December 17, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF C.R.M. SVP-263-02
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-263-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 17, 2008
Before Judges Fisher and C.L. Miniman.
C.R.M. appeals from an order of continued commitment to the Special Treatment Unit as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. C.R.M. was first committed on July 7, 2003, and his commitment was continued by judgments entered on June 14, 2004, and October 6, 2006. His commitment was most recently continued by judgment of February 7, 2008, from which he now appeals. We affirm.
This is the third time that C.R.M. has appealed judgments for continued commitment. First, C.R.M. appealed the judgment of July 7, 2003, and, in affirming this continued commitment, we summarized the evidence existing in the record as of that date, In re Civil Commitment of C.R.M., No. A-6775-02 (App. Div. March 23, 2006) (C.R.M. I), and incorporate that summary here, id., slip op. at 1-14. Second, C.R.M. appealed the judgment of October 6, 2006, which we affirmed in an unpublished opinion. In re Civil Commitment of C.R.M., No. A-1529-06 (App. Div. June 20, 2007) (C.R.M. II). In doing so, we noted:
[C.R.M.] has been diagnosed with pedophilia and paraphilia NOS. He has been found to be alcohol and cocaine dependent. He minimizes his conduct and has not fully participated in programs necessary to his treatment. He has been diagnosed as having antisocial and narcissistic traits. Dr. Zeiguer rated his risk of recidivism as "very, very high."
Indeed, C.R.M.'s own expert conceded that C.R.M.'s conduct was deviant. This expert also acknowledged that it would be the "worst possible" situation for him to live with a female with children as there would be a moderate to high risk for reoffense. Judge Perretti rejected, however, that portion of the expert's testimony in which he opined that C.R.M. was only a marginal threat to people other than those in his family.
[Id., slip op. at 2-3.]
In continuing his commitment on October 6, 2006, Judge Serena Perretti summarized the treatment records and expert opinions respecting C.R.M. The State's evidence was uncontradicted and the only witness to testify at this third annual review was Dr. Evan Feibusch, whose testimony the judge found credible and reliable. She took particular note of observations made by the Treatment Progress Review Committee (TPRC). Its notes revealed that C.R.M. would not participate in a sexual history questionnaire and the related polygraph or enroll in the Family of Origin treatment module. The TPRC expressed concern about C.R.M.'s "help-rejecting behavior" because he refused to follow the recommendations it made at the prior TPRC review. The TPRC also expressed concern about the discrepancies between C.R.M.'s current denial of a substance-abuse history and the history of substance abuse that was documented in the records. It recommended enrollment in substance-abuse modules.
The judge also noted that C.R.M. refused to be interviewed by Dr. Feibusch, who testified that he would have evaluated C.R.M.'s current mental state, learned of C.R.M.'s relapse-prevention techniques and his story of his sex offending history. Dr. Feibusch testified he would also have explored the many inconsistent statements made by C.R.M. over the years and the discrepancies between C.R.M.'s version of his offending behaviors and the version in the official records. He testified that C.R.M.'s current denial of any historical substance abuse was "striking" in light of his self-report during the presentence investigation and in 1994 that he used crack cocaine daily from 1987 to 1991. Dr. Feibusch also commented that C.R.M.'s history has "shrunk and shrunk."
The judge observed that the treatment team had accepted C.R.M.'s dissembling with respect to his substance abuse and, as a consequence, he was vitiating efforts to provide therapy to him. The judge specifically determined that she could "not place trust or confidence in the opinions of the therapists as to the respondent's progress in treatment in light of the therapist's disregard of the respondent's clear dissembling in his efforts to conceal it."
The judge agreed with Dr. Feibusch's testimony that C.R.M. lacked credibility. She found that C.R.M.'s willingness to conceal his substance abuse also called his protestations about his sexually offending behavior into question. The judge then summarized the expert's testimony as follows:
According to Dr. Feibusch, the treatment team sees the respondent as doing better in treatment than he actually is. The psychiatrist observes that this respondent will only talk about what he wants [to discuss] and the psychiatrist does not trust [C.R.M.'s] self-reporting. He points out that the respondent cannot reduce his risk of reoffense if he is not looking at things he really did.
The psychiatrist diagnoses the respondent with paraphilia N.O.S. and anti-social personality disorder. These conditions combine to predispose the respondent to sexually violent behavior. The diagnosis of pedophilia was considered, but this psychiatrist would not make the diagnosis without the opportunity to interview the respondent.
The diagnosis of paraphilia is based upon the respondent's demonstrated strong urges to sexually violate his daughters even while he was on trial for a sexually violent offense for which he was acquitted and even while DYFS was scrutinizing the home. Antisocial personality disorder was defined as a pervasive pattern of disregard for the rights of others. The respondent has clearly demonstrated this in his sexual behavior.
In addition, he has a substantial number of arrests, has demonstrated deceitfulness regarding his personal history, particularly his pushing of the idea that he has no sex abuse history. The condition is further characterized by respondent's lack of remorse. Taken together, these considerations meet the diagnosis.
The anti-social personality disorder permits the paraphilia to move on to actions and thus increases the likelihood that the respondent will reoffend. He has, according to the psychiatrist, serious difficulty controlling his sex-offending behavior, and the risk is highly likely that he will reoffend.
The psychiatrist stated his reasons for finding a high risk. This respondent's paraphilia is accompanied by strong urges to act. His treatment has been unsuccessful. There has been no sex offender-substance abuse treatment. He has demonstrated deviousness and conning in the institution. And these characteristics decrease any likeli- hood of any successful supervision in the community. The respondent has demonstrated unwillingness to deal with issues important to the reduction of his risk to reoffend.
The judge determined that the State had clearly and convincingly established that C.R.M. continued to be an SVP suffering from an "abnormal mental condition and personality disorders that predispose him to commit sexually violent acts." She found his repeated acts of sexual offenses in the community while he was facing trial and under DYFS scrutiny showed that he had "serious difficulty controlling his sex-offending behavior" and that he was "highly likely to commit sexually violent offenses if not continued for further care and treatment if he is willing to accept it." The judge also found that "Dr. Feibusch clearly and persuasively explained why this respondent is not merely an incest offender." As a result, the judge continued the commitment of C.R.M.
In this third appeal, C.R.M. argues that his victims should have been compelled to appear and testify in order to rebut his claim that he did not assault them until they reached the age of puberty. He also asserts that he is not dangerous like a street predator because his crimes involved incest and he has only a medium-low risk of reoffense based on his "Static-99" score of three. He argues that his incestuous offenses and his Static-99 score do not support continued commitment because it is not "highly likely" that he will commit an act of sexual violence in the foreseeable future if he is released.
The scope of our review is narrow as we defer to the trial judge's fact findings when they are supported by evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). 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.), certif. denied, 185 N.J. 393 (2005); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
The SVPA defines SVP in the following manner:
"Sexually violent predator" means a person who has been convicted . . . for commission of a sexually violent offense . . . and 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.
To continue commitment, the State must prove by clear and convincing evidence 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); see also In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). The judge must focus upon the individual's "present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
We will not consider the first argument made by C.R.M. that his victims should have been compelled to appear and testify because we have previously considered this argument and rejected it. C.R.M. I, supra, slip op. at 19-20; see also Pressler, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2009) ("'Law of the case' is a non-binding discretionary rule intended, unless there is good cause not to do so, to avoid relitigation before the same court of the same issue in the controversy . . . ."); Feldman v. Lederle Labs., 125 N.J. 117, 132 (1991) ("The law-of-the-case doctrine is a guide for judicial economy based on the sound policy that 'when an issue is once litigated and decided during the course of a case, that decision should be the end of the matter.'") (quoting State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974)). As to his remaining arguments, after carefully reviewing the record in light of the oral arguments advanced by the parties, we conclude that the issues presented by C.R.M. are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(A), -3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Perretti in her oral opinion delivered on February 7, 2008. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, supra, 65 N.J. at 483-84. We are satisfied that the State has proven by clear and convincing evidence that C.R.M. is highly likely to reoffend and requires continued commitment for treatment as a sexually violent predator.
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