January 2, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF E.Z.V., SVP-82-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-82-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Judges Reisner and Sapp-Peterson.
E.Z.V. 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 February 8, 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 February 8, 2008.
E.Z.V.'s first reported sexual offense occurred in 1992, when he sexually abused his five-year-old sister. He was charged with sexual assault, N.J.S.A. 2C:14-2(b). The charge was not resolved until three years later because E.Z.V. failed to appear in court during one of the pretrial proceedings, resulting in the issuance of a bench warrant. He was apprehended in 1993. At the time of his arrest, he admitted that since 1990, in addition to his five-year-old sister, he had sexually assaulted two younger siblings, as well as two other children in Massachusetts, a seven-year old and an eleven-year old, who was a friend of his family. Moreover, he admitted that he had sexual fantasies about his then sixty-seven-year-old grandmother and that he had watched his mother while she was in the shower. While awaiting final disposition of the charge against him, E.Z.V. was sent to KidsPeace, a residential program for juvenile sex offenders.
On June 22, 1995, E.Z.V. pled guilty to an amended charge of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(a), a sexually violent offense under the SVPA. He was adjudicated a delinquent and sentenced to eighteen months probation and ordered to complete the residential treatment program at KidsPeace. Reports of his treatment at KidsPeace indicated that E.Z.V.'s behavior worsened. An April 1997 report disclosed that he had been involved in inappropriate sexual contact with other residents at KidsPeace and that he showed little remorse for his behavior. Then, in August 1997, it was reported that during an outing at a public school, he was in close proximity to young children to whom he offered candy and about whom he later admitted having inappropriate sexual fantasies.
E.Z.V. was transferred to Ancora Psychiatric Hospital (Ancora) in December 1997, where he remained on a voluntary status until May of 2000. During his admission at Ancora, he was twice placed on conditional release and twice had to be re- hospitalized due to inappropriate behavior that included having thoughts of wanting to strangle his girlfriend, drinking, being non-compliant with medication, and also being found in possession of a starter pistol.
On May 23, 2000, the State filed a petition for civil commitment under the SVPA. The next day, the court entered an order temporarily committing E.Z.V. to the STU. A final judgment involuntarily committing E.Z.V. to the STU was entered on September 11, 2000. Orders continuing this commitment were subsequently entered March 14, 2001, August 14, 2001, February 4, 2002, January 28, 2003, and August 5, 2003. E.Z.V. appealed the August 5 order and we affirmed the order continuing his involuntary commitment. In re Civil Commitment of E.Z.V., No. A-525-03T2 (App. Div. January 3, 2005). Subsequent reviews resulted in further orders dated February 15, 2006 and February 8, 2008, which continued his commitment. The February 8 order is the subject of the present appeal.
On appeal, E.Z.V. contends that the trial court improperly weighed the evidence presented before it, did not properly take into account E.Z.V.'s low risk to reoffend, and erred in finding that the State met its burden of proving, by clear and convincing evidence, that he is likely to reoffend unless the STU commitment is continued.
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, 132, aff'd, 173 N.J. 134 (2002); see 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 re-offend" 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); see also 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; see also 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 extremely narrow. V.A., supra, 357 N.J. Super. at 63 (citing State v. Fields, 77 N.J. 282, 311 (1978)). 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).
The hearing that preceded entry of the February 8, 2008 order under appeal was held the same day. Dr. Michael R. McAllister, a psychiatrist, and Dr. Nicole Paolillo, a psychologist, testified for the State. Dr. Vivian Schneidman testified on behalf of E.Z.V. None of the witnesses disputed that E.Z.V. suffers from pedophilia. The court determined that the focus of the dispute between the parties, however, was whether the State proved by clear and convincing evidence that there was a current risk that E.Z.V. "has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he . . . will not control his . . . sexually violent behavior and will reoffend." Dr. McAllister was of the view that although there had been progress during the most recent review period, it was necessary that each and every deviance be fully treated with appropriate relapse prevention and that E.Z.V. remained a high risk for reoffense. Dr. Schneidman, however, concluded that E.Z.V. was a low risk for reoffense, pointing out that E.Z.V. had not committed any new offenses in years, had limited knowledge of sexual offending at the time he committed the offenses and that the fantasies E.Z.V. reported were not a huge factor in considering the likelihood of reoffending because he had not acted upon the fantasies. Dr. Schneidman believed that E.Z.V. was ready to proceed to the discharge planning phase of his treatment.
The court, in finding that the State met its burden in establishing it is highly likely that E.Z.V. will reoffend, found:
Dr. Paolillo and the [Treatment Progress Review] committee agree with Dr. McAllister's view that the respondent [E.Z.V.] has still inadequate relapse prevention techniques. The respondent's listing in the interview of techniques which he would utilize as physical reminders show a lack of depth of understanding. She also points out that the respondent has been limited in his progress by his borderline intellectual functioning.
He has a concrete understanding of material, and difficulty recalling it. However, he has demonstrated increasing ability to control his impulsiveness. Phase Three participation will lead the respondent to explore more in detail his offending behavior, and deal with it at a greater depth. This Court has some mental reservations about the intellectual ability of this respondent to proceed significantly further in therapy.
He has only a concrete understanding of the material by reason of his intellectual limitations. Expectations that he can apply the abstract concepts to his own sex offending behavior may be unrealistic. Dr. Schneidman's testimony and her opinion reflect her obvious uncertainty about what this respondent has actually done, and what he may have merely fantasized about without real acts.
The testimony of Dr. Schneidman raises substantial questions about the treatment for the respondent as he continues in the STU. These are questions which can not be answered. It is, however, clear that the respondent has not yet made sufficient progress to adequately mitigate the risk that he has presented. Respondent is a pedophile, beyond question, who has acted repetitively, over a long course of years, against five young victims, including a sister as young as five years of age.
He has self-reported a variety of fantasies involving violence, both to victims and others. Although these fantasies have never been acted upon, it is noteworthy that the respondent has not had opportunity to act upon these fantasies. This respondent has been continuously in custody since his arrest in 1992, at the age of 16. It is clear from the testimony that pedophilia does not spontaneously remit.
The respondent's oft disclosed fantasies of violence are matters of extreme concern, coupled with the pedophilia and his serious history of alcohol and marijuana abuse. Substance abuse decreases impulse control and can act as a disinhibitor. The testimony of the State was, in all important aspects, clear and convincing. The fact that the Court is not clearly convinced as to the diagnosis of frotterism and voyeurism does not serve to discredit Dr. McAllister in other aspects of his testimony.
The Court is clearly convinced that the respondent continues to be a sexually violent predator who needs continued confinement. The treatment notes contained in Petitioner's Exhibit 5 reveal that the respondent is applying himself to his therapy. He has taken the floor repeatedly on several separate occasions. In late 2006, he has taken the floor to present his personal maintenance contract, which he has thereafter reworked and presented further, in group.
The respondent did not participate in the institution-wide boycott during December and January of 2006, 2007. A note of January 29th makes it clear that the respondent expressed his desire to continue attending treatment groups. He disclosed that he was presently being harassed by others in the institution because he chose to attend. He disclosed that he was being ignored and ostracized. And, expressed anger and frustration as to that.
He disclosed the feeling that he was being rejected by persons whom he'd previously held as friends. But, his devotion to treatment continued in the face of these provocations. He continued to participate in any substance abuse module which was offered, and reportedly participated well. He reportedly not only had good attendance and good participation, but was able to connect his substance abuse behavior and his sex crimes.
His reworking of his personal maintenance contract is documented in a report of March 8th, 2007, at which time his work was deemed worthy of consideration for Phase Three treatment. A report to the TPRC, in May of 2007, emphasizes the respondent's work during the past year to maintain consistent attendance, both in group and assigned modules, and self help programs. He reported - he was reported to better understand and present his sexual offense cycle.
He was said to demonstrate a good command over his cycle. He had completed several of the programmatic requirements, including sexual history questionnaire - no, including sexual assault cycle and personal maintenance contract. His floors during the middle of 2007 appeared to emphasize, however, certain personal problems which he confronted, particularly, his loss of a friend from whom he was separated after the boycott, as well as the termination of some romantic liaison with a female from the community.
These personal problems did not appear to impede his continued participation in the therapy programs. However, his participation in the Victim Empathy Module was marred, according to a note of October 4th, stating that he became too involved in unresolved personal victimization issues, which feed - - which tended to inhibit his focus on others. At the end of 2007, the respondent was enrolled in the anger management program. The outcome is unreported in the record.
It's a finding of the Court that the performance documented by the treatment records support the TPRC in its opinion that the respondent is now in the core stages of treatment afforded in Phase Three. It is strongly recommended that therapists consider the suggestions of Dr. Schneidman as to the limitation of the respondent's ability to learn and his appropriateness for a less abstract program.
The Court is clearly convinced that this respondent continues to be a sexually violent predator. He suffers from [an] abnormal mental condition and personality disorder that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior, as he has demonstrated in the community, by his repeated sex offending against five separate victims.
The evidence supports the finding that E.Z.V. has not made sufficient progress in the STU programs "appropriately 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 132.