December 8, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF E.C., SVP-155-01
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-155-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 27, 2008
Before Judges R.B. Coleman and Sabatino.
E.C. appeals from an order entered on April 7, 2008, continuing his civil commitment to the Special Treatment Unit (STU) as a sexually violent predator subject to the provisions of the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm substantially for the reasons articulated by the reviewing judge in her oral decision of that same date.
This matter has been before the Appellate Division twice previously, thus, we offer only a cursory recitation of the predicate offenses and evidence which inform our analysis.
In July 1996, while on vacation with his family in Puerto Rico, then sixteen-year-old E.C. fondled the penis of his eight-year-old cousin and performed fellatio on him. In November 1996, E.C. repeated these acts on his cousin. In the Spring 1997, E.C. attempted to repeat these acts but was discovered in the act by the cousin's father. E.C. was arrested in May 1997, and in October a jury found him guilty of two counts of second-degree sexual assault (N.J.S.A. 2C:14-2b). E.C. was sentenced as a juvenile for a term of three years. He was released in March 2000 and placed on post-incarceration supervision. E.C. violated the conditions of his release by not attending sex-offender specific counseling and was again taken into custody on October 4, 2000. Subsequently, the State filed a petition seeking E.C.'s commitment pursuant to the SPVA.
E.C. was adjudicated a sexually violent predator and his civil commitment to the STU ordered in February 2001. Review hearings were held in March 2002, March 2003, October 2003, April 2004, and April 2005 wherein the court found that E.C. continued to be a sexually violent predator in need of treatment, meeting the statutory standard of highly likely to re-offend under In re Commitment of W.Z., 173 N.J. 109 (2002), and ordered that he remain confined to the STU.
E.C. appealed the trial court's review decision of April 2005, which we affirmed in an unpublished opinion dated June 13, 2006. Thereafter, a review hearing was held in October 2006 and the trial court ordered that he remain confined pursuant to the SVPA. E.C. appealed the 2006 review decision and we affirmed the trial court on May 3, 2007. Subsequent review hearings were held in October 2007 and April 2008 wherein E.C. was again found to be a sexually violent predator meeting the highly likely to re-offend legal standard and his commitment was continued. E.C. now appeals the trial court's decision of April 2008. E.C.'s next review hearing is scheduled for March 23, 2009.
E.C. is considered to be highly likely at risk of re-offending under the legal standard set forth in W.Z., supra, 173 N.J. 109. Confinement by the State under this standard "invokes a correlative statutory and constitutional duty of appropriate treatment where feasible, designed to permit ultimate release to the community." In the Matter of the Commitment of K.D., 357 N.J. Super. 94, 97-98 (App. Div. 2003). Treatment programs for persons committed under the SPVA are specifically tailored to eradicate violent sexual proclivities of the committee, which would eventually justify their discharge. Id. at 99. Discharge is appropriate where "the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community." W.Z., supra, 173 N.J. at 130 (quoting N.J.S.A. 30:4-27.32c(1)(emphasis in original). The statutory language of the SVPA provides that if the hearing judge finds by "clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a).
Dr. Dean De Crisce, a psychiatrist who has evaluated E.C. and testified for the State, identified E.C. as suffering from a mental abnormality or personality disorder that makes him "likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." W.Z., supra, 173 N.J. at 127 (quoting N.J.S.A. 30:4-27.26). Over the years, E.C. has been diagnosed with pedophilia, poly substance dependence including alcohol, marijuana, cocaine and hallucinogens, post traumatic stress disorder in partial remission, possible depressive disorder not otherwise specified and conduct disorder by history. A further diagnosis is personality disorder, not otherwise specified, with borderline and anti-social features.
In his report, Dr. De Crisce observed that in E.C.'s case, there are a number of factors which contribute to an elevated risk of sexual recidivism. He concluded that E.C. requires additional therapeutic intervention to further reduce this risk. De Crisce's recommendations include: "maintenance of consistent participation in group, the utilization of peer-based 12 step programs to assure his continued sobriety, and further exploration into his deviancy." However, he does acknowledge that "consideration for progressive de-escalation of restraints, with further evaluation as [he] is confronted with novel situations and deviant stimulation, is warranted."
In E.C.'s latest review hearing, the trial court found by clear and convincing evidence that E.C. continues to be a sexually violent predator and that all of the criteria of the statute had been met. The court determined that during this review period E.C.'s participation in his various treatment programs was deficient, particularly, the substance abuse program. Substance abuse relapse has been identified as a factor which would undermine the pedophilic recidivism prevention techniques he has learned. However, while the conditions with which E.C. has been diagnosed do not remit spontaneously, they can be controlled through proper treatment, provided that he becomes amenable to and compliant with his treatment plan.
Dr. De Crisce advised that E.C. should continue treatment which includes discharge planning with emphasis on substance abuse treatment. He also recommended that furloughs be incorporated into the discharge plan, when feasible, in order to test E.C.'s adaptation to the community as he has never lived outside the institution as an adult. This recommendation comports with our jurisprudence which requires a reviewing court to ensure the "gradual de-escalation of the restraints upon the committee's liberty." In re Civil Commitment of E.D., 353 N.J. Super. 450, 455 (App. Div. 2002) (holding to do otherwise "would normally constitute a manifestly mistaken exercise of the reviewing court's discretion.").
We will disturb the trial court's ruling "only where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.)(quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)) certif. denied, 177 N.J. 490 (2003). From a careful review of the record in this matter, we find the trial court appropriately determined that E.C. is not participating fully in his treatment plan, thereby sabotaging the potential for his own release. At oral argument, we were asked to convey to reviewing judges that they not only have the authority to identify conditions that must be met prior to the commencement of a subject's reintegration into the community, but also an obligation to ensure the recommendations are fulfilled. We have no doubt that Judge Perretti, in her extensive experience, is well aware of the scope of her authority and that she has exercised sound judgment in this matter. The record supports her finding that E.C. had not demonstrated progress during this review period. E.C. must, therefore, demonstrate that he is fully engaging in the recommended treatment and that he can take responsibility for his behavior in the community.
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