January 17, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF E.Z.F., SVP 376-04.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 376-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Yannotti and LeWinn.
E.Z.F. appeals from an order entered on April 18, 2007, which continued his civil commitment to the Special Treatment Unit (STU) as a sexually violent predator, pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA).*fn1 For the following reasons, we affirm.
At the April 18 review hearing, the State's expert, Dr. Stanley R. Kern, testified and presented three reports from his two interviews with E.Z.F. on March 1, and April 11, 2007, and from his attempt to interview E.Z.F. on April 9, 2007, when E.Z.F. refused to speak with him. Dr. Kern had also reviewed E.Z.F.'s treatment notes from January 2005 to the present as well as the report of the Treatment Progress Review Committee (TPRC).
Dr. Kern first addressed E.Z.F's course of treatment at the STU. The doctor noted that E.Z.F. had been in Modified Activities Placement (MAP) "for a considerable period of time" due to behavior problems evidencing poor impulse control, such as fighting and threatening a staff member. Dr. Kern referred to a statement by E.Z.F.'s therapist indicating that he "has not progressed and he makes outrageous statements and lies." On February 26, 2007, E.Z.F. swallowed several triple A batteries in a suicide attempt.
Dr. Kern found this type of behavior entirely consistent with his diagnoses of E.Z.F., namely: paraphilia not otherwise specified (NOS); impulse control disorder NOS; psychotic disorder NOS; history of alcohol and cannabis abuse; antisocial personality; and borderline intellectual functioning. Dr. Kern noted that the alcohol and cannabis abuse--self-reported by E.Z.F.--played a significant role in his assessment of E.Z.F.'s risk of reoffending sexually, because these are "disinhibiting products" which render a person "more apt to act out their impulses[.]" In April 2006, E.Z.F. refused to complete a drug assessment, which Dr. Kern opined would have been an important step in helping him receive proper treatment.
Dr. Kern based his paraphilia NOS diagnosis on E.Z.F.'s predicate offense of rape, as well as his self-reported "chronic rape fantasies" involving women and children since the age of fifteen. E.Z.F. claimed to have fabricated those fantasies in order to be placed in the Adult Diagnostic and Treatment Center (ADTC) instead of prison when sentenced on his predicate offense.
E.Z.F.'s antisocial personality disorder, according to Dr. Kern, is evidenced by his long criminal record, including violations of probation, that show his tendency to act out even when "under restrictions." The impulse control disorder diagnosis is based upon E.Z.F.'s having acted impulsively on a number of occasions, as documented in the TPRC report. The diagnosis of psychotic disorder arises from E.Z.F.'s history of treatment for various psychotic episodes including hospitalizations for suicide attempts as far back as the age of fourteen. This diagnosis, Dr. Kern opined, indicates a mental disturbance that would affect E.Z.F.'s judgment and his "relationship to his environment and the people in the environment that he may act in bizarre and unusual fashions."
Dr. Kern opined, to a reasonable degree of medical certainty, that the combined effects of E.Z.F's underlying diagnoses made it highly likely he would reoffend sexually if not confined in a secure facility for treatment such as the STU. Dr. Kern pointed to E.Z.F.'s acting out even while under "restrictions," such as his history of violations of probation, and his bizarre conduct such as swallowing batteries while confined at the STU. Dr. Kern further noted E.Z.F.'s lack of meaningful treatment as a result of his constant placement on MAP for institutional infractions. In short, Dr. Kern described E.Z.F. as "in the very early stages of treatment."
Dr. Doreen Stanzione testified as the author of the January 24, 2007, TPRC report. The unanimous recommendation of E.Z.F's "treaters" in that report was that he remain in Phase Two of treatment, the "rapport building phase." Dr. Stanzione noted that E.Z.F. has "not been doing well" in treatment. He has no understanding of his "sexual offense cycle," which she defined as the pattern that leads one to commit a sexual offense. Dr. Stanzione considered this an important concept because it helps the offender identify when the cycle begins in order to prevent its occurrence to completion.
Dr. Stanzione also noted E.Z.F.'s "numerous MAP placements" since his 2004 commitment, that have greatly impeded his ability to participate meaningfully in treatment. In E.Z.F.'s case, this impediment has been significantly exacerbated by his "emotional inability" to make a commitment to treatment. According to the TPRC report, E.Z.F. has an "unrealistic understanding of his progress in treatment" and believes he has had all the treatment he needs. The TPRC's diagnoses of E.Z.F. were consistent with those rendered by Dr. Kern.
E.Z.F. testified at the review hearing. He stated that he committed the predicate offense of rape to "boost" his reputation with "the guys [he] used to hang out with." E.Z.F. stated that he fabricated the rape fantasies because, while he was in jail awaiting sentencing on the rape charge, he received advice from an inmate that the ADTC "was a much easier place than regular prison." He added, on cross-examination, that he also made untruthful statements about his parents to the ADTC interviewer, Dr. McNeill. While at the ADTC, he was placed on MAP for fighting with another inmate and for threatening a guard; he claimed the latter was a false charge made by a guard who, he "guessed," disliked him.
E.Z.F. described a number of incidents that resulted in his receiving MAP status at the STU; he stated most of the incidents were reported by "squealers." E.Z.F. testified that, if released on a discharge plan, he would comply with it because his time in the STU has made him "appreciate things on the outside," and he "needs to get on with [his] life."
At the conclusion of the testimony, Judge Serena Perretti placed her decision on the record. After thoroughly reviewing all of the testimony and documentary evidence, the judge concluded:
The diagnoses of Dr. Kern and Dr. Stanzione stand uncontradicted. The impulse control disorder which is diagnosed makes it clear that the respondent has serious difficulty controlling his behavior. In addition, his substance abusing behavior disinhibits any controls that he may have according to Dr. Kern's testimony.
[E.Z.F.] testified in his own behalf denying his culpability for any of the matters for which he was placed in MAP, attributing them to the word of snitches.
The statements of the respondent convince this Court that the respondent is indeed a teller of outrageous stories and a liar. Just as he is said to be by his therapists. He demonstrated this clearly in Court.
The testimony and evidence presented by the State is clear and convincing. The Court is clearly convinced that the respondent is a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that adversely affect his cognitive, volitional and emotional functioning so as to predispose him to commit sexually violent acts.
The diagnoses given by the two experts who testified are not contradicted and are amply supported by the facts of record. The respondent has serious difficulty controlling his sex offending behavior. And [he] is likely to commit sexually violent acts within the foreseeable future if not continued in custody for further care.
Our review of record leads us to concur with the judge's reasoning and conclusions. The expert testimony proffered by the State was uncontradicted. E.Z.F. subjected himself to close judicial scrutiny when he elected to testify. Having reviewed his testimony in its entirety, we cannot say the judge's assessment of E.Z.F.'s credibility is unwarranted.
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 "must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007) (quoting 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." In re Commitment of J.P., supra, 339 N.J. Super. at 459. For the reasons stated, we conclude the record in this case reveals no such abuse of discretion with respect to the April 18, 2007, order of continued commitment.