November 7, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF T.W.C. SVP-21-99
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-21-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Lisa and Lihotz.
T.W.C. appeals from an order entered on January 31, 2007, continuing his involuntary civil commitment to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The appeal was presented without briefs, by agreement of the parties and with the permission of the court. T.W.C. argues that the trial judge erred in continuing his commitment because the State failed to prove by clear and convincing evidence that he was subject to continued commitment as a sexually violent predator. We affirm.
The SVPA defines a "sexually violent predator" as a person "who has been convicted . . . of a sexually violent offense . . . and suffers 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator."
N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
Our review of a trial court's commitment decision is "extremely narrow," as that determination is given "'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)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
T.W.C., who is now age fifty-seven, was temporarily committed to the STU after his discharge from the Adult Diagnostic Treatment Center (ADTC) on October 29, 1999. A judgment of commitment was entered on June 25, 2001 and his status has been reviewed annually, thereafter.
T.W.C.'s extensive criminal history spanning over eighteen years consists of thirty-one arrests. In our review of a prior order of continued commitment, we related that [f]rom the age of 34 on, [T.W.C.] was consistently and continually arrested and re-arrested for offenses charged as lewdness. He was invariably sentenced to a probationary term, and while on probation invariably re-committed the same sort of crime, only to be sentenced anew to a term of probation.
His lewdness described in August of 1985 as indecent exposure resulted in a probationary term of three years.
While on probation and within seven months of release, T.W.C. was charged with aggravated sexual assault on March 21, 1986. T.W.C. offered candy to an eight-year old girl and asked her to accompany him to the church lobby. T.W.C. told the girl to kneel, close her eyes and open her mouth. When the child complied, T.W.C. placed his penis in her mouth. After conviction, T.W.C. was sentenced to ten years at the ADTC.
At the ADTC, doctors described T.W.C. as "an exemplary patient," who successfully completed the sex offender specific treatment offered. After release, again while on probation and attending outpatient treatment, T.W.C. was rearrested for third-degree luring, N.J.S.A. 2C:13-6, which is the index offense. The victim was an eight-year old girl. Since October 8, 1994, T.W.C. has been institutionalized, continuously.
T.W.C.'s non-sexual criminal offense history includes shoplifting, burglary, larceny, possession of stolen property, drunk and disorderly conduct, possession of controlled dangerous substances, obstruction of justice, and the unauthorized use of a vehicle. Also, he admits unspecified juvenile adjudications.
The written report of Raymond Terranova Ph.D., a psychologist employed at the Treatment Progress Review Committee (TPRC) of the STU, and the STU treatment notes from January 30, 2006 to December 18, 2006, were admitted into evidence, by agreement, limited by N.J.R.E. 703 and N.J.R.E. 808. The State's expert, Dean De Crisce, M.D., an STU staff psychiatrist testified, and T.W.C. testified on his own behalf.
Dr. Terranova along with Brian Friedman, Psy.D. are psychologists serving on the TPRC, which is responsible to review the progress and treatment of persons committed to the STU. The TPRC met on October 26, 2006, and considered T.W.C.'s progress. Julie McBride, MA, a staff clinical psychologist and a member of T.W.C.'s treatment team, presented information regarding T.W.C.'s current status. T.W.C. declined to appear.
In the past, T.W.C. actively participated in his therapy. He had reached treatment phase four of five, and was a member of the Therapeutic Community. T.W.C. completed an "impressive number of treatment modules and regularly attended group therapy." However, in May 2006, T.W.C. refused his medication, exhibited signs of depression, and began to engage in a solitary lifestyle, interacting with others only as needed. He became "unwilling to engage in the therapeutic process at the STU." The STU treatment notes state that his treating psychiatrist placed T.W.C. on "constant watch" and he was described as experiencing "[p]sychiatric decompensation . . . or possible psychotic decompensation." For months, T.W.C. remained in a major depressive state; his treating psychiatrist considered whether he suffered from bi-polar disorder. T.W.C. remained "irrational and non-compliant," but was never violent or a harm to others. T.W.C. now receives psychiatric treatment and medication for his mood disorder, however, he remains classified as a "treatment refuser" (TR), declining sex offender treatment. T.W.C. advised his treatment team that he intended to "remain on TR status indefinitely."
Dr. Terranova's report included the results of a recently administered Static-99. T.W.C. received a score of eight, placing him in the high-risk category when estimating the probability of sexual and violent recidivism. The TPRC report lists the diagnostic impressions as (1) Axis I: pedophilia, sexually attracted to females, exhibitionism, alcohol, opioid and polysubstance dependence (in a controlled environment), and mood disorder, not otherwise specified (NOS) (with psychotic symptoms); and (2) Axis II: antisocial personality disorder. The TPRC recommended T.W.C. return to phase one.
Dr. De Crisce prepared his report without benefit of a clinical interview or mental status examination because T.W.C. chose not to be evaluated when asked by Dr. De Crisce on January 25, 2007. Therefore, Dr. De Crisce based his opinion on a review of various records, including police statements, court documents, the reports of other evaluators, and T.W.C.'s treatment notes while at the STU.
Dr. De Crisce observed that initial ADTC treatment efforts were deemed successful. However, T.W.C. "was unable to maintain his therapeutic gains while outside of a secure environment" to prevent his reoffending behavior. Dr. De Crisce cited T.W.C.'s actions while paroled as support for this opinion, including: the inappropriate decision to work as a child's swimming instructor and parents lodged complaints against T.W.C., one for of improper touching and the other indecent gesturing; T.W.C.'s admission that he approached a female child as he experienced an erection; and his disclosure that he engaged in a contact molestation with an eleven-year old girl. T.W.C.'s behavior then escalated resulting in his rearrest for luring.
Dr. De Crisce acknowledged that, while in the STU, T.W.C. advanced in his treatment; however, "[t]hese gains were thwarted by his refusal to properly participate in the arousal reconditioning module, which is a core and necessary component of sex offender treatment. Additionally, he continues to minimize and give varying accounts of the aggravated sexual assault and luring offenses."
Dr. De Crisce noted that since entering the STU, T.W.C. has avoided "critical self-examination and confrontation," particularly concerning his "sexual fantasies and arousal" and "has stated to others that it was against his personal religious beliefs." Dr. De Crisce testified that "seems to be a problem specifically with the arousal reconditioning . . . . [T]he idea that [T.W.C.] has [is] that his faith alone or simply the reliance on God will be adequate to prevent reoffense . . . . without learning other techniques that may be necessary in a challenging world."
Dr. De Crisce diagnosed T.W.C. with pedophilia, sexually attracted to girls, non-exclusive type, exhibitionism, alcohol and polysubstance dependence, in sustained full remission, mood disorder, NOS and learning disorder, NOS on Axis I and antisocial personality disorder on Axis II. In his testimony, he commented on the statement in his report that "there is a suggestion in the sex offender literature that 'cross-over' (moving between different paraphilic behaviors, i.e. between exhibitionism and pedophilia) is associated with greater risk of recidivism."
Dr. De Crisce opined on T.W.C.'s reoffending risk, stating:
So, the two main contributors to [T.W.C.'s] sexually reoffending risk in terms of diagnosis [are] the pedophilia and the exhibitionism. But also[,] the antisocial personality disorder, because people that have antisocial personality disorders, they can be impulsive, they don't think about the consequences of their actions, they generally often think of their own needs first instead of the needs of others. So they may fulfill their own desires at the expense of another with less remorse about that.
After assessing the static and dynamic risk factors, Dr. De Crisce, wrote the following in his report, which was adopted at trial:
[T.W.C.] has had a longstanding history of deviant sexual arousal and behavior including pedophilia and exhibitionism. He has had an extensive non-sexual criminal history dating at least to early adulthood, contributing to his diagnosis of antisocial personality disorder. He has participated in sex offender treatment both in an institutional and outpatient setting, and has reoffended while in treatment. He has given differing accounts of his crimes, minimized his intentions and victim impact.
Although [T.W.C.] has participated in sex offender treatment for many years, with some advances, he has had consistent difficulties with arousal reconditioning. He prefers avoidance and faith-based sentiment to the accepted treatment strategy requiring rigorous examination of one's deviant arousal. This has led to multiple occasions of treatment refusal. [T.W.C.] has refused all sex offender treatment since 5/2006. These factors contribute to the high likelihood that he will sexually reoffend while outside of a secure facility; complete avoidance of arousing stimuli while in a community setting is unrealistic, and the use of faith-based sentiment as a primary relapse prevention strategy may not be adequately comprehensive and flexible to face community challenges. Therefore his risk factors are not adequately mitigated by his treatment at this point.
In consideration of all these factors, it is my opinion with a reasonable degree of medical certainty that [T.W.C.] suffers from a mental abnormality and personality disorder that makes it highly likely that he will engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.
T.W.C. testified that he had completed a module on arousal reconditioning. He acknowledged he failed to pass two modules; one required him to "talk into a microphone and masturbate and think of devious [sic] things so [he] left[;]" the other required him to write "a two-minute devious, filthy, dirty fantasy." He refused and explained he has "attended S.A.*fn1 for his addiction for almost thirteen years" and he has almost completed "[thirteen] years without masturbation." He completed the module the third time he enrolled.
On appeal, T.W.C. argues that the trial court's decision relied upon the State's expert's report, which failed to properly consider the evidence of his completion of arousal reconditioning. However, it is clear from Judge Freedman's oral opinion rendered on June 27, 2006, that he thoroughly analyzed all the evidence presented in reaching his determinations, including the TPRC notation that T.W.C. completed the arousal reconditioning module. The trial court's finding that the completion of one module is insufficient evidence of T.W.C.'s understanding of arousal reconditioning and relapse prevention is supported by the evidence in the record. Each time T.W.C. was released he failed to control his sexually violent behavior and reoffended. His struggles with the arousal reconditioning modules lend further support for this finding.
Further, Judge Freedman determined that although T.W.C. had successfully participated in therapy in the past, his recent decision to forego current sex offender treatment, and additionally, to decline participation in evaluations by Dr. De Crisce and the TPRC lessen his treatment progress. Moreover, T.W.C.'s current mental health needs, after his psychiatric decompensation and possibly onset of bipolar disorder, are not fully treated due to T.W.C.'s decision to limit prescribed medication.
After review of the record, we are satisfied that Judge Freedman did not mistakenly exercise his discretion and that the order of continued commitment is both amply supported by the evidence and entirely consistent with the controlling legal principles applicable to such reviews. We concur with Judge Freedman's conclusion that clear and convincing proof demonstrated T.W.C. has "serious difficulty controlling his sexually violent behavior to such a degree that [he] would be highly likely to engage in acts of sexual violence and therefore should be committed." See W.Z., supra, 173 N.J. at 132.