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In re Civil Commitment of D.G.H.


February 6, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 98-00.

Per curiam.



Argued December 4, 2007

Before Judges Yannotti and LeWinn.

D.G.H. appeals from an order entered on October 23, 2006, continuing his civil commitment to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons determined to be sexually violent predators pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). This is D.G.H.'s third appearance before us. We affirmed his August 7, 2002, civil commitment under the SVPA in In the Matter of the Civil Commitment of D.G.H., SVP 98-00, Docket No. A-1585-02T2 (App. Div. June 30, 2004). We subsequently affirmed the September 23, 2004, order continuing his commitment after an evidentiary review hearing, in In the Matter of the Civil Commitment of D.G.H., SVP 98-00, Docket No. A-6219-04T2 (App. Div. December 19, 2005).

At the review hearing that is the subject of this appeal, D.G.H. voluntarily absented himself and presented no evidence on his own behalf. The court heard testimony from the State's expert, Dr. Stanley R. Kern, and accepted into evidence Dr. Kern's report of October 13, 2006; D.G.H.'s treatment notes from September 8, 2004 to the present; as well as the July 17, 2006, report of the Treatment Progress Review Committee (TPRC), authored by Dr. Raymond Terranova, a clinical psychologist at the STU.

Dr. Kern described D.G.H.'s prior criminal history that included two sexual assaults and "multiple situations" of voyeurism. Although D.G.H. refused to be interviewed by Dr. Kern for this hearing, nonetheless the doctor testified he was able to render an expert opinion based on his review of D.G.H.'s criminal history, the cumulative treatment notes, and the TPRC report. Dr. Kern described D.G.H. as "silent, passive, [and] disinterested" with respect to his treatment, leading to his placement on treatment probation status because of his "poor participation." Dr. Kern stated that D.G.H. demonstrates a lack of understanding of "his sex offense dynamics."

Dr. Kern diagnosed D.G.H. with voyeurism, frotterism, and paraphilia not otherwise specified (NOS); he also has a history of marijuana and alcohol abuse. His diagnosis includes personality disorder NOS with anti-social traits. Dr. Kern defined voyeurism as "paraphilia of observing unsuspecting persons who may be naked, or in the process of disrobing or engaging in sexual activity[.]" He defined frotterism as the "touching or rubbing against a non-consenting person." Dr. Kern further explained that paraphilia NOS involves "recurrent, intense . . . sexually arousing fantasies, urges or behaviors involving children or other non-consenting persons[.]"

In Dr. Kern's expert opinion, D.G.H.'s diagnoses cause him to have "serious difficulty" in controlling his sexually offending behaviors. He concluded, to a reasonable degree of medical certainty, that D.G.H. would be highly likely to reoffend sexually unless confined to the STU for treatment.

The TPRC report stated that D.G.H. had been recommended for Phase Two of treatment as of July 2006. His treatment team noted his lack of meaningful participation in therapy, pointing out his refusal to take modules earlier in the year and his failure to take the floor in group meetings except to "complain about systemic issues." The team noted that one of D.G.H.'s "most obvious" risk factors is his "continued refusal to participate meaningfully in treatment." Other risk factors include "his continued embrace of the victim role, and minimal insight into the deviant quality of his sexual behaviors, his distorted beliefs, and unhealthy attitudes." The TPRC's diagnoses of D.G.H. were identical to Dr. Kern's.

At the conclusion of the hearing, Judge Serena Perretti placed a thorough and comprehensive decision on the record. Citing Dr. Kern's uncontradicted expert testimony and the TPRC report, as well as D.G.H.'s treatment notes, the judge found "ampl[e] support" for the conclusion that D.G.H. has made "minimal, if any, progress in treatment since his admission, stressing his concerns that he is a victim of the system." After placing her thorough review of the evidence on the record, Judge Perretti concluded:

It is clear that the respondent has done nothing in treatment to in any way reduce or mitigate the risk of re-offense, which was originally found at the time of his commitment to the S.T.U. in 2000.

This is an untreated sex offender who, for all intents and purposes, is a treatment refuser. The evidence was clear and convincing that respondent continues to be a sexually violent predator, suffering from abnormal mental conditions which influence his cognitive, emotional and volitional capacities in such a manner as to predispose him to commit sexually violent acts.

He has been diagnosed with voyeurism, frotterism, paraphilia N.O.S., history of cannabis and alcohol abuse, and personality disorder N.O.S. with anti-social traits. It was pointed out that the respondent, when he committed the predicate offense in 1996, was still on parole from his 1985 sentence for sexual assault. He had been paroled in December of 1988.

This bears upon the respondent's ability to control himself. And in addition, Dr. Kern is of the opinion that the respondent probably acted in a compulsive fashion further bearing on the lack of control.

Because the respondent has serious difficulty controlling his sex offending behavior, he is highly likely to commit sexually violent acts if not continued in custody for further treatment or for the protection of the public.

At oral argument before us, D.G.H. asserted that the evidence failed to establish that he was highly likely to offend sexually, and that his "incarceration" was being continued primarily to prevent the risk of his being a "peeping Tom." He contended that the SVPA does not contemplate continued commitment for this type of offender, citing Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed. 2d 856 (2002).

The New Jersey Supreme Court paid prompt and thorough attention to Kansas v. Crane in In re Commitment of W.Z., 173 N.J. 109, 112-113 (2002), noting:

In that case the Court clarified the substantive due process limitations on a state's ability to identify the mental abnormalities that render a sex offender eligible for civil commitment because of his or her dangerousness. Specifically, Crane held that a state may not civilly commit a sex offender without making a determination about the person's "lack of control" over his or her sexually violent behavior. In so holding, the Court rejected the claim that a sex offender's lack of control must be demonstrated to be total or complete; rather, the Court acknowledged a state's authority to commit those sex offenders who have "serious difficulty in controlling [their] behavior." [W.Z., supra, 173 N.J. at 113 (citation omitted) (quoting Kansas v. Crane, supra, 534 U.S. at 411, 122 S.Ct. at 870, 151 L.Ed. 2d at 862).]

We find D.G.H.'s reliance upon Kansas v. Crane to be misplaced. As noted in W.Z., supra, 173 N.J. at 113, the United States Supreme Court has expressly acknowledged a state's authority to commit sexually violent predators who have been proven, by clear and convincing evidence, to have "'serious difficulty in controlling [their] behavior.'" That standard has been met here.

The clear and convincing evidence of record in this case supports the trial judge's conclusion that D.G.H. remains in need of continued commitment. D.G.H.'s criminal history, specifically his history of sexual offenses, clearly demonstrates that he is no mere "peeping Tom," as he contended before us. Rather, the record reveals that D.G.H. has serious difficulty controlling behaviors such as frotterism and sexual assault, in addition to voyeurism; and it is highly likely that he would commit violent sexual offenses if not confined to a secure facility for treatment. Because of his "minimal" participation in treatment to date at the STU, he has done little to reduce the risk of his sexually reoffending if released.

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.) certif. granted, 193 N.J. 222 (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. The record in this case discloses no such abuse of discretion with respect to the order under review. The October 23, 2006 order of continued commitment is adequately supported by the record and consistent with these controlling legal principles.



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