January 2, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF T.T. SVP 184-01
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 184-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Yannotti and LeWinn.
T.T. has been civilly committed to the Special Treatment Unit (STU), the secure facility designated for the treatment of persons in need of commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). T.T. appeals from an order entered by Judge Serena Perretti on March 20, 2007, which continued his civil commitment.
The record shows that T.T. has a lengthy criminal record which includes arrests and convictions for various sexual offenses involving minors. In March 1992, T.T. was arrested and charged with certain offenses arising from the sexual assault of a twelve-year-old-girl. The victim was the sister of a woman who T.T. was dating at the time. T.T. was released on bail and ordered not to have contact with the victim.
In April 1992, T.T. violated the no-contact condition of his bail and spent part of an evening with the victim. On September 1, 1992, T.T. pled guilty to endangering the welfare of a child, N.J.S.A. 2C:24-4, and criminal contempt, N.J.S.A. 2C:29-9. He was sentenced to three years of imprisonment. The sentence was made concurrent with a sentence imposed in October 1992, following T.T.'s conviction of larceny.
T.T. was released on parole in 1993, and shortly thereafter married a woman who had two daughters. T.T. was arrested in December 1995 for possession of a weapon in violation of N.J.S.A. 2C:39-7b. As part of the police investigation, additional charges were filed stemming from T.T.'s sexual assault upon his two step-daughters, who were four and five years old, respectively.
T.T. pled guilty to two counts of sexual assault, and admitted that between July and December 1995, he entered his step-daughters' bedroom, placed his hand in their underwear, and touched them for purposes of sexual gratification. In December 1996, T.T. was sentenced to eight years of imprisonment, with no possibility for parole. The sentence was to be served at the Adult Diagnostic and Treatment Center (ADTC). T.T. also was sentenced to community supervision for life.
Prior to his planned release from the ADTC, the Attorney General filed a petition seeking T.T.'s civil commitment pursuant to the SVPA. The trial court found that T.T. was a sexually violent predator requiring commitment in a secure facility for custody, care and treatment.
T.T. appealed and we remanded to the trial court to reconsider its determination in light of In re Commitment of W.Z., 173 N.J. 109 (2002), which had been decided after the trial court's opinion. See In re Commitment of T.T. No. A-3158-01T3 (App. Div. May 2, 2003). On remand, the trial judge applied the standard for commitment enunciated in W.Z. and again found that T.T. was a sexually violent predator in need of commitment pursuant to the SVPA. We affirmed that determination. In re Commitment of T.T. A-3156-03T2 (App. Div. April 15, 2005).
This appeal arises from the review hearing that occurred on March 19, 2007. At the hearing, the State presented testimony from Dr. Brian Friedman, who prepared the annual review report for the Treatment Progress Review Committee (TPRC), dated August 17, 2006. In that report, the TPRC diagnosed pedophilia, sexually attracted to females, non-exclusive; and personality disorder NOS, with anti-social traits.
Dr. Friedman wrote in the report that the diagnosis of pedophila was based on T.T.'s "intense, recurring fantasies, urges, and/or behaviors involving sexual arousal toward prepubescent girls." The doctor noted that T.T. had acted on these urges by molesting his two step-daughters and a twelve-year-old girl. In the report, Dr. Friedman also stated that the diagnosis of personality disorder NOS was based upon T.T.'s "pervasive pattern of disregard for the rights and well being of others."
Dr. Friedman noted that while T.T. had been a resident of the STU for over five years, he had "yet to adequately engage in treatment." According to Dr. Friedman, T.T. continued to see himself "as a victim of the system." The doctor stated that T.T. had not expressed any "seemingly genuine remorse for his behavior, and remains a generally self-absorbed individual." Dr. Friedman observed that T.T. was in Phase 2 of sex offender treatment, and the TPRC had recommended that he remain in that phase of treatment.
The State also presented testimony from Dr. Evan L. Feibusch, who prepared a forensic psychiatric evaluation dated September 25, 2006, in which he diagnosed pedophilia, sexually attracted to females, non exclusive type; and personality disorder, not otherwise specified (NOS). Dr. Feibusch submitted an addendum to his report dated March 13, 2007.
In his first report, Dr. Feibusch opined that pedophilia and personality disorder both predispose T.T. to commit acts of sexual violence. The doctor noted that T.T. had limited his participation in treatment at the STU and this increased his risk of re-offense. The doctor stated that T.T.'s disorders make him highly likely to engage in acts of sexual violence if he is not confined at a secure facility for control, care and treatment.
In his second report, Dr. Feibusch noted that he had interviewed T.T. to discuss matters of concern that he had mentioned in his earlier report. The doctor said that T.T. continued to have a lack of insight into his sexual attraction towards children. According to Dr. Feibusch, T.T. saw himself as a "pedophile in remission." The doctor added that, as time passes, it has become "easier and easier" for T.T. to minimize his previous sexual thoughts about children. The doctor also noted that T.T. believed that he was attracted to female genitalia rather than children, but concluded that this explanation "does not work for having the 4-year old perform fellatio on him." The doctor stated that T.T.'s scores on the Static-99 placed him in a group with a medium to high range of risk for sexual re-offense.*fn1
On March 20, 2007, Judge Peretti placed her decision on the record. She found that "for all intents and purposes," T.T. has been "a treatment refuser" until in or around the middle of 2006. The judge observed that the TPRC had indicated in a January 2006 report that T.T.'s participation in treatment had been minimal. T.T. apparently stated that he had been in treatment for twelve years and it had not been productive. However, the judge commented that although T.T. "represents himself as having been engaged in therapy for [twelve] years," he has "not been engaged in therapy at all." Rather, T.T. had "steadfastly resisted" treatment, apparently on the advice of his counsel.
The judge noted that the most recent report from the treatment team dated February 27, 2007, indicated that there had been a change in T.T.'s treatment activity. The judge commented that, after five years of unproductive residence at the STU, T.T. "has only just succeeded in engaging himself in treatment."
The judge reviewed Dr. Feibusch's diagnoses and found them to be well supported. The judge made the following findings:
The testimony of the witnesses and the documentary evidence are clear and convincing, and the court is clearly convinced that [T.T.] continues to be a sexually violent predator. He suffers from [an] abnormal mental condition and personality disorder that influence[s] his emotional, volitional and cognitive functioning so as to predispose him to commit sexually violent acts.
[T.T.] has serious difficulty controlling his sexually violent behavior as he has demonstrated by his offending against the two young victims after having previously been convicted of a sex offense and, indeed, while on probation or parole. It is highly likely that [T.T.] will re-offend if he is not continued for further care and treatment.
The judge entered an order on March 20, 2007, continuing T.T.'s civil commitment, and ordered that another review hearing occur on March 4, 2008.
T.T. appeals and argues that there is insufficient evidence to support the judge's finding that he is a sexually violent predator requiring continued commitment pursuant to the SVPA. We disagree and affirm substantially for the reasons stated by Judge Peretti in her decision on the record. R. 2:11-3(e)(1)(A). We add the following brief comments.
The scope of our review of a final order of commitment under the SVPA is narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We will reverse such a determination only when the order of commitment reflects a clear abuse of discretion. Ibid. (citing In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Furthermore, the judge's findings of fact are binding on appeal unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting from Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
We are satisfied from our review of the record that there is ample credible evidence in the record to support Judge Peretti's finding that T.T. remains a sexually violent predator requiring civil commitment pursuant to the SVPA. The record also fully supports the judge's finding that T.T. continues to suffer from an abnormal mental condition and a personality disorder that makes him highly likely to commit sexually violent offenses in the foreseeable future unless he is confined in a secure facility for custody, care and treatment.