January 9, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF F.Z.S., SVP-393-05.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-393-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Judges Reisner and Sapp-Peterson.
F.Z.S. 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 July 17, 2008, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm substantially for the reasons outlined in Judge Serena Perretti's comprehensive oral opinion of July 17, 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, 132, 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 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); 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 also 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 extremely 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). We add the following comments.
On April 6, 2005, the State filed a petition for the involuntary civil commitment of F.Z.S. pursuant to the SPVA. At that time, the State also sought his temporary commitment to the STU. The predicate offenses for which the temporary commitment order was sought stemmed from his February 12, 2002 conviction for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(b); second-degree sexual assault, N.J.S.A. 2C:14-2(b); fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and, fourth-degree child neglect, N.J.S.A. 9:6-3. He was sentenced to an eighteen-year custodial term with a nine-year period of parole ineligibility at the Adult Diagnostic Treatment Center (ADTC). His conviction was reversed on appeal, resulting in his guilty plea on January 27, 2005, to an accusation charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and he was sentenced to the New Jersey State Prison for five years. F.Z.S. was previously convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), that resulted in a seven-year custodial sentence to the New Jersey State Prison.
On April 7, 2005, the court entered an order temporarily committing F.Z.S. to the STU and, on August 23, 2005, following a hearing, the court entered judgment declaring that F.Z.S. was a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment. On appeal, we affirmed the court's decision in an unpublished opinion. In re the Civil Commitment of F.Z.S., No. A-0625-05T2 (App. Div. December 15, 2006). Orders continuing his commitment were entered on March 23, 2007 and July 17, 2008. We affirmed the March 23 order in an unpublished opinion dated January 14, 2008. In re the Civil Commitment of N.H.Y., Docket No. A-4611-06T2 (App. Div. January 14, 2008).
The hearing that preceded entry of the July 17, 2008 order under appeal was held the same day. One witness, Dr. Sarah Gleacher, a psychiatrist, appeared and testified on behalf of the State. Defense counsel objected to her testimony, arguing that she had limited qualifications in terms of her work prior to rendering her opinion with respect to F.Z.S. The court, citing Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed. 2d 1090 (1983), rejected this argument, specifically finding that Dr. Gleacher is licensed to practice psychiatry in two states, board eligible in forensic psychiatry, and "had had some experience in reporting for purposes of court review on psychiatric condition of patients."
Dr. Gleacher testified that she attempted to interview F.Z.S. but that when he was brought to the interview room, "he just vigorously shook his head and just sort of hands sideways and left the room." She indicated that the fact that he would not permit an interview did not hinder her ability to reach an opinion because there was ample documentation both in the form of prior examinations by psychologists and psychiatrists. There are treatment records from his time here [at STU]. There are records from his--there are police records from his arrest in 1984 and then again in 1999. So, there's quite a bit of documentation available to review in--in order to form an opinion.
Dr. Gleacher diagnosed F.Z.S. as suffering from pedophilia and alcohol dependent under Axis I. She testified that the pedophilia manifests itself through strong sexual urges toward prepubescent females and that the condition does not spontaneously remit. Rather, Dr. Gleacher explained that the condition is addressed through treatment designed to help the pedophile to take control of acting out on urges. In her opinion, F.Z.S. had not had enough treatment for his condition because he was not participating in treatment and his alcohol dependency increased the risk that he would re-offend.
Dr. Gleacher also, under Axis II, diagnosed F.Z.S. as having a personality disorder, not otherwise specified (NOS), evidenced by the records reporting his rigid personality, which included a "a complete lack of empathy" and "a very strong ability to be in denial[.]"
In addition to Dr. Gleacher's testimony, her report and the evaluation from the Treatment Progress Review Committee (TPRC) were admitted into evidence subject to the limitation that the court would not consider "inadmissible hearsay as substantive proof of the matters asserted but only as bearing on the diagnoses and conclusions expressed."
At the conclusion of the hearing, Judge Perretti found that the State had proved by clear and convincing evidence that F.Z.S. continues to be a sexually violent predator who has a high risk of re-offending. The court specifically found:
Dr. Sara Gleacher testified and her report is Petitioner's [E]xhibit 2 in evidence. As a result of voir dire and the psychiatrist's C.V., the Court has qualified her as a person whose opinion may be asked in the area of her expertise, which is psychiatry.
She testified to the sources that she used in reaching her evaluation and her testimony establishes a foundation for her use thereof. The Court recognizes these as the usual sources referred to by persons in the profession for making such evaluations.
The psychiatrist attempted to interview [F.Z.S.] on Monday of this week and he was brought to her presence. She introduced herself and explained the purpose of her visit. She testified that she observed and otherwise was informed that he was a hard-of-hearing person and she, therefore, spoke loudly. He did not respond except by shaking his head, gesturing and leaving the room. Thus, the psychiatrist was unable to interview with [F.Z.S.].
It's noteworthy that [F.Z.S.] did not interview with the T.P.R.C. and this appears from that report, which is Petitioner's [E]xhibit 4 in evidence. According to the testimony of the psychiatrist, which was not contradicted in this or indeed in any respect, [F.Z.S.] has a history of refusing interviews since 2005 when he was interviewed by Dr. Apolito. That was the year of his admission here. He refused to interview with Dr. Voskanian and, as noted, with the T.P.R.C. this year.
Thus, the reliance upon sources by the examining psychiatrist becomes more necessary. She does not have the benefit of any personal input by [F.Z.S.] and has not been able to independently make any evaluation of his representations or discuss with him his criminal history or discuss with him his participation in the program here, but rather he has made it essential for her to rely upon documentary sources.
I've reviewed Petitioner's [E]xhibit 5. It begins with a summary report dated January 2007. For [F.Z.S.]'s participation during that month, it reads, "[F.Z.S.] made no contribution to the group. He appeared attentive. Had little or nothing to add to the group discussion and showed limited interaction with the other group members." A review of these notes page[-]by[-]page indicate[s] that [F.Z.S.]'s participation was almost without exception characterized as either minimal participation or none.
The only module that he had successfully completed since being here is a drug and alcohol education module.
The most recent treatment plan status review back in October is the one that reveals that [F.Z.S.] was not complying with his responsibility relative to the hearing aids which have been provided to him.
The balance of these daily notes all have do not participate, did not participate circled. So, since that treatment plan status review, [F.Z.S.] has simply not participated at all. This is unquestionably by clear and convincing proof an untreated sex offender.
Based on all of the evidence which I find to have been clear and convincing, [F.Z.S.] continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that adversely impact his volitional, emotional and cognitive faculties so as to predispose him to commit sexually violent acts.
It is clear from his actions in the past, a re[-]offense after judicial intervention, and his actions here in refusing to participate in sex offender treatment and his regard of himself as a non-sex offender, that he has serious difficulties controlling his sex offending behavior.
It is clear to this Court that [F.Z.S.] is highly likely to commit sexually violent offenses in the foreseeable future if not confined for further treatment and the protection of the public inasmuch as he is a treatment refuser.
We are satisfied that the evidence supports the finding that F.Z.S. 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 re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 131-32.