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In re Civil Commitment of A.X.F. SVP-5-99

June 27, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF A.X.F. SVP-5-99


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-5-99.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2008

Before Judges Parrillo and Baxter.

A.X.F. appeals from a September 7, 2005 order of the Law Division continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, but allowing his conditional discharge only to an appropriate placement consisting of a structured living environment. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The sexually violent offenses for which fifty-six-year-old A.X.F. is currently committed to the STU occurred in fall 1994 and winter 1995 and involved a nine-year-old boy and an eleven-year-old boy. A.X.F. offered the nine-year-old boy money and gifts in exchange for doing odd jobs. A.X.F. fondled the boy's penis and performed oral sex on him and coerced the boy into performing oral sex. In addition, A.X.F. kissed the eleven-year-old boy on the face and attempted to fondle his penis.

Criminal charges were filed against A.X.F. for these incidents as well as prior sexual assaults against his then nine-year-old daughter, J.F., which had occurred on various occasions between 1987 and 1988. On July 7, 1995, A.X.F. pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. A.X.F. was sentenced to a seven-year term, to be served at the Adult Diagnostic and Treatment Center at Avenel. In addition to these offenses, A.X.F. had been previously charged with two counts of sexual assault and one count of endangering the welfare of a child, resulting from A.X.F. anally raping and forcing oral sex on his eight-year-old son on several occasions during 1987. These charges were eventually dismissed upon A.X.F.'s successful completion of a Pre-Trial Intervention (PTI) program.

Before completion of the Avenel sentence, the State filed a petition to have A.X.F. civilly committed pursuant to the SVPA. A.X.F. was temporarily committed to the STU on September 2, 1999, and was ordered committed to the STU after a final hearing on November 11, 1999.

A review hearing was held on October 18, 2000, resulting in a finding that A.X.F. continued to be a sexually violent predator and that he remain committed to the STU. It was further ordered that the STU prepare a plan for the conditional discharge of A.X.F. by the next review hearing and a report by April 19, 2001 regarding the progress on the conditional discharge plan. The next review hearing on May 10, 2001 was adjourned and the STU was ordered to "use diligent efforts to effectuate placement for [A.X.F.]" The following review hearing on November 16, 2001 resulted in a finding that A.X.F. continued to be a sexually violent predator and by order of December 6, 2001, his confinement at the STU was continued with the provision that STU staff continue to work with A.X.F. to formulate an appropriate discharge plan.

Subsequent review hearings were held on June 6, 2002, May 14, 2003, January 9, 2004, and July 27, 2004, at which times A.X.F. continued to be deemed a sexually violent predator in need of confinement. In addition, by order of January 9, 2004, the STU was directed to provide A.X.F. with individual counseling to facilitate his participation in group counseling; and by order of August 5, 2004, A.X.F. was required to actively participate in the treatment program at the STU. The latter order also directed the STU to present a discharge plan within ninety days, designed to gradually reintroduce A.X.F. into society.

At the discharge review hearing held on March 3, 2005, the State represented that it had made numerous efforts to find a structured living facility for A.X.F., but that none had been found because many facilities refuse to accept sex offenders.

A.X.F.'s counsel then urged that the condition that A.X.F. be released only to a structured environment be lifted and that A.X.F. be released to his own apartment. At a full hearing conducted the next day, March 4, 2005, the State presented three witnesses -- Dr. Nicole Waldron, Dr. Kevin Enright, and Dr. Michael McAllister, to address A.X.F.'s current treatment progress and the need for a structured living arrangement.

Dr. Waldron testified that A.X.F. "wouldn't be ready to" exercise the degree of control needed if he were not monitored. Dr. Waldron noted that currently A.X.F. has decreased his participation in group counseling, and he was recently disciplined for poor hygiene and housekeeping. According to Dr. Waldron, these ...


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