January 8, 2008
IN THE MATTER OF CIVIL COMMITMENT OF J.D.H. SVP 236-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 236-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Yannotti and LeWinn.
J.D.H. appeals from an order entered, following a review hearing, on June 19, 2006, that continued his civil commitment to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). For the reasons set forth in this opinion, we affirm.
On August 7, 1987, J.D.H. was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d; and second-degree burglary, N.J.S.A. 2C:18-2b. On January 12, 1988, he was sentenced to a twenty-year term on the aggravated sexual assault charge, a five-year concurrent term on the weapons charge, and a consecutive ten-year term on the burglary charge. In March 2002, as J.D.H. was scheduled to complete his sentence, the State moved for his involuntary civil commitment under the SVPA.
J.D.H. previously has appealed two prior orders that continued his civil commitment under the SVPA. In an unpublished opinion of March 21, 2005, we affirmed the June 17, 2003, order continuing his confinement as a sexually violent predator. In re Civil Commitment of J.D.H. SVP 236-02, No. A-2777-02T2 (App. Div. March 21, 2005).*fn1 In a second unpublished opinion of October 17, 2005, we affirmed a similar order entered on April 4, 2004. In re Civil Commitment of J.D.H. SVP 236-02, No. A-0501-04T2 (App. Div. October 17, 2005).
On this appeal J.D.H. challenges the trial judge's limitation on cross-examination of the State's expert, Dr. Stanley R. Kern, regarding some of J.D.H.'s prior therapy. On direct examination, Dr. Kern characterized J.D.H.'s treatment progress as "minimal." His principal reason for this conclusion was that J.D.H. has consistently denied involvement in any sexual offenses. He did "offer some feedback in his group," and he did complete a family of origin module. However, Dr. Kern opined that was "insufficient treatment engagement" to enable J.D.H. to learn control of his sexually violent behavior. Dr. Kern further noted that J.D.H. had committed institutional infractions thereby demonstrating his lack of self-control and his tendency to "go against the rules" even in the controlled environment of the STU.
On recross-examination of Dr. Kern, defense counsel asked a series of questions designed to ascertain the expert's awareness of treatment programs J.D.H. had undergone when confined to the Adult Diagnostic and Treatment Center ("ADTC") in 1997. Dr. Kern acknowledged he was unaware that J.D.H. had obtained certificates from ADTC staff for (1) participation in correctional behavior solutions, (2) achievement in behavior modification training and self-control, (3) completion of the responsibility of self-determination program, and (4) life skills group counseling. However, Dr. Kern denied these accomplishments had "minimized" J.D.H.'s antisocial behaviors.
At this point, the trial judge interjected that counsel's questions related to J.D.H.'s confinement at the ADTC were not relevant at the present time. Counsel explained the point he was attempting to make was that Dr. Kern was not even aware of these therapeutic involvements in formulating his expert opinion for the review hearing. The trial judge stated that J.D.H.'s achievements at the ADTC were taken into account at the time of his adjudication as a sexually violent predator in 2002, and she would not take them into account in her decision.
At oral argument, appellate counsel argued that Dr. Kern had characterized J.D.H. as an "untreated" sex offender, and, therefore, evidence of J.D.H.'s prior treatment should have been admitted and not "cut off" by the judge. The relief sought is a remand and new hearing with all treatment evidence presented.
We find this position wholly without merit. R. 2:11-3(e)(1)(E). Dr. Kern's expert opinion was based upon his review of J.D.H.'s records of treatment at the STU as well as Dr. Kern's own reports dating back as far as April 2, 2002. His review of those documents gave him information as to how J.D.H. has performed throughout his commitment to the STU.
We conclude that Dr. Kern's uncontradicted expert opinion as to J.D.H's current need for continued commitment as a sexually violent predator went beyond the mere statement that J.D.H. is "untreated." Dr. Kern pointed to J.D.H.'s "minimal" involvement in treatment, his lack of impulse control, lack of motivation and remorse, "inadequate understanding of the assault cycle," and "absence of relapse prevention strategies." As an adjudicated sexually violent predator, J.D.H. has been confined since 2002 to a facility specifically designated for the custody, care and treatment of such persons. The proper inquiry before the trial court was whether J.D.H. remains a sexually violent predator, as that term is defined in the SVPA."
Notwithstanding therapy modalities J.D.H. may have experienced ten years ago while confined at the ADTC, Dr. Kern's expert opinion was that J.D.H.'s diagnosed disorders of paraphilia and antisocial personality disorder currently render him unable to control his deviant sexual behaviors and thus make it highly likely that he will sexually reoffend in the reasonably foreseeable future, unless confined in a secure facility for control, care and treatment. Through Dr. Kern's testimony, the State met its burden of proving by clear and convincing evidence that J.D.H. "needs continued involuntary commitment as a sexually violent predator. . . ." N.J.S.A. 30:4-27.32a.
At the conclusion of the hearing, the trial judge rendered a comprehensive oral opinion on the record, stating her reasons for continuing J.D.H.'s civil commitment. She noted that J.D.H.'s two conditions of paraphilia and antisocial personality disorder, in combination, "predispose the respondent to sexually violent behavior[,]" and increase his "risk to recidivate." His denial of responsibility "puts him outside of the possibility of treatment inasmuch as he does not acknowledge he has any treatable problem." The judge specifically found that J.D.H is "highly likely to recidivate if not continued for further care." These conclusions by the trial judge are consistent with, and properly predicated upon, Dr. Kern's uncontradicted expert testimony.
The scope of appellate review of a commitment continuation order is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). That determination will be subject to modification "only where the record reveals a clear abuse of discretion." Ibid. "The appropriate inquiry is to canvas the . . . 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).
Our review of the record convinces us that the judge's decision is supported by clear and convincing evidence. In re Commitment of W.Z., 173 N.J. 109, 133 (2002). We find no "clear abuse of discretion" in continuing J.D.H.'s commitment, J.P., supra, 339 N.J. Super. at 459, nor any manifest deviation from the controlling legal principles of the SVPA.