is an impulsive and immature individual seeking immediate gratification without concern for consequences.
There was also discussion of the respondent's cognitive distortions which were revealed by the Bumby molest scale and the Bumby rape scale. There were five cognitive distortions on the molest scale and six on the rape scale. The report lists some of those distortions, including thinking that child molesters often get longer sentences than they should, molesters suffer the most, and lose the most as a result of a sexual assault on a child, more than the child suffers or is hurt.
Finally, the distortion as follows, "I think the main thing wrong with sexual activity with children is that it is against the law."
These distortions are certainly clear indications of the risk which this respondent poses, these being his current expressed beliefs.
Dr. Barone rates the respondent's risk to re-offend as high and explains this in detail in her report, particularly beginning at page nine and continuing into page 12.
She diagnoses the respondent with pedophilia, sexually attracted to females, poly-substance abuse in institutional remission and personality disorder N.O.S. These conditions are defined in her report and she states in her report the basis for her diagnosis. The bases for her diagnosis are clearly supported in the record and clearly supported by the respondent's own statements. The diagnosis of pedophilia and poly-substance abuse is, it would appear, without argument.
Most important in the doctor's assessment of the respondent's risk is her observation that his deviant sexual pathology is compulsive in addition to being repetitive. He has demonstrated his inability to resist his deviant impulses. She also notes that his pedophilia has evolved in severity and deviance over time. The age of his victims has decreased while the severity of his offenses has escalated. The penetration of an eight year old child is an obvious escalation of his behavior since his penetration originally in 1984 of a 13 year old child.
She also notes that his more recent offenses have been carried out with an amount of forethought and planning, which he describes.
Evaluating the respondent's treatment at the A.D.T.C., Dr. Barone remarks that there was little benefit. Noteworthy is respondent's re-offense after having been treated at the A.D.T.C. It's the psychologist's suggestion that the treatment at the A.D.T.C. merely furnished a means by which the respondent became more sophisticated in his approach to child abuse.
She finds that his conditions that she diagnoses affect his emotional, volitional and behavioral capacities and predispose him to commit sexually violent acts.
Dr. Luis Zeiguer testified. He is a psychiatrist and his report is petitioner's exhibit 16.
It has been suggested that Dr. Zeiguer did not go far enough in his interview of the respondent to get the full understanding of the case to form a basis of a diagnosis. It's suggested that the psychiatrist failed to question the respondent about the details of his crimes or to quiz him on what he had learned in therapy, or to in some way investigate so as to corroborate the record upon which he relied.
It's also suggested that the doctor was deficient in that he fails to inquire about the nine year period during which the respondent was in the community before committing his third and most serious offense against the two very young children and the self-reported 13 year old.
Suffice to say that whatever was done during the nine years, the recommission of an offense after the discharge from A.D.T.C. says all there is to say. There is no defect that can be called to the Court's attention in Dr. Zeiguer's method of reaching his diagnosis.
In his testimony and in his report, the Doctor discussed the sources that he referred to. These are listed in pages six and seven of his report. His discussion of the sources were on this from pages four through seven. And in his testimony and in his report he explains how he uses these sources and the reasons therefore.
In his testimony, he laid an adequate foundation for their use in evaluations by psychiatrists. The Doctor gave his understanding of the three offenses as he was able to spell that out from the documents available to him, and the respondent's statements so far as they went.
The Doctor's understanding is consistent with the actual events as outlined by this respondent in such detail to Dr. Barone. However, Dr. Zeiguer was not privy to the information as to the full extent of the respondent's criminal behavior.
The Doctor evaluated the respondent's previous A.D.T.C. sex offender treatments. The records of the prior treatments insofar as they have any value are petitioner's exhibit 11. The Doctor's evaluation is completely consistent with these records. The most recent for April of 2005 shows the respondent in or around the middle on the scoring for participation on his own issues and for others.
The respondent was in level three process group for men with cognitive limitations. He had been moved in February of 2005 to the therapeutic community. However, he was removed because of his equivocating about his sexual history and his criminal behavior.
Earlier reports reveal that the respondent had been in the mental health group upon his arrival at A.D.T.C. However, because of his positive adjustment to the institution and no further symptoms, he was dropped from the mental health group in or around April of 2004 or prior.
In April of 2003, it was reported that his level of effort on his own issues was two out of a high of seven and his overall progress was two out of a maximum of seven. To the same effect is a therapy report for October of 2002.
The respondent's stay at A.D.T.C. in the 80's has little record insofar as therapy is concerned. There is a note from June of 1988 that the respondent had made only superficial connections between his personality problems and his crimes and lacked insight into the dynamics underlying his sexual acting out behavior.
The Doctor's evaluation of his therapy gains as not mitigating his risks is clearly supported by the records. Doctor is of the opinion that there was little or no progress at A.D.T.C.
The Doctor discussed at length in his testimony and in his report, his clinical observations of the respondent which led him to the opinion that the respondent is performing in the upper part of the mildly retarded range of intellectual functioning. This was explained at length and was clearly supported by the Doctor's personal observations of the respondent in the interview situation. The interview lasted for in excess of one hour.
The psychiatrist did discuss the respondent's crimes with him. The respondent claimed that he had only touched his 1984 victim, that he penetrated the second victim in 1985, that he had merely touched the breasts and vagina of Tiffany and Bessie over a period of two to three months. He claimed that he never ejaculated in the presence of either of them, going to the bathroom by himself where he masturbated to ejaculation after merely touching them.
As has been seen, the respondent was much less forthcoming with the psychiatrist than he was with Dr. Barone, the psychologist, to whom he gave the full explanation of his criminal responsibility.
Dr. Zeiguer diagnoses pedophilia, a diagnosis clearly supported by the record of the respondent's behaviors. The Doctor stated that his diagnosis was based on the behaviors and not the statements of the respondent.
He testified as to the discrepancy from statement to statement relative to penetration. Further diagnosed is a history of alcohol, marijuana and cocaine abuse. Further diagnosis is personality disorder N.O.S. This condition is described in the report and in the testimony. It is a diagnosis clearly based upon matters of record as well as observations of the conduct of the respondent at various times by different observers.
It's the Doctor's opinion that the respondent's risk is high because he has serious difficulty controlling his sexually violent behavior. As a result of the conditions diagnosed in combination, the respondent's emotional, cognitive and volitional capacities are affected so as to predispose the respondent to commit sexually violent acts.
The respondent was the subject of a termination report by his therapists at A.D.T.C. This is petitioner's exhibit nine. A Dr. Finer Escotto who was the respondent's principal therapist is highly negative in describing the respondent's progress in treatment. She points to his cognitive limitations, however even taking that into consideration, his general functioning at the A.D.T.C. was not consistent.
He is described as having taken minimal participation in his groups, appearing to be asleep on numerous occasions. He was seen to be deceitful during the treatment process. She points to an example of deceit. The respondent claimed the death of a near friend which caused him to grieve and took up time in group, it was later disclosed that the person did not exist.
[T.A.C.] also shared in group for several weeks his distress that his brother who had been working at the World Trade Center at the time of the catastrophe was missing since the attack. It was later learned when he was confronted that this story was a lie.
In addition, his principle therapist reveals the respondent's dishonesty was again made manifest during his completion of a victim disclosure list. The respondent completed the assignment four times over a one month period, each time changing the number of victims, sometimes even decreasing the number of victims from previously admitted offenses.
She concluded that there was minimal progress, no significant treatment gains, and the respondent was not able to benefit from the therapeutic community because of his dishonesty.
He had minimal understanding of his sex offending cycle and did not understand high risk situations.
It is clear from the proofs submitted that the respondent's stay at A.D.T.C. did not in any way diminish the risk that he poses. His team leader writes on August 8th, 2005 that the respondent "recently acknowledged that he has been lying and avoiding taking responsibility for his sex offending behavior for the duration of both sentences at the A.D.T.C."
His continuance in lying can be seen in his interview with Dr. Zeiguer who need not have gone any further than he did under the circumstances.
The evidence presented is clear and convincing, the Court is clearly convinced that this respondent is a sexually violent predator suffering from abnormal mental conditions and personality disorders which are not challenged by any competent witness to the contrary. It is clear that these conditions cause the respondent to have diminished cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent acts.
He has established by his behavior in the past that he is a compulsive sex offender, thus he has serious difficulty controlling his sex offending behavior. As a result, it is highly likely that he will re-offend if not committed to the treatment at the Special Treatment Unit as a sexually violent predator.
We find no basis in the record for entertaining consideration of a conditional discharge. In sum, the record can support only an affirmance. N.J.S.A. 30:4-27.26; Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 2079-80, 138 L.Ed. 2d 501, 512 (1997); In re the Commitment of W.Z., 173 N.J. 109, 127 (2002);; In re the Commitment of JJF, 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004).
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