February 5, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF T.M.M., SVP 8-99.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-8-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2008
Before Judges Parrillo and Graves.
Following service of a sex offender sentence for third-degree aggravated criminal sexual contact, T.M.M. was committed to the Special Treatment Unit on September 17, 1999 under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He had periodic reviews thereafter at which the commitment was continued. He now appeals orders continuing the commitment on February 10, 2006 and March 22, 2007. We affirm.
By way of background, the predicate offense occurred on August 5, 1996, when T.M.M. was twenty-two years old.*fn1 At approximately 1:00 a.m., T.M.M. climbed through a bedroom window of a halfway house for mildly mentally handicapped individuals where his brother and the fifty-four year old mentally handicapped victim, E.K., resided, but T.M.M. initially left the premises when he was told to leave. At approximately 3:20 a.m., T.M.M. again climbed though his brother's window where he proceeded to E.K.'s bedroom, and touched her breast while she slept, awakening her. E.K. immediately screamed and T.M.M.'s brother eventually told T.M.M. to leave.
On November 20, 1996, T.M.M. pled guilty to one count of third-degree aggravated criminal sexual contact, a sexually violent offense pursuant to N.J.S.A. 30:4-27.26(a). He was sentenced on May 2, 1997, to a four-year term to be served at the Adult Diagnostic and Treatment Center (ADTC). Upon his release from the ADTC on July 15, 1999, T.M.M. was temporarily civilly committed to the Ann Klein Forensic Center as a sexually violent predator. At the time of his initial commitment, T.M.M. was diagnosed, on August 30, 1999, with the following mental abnormalities and/or personality disorders: frotteurism, paraphilia not otherwise specified (NOS), alcohol dependence in forced remission, and borderline intellectual functioning. Upon the State's petition and following a hearing on January 13, 2000, the Law Division ordered T.M.M.'s continued involuntary commitment at the Special Treatment Unit (STU), where he has since remained, being periodically re-evaluated and recommitted ten times.
In an unpublished opinion, we affirmed orders of July 16, 2002 and July 30, 2003 that T.M.M. continued to be a sexually violent predator in need of involuntary civil commitment. In re Civil Commitment of T.M.M., SVP-8-99, Nos. A-155-02T2, A-6711-02T2 (App. Div. May 18, 2004) (slip op. at 4). At the contested July 16, 2002 review hearing, T.M.M. introduced the testimony of Dr. Timothy Foley, who testified that T.M.M. was not "likely to commit another act of sexual violence if not confined to the Special Treatment Unit." However, Dr. Michael McAllister testified that T.M.M. was making "poor progress in treatment," and that "he is extremely likely" to act out his sexual urges "and reoffend if he were released." According to Dr. McAllister, T.M.M. "created a sham with treatment. He has created . . . a false perversion that is limited to frotteurism instead of . . . the full nature of his sexual perversion." In addition, Dr. Jeffrey Singer testified that T.M.M. was "right below the severe or significant range" in terms of the risk factors for recidivism, which "predispose[d] him to commit an act of sexual violence."
Dr. McAllister testified again at the July 30, 2003 hearing that T.M.M. showed "a rather slow progress" in treatment and there would be a "significant" risk of another offense if he were to be released. Dr. Uri Amit defended the Annual Review Report of the Treatment Progress Review Committee, which found "limited progress" on the part of T.M.M., and that "[h]is level of risk for reoffense, therefore, remains at present, unacceptable" and "largely  unmitigated."
On both occasions, Judge Perretti made the requisite findings that (1) T.M.M. had been convicted of a sexually violent offense, (2) suffers from a mental abnormality or personality disorder, and (3) there is clear and convincing evidence that T.M.M. is highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment. Accordingly, we affirmed the orders then under review. In re Civil Commitment of T.M.M., supra, at 4.
Thereafter, T.M.M.'s involuntary civil commitment was continued by orders of June 29, 2004, February 17, 2005 and February 10, 2006. The latter, which is one of two orders now on appeal, was preceded by plenary hearings on December 13, 2005 and January 6, 2006, at which the State produced Drs. Manuel Eiser and Luis Zeiguer, as well as STU commitment resource team leader, Jenna Caccese. Caccese prepared a STU discharge plan update report and testified that T.M.M.'s proposed housing site, My Brother's Keeper, was inappropriate in that it failed to meet either the security or substance abuse needs of T.M.M., who required a moderate-to-high level of security and who, in Caccese's opinion, had not put much effort thus far into treatment. In contrast, T.M.M. produced Reverend Oscar Hernandez, administrator of facility operations at My Brother's Keeper, who testified the facility is a substance abuse counseling residence willing to accept sex offenders and has sufficient security, including cameras and 24-hour monitoring.
The expert medical testimony, however, was unrefuted. Psychologist Eiser authored the treatment progress review committee (TPRC) report of June 9, 2005 and testified that T.M.M. was only in the very early stages of Phase Three treatment, which he started in June 2005. Based on treatment reports, Dr. Eiser testified that although T.M.M. had regular attendance at treatments and performed work duties adequately, he had only rudimentary familiarity with the sexual assault cycle, was an infrequent group contributor, and is unaware of the treatment he needs to work on. "[T]he main thing with [T.M.M.] is his motivation."
Psychiatrist Zeiguer prepared a clinical psychiatric assessment report, dated December 16, 2005, which was based upon, among other things, treatment notes and two ninety minute interviews with T.M.M. Dr. Zeiguer opined that T.M.M. is not suffering just from frotteurism, and, instead, diagnosed him with paraphilia NOS on Axis I based on non-consent because T.M.M. is not satisfied merely by touching. In addition, Dr. Zeiguer opined that T.M.M.'s paraphilia and alcohol abuse make it difficult to deter him, especially since T.M.M. has disregarded previous warnings by his probation officer and his mother.
According to Dr. Zeiguer, T.M.M. has low-to-average intelligence complicated by learning disabilities. While Dr. Zeiguer believed that T.M.M. has the capacity to learn and understand, he also opined that T.M.M. was not truthful in reporting that his sexual needs have disappeared. The expert concluded that it is "highly likely" that T.M.M. would commit these same type offenses again within the reasonably foreseeable future if he were released.
At the conclusion of the plenary hearing, Judge Freedman found by clear and convincing evidence that T.M.M. was in need of continued involuntary commitment, reasoning:
[This decision is] based on [Dr. Zeiguer's] testimony that [T.M.M.] is not really a frotteurist, that he's a person who's interested in . . . sexual non-consent, that his potential for committing a very serious crime is great . . . . [a]nd . . . it's . . . with his sister [that] shows that.
Given the circumstances, I don't think that he has progressed far enough in treatment to justify release. . . .
[He has a] real lack of interest in real treatment. He's slacked off. He's not been participating well. He['s] . . . only in the early stages of phase three. . . .
[H]e needs to be motivated for treatment . . . .
I find by clear and convincing evidence that [T.M.M.] does suffer from a mental abnormality in the form of a paraphilia on Axis I, in addition to suffering from alcohol abuse and that he has a personality disorder on Axis II, and . . . his statements to [others] . . . about his inability to control himself, predispose him to engage in acts of sexual violence. . . .
[T]here's potential there for it to . . . escalate. . . .
[B]y clear and convincing evidence[,] . . . [T.M.M.] suffers from . . . serious difficulty controlling his sexual behavior . . . to such a degree that he would be highly likely in the reasonably foreseeable future to commit one of these acts again.
[H]e needs to continue his commitment and . . . to buckle down and engage in treatment.
[Thus,] . . . I'll continue his commitment and set a review date.
The next scheduled review generated hearings on January 3 and 4, 2007, and March 19, 2007 before Judge Perretti. Following the close of evidence on January 4, on January 8, 2007, the court ordered T.M.M.'s conditional discharge, however, that order was vacated by a subsequent order of March 22, 2007, which also directed T.M.M.'s continued commitment without conditions. It is that order which forms the other basis for this appeal.
Specifically, at the January 3, 2007 hearing, the State produced Drs. Stanley Kern and Nicole Paolillo, and T.M.M. presented no witnesses. Dr. Kern testified that T.M.M. suffers from a mental abnormality that predisposes him to sexually reoffend, and diagnosed him with paraphilia NOS, frotteurism, a history of alcohol dependence on Axis I, and a personality disorder N.O.S. and learning disorder on Axis II. Dr. Kern clarified his paraphilia N.O.S. diagnosis as "recurrent, intense, sexually arousing fantasies, urges or behaviors" because paraphilias occur over at least a six month period of time and, in 1994, T.M.M. was charged with inappropriate sexual touching of his minor step-sister over a two year period.
According to Dr. Kern, T.M.M. has manifested an attitude of irresponsibility with unhealthy interpersonal communication leading to an isolated individual who withholds himself from others, although his participation had increased slightly over the past few months. Also to his credit, T.M.M. has acknowledged and described his index offense, his other incestuous sexual offense, and his unreported sexual offense. Nevertheless, Dr. Kern "[a]bsolutely" believed that T.M.M. still has serious difficulty controlling his sexual offending behavior and that "there's still a significant risk to reoffend."
On cross-examination, Dr. Kern recognized that T.M.M.'s case was "kind of borderline because the offenses aren't as severe as most of the people that we get here," but the offenses are "kind of a bizarre thing . . . . [and] the chances are that he might well be readmitted." Dr. Kern also acknowledged that T.M.M. has not expressed that he would act out, nor that he has been violent; instead, T.M.M. has been a good worker and has regularly attended treatment, despite a participation record that was described as "lacking." In addition, T.M.M. scored a 3 on the Static-99 recidivism test that indicated a "medium to low" risk that T.M.M. would recidivate. Nevertheless, Dr. Kern still believed that T.M.M. presented a high risk.
Dr. Paolillo prepared the TPRC report of January 2, 2007. She testified that: T.M.M.'s motivation "ebbs and flows;" he has not sufficiently reported his sexual assault cycle; he repeatedly displays isolated behaviors based on the treatment team reports; there is "significantly more work to be done in treatment," including relapse prevention techniques; he has a historical tendency to be manipulated by others; he has low self-worth and poor assertiveness skills that may impede his progress; and he believes that his celibacy is a valid, viable lifestyle, but, with his history of bottling up his emotions, he would need a release through substances or sexually acting out which, in his words, would "gratify himself."
On cross-examination, Dr. Paolillo acknowledged that T.M.M. had no attendance problems in the past seven years and has never refused treatment. While T.M.M. has continued in the same Phase Three treatment stage since Dr. Eiser's June 14, 2004 report, Dr. Paolillo opined that T.M.M.'s main problem is his lack of motivation and that he "has [not] gone as far as he can go."
At the conclusion of the hearing, on January 4, 2007, Judge Perretti noted, among other things, positive signs of T.M.M.'s continuing candid acknowledgement and disclosure of his past sex offenses, his apparent motivation in treatment sessions during March 2006, and the September 13, 2006 recommendation of the STU treatment team to reduce T.M.M. to Phase Two. Thus, in ordering T.M.M.'s conditional discharge, the court concluded:
It is clear that . . . [T.M.M.] has been convicted of at least one sexually violent offense. It is clear that . . . [T.M.M.] suffers from an abnormal mental condition, frotteurism and substance abuse. However, the Court is not clearly convinced that . . . [T.M.M.] at the present time, after seven years of therapy, presents such a risk to the public that he should be continued in confinement at the S.T.U.
[T.M.M.] . . . has consistently demonstrated cooperation with the program here. There is no reason to believe he would not cooperate with any discharge program that is constructed for him, including structured living and monitoring by Parole.
The Court is mindful that the index offense was indeed bizarre as described by the psychiatrist.
After a review of the entire record in this case, going back to 1999, this Court is not clearly convinced that [T.M.M.] . . . continues to require confinement at the S.T.U. . . . .
It is . . . ordered that this institution . . . assist . . . in developing a conditional release plan . . . to be presented on . . . March 19, 2007.
Consequently, a transitional plan hearing was held on March 19, 2007, at which time the court cited several critical concerns with T.M.M.'s proposal, leading her to seriously question both T.M.M.'s understanding of the transition plan and his motivation for treatment. First, T.M.M. planned on borrowing money to finance his supervised housing at My Brother's Keeper. Second, he refused to provide contact information for his cousin, Tony Dalton, who allegedly offered him employment. Third, T.M.M. did not provide bank account statements or credit card status as requested. Fourth, and most disturbing, in order to pay My Brother's Keeper, T.M.M. borrowed money from Dora Watson, who has been banned for the past five years by the Department of Corrections and the Department of Human Services from contacting SVP individuals at the facility. Apparently, Watson has a history of involvement with individuals who fit T.M.M.'s victim profile, and Helen Thompson, an assistant social worker for the past seven years, personally witnessed Watson transport developmentally disabled women to the SVP facility as well as obtain the names of SVP individuals in order to place these women on SVP residents' visiting lists.
Accordingly, at the conclusion of the March 19, 2007 hearing, Judge Perretti concluded:
It's . . . just gone from bad to worse. The man does not understand yet what he has to do in the community in order to be safe himself . . . . He doesn't understand. And there is no question in my mind that he doesn't understand.
It's absolutely impossible that [T.M.M.] should be accepting money from this lady[, Dora Watson,] . . . with no current objective reason to believe he could ever pay it back. . . .
My mind is changed completely. It is clear that . . . [T.M.M.] is unwilling and/or unable to conform to even the most basic preliminary requirements for a conditional discharge, he cannot or will not even cooperate in the making of a plan. And this is his doing.
. . . . [I]f he's just going to say, "I'm going to go to My Brother's Keeper and then everything's going to be all right", that's not the case. . . . [H]e needs to make sure he can pay for himself and take care of himself. . . .
[O]ne of the things that I think he should do would be to get . . . in contact with Mr. Dalton, have Mr. Dalton send the letter to S.T.U. . . . saying . . . "He can work for me when he has the opportunity."
This Order of January 8th, 2007 is vacated. . . . [I]t's crystal clear to the Court that [T.M.M] is not willing or able to comply with reasonable conditions of release. . . . Therefore, [T.M.M.] must be committed and there will be a review in a year.
Thus, the court's order of March 22, 2007, vacated its earlier January 8, 2007 order of conditional discharge and continued T.M.M.'s involuntary civil commitment without conditions pending the next scheduled review.
These consolidated appeals follow.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. See also In re Commitment of J.M.H., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower [court's] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that both judges' findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of February 7, 2006, and Judge Perretti in her oral opinion of March 19, 2007.