June 26, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF F.P.N. SVP-302-03
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-302-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 2, 2008
Before Judges A.A. Rodríguez and C.L. Miniman.
F.P.N. appeals from an order for continued commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. F.P.N. contends that this is a psychologically complicated case due to his long history of developmental delay, mental retardation, attention-deficit disorder and bipolar disorder. He asserts that the State did not meet its burden of proof and its expert did not establish a nexus between his diagnoses and the risk of sexual violence. We affirm.
F.P.N. was first civilly committed on June 20, 2003, and that commitment was reviewed by us and affirmed on December 17, 2004. On February 22, 2006, an order was entered continuing his involuntary civil commitment, which we affirmed on October 12, 2006. The relevant facts are recited in our opinion reviewing the initial commitment.
The predicate offense involved multiple sexual acts with two runaway girls, who were fourteen and fifteen years old, over the course of a weekend, both in a motel and at F.P.N.'s house. At the time, F.P.N. was twenty-three years of age and on probation from an earlier conviction of endangering the welfare of a minor. J.P.N. was charged with two counts each of sexual assault, endangering the welfare of a child and criminal sexual contact. He was also charged with distributing a controlled dangerous substance, unlawful possession of a weapon, possession of a weapon for unlawful purposes and criminal restraint.
On January 22, 1996, J.P.N. pled guilty to two counts of sexual assault in the second degree, distributing a controlled dangerous substance in the fourth degree and criminal restraint in the third degree. He was sentenced to two concurrent ten-year prison terms for the sexual assault and lesser concurrent terms for the balance of the charges to which he pled. He was sentenced to community supervision for life. The sentencing judge recommended an Avenel evaluation.
Defendant has a long history of sexual assaults beginning on July 2, 1989, when he was an inpatient at the Carrier Foundation. On that day he assaulted a thirteen-year-old girl and, when she reported it to some of her friends, they too stated that J.P.N. had also touched their breasts, buttocks and vaginal areas by the pool. On July 2, 1989, J.P.N. also assaulted a fifteen-year-old girl in the pool by kicking her in the vagina and trying to grab her breasts. On the same day J.P.N. assaulted a seventeen-year-old girl who was in the pool by poking her vagina with his finger. J.P.N. pled guilty to criminal sexual contact on May 16, 1990.
Defendant was next involved in a sexual assault on a ten-year-old girl between September 1991 and March 25, 1992, when the police responded to a call from the Division of Youth and Family Services, which had received an anonymous tip that a ten-year-old girl had been sexually abused. The ten-year-old reported to the police that J.P.N. and his brother had been sexually assaulting her and that J.P.N. had done so about ten times. Subsequently, the victim recanted her statement regarding J.P.N. Despite the victim's recantation, J.P.N. pled guilty to endangering the welfare of a child in the fourth-degree and was sentenced to two years probation.
On June 18, 1994, the police responded to a call that J.P.N. had been making sexual advances to three children, two were thirteen years old and one was fourteen years old. These three girls were subjected to the same type of behavior in a swimming pool as were the patients at the Carrier Clinic. At the time of these assaults, J.P.N. was on probation for the 1992 conviction of endangering the welfare of a child. J.P.N. pled guilty to a violation of probation and on July 10, 1995, he pled guilty to three counts of criminal restraint in the fourth-degree. He was sentenced on September 29, 1995, to an indeterminate term at the Youth Correctional Institution in Yardville not to exceed eighteen months.
While at Yardville, J.P.N. was charged with aggravated assault with a weapon, threatening to kill and possession of a weapon for unlawful purposes. The charge was downgraded to harassment and J.P.N. was fined. While there, he had multiple institutional violations: "refusing to obey; interfering with count and abus[ive]/obscene language to staff; sexual proposals and threats; possession not authorized; destroy/alter/damage government property; possession/introduction of a weapon and threat of bodily harm."
Defendant received his second review of commitment on February 7, 2008. The State presented the testimony of one witness, Evan Feibusch, M.D., a psychiatrist who testified for the State. He testified that his report was prepared in the ordinary course of business and that his testimony would be identical to the contents of the report.
Dr. Feibusch testified that F.P.N. was in the borderline range of intellectual functioning and possibly mildly retarded. With respect to the first events of sexual assault in the pool at the Carrier Clinic, none of which were consensual, Dr. Feibusch noted that F.P.N. described those events as consensual, which Dr. Feibusch construed as F.P.N. shirking his own responsibility in the behavior. Dr. Feibusch observed that the 1992 offense with the ten-year-old girl did not result in a conviction for any sexual touching but rather endangering the welfare of a child by pushing the child or punching her in the chest. F.P.N. described the 1994 incident as occurring at the swimming pool in the apartment complex where he resided. F.P.N. told Dr. Feibusch that on that occasion he was intoxicated on cocaine and marijuana and also had been drinking alcohol. He denied any recollection of the events, but admitted that he had done something similar at Carrier.
With respect to the predicate offense, Dr. Feibusch testified that F.P.N.'s account was largely consistent with the official version. However, F.P.N. additionally claimed that the girls were penetrating each other with a vibrator as well as penetrating him and that it was all consensual activity. He complained that the girls had not been charged. Dr. Feibusch interpreted this as distorted thinking surrounding the offense, casting blame on the victims. Dr. Feibusch opined that F.P.N. has poor impulse control and his explanation shows "the driven nature of the behavior."
With respect to treatment, Dr. Feibusch testified F.P.N. was not doing well because his attendance at therapy had been marginal. In 2006, he missed about half of the group sessions and in 2007 he missed almost as many. He reported that F.P.N. had not taken any modules and that he goes to a couple of classes and a couple of groups and then drops out. He reported that F.P.N.'s substance abuse has not been addressed and that "he's not doing all that much in treatment here." Dr. Feibusch reported that his substance abuse problem was significant as he used quite a few different substances. However, F.P.N. will not attend treatment for it.
Dr. Feibusch opined that F.P.N. was not taking full responsibility for himself and was losing sight of the fact that the victims were thirteen-, fourteen- and fifteen-year-old girls. Because these issues were not being addressed in treatment, he concluded that F.P.N. was not doing well.
Because there had been some sexual contact within the facility, Dr. Feibusch questioned F.P.N. about his sexual orientation, which F.P.N. described as "hedonism." F.P.N. also reported that he cannot get an erection as a result of some urogenital problem and he is incontinent but still has a sex drive and wants to have sex. As a result, he fantasizes. Dr. Feibusch opined that F.P.N. is hypersexual and sexually indiscriminate. He also noted that F.P.N. carries a diagnosis of attention deficit/hyperactivity disorder and bipolar disorder. Both of these disorders, in combination with the impulsivity in this sexually indiscriminate individual, puts him at risk of reoffense. He opined that F.P.N. did not understand that what makes him feel good should never be at the expense of hurting someone else and that he simply was not in touch with that concept. He concluded that F.P.N. has a mental abnormality that predisposes him to reoffend.
Dr. Feibusch also noted that defendant had grandiose or delusional ideas. For example, he claimed that he spoke twenty-eight languages and that he served in the Coast Guard, which was refuted by his sister. F.P.N. also claimed that he had a master's degree and had a wife and children in Italy. However, Dr. Feibusch also observed that when F.P.N.'s mood is more stable, he describes these events in a different fashion. Dr. Feibusch opined that F.P.N. has a serious difficulty controlling his sexually offending behavior and, to a reasonable degree of medical certainty, at the time of the hearing the risk of reoffense was highly likely.
On cross-examination, Dr. Feibusch testified that F.P.N.'s participation in process groups as distinct from modules had improved. In 2006, he went to thirty-one of seventy-two process groups and in 2007 he went to thirty-four of fifty-six. However, that was still not at the level of attendance that is expected in the institution. He admitted that F.P.N. is beginning to discuss some issues, including being gang-raped as a young boy.
Dr. Feibusch also confirmed that F.P.N. had hemorrhoid surgery about a year ago and that he has some urological disorder that has left him incontinent and forced to wear diapers. F.P.N. found the diapers to be an embarrassment because of the noise they make when he walks. Feibusch pointed out that F.P.N. had been treated in the past for bipolar disorder and offended while he was undergoing that treatment. He also admitted that F.P.N. had not violated the rules during the review period and thus had been able to control his acting out behavior.
The judge reviewed the documentary and testimonial evidence in making her decision. She noted that F.P.N. had not completed any modules while at the STU and was only enrolled in his process group. She found that F.P.N. had declined recommendations to attend substance abuse programming and had not completed any of his written program requirements. F.P.N. participated in a facility-wide boycott of treatment from January 1 until February 15, 2007, and when he resumed attendance at his process groups, he remained mostly quiet. When he did speak, it was to express displeasure about the administration of the facility.
The judge concluded that the State had proved by clear and convincing evidence that F.P.N. continued to be a sexually violent predator suffering from abnormal mental conditions and personality disorders, predisposing him to commit sexually violent acts. She found Dr. Feibusch credible and continued commitment.
In seeking an initial or continued civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, the State must prove "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). Our Supreme Court has explained this statutory standard as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.
Those findings . . . require an assessment of the reasonably foreseeable future.
No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002); see also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).]
The court must consider the individual's "past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct." State v. Bellamy, 178 N.J. 127, 136 (2003); see also W.Z., supra, 173 N.J. at 132. The State must also prove that the individual "suffers from a mental abnormality or personality disorder." G.G.N., supra, 372 N.J. Super. at 46-47. "[O]nce the legal standard for commitment no longer exists, the [individual] is subject to release." In re Commitment of E.D., 353 N.J. Super. 450, 455 (App. Div. 2002), rev'd on other grounds, 185 N.J. 536 (2005); see also N.J.S.A. 30:4-27.32, -27.35; W.Z., supra, 173 N.J. at 133.
The scope of appellate review is extremely narrow. "We give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.) (citing In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)) (holding that SVPA civil commitment decisions are subject to an abuse-of-discretion standard on appeal)), certif. denied, 185 N.J. 393 (2005).
Applying that scope of review to the judge's findings and conclusions based on the evidence before her, we find no mistaken exercise of discretion in the continued commitment of F.P.N. The State proved by clear and convincing evidence each of the elements necessary to continue commitment under the SVPA.
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