May 19, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF J.E.G., SVP-188-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-188-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Sapp-Peterson and Messano.
J.E.G. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from a November 8, 2007 order continuing his involuntary commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior" such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense, i.e., if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment, the plan is relevant to the adequacy of the proof that the person is no longer in need of commitment under the SVPA. J.J.F., supra, 365 N.J. Super. at 501-02.
Our review of a commitment pursuant to the SVPA is narrow.
V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A). We add the following comments.
On July 26, 2001, J.E.G. was initially temporarily committed to the STU under the general civil commitment statute, N.J.S.A. 30:4-27. Thereafter, a final order committing J.E.G. to the STU was entered on April 4, 2002. Prior orders continuing his commitment were entered on October 2, 2002, October 30, 2003, April 8, 2005, October 21, 2005, October 4, 2006, and November 8, 2007, the latter order being the subject of the present appeal. The predicate offense that prompted the Attorney General's petition for his involuntary commitment was his conviction for second-degree sexual assault upon a fifteen-year old male in July 1995. Additionally, in 1992, J.E.G. pled guilty to criminal sexual contact involving a twenty-one-year- old male. In that same year, he also pled guilty to endangering the welfare of a nine-year-old male.
The hearing that preceded entry of the order under appeal was held on October 16, 2007. Drs. Luis Zeiguer, a psychiatrist, and Dr. Robert Carlson, a psychologist, testified for the State. Dr. Timothy Foley, a clinical psychologist, testified on behalf of J.E.G.
Dr. Carlson is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are responsible for reviewing the progress and treatment of persons committed to the STU. During an interim review by the TPRC in May 2007, the TPRC approved J.E.G.'s admission to Phase IV of the STU's five-phase program, but in its October 15, 2007 report noted that the team reconsidered the recommendation and suggested that J.E.G. remain in the third phase of the program because J.E.G.'s "investment in therapy thus far has mainly been for the benefit of others[,]" rather than for himself. The team believed that J.E.G. needed to address his own issues more critically.
Dr. Zeiguer diagnosed J.E.G. as suffering from paraphilia NOS (not otherwise specified), pedophilia, alcohol dependence and polysubstance abuse, as well as personality disorder NOS with antisocial features. Dr. Zeiguer opined that his paraphilia and pedophilia, combined with his personality disorder, increased the risk that J.E.G. would act upon his deviance. He described his progress in the STU as "back and forth" and ranging from "marvelous" to "terrible" in any giving setting. He concluded that in the absence of strict parole supervision, the risk to the community would be enormous, but that with strict supervision, the risk would be greater than zero but less than enormous. His diagnosis was based upon his clinical interview and evaluation of J.E.G., the review of various reports prepared by psychiatrists, psychologists, and J.E.G.'s treatment and psychological test assessments. Dr. Zieguer concluded, within a reasonable degree of medical certainty, that J.E.G.'s mental abnormality affected his "cognitive, emotional, and volitional capacity in a manner that predisposes him to commit future acts of sexual violence."
J.E.G. presented one witness on his behalf, Dr. Timothy Foley, a psychologist, who diagnosed J.E.G.'s condition as paraphilia NOS, hebephilia, R/O (rule out) pedophilia, polysubstance dependence and personality disorder, NOS (antisocial and narcissistic features). According to Dr. Foley, J.E.G.'s risk of re-offending is exacerbated by his "drug and alcohol abuse." He noted that the predicate offense also involved drug and alcohol abuse. Dr. Foley opined that this condition could be "easily" monitored. He conceded, however, that if J.E.G. did not remain abstinent, there was a risk that J.E.G. would re-offend. He nonetheless concluded that discharging J.E.G. would be "an appropriate gamble" and that his release should require an immediate return to STU, if there is any sign that he had not remained abstinent.
Based upon the evidence presented, Judge Perretti found,
[T]he evidence presented by the State is sufficient to clearly and convincingly establish that this respondent is not yet ready for release into the community, even under the strictest [p]arole [s]upervision. Such supervision could not preclude the respondent's continued abstinence.
The respondent has not yet, in treatment, met the therapeutic goals which would reduce his risk of sexually deviant behavior. So long as that remains a serious problem with this respondent the prospect of his reversion to alcohol dependence precludes his safe discharge. The respondent clearly continues to be a person suffering from abnormal mental condition and personality disorder which predispose him to commit sexually violent offenses.
He has demonstrated his serious lack of control of his sexually violent behavior by his repetitive sex offending in the community, aggravated by alcohol dependence.
This respondent continues to be highly likely to continue sexually violent behavior. And it is clear that he continues to present an unacceptable risk to the community within the forseeable future.
The evidence supports the finding that J.E.G. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). Although the record supports the conclusion that he has made good progress by freely participating in "all of the mods offered to him[,]" the record also revealed that J.E.G.'s participation in self-help groups had been inconsistent; specifically, his participation in the self-help substance group was not consistent. All of the experts agreed that any conditional release would require strict supervision to ensure continued participation in alcohol and substance treatment. We agree, as the State argued, J.E.G.'s inability to consistently participate in alcohol and substance abuse programs at the STU does not bode well to the likelihood that he would do so upon release, where transportation and work-related issues could interfere with his regular participation at such self-help programs. Therefore, the conclusion that he continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.