April 23, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF D.G.H., SVP-98-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-98-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 1, 2009
Before Judges Axelrad and Parrillo.
D.G.H., who is now almost fifty-one years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of September 22, 2008, continuing his commitment to the STU following a fifth review hearing. On appeal, D.G.H. asserts a general challenge to the court's finding that the State met its burden with clear and convincing evidence that he continues to be a sexually violent predator in need of civil commitment.*fn1 Based on our review of the record, we are not persuaded by this argument and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of September 22, 2008.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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." N.J.S.A. 30:4-27.26. Under the SVPA, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment 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 W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. 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 trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
The September 22, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. D.G.H. was initially committed to the STU by an order entered on March 26, 2001. Review hearings were held in 2002, 2003, 2004, and 2006, in which judgments of continued commitment were entered. D.G.H. appealed each decision, except for 2003, and we affirmed each judgment continuing his civil commitment. In re Civil Commitment of D.G.H., No. A-1585-02T2 (App. Div. June 30, 2004); In re Civil Commitment of D.G.H., No. A-6219-04T2 (App. Div. Dec. 19, 2005); In re Civil Commitment of D.G.H., No. A-5108-06T2 (App. Div. Feb. 6, 2008). Following the last evidentiary review hearing conducted on September 22, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.
Appellant has a criminal history dating back to 1976, and a long history of sexual offenses beginning in 1981, which we have detailed at length in our earlier opinions. In January 1981, he was charged with kidnapping and sexual assault. He pled guilty to the downgraded charge of crimes against a person and was sentenced to a five-year custodial term, suspended with three years probation. The crimes involved a sixteen-year-old girl who claimed that D.G.H. had approached her while she was walking home from school, grabbed her, carried her to a nearby wooded area, and attempted to remove her clothing. In 1986, D.G.H. was convicted of sexual assault and sentenced to a seven-year custodial term. The crime involved D.G.H. pinning the victim to the ground, slapping her on the shoulder and partially removing her pants. The victim claimed digital penetration of her vagina and touching of her breasts.
The predicate offense for D.G.H.'s commitment involved a charge of criminal sexual contact and stalking, occurring on June 12, 1996. According to the twenty-seven-year-old female victim, G.R., while she was waiting at a bus stop, D.G.H. attempted to lure her to his car. When she thereafter exited from a bus, D.G.H. approached her and touched and fondled her breasts and buttocks. When, on a subsequent occasion, he attempted to follow her, she called the police. On July 25, 1997, D.G.H. was sentenced to a custodial term of eighteen months. Upon serving his term at Avenel (ADTC), D.G.H. was involuntarily civilly committed at Trenton Psychiatric Hospital, during which he engaged in several acts of inappropriate sexual behavior. He was ultimately transferred to the STU and temporarily committed by order of October 24, 2000.
At the review hearing that is the subject of this appeal, D.G.H. voluntarily absented himself and presented no evidence on his own behalf. The court heard testimony on behalf of the State from Dr. Howard Gilman, a psychiatrist, and Dr. Joy Ellick, a psychologist and member of the Treatment Progress Review Committee (TPRC). The court also accepted into evidence Dr. Gilman's report of September 17, 2008; the TPRC report from Dr. Ellick of August 5, 2008; and D.G.H.'s treatment notes from October 25, 2006 to the present.
Although D.G.H. refused to be interviewed by Dr. Gilman for this hearing, nonetheless, the doctor testified he was able to render an expert opinion based on his review of D.G.H.'s criminal history, the cumulative treatment notes, and the TPRC report. Dr. Gilman testified that D.G.H. had "a long history of voyeuristic behaviors and crimes, often pled down to something other than a sexual crime, per se, but also three instances of contact offenses, as well." He further explained that D.G.H. did poorly with his treatment in ADTC, noting that "[h]e was on treatment refusal status, in fact, and also spent some time in administrative segregation," which was due to an assault on another inmate. Dr. Gilman observed that D.G.H. was in Phase Two of his treatment and had been there for most of his time at the STU. He also related that D.G.H. attended group meetings, but only spoke about his crimes once or twice a year.
D.G.H. had admitted in 1999 to a ten-year history of voyeuristic activity that began in his mid-twenties. In line with this, Dr. Gilman diagnosed D.G.H. with voyeurism, stating:
Voyeurism is - is a sexual deviance having to do with sexual arousal to watching other people have sex. [D.G.H.] has a long history of being a peeping Tom. That's the convention[al] phrase for voyeurism. And because of that I made the diagnosis. I also made a diagnosis of frotteurism, which -which has to do with groping and touching others where oftentimes in situations where it's seemingly done by accident, in [D.G.H.'s] case that's actually not the case.
He actually stalked one of his victims and groped her. Two other victims he actually sexually assaulted and in the process of assaulting also groped or digitally penetrated, so that's why I made the diagnosis of frotteurism.
Dr. Gilman also diagnosed D.G.H. with antisocial personality disorder. The expert was of the opinion that based on D.G.H.'s failure to avail himself of the nine years of treatment that has been offered to him at the ADTC and the STU, he continued to have difficulty controlling his impulses and sexually offending behaviors. The psychiatrist found nothing in the record indicating D.G.H. had appropriate insight into his sexual offending behavior or relapse prevention skills that showed he understood why he was compelled to commit the offenses he did. Dr. Gilman concluded, to a reasonable degree of medical certainty, that D.G.H. would be highly likely to re-offend sexually unless confined to the STU for treatment based on his condition, his long history of sexually criminal behavior and sexual deviant behavior, his re-offending despite being in previous legal trouble, and his failure to avail himself of treatment. Dr. Gilman observed that as a result of the latter, there was "nothing to really mitigate his risk at this point."
Dr. Ellick testified about D.G.H.'s continuation in Phase Two of treatment. According to the treatment notes, D.G.H.'s attendance in group therapy continued to be sporadic and he was also considered to be disengaged from treatment in that he did not fully take advantage of process group and had not participated in any treatment modules in at least six months. Dr. Ellick was concerned that when D.G.H. did participate, much of the time he focused on personal victimization issues, i.e., believing he was a victim of the system, rather than on sex offender issues. Moreover, despite the recommendation in the last TPRC report, D.G.H. did not enroll in "Relapse Prevention 2" in order to complete his personal maintenance contract. The TPRC's diagnoses of D.G.H. were identical to Dr. Gilman's.
At the conclusion of the hearing, Judge Serena Perretti placed a thorough and comprehensive decision on the record. Citing Dr. Gilman's uncontradicted expert testimony and the TPRC report, as well as D.G.H.'s treatment notes, the judge detailed at length D.G.H.'s diagnosis; his inconsistent attendance at group; his failure to take the floor or discuss his treatment, his sexually deviant urges or dynamics; and his failure to complete new treatment components. Judge Perretti summarized her findings in the following way:
The State's evidence was clear and convincing. The testimony of Dr. Gilman and Dr. Ellick was credible and persuasive. The record before the Court clearly establishes that the respondent continues to be a sexually-violent predator. He clearly suffers from abnormal mental conditions 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 seriously-violent behavior, as he has established from his record of repetitive offending in the community even after interventions.
The respondent has not mitigated his risk and has not demonstrated any use of treatment indicating that he has gained any control over his sexually-violent behavior.
This respondent is highly likely to commit sexually-violent acts within the foreseeable future if not continued in commitment for further care or if he continues to decline care for the protection of the public.
The court ordered a review in one year.
The clear and convincing evidence of record in this case supports the trial judge's conclusion that D.G.H. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and that he remains in need of continued commitment under the SVPA. See N.J.S.A. 30:4-27.34b. D.G.H.'s criminal history, specifically, his history of sexual offenses, clearly demonstrates that he is no mere "peeping Tom," but rather the record reveals that D.G.H. has serious difficulty controlling behaviors such as voyeurism, frotteurism, and sexual assault. Moreover, because of a sporadic attendance and minimal participation in treatment to date at the STU, D.G.H. has done little to reduce the risk of his sexually re-offending if released. As the conclusion that D.G.H. 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, In re Commitment of W.Z., supra, 173 N.J. at 132, we discern no abuse of discretion by the court in continuing to confine him to a secure facility for treatment.