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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 may be signs of "depression" or "laziness," which may act as a trigger to reoffend.
Dr. Enright, a psychologist who was providing individual therapy to A.X.F., testified that he was assigned to provide individual treatment because A.X.F. was not participating in group treatment at an acceptable level. Individual therapy was used to "jump start" his progress. Dr. Enright stated that A.X.F. does not have adequate relapse prevention strategies in place. Dr. Enright explained that loneliness is a trigger for A.X.F. and that he is concerned that A.X.F. would be vulnerable if he were to live alone.
Dr. McAllister, A.X.F.'s treating psychiatrist, testified that he has been treating A.X.F. with various medications due to A.X.F.'s conditions of depression, anxiety, substance dependence and malingering. He also stated that A.X.F. is only minimally cooperative with his medication management and psychiatric contacts. Dr. McAllister explained that he is concerned that if released, A.X.F. would attempt to obtain additional drugs, which in turn would effect his risk to sexually re-offend. Dr. McAllister concluded that A.X.F. needs a very structured release setting as his risk remains high.
At the conclusion of the hearing, Judge Perretti found that:
I remain committed to structured living, absolutely committed to structured living. Without structured living, I don't think there's any realistic expectation that a conditional discharge, without structured living, would sufficiently mitigate the risk.
Noting that A.X.F. has failed to actively participate in the STU's treatment program as previously ordered, Judge Perretti concluded that "[A.X.F.] cannot live alone to the [c]court's satisfaction."
At a subsequent discharge review hearing on July 8, 2005, the court credited a previous State's expert who testified that A.X.F. would have difficulty controlling his impulses if he were not in a structured environment. Notably, A.X.F.'s previous witness, Dr. Greenfield, was also of the same opinion. At the conclusion of the hearing, Judge Perretti reiterated her earlier finding of March 3, 2005, that A.X.F. has failed to participate in treatment as ordered by the court, and thus similarly concluded that A.X.F. could only be discharged to a structured living situation as the first step in his gradual release into society.
The latest discharge review hearing, which is the subject of this appeal, took place on September 7, 2005, at the conclusion of which Judge Perretti rejected A.X.F.'s request to reside in an apartment by himself and essentially continued the prior order of August 5, 2004, requiring A.X.F. to be discharged only to a structured living facility. The judge's determination was based on testimony presented at this hearing, including that of Keane Gardner, an assistant Social Work Supervisor at the STU, and of A.X.F. himself, and on documentary proofs.
Gardner documented her efforts at finding suitable housing for A.X.F. since March 2005. She had contacted several boarding homes inquiring of availability and noted that A.X.F. had been uncooperative in this search because of his insistence on residing in his own apartment. One of the boarding homes contacted, "S & R" Boarding Home, was deemed to be inappropriate because located in a "drug infested area." Gardner also contacted between ten to twenty other boarding homes, but only five would consider a sex offender. Despite these difficulties, according to Gardner, A.X.F.'s insistence upon an independent residential arrangement was the biggest impediment to placing him outside the STU.
A.X.F. testified that he had been offered placement at a boarding home, Hill House, but declined because his heart condition made it difficult to ascend the stairs to the third floor men's living quarters, and because he was expected to be off-premises until early evening. However, A.X.F. is currently housed on the second floor of the STU and there are no records confirming his medical condition. Moreover, a September 2, 2004 progress note indicates that Hill House appeared to be neat and clean. Additionally, a September 1, 2005 progress note indicated that A.X.F. presented as uncooperative with the court-ordered discharge plan; was very concerned about being expected to engage socially with other people as he does not participate in social activities at the STU; and has a history of refusing the discharge options that have been presented to him in the past.
As noted, at the conclusion of this latest discharge review hearing, Judge Perretti found that "[u]nder no stretch of the imagination is [A.X.F.] going to be discharged to an apartment, period." Accordingly, Judge Perretti continued her previous order of August 5, 2004, requiring A.X.F. to be discharged only to a structured living facility, and further ordered the STU to continue pursuing an appropriate structured living facility for A.X.F.
On appeal, A.X.F. raises the following issue:
SINCE 2001, THE COURT HAS CONSIDERED [A.X.F.] TO BE NOT HIGHLY LIKELY TO REOFFEND IF CONDITIONALLY RELEASED TO THE COMMUNITY. AS THE COURT HAS NOW IMPOSED A CONDITION WHICH CANNOT BE IMPLEMENTED, DUE PROCESS REQUIRES THAT [A.X.F.] BE PERMITTED TO AVAIL HIMSELF OF VIRTUALLY EQUIVALENT AVAILABLE CONDITIONS, RATHER THAN BE SUBJECTED TO INDEFINITE, AND PROBABLY PERMANENT, LOSS OF LIBERTY.
We disagree. The court acted properly in continuing A.X.F.'s commitment to the STU rather than allowing A.X.F. to be discharged to a non-structured, independent living arrangement.
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.
On this score, it is clear that "if the person is a sexually violent predator, conditional discharge is not an option. Only if the person is no longer likely a sexually violent predator may the judge consider conditional discharge . . . ." In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). Thus, we have held that where a person no longer satisfies the criteria for a "sexually violent predator," the court may order conditional discharge as a matter of its inherent authority. In re Commitment of E.D., 353 N.J. Super. 450, 453 (App. Div. 2002), rev'd on other grounds, 183 N.J. 536 (2005). In other words, "the ability of a judge to order conditional discharge, once the court determined the person no longer meets the SVPA criteria as a sexually violent predator, is necessary to effectuate the SVPA's purposes in ensuring public safety and security."
J.J.F., supra, 365 N.J. Super. at 498 (citing E.D., supra, 353 N.J. Super. at 456). In E.D., we reasoned:
To allow a person who has been committed as a sexually violent predator to be released without conditions may, in certain circumstances, place the safety and security of the public at risk. This risk of harm to society may be reduced by the person's mandatory compliance with conditions upon release. For example, if a committee is found no longer "likely to engage in acts of sexual violence" as long as he continues to take medication, it would be folly to release him into the general populace without conditioning his release upon compliance with a required course of medication. [E.D., supra, 353 N.J. Super. at 456-57.]
Indeed, the "conditions placed on the released individual can reduce the likelihood that the person will engage in acts of sexual violence . . . ." J.F.F., supra, 365 N.J. Super. at 501-02.
Having determined, therefore, that Judge Perretti has the inherent authority to impose conditions, the next question is whether the condition imposed of release to an appropriate structured living arrangement is warranted upon discharge. In this regard, we note that the hearing judge is in the best position to determine what conditions, if any, should be placed upon A.X.F.'s discharge. See In re Commitment of Newsome, 176 N.J. Super. 511, 519 (App. Div. 1980). Moreover, 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).
We are satisfied from our review of the record that the judge's finding that A.X.F. is still likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment or if released to his own apartment, is amply supported by credible evidence.
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