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In re Civil Commitment of J.S. SVP 24-99

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 8, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF J.S. SVP 24-99

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 24-99.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2007

Before Judges Yannotti and LeWinn.

J.S. appeals from an order entered on June 20, 2007, continuing 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"). Having reviewed the record and the contentions advanced on appeal, we affirm substantially for the reasons set forth by Judge Freedman in his oral decision of June 18, 2007.

In 1994, J.S. pled guilty to charges of endangering the welfare of a child (second and fourth degrees), N.J.S.A. 2C:24-4b(3), -4b(5)(b), and criminal sexual contact (fourth degree), N.J.S.A. 2C:14-3b, in Somerset County, as well as one count of aggravated sexual assault (first degree), N.J.S.A. 2C:14-2a, and two other non-sexual offenses in Middlesex County. On November 4, 1999, after serving five years of concurrent seven-year sentences, he was civilly committed as a "sexually violent predator" pursuant to N.J.S.A. 30:4-27.24. His commitment has continued since that time, subject to annual review hearings pursuant to N.J.S.A. 30:4-27.35. J.S. previously appealed from the March 14, 2003, order continuing his commitment to the STU. In an unpublished opinion, we affirmed that continuation order. In re Civil Commitment of J.S. SVP 24-99, No. A-4335-07T2 (App. Div. October 7, 2004).

The order from which J.S. now appeals was entered following a plenary review hearing before Judge Freedman on June 14, 2007. The relief he seeks is a transfer from the STU to the Ann Klein Forensic Center ("AKFC"), claiming that it provides a safer environment and less restrictive alternative setting for treatment. J.S. contends that he has been subject to physical assaults and theft or destruction of personal property at the STU, and the AKFC is a more therapeutic setting for him.

The State presented testimony from Dr. Evan L. Feibusch, a psychiatrist who has met with J.S. on several occasions since the Spring of 2006 and most recently evaluated him about one week prior to the review hearing. Dr. Feibusch stated that J.S. has been resistant to psychotropic medication which the doctor believes is necessary to treat his diagnosed conditions of paranoid personality disorder and personality disorder not otherwise specified (NOS). Dr. Feibusch also diagnosed J.S. with pedophilia and paraphilia.

In October 2006, Dr. Feibusch determined J.S. needed clinical hospitalization because he was refusing to eat or drink. He had J.S. committed to the AKFC where he immediately began to eat and drink, thereby abating the emergency that gave rise to his transfer. However, he refused medications at the AKFC. J.S. returned to the STU in January 2007.

Since his return to the STU, he has continued to refuse medication and has been placed on treatment probation status for his failure to participate as required in scheduled sessions. While Dr. Feibusch opined that the AKFC could be a more appropriate setting for J.S. because medications might be forced upon him there, he also opined that J.S. "idealizes" the AKFC and, if he remained there long enough, the same problems of resisting treatment would arise there as well.

Regarding the standards for transferring an STU patient to the AKFC, Dr. Feibusch was questioned as follows:

Q: Doctor, is the standard with regards to having a psychiatric issue[] different for a commitment to Ann Klein versus commitment here?

A: Yes.

Q: And what is the - what's the test then to be committed to Ann Klein?

A: Well, it's a mental illness. A substantial disorder of thought or mood. And it's defined in the - if you - if you look at the Civil Commitment form, it's fairly well . . . defined there. Whereas here, the standard is mental abnormality or personality disorder. I would consider this a lesser standard.

Q: Is it further to be committed to Ann Klein Forensic Center . . . that [the] particular mental illness has to make you either a danger to yourself or others?

A: That's correct.

Regarding J.S.'s view of the STU as an unsafe environment for his person and property, Dr. Feibusch stated that J.S. perceives other people as deceiving and exploiting him. J.S. has made numerous complaints that his "personal items were purposefully broken or purposefully allowed to be broken by other residents." His interactions with staff and other residents are "difficult," and it is "possible" that some of his property has been damaged, although Dr. Feibusch could not say whether such acts would have been "purposeful."

Dr. Nicole Paolillo, J.S.'s treating psychologist, concurred that he is uncooperative with treatment. He has been "stuck in Phase 1" of therapy. He has yet to "fully engage in a consistent manner in group, and modulate his behavior in a way that is conducive to him . . . participating appropriately." Dr. Paolillo noted that J.S. has expressed confidence in Dr. Gregory Gambone, the psychologist who facilitates a group for "residents who are not yet fully engaged in treatment." J.S. regards Dr. Gambone as a "trusted treating provider . . . an individual that is able to help him when he needs help." As for his "safe environment" complaints, Dr. Paolillo pointed out that J.S. is prone to odd thinking and behaviors including "some paranoid or suspicious ideation." J.S. spoke to Dr. Paolillo of "one particular resident that functions as kind of a ring leader for other residents to harass him." He did not identify that individual to her. Considering that "this has been a pervasive pattern for [J.S.] to speak of abuse and wrongdoing, and victimization," she was more concerned with "assessing where he was . . . in treatment."

Dr. Gambone testified as a witness for J.S., whom he described as "in transition" and "pretty good" about attending his group. Dr. Gambone has frequent contact with J.S. during the week. He acknowledged "there may have been instances or problems" with J.S. regarding his interactions with staff and other residents, but did not feel that would "stop him from having made any progress in seven years." J.S. "apparently" has an ongoing problem with another resident, but Dr. Gambone could not verify it. He concluded that J.S. is "always trying to build a case of how he's being abused or mistreated . . . or bullied." He added, "[T]here doesn't seem to be . . . good solid evidence and he doesn't seem to follow it up with any documented complaints."

Paul Lagana, Assistant Superintendent of the STU, testified on behalf of J.S., and described his allegations of physical assaults and destruction of personal property, none of which could be substantiated. Security cameras are located on J.S.'s wing but were not in operation at the time of the hearing. Lagana explained that J.S.'s room had previously been directly opposite the station of the officer on guard, but he moved to the last room on the corridor at his own request.

J.S. testified that his property, including a television, Play Station and fan, had been "sabotaged;" food packages from his family were stolen, and he had been assaulted by another resident. J.S. stated that, at the AKFC, he "suffered no abuse and they saw no depression." He added that he "was successful in [his] treatment there and [he has] asked to be placed there."

At the end of the hearing, Judge Freedman placed a comprehensive oral opinion on the record, stating his reasons for declining to transfer J.S. to the AKFC and further ordering that the security cameras on J.S.'s wing immediately be restored to operation.

The judge concluded he lacked authority to send J.S. to the AKFC because, he noted, the Legislature "has specified in the Statute that . . . sexually violent predators, so called, are to be housed in a place designated for housing them." The only place so designated is the STU. He added that J.S. "does not appear to meet" the standards for commitment to the AKFC. The judge concluded: "[U]nless the Commissioner of Human Services designates [the AKFC] as a place to house sexually violent predators, there's no basis for sending him there."

We concur with the judge's conclusion on this point. Under the SVPA, the Department of Corrections is "responsible for the operation of any facility designated for the custody, care and treatment of sexually violent predators, and shall provide or arrange for custodial care of persons committed pursuant to this act." N.J.S.A. 30:4-27.34a. The Commissioners of Human Services and Corrections are jointly responsible for promulgating regulations governing treatment of those individuals. Such regulations "shall specifically address the differing needs and specific characteristics of, and treatment protocols related to, sexually violent predators. In developing these regulations, the commissioners shall give due regard to security concerns and safety of the residents, treatment staff, custodial personnel and others in and about the facility." N.J.S.A. 30:4-27.34d.

Pursuant to this statutory mandate, regulations have been promulgated and codified in N.J.A.C. 10A:35-1.1 to -4.6. The STU is defined as "a secure facility for involuntarily civilly committed residents, operated by the Department of Corrections, with custodial care provided or arranged for by the Department of Corrections, and sex offender treatment services provided by, or arranged for by the [Division of Mental Health Services] in the Department of Human Services." N.J.A.C. 10A:35-1.4.

At present, the only facility designated for the confinement of sexually violent predators is the STU. Here, the trial judge properly determined that he lacked authority to order J.S. transferred to the AKFC. Moreover, J.S. never provided a basis on which to justify his placement in any facility other than the STU. His complaints about safety at the STU were either unsubstantiated or had been reasonably addressed by STU staff. In addition, the trial judge's directive to restore operation of the security cameras on J.S.'s wing will reasonably address such concerns going forward.

The scope of appellate review of these types of orders 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 resolution of the issues. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). That result will be subject to modification "only where the record reveals a clear abuse of discretion." Ibid. Given the clear statutory limitation on the trial judge's authority to order J.S. transferred from the STU to the AKFC, we find no such abuse of discretion. The record provides ample support for the judge's finding that J.S. remains a sexually violent predator who continues to require commitment at the STU for care and treatment.

Affirmed.

20080108

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