January 2, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF J.E.D., SVP-210-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-210-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Judges Reisner and Sapp-Peterson.
J.E.D. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from an order of June 27, 2008, that continues his commitment after the annual review required by N.J.S.A. 30:4- 27.35. We affirm substantially for the reasons stated by Judge Serena Perretti in her oral opinion of June 27, 2008.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 127, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is narrow.
V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).
J.E.D. was temporarily committed on November 9, 2001. The predicate offense that resulted in his temporary commitment stemmed from his conviction, following the entry of guilty pleas, to four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). He was sentenced to concurrent seven-year terms of custodial confinement at the Adult Diagnostic Treatment Center (ADTC). Shortly before completing his sentence at ADTC, the State moved for his temporary civil commitment because his convictions were the result of the commission of sexually violent offenses as defined under the SVPA. A final judgment declaring that he is a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment was entered on March 26, 2002. Orders continuing his commitment were entered on September 17, 2002, June 24, 2003, October 13, 2004, April 19, 2005, and January 8, 2007. J.E.D. appealed the June 24, 2003, April 19, 2005, and January 8, 2007 orders, and all of these orders were affirmed on appeal in unpublished opinions issued by this court. In re Civil Commitment of J.E.D., No. A-6164-02 (App. Div. June 29, 2004), No. A-4425-04T (App. Div. December 21, 2005) and No. A-2692-06T2 (App. Div. 2007).
The hearing that preceded entry of the January 27, 2008 order under appeal was held the same day. Dr. Nicole Paolillo, psychologist, and Dr. Pogos Voskanian, a psychiatrist, testified for the State. No witnesses testified on behalf of J.E.D. The parties stipulated to the qualifications of Drs. Paolillo and Voskanian, and their respective reports were admitted into evidence without objection.
Dr. Paolillo is a member of the Treatment Progress Review Committee (TPRC), which she described as consisting of "a panel of doctoral level psychologists who review residents annually in regard to their knowledge in treatment, how they have been performing, and also through a meeting with the treatment providers." She explained that the TPRC in turn makes a recommendation regarding phase levels to which a committee should be admitted. She acknowledged that her committee considers information contained in evaluative reports prepared by other experts to gain insight into their respective perspectives but that her committee reaches its own opinions.
The primary basis for Dr. Paolillo's testimony was the TPRC report dated March 19, 2008. She testified that J.E.D., during the most recent review period, had been in Phase Two, which is the lower range of the STU five-phase treatment program. The residence treatment team had, on three prior occasions, recommended that J.E.D. be promoted to Phase Three, but the TPRC did not agree that promotion on those occasions was appropriate. However, by June 2008, when the TPRC interviewed J.E.D., they found him noticeably less impulsive. Dr. Paolillo testified that J.E.D. had been placed in a "modified activities program" (MAP) on three occasions during the review period. Two placements occurred because of J.E.D.'s sexual activity in the unit and the most recent placement in January 2008 followed the discovery of his possession of pornographic DVDs. J.E.D., in group interaction, acknowledged that he should not have been in possession of these materials. However, J.E.D. had these materials in his possession for approximately four months before they were discovered, leading Dr. Paolillo to opine that this conduct reflected sneakiness. She indicated that this conduct was cause for concern because "his sexual offending typically is exhibited in a kind of sneaky, covert manner." She opined further that the fact that "he had four months to utilize relapse prevention skills to try to resist this temptation and did not is also very concerning[.]"
Dr. Voskanian, in his testimony, also indicated that before reaching his own independent opinion regarding J.E.D.'s status, he considered reports of other psychologists and psychiatrists, notes from the treatment team as well as his own interview of J.E.D. He testified that information he derived from these sources allowed him "to develop a general picture, a broader picture of the resident, to assess his functioning over the course of treatment here at the STU, to have a full assessment of his statements, of his pathology, and of his chronic issues basically."
Dr. Voskanian opined that J.E.D.'s response to treatment had been poor. He reached that conclusion based upon J.E.D.'s repeat MAP placements, his impulsive statements, impulsive behaviors, and resistance, which the doctor believed could compromise J.E.D.'s treatment. He recalled that during the interview, J.E.D. was extremely guarded towards his efforts to have him discuss his sexual pathology, and his family. He also testified that J.E.D. provided conflicting statements regarding his arousal and told him that questions regarding his sexual history were, in his view, irrelevant. Dr. Voskanian diagnosed J.E.D. with pedophilia, non-exclusive type, and Arnold Chiari Malformation.*fn2 As to the latter condition, he testified that it did not increase the risk that J.E.D. would reoffend but it also did not reduce the risk of reoffending. He found J.E.D. extremely defensive, insecure and evasive during the interview, leading the doctor to ultimately conclude that there was a high risk that J.E.D. would reoffend. In response to the court's inquiry as to whether J.E.D. had the "current ability to control his sex offending behavior[,]" the doctor opined that J.E.D. had impaired ability to control based upon the fact that he acted out impulsively, sexually inappropriately at the STU within the last two years, on the fact that he had pornographic materials, was violating the rules, on the fact that he had significant difficulty with emotional control, significant unresolved anger issues, which still remain indicators of high risk. While in this environment he still continues to do those things.
Additionally, Dr. Voskanian testified that the basis of his pedophilia diagnosis stemmed from official records and J.E.D.'s statement to him that he "agree[d] with the official version fully." The doctor explained:
Well, there are multiple victims. Additionally, [J.E.D.] had admitted to urges at the time when he molested children. It was ongoing, one after another, with girls, as per girls['] reports - - humping and laying on them, four of them after another. It's like high - - indicates high degree of arousal. Additionally, he admitted to that to the prior evaluators and he admitted that at the time he had urges. There is no progress in treatment to mitigate his high risk behaviors. And, again, the range is broad here. He is crossing from boys to girls, family members and non-family members. With boys it involves anal penetration, oral sex[.] [W]ith girls, as per the record, it involves fondling, significant fondling, laying on them, getting undressed with them, being in his boxer shorts, so - -
At the conclusion of the testimony, the court found that the State had proved, by clear and convincing evidence, that there was a high risk that J.E.D. would reoffend. In an oral decision, the court stated:
The testimony of both Dr. Paolillo and Dr. Voskanian was clear and convincing. The diagnosed condition of pedophilia is uncontradicted. It is clear that the respondent [J.E.D.] has not been responding well in treatment at the STU, as has been established by his repeated infractions for inappropriate sexual behavior and possession of pornographic DVDs within the span of two years.
It is clear that the respondent has severe difficulty controlling his sex offending behavior. The respondent has participated in the relapse prevention modules, in spite of which he did not choose to use any relapse prevention strategies during the four[-]month period when he was enjoying the contraband pornography.
The respondent, by reason of his abnormal mental conditions and personality disorder, is predisposed to commit sexually violent acts. The conditions which have been diagnosed affect his volitional, emotional, and cognitive functioning so as to predispose him to act upon his pedophilic urges.
In addition, the diagnosed conditions cause the respondent to have serious difficulty controlling his sexually violent behavior, as he has demonstrated in the past in the community by repeated sexual molestation of underage children, and as he continues to demonstrate by his behavior in the institution.
It is clear that the respondent continues to present at the risk of such a level as to make him highly likely to commit sexually violent acts within the foreseeable future, if not continued in commitment.
The evidence supports the finding that J.E.D. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). The conclusion that he continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 131.