January 14, 2008
IN THE MATTER OF CIVIL COMMITMENT OF H.G.T. SVP 18-99.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 18-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Yannotti and Lewinn.
H.G.T. appeals from an order entered by Judge Serena Perretti on May 17, 2007, which continued his civil commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). For the reasons that follow, we affirm.
In 1995, H.G.T. pled guilty to one count of first-degree aggravated sexual assault, which is a predicate offense under the SVPA. N.J.S.A. 30:4-27.26(a). The offense involved repeated acts of sexual assault upon the eleven-year old daughter of H.G.T.'s girlfriend. H.G.T. was sentenced to a five-year term of incarceration to be served at the Adult Diagnostic Treatment Center (ADTC). H.G.T. was released from the ADTC in March of 1999, after having served four and one-half years (or fifty-four months) of his sentence. Thereafter, he was civilly committed.
On October 27, 1999, the Attorney General filed a complaint seeking H.G.T.'s civil commitment pursuant to the SVPA. The court entered a temporary order of commitment on October 28, 1999. Following a hearing, the court entered an order on June 29, 2000, based on its finding that H.G.T. was a sexually violent predator in need of commitment pursuant to the SVPA.
Subsequently, orders continuing H.G.T.'s commitment were entered on January 12, 2001; February 8, 2002; January 13, 2003; July 3, 2003; and August 19, 2003. H.G.T. appealed the orders entered on July 3, 2003 and August 19, 2003. We affirmed. In re Civil Commitment of H.G.T. No. A-39-03T2 (App. Div. December 13, 2004). This appeal arises from the review hearing that was held on May 14, 2007.
At the hearing, the State presented testimony by Dr. Brian Friedman, who prepared the report of the Treatment Progress Review Committee (TPRC) dated April 30, 2007. In his report, Dr. Friedman noted that, in addition to his 1995 conviction for aggravated sexual assault, H.G.T. pled guilty in 1987 to endangering the welfare of a child. That offense involved the sexual abuse of a ten-year old female foster child who resided with H.G.T.'s girlfriend. H.G.T. was sentenced to fifty-six days in jail and four years of probation. Dr. Friedman additionally noted that at one time, H.G.T. reported that he had as many as fifty victims, but H.G.T. later claimed that this was not accurate.
In his report, Dr. Friedman made the following diagnoses: pedophilia, sexually attracted to females, non-exclusive; alcohol dependence, with physiological dependence, in a controlled environment; polysubstance dependence, in a controlled environment; major depressive disorder; disorder of written expression; and borderline personality disorder.
The doctor noted that H.G.T. had been in sex offender treatment for over nine years. However, he had not benefited significantly in the early years of treatment. According to Dr. Friedman, the primary stumbling block appeared to be "emotional and behavioral symptoms commensurate with his [b]orderline [p]ersonality organization." However, the doctor noted that in the previous year, H.G.T. had demonstrated "increased motivation."
Dr. Friedman testified that H.G.T. has made some significant improvements over the preceding year. He has been more consistent in his group therapy sessions. He also has engaged in individual therapy, which has helped his behavioral control. Dr. Friedman said that the TPRC believed that Phase 3 of treatment was appropriate at this time.
Dr. Friedman stated that H.G.T. suffers from pedophilia, a condition that does not "go away." The doctor said that he diagnosed borderline personality disorder because H.G.T. has a long history of affective instability, meaning significant mood swings, difficulty handling uncomfortable emotions, [and] reacting impulsively. He's got a history of self-injurious behavior, multiple suicide attempts. He . . . seems to have a relatively poor sense of self. His relationships tend to be unstable, and this is all consistent with borderline personality [disorder]. [H.G.T.] has made some improvements in handling his emotions.
He has made some improvements . . . in his relationships with others. And he still has some difficulty . . . misperceiving comments and things by others, as well, and reacting somewhat to that. But again, I think [H.G.T.] does need to be commended for the work he's done in handling his emotions better. And this is very related to his offending cycle where he would attempt to cope with uncomfortable emotions through substance use and making himself feel better through offending. And so, . . . the more able he is to handle those emotions, the less he will feel that he need[s] to make himself feel better by sexually acting out with children. So this is a very important . . . treatment focus area for [H.G.T.].
Dr. Friedman also stated that H.G.T. had not completed any of the polygraphs that were previously required. The polygraphs were needed to test H.G.T.'s statement that he had not masturbated to deviant fantasies in ten years, and his assertion that he only had ten rather than fifty victims.
The State also presented testimony from Dr. Stanley R. Kern, who prepared a report dated May 8, 2007, concerning his psychiatric evaluation of H.G.T. Dr. Kern diagnosed pedophilia, sexually attracted to females, non-exclusive; history of bipolar disorder; alcohol dependence; cannabis abuse; and personality disorder, not otherwise specified (NOS).
In his report, Dr. Kern opined that H.G.T. has an abnormal mental condition and disorder that cause him to have serious difficulty in controlling his harmful behavior. The doctor said that it is highly likely H.G.T. will not control his sexually violent behavior and will re-offend. The doctor wrote that H.G.T. continues to be a sexually violent predator in need of commitment in a secure facility for care, custody and treatment.
At the hearing, Dr. Kern testified that he has interviewed H.G.T. numerous times. He said that his diagnosis of pedophilia was supported by H.G.T.'s conviction of sexual assault of an eleven-year old girl. The doctor added that pedophilia is a "deeply ingrained pattern of behavior that does not just go away by itself." He said treatment is required so that the individual can learn to "control his impulses." The doctor said that a history of alcohol dependence is a factor in sexually offending because an alcohol dependent individual is not able to control his impulses.
Dr. Kern further explained that H.G.T. has a personality disorder, as indicated by his difficulty in interacting with others and his poor self-image. According to the doctor, an individual with those personality traits may be predisposed "to get involved with children rather than age appropriate adults."
Dr. Kern noted that H.G.T. made progress in treatment, but "there is insufficient stability in his behavior so that he [would not] get into difficulty once he leaves." The doctor stated that he and H.G.T. had discussed his discharge plans. H.G.T. said that he had a sponsor from Alcoholics Anonymous (AA) who was still available, and he planned to live in Phillipsburg, go to AA and Narcotics Anonymous (NA), and also participate in one-on-one counseling.
Dr. Kern noted, however, that while H.G.T. was at the STU, he did not attend AA. The doctor stated that "if [H.G.T.] was really interested in getting treatment for his alcoholism, he would start while he's here and then continue following discharge." Dr. Kern also stated that although H.G.T. told him that he would attend one-on-one counseling if discharged from the STU, he did not say anything about going to group therapy.
H.G.T. presented testimony from Dr. Gregory Gambone and Dr. Carol Lester, who are members of H.G.T.'s treatment team at the STU. Dr. Gambone noted that H.G.T.'s scores on the Static-99 showed a moderate level of risk, and his scores on the MnSOST indicated a low level of risk.*fn1 The doctor stated that H.G.T. has the ability to think on his feet, identify risk factors for others and himself, acknowledge risks, and identify and implement behavioral change strategies. Dr. Gambone also said H.G.T. has a commitment to treatment, but cautioned that H.G.T. was being treated for bipolar symptoms. Dr. Gambone asserted that he believed that if H.G.T. was discharged, he would be likely to continue his treatment.
On cross examination, Dr. Gambone agreed that H.G.T. had not attended AA group meetings at the STU in the past year. The doctor admitted that before H.G.T. began treatment with him and Dr. Lester, his attendance at treatment was "rather dreadful." The doctor noted that H.G.T. "failed out" of certain modules because he refused to attend them. He said that while H.G.T. was doing well when he entered the Therapeutic Community (TC), soon thereafter he engaged in sexual relations with another resident. Dr. Gambone asserted that H.G.T. knew it was wrong to engage in that conduct. The doctor agreed that most of H.G.T.'s absences from his "process group" were unexcused. The doctor also conceded that while H.G.T. has had difficulty with writing, that was not the reason he failed to attend the "process group."
Dr. Lester testified that H.G.T. knows his "triggers." According to Dr. Lester, H.G.T. has demonstrated an ability to control his impulses. She noted that at one point, H.G.T. claimed that he had fifty victims but she thought that this was "part of his kind of becoming angry, becoming irked at something and kind of throwing his efforts to the wind." The doctor said that this anger had been "worked on" in treatment. She added that H.G.T. had demonstrated an awareness in integration of arousal re-conditioning. He also had demonstrated victim empathy. The doctor said that H.G.T has done well in "process groups."
On cross examination, Dr. Lester conceded that, despite her encouragement, H.G.T. has not attended AA groups at the STU. The doctor said that she had encouraged H.G.T. to attend various modules and, while H.G.T. would start those modules, he very quickly would stop. The doctor said that H.G.T. has completed assertiveness communication and a fair number of substance abuse groups. Dr. Lester conceded that H.G.T. had not identified a group for sex offender treatment that he wants to attend if he is discharged.
Raymond Sheets testified that he has known H.G.T. for about twenty years. He first met H.G.T. at AA meetings. Mr. Sheets became his sponsor about eighteen years ago. He explained that a sponsor is a person to whom someone can speak individually, rather than before the group. Mr. Sheets said that he and H.G.T. have spoken about discharge plans. He stated that sex offender treatment is the most difficult part of the plan but it was available in Paterson and H.G.T. could travel there by bus. Mr. Sheets added that there are many places where H.G.T. could live in Phillipsburg, and he would enlist the AA community to help H.G.T. Mr. Sheets also said that he could find H.G.T. a job in a car wash in the area, and he was confident that H.G.T. would attend AA meetings.
Judge Peretti placed her decision on the record on May 16, 2007. The judge commended Mr. Sheets for his continuing interest in H.G.T. but said that Mr. Sheets had not presented substantial information about a discharge plan. The judge noted that both Dr. Gambone and Dr. Lester had testified about H.G.T.'s recent progress in treatment. However, both doctors noted that H.G.T. had not completed the written components of his treatment. They stated that his attendance at modules had been poor. The judge rejected H.G.T.'s suggestion that his failure to attend the modules was due to his difficulty with writing. The judge said that there was no evidence that H.G.T. ever sought assistance with his writing from others at the STU.
Judge Peretti also noted that H.G.T. had entered a program called the Therapeutic Community (TC), but he had been dismissed from that program. She rejected H.G.T.'s contention that he had been improperly or unfairly removed from the TC. The judge said that she could not "sort out the precise reasons" why H.G.T. had been removed from the TC. However, she found that H.G.T. violated the rules of the institution when he engaged in sexual relations with another resident, and engaged in a physical confrontation with another person at the STU.
Judge Peretti additionally found that H.G.T. had deceived his facilitators as to the extent of his treatment progress. The judge stated that the treatment records indicated that H.G.T. had consistently failed to comply with his facilitators' recommendations. The judge noted that Dr. Lester had reported on July 26, 2006 that H.G.T.'s treatment was "[o]ne step forward, one step back." The judge made the following findings:
The State's evidence was clear and convincing. The Court is clearly convinced that [H.G.T.] continues to be a sexually violent predator. The Court can find no treatment effect sufficient to mitigate the risk and finds no conditional release plan which would serve to control [H.G.T.] in the community. The respondent has consistently refused to participate in sex-offending specific treatment and consistently refused to follow the advice and encouragement of his therapists.
It is clear that Dr. Gambone and Dr.
Lester have achieved a close relationship with [H.G.T.]. Under their care, he has improved. However, it continues to be clear that in spite of the therapists' encouragement, [H.G.T.] will not follow their advice. It is inconceivable that [H.G.T.] would comply with any directions made for any conditional release plan.
The judge found that H.G.T. suffers from an abnormal mental condition and personality disorder that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts. She stated that H.G.T. has limited control over his sex offending behavior, and pointed out that he had recently engaged in consensual sexual relations in contravention of the institution's rules.
The judge stated that she was clearly convinced that H.G.T. continues to be a sexually violent predator requiring commitment at the STU for further care. She observed, "[u]p to the present time, [H.G.T.] has been a treatment refuser and has only recently minimally improved by bettering his inadequate attendance at therapy."
In this appeal, H.G.T. contends that the State failed to present clear and convincing evidence that warrants his continued civil commitment under the SVPA. He argues that the record of the review hearing establishes that he is not highly likely to engage in sexually violent offenses in the foreseeable future if he is discharged from the STU. H.G.T. seeks a remand with directions that he be conditionally discharged from confinement.
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 a clear abuse of discretion is shown. Ibid. (citing In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Moreover, we must defer to the findings of the trial judge when the findings are based on sufficient evidence in the record, considering the evidence in its entirety, "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)(citing State v. Johnson, 42 N.J. 146, 162 (1964)).
We have carefully reviewed the record in light of the arguments raised on appeal by H.G.T. and the criteria for commitment under the SVPA. We are convinced that there is clear and convincing evidence to support the judge's finding that H.G.T. remains a sexually violent predator requiring continued commitment in a secure facility for custody, care and treatment. We are further convinced that the record does not support H.G.T.'s contention that the time has come for his conditional discharge from the STU.
Although H.G.T. has made some progress in treatment, the record fully supports Judge Peretti's finding that H.G.T.'s treatment was not sufficient to mitigate the risk that he will commit a sexually violent offense in the reasonably foreseeable future unless he is confined in a secure facility. The record also supports the judge's finding that the risk that H.G.T. will sexually re-offend will not be mitigated by a conditional discharge plan.