April 27, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF J.A. SVP-6-99.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-6-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2009
Before Judges Axelrad and Parrillo.
J.A. appeals from a June 25, 2008 order of the Law Division continuing his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
J.A., born March 27, 1980 and currently twenty-nine years of age, was committed to the STU as a sexually violent predator in 1999. The predicate offense occurred on an unknown date between August 31 and September 13, 1994, when fourteen-year-old J.A. committed an act of anal penetration upon six-year-old D.L. On September 14, 1994, J.A. was arrested and charged with aggravated sexual assault. On May 10, 1995, J.A. was adjudicated delinquent on the charge of sexual assault pursuant to N.J.S.A. 30:4-27.26(a) and was sentenced to three years probation and residential placement. When J.A. represented a danger to other residents based on his continued sexually deviant behavior, he was transferred to the Garden State Correctional Facility in Yardville.
Upon his scheduled release, the State petitioned for SVPA commitment and an order of commitment was entered on September 9, 1999, committing J.A. to the STU. Yearly review hearings resulted in orders continuing commitment in 2000, 2001, 2002, 2003, 2005, 2006, 2007, and 2008.*fn1 Apparently, the only appeal filed was from the 2003 order of commitment, but it was later dismissed on November 20, 2003, presumably in light of a recent Supreme Court ruling, In re Commitment of W.Z., 173 N.J. 109 (2002).
J.A. has a history of criminal behavior. Aside from the predicate offense, on December 1, 1994, the Vernon Township Sex Crimes Unit received reports that J.A. sexually assaulted ten- year-old H.A. H.A.'s sister corroborated the reports, stating that she had seen J.A. lying on top of H.A., both with their pants down. During his November 28, 2007 interview with the Treatment Progress Review Committee (TPRC), J.A. admitted to sexually assaulting a total of eight victims, although one of whom he considers a victim he supposedly never touched but simply fantasized about.
J.A.'s most recent review hearing occurred on May 28, June 18 and June 25, 2008, at the close of which Judge Freedman continued his involuntary civil commitment. At the hearing, Drs. Voskanian and Carlson testified on behalf of the State while Dr. Katz testified on behalf of J.A. On May 28, all three experts testified, but the judge continued the matter until June 18 after ordering the State to produce missing treatment notes from July 31 to October 1, 2007 and also ordering that J.A. be interviewed by Dr. Voskanian. On June 18, the State produced the missing notes, which were incorporated into the record, and Dr. Voskanian re-testified based on his interview with J.A. On June 25, the court rendered its decision and entered an order continuing J.A.'s commitment, from which this appeal is taken.
On the first day of the hearing, May 28, 2008, Dr. Voskanian testified that J.A. had a history of being unable to control his sexual deviance while in treatment. J.A. was removed from residential placement because he exposed himself, masturbated with other residents' underwear, fantasized about young children during church services, encouraged his roommate to dance naked for him, and engaged in non-consensual sexual contact with other male residents. This behavior did not remit even when J.A. was placed in the Garden State Youth Facility. According to Dr. Voskanian, J.A. was not motivated to stop this behavior, testifying that as of March 5, 2008, J.A. had not vocally participated in treatment, had not completed any new treatment components, had not completed any new modules, was reluctant to take any psychological classes, and was recommended to repeat Relapse Prevention II.*fn2
Dr. Voskanian diagnosed J.A. with mental abnormality which predisposes him to sexually re-offend, specifically non-explosive pedophilia, attracted to both genders; dysthymic disorder NOS, a mild form of depression; and rule-out pyromaniac. He testified that the risk to re-offend is higher when male pedophilia is combined with the type of depressive personality disorder from which J.A. suffers.
On cross-examination, counsel challenged Dr. Voskanian's interpretation of J.A.'s progress, eliciting from Dr. Voskanian that J.A. has admitted to bisexual interests, which counsel tried to argue is contrary to Dr. Voskanian's portrayal of J.A. as a person of confused sexuality. Dr. Voskanian instead responded that J.A.'s claimed bisexual interests were not credible because his sexual history did not reveal any contact with age-appropriate females.*fn3 Counsel also elicited testimony from Dr. Voskanian that J.A. has not shown any sexually deviant behavior while at STU similar to that documented before his arrival, which had lead to his removal from residential placements. Yet on redirect, after refreshing his recollection, Dr. Voskanian testified that in fact J.A. had been caught with pornography and had admitted to having sex with P.R. in July 2004 while at STU.
Dr. Katz, having had the opportunity to interview J.A. for two hours, testified that while J.A. admitted to still being attracted to young children, J.A. had not exhibited signs of inappropriate behavior while at STU because he had learned to interrupt his attraction to children with techniques learned through treatment. According to Dr. Katz, the so-called "acting out" at STU that Dr. Voskanian testified about was true, but the pornography was adult pornography, not child porn; the sexual contact with P.R. was a consensual relationship; and since 2004, there had been no reported behavioral problems.*fn4 J.A. had not engaged in a pedophilic act since around the time of the predicate offense. According to Dr. Katz, J.A. had made substantial progress in treatment, having completed all major components of the program, and that he was receiving positive feedback from his reviews as recent as the January 31, 2008 TPRC report. Dr. Katz acknowledged, however, that the TPRC recommended that J.A. retake Relapse Prevention II, but saw such a requirement to be unnecessary. Dr. Katz was concerned that because J.A. has been confined since age 14, he has never had the opportunity to demonstrate his ability to engage age-appropriate adults, and will never be able to do so at STU where he is reprimanded for his homosexual relationships. While Dr. Katz also acknowledged the criticisms of J.A. in treatment sessions,*fn5 he found it unfair to punish J.A. solely for being less verbal than others when he is otherwise successfully completing treatment. Dr. Katz appeared to be concerned that much of the data and medical impressions of J.A. were becoming corrupted by J.A.'s general stress of being incarcerated for so long. Dr. Katz recommended outpatient treatment, but did not recommend full release. Moreover, Dr. Katz conditioned his recommendations on J.A. passing the sexual arousal polygraph test.
Dr. Carlson, a member of the TPRC that evaluated J.A., stated that while J.A. had a substantial history of accomplishment within the treatment program, J.A. had a consistent predisposition towards non-participation, thus precluding him from really engaging in treatment on a consistent basis. In fact, the TPRC recommended that J.A. increase his participation in treatment and retake Relapse Prevention II. Dr. Carlson explained that J.A.'s lack of participation made it very difficult to determine if he had integrated the treatment principles beyond a "book knowledge or a rogue recitation," and this difficulty has persisted since 2005. According to Dr. Carlson, J.A. has the intellectual and verbal capacity to participate in a much more meaningful way, but does not.
Dr. Voskanian testified again on June 18 after interviewing J.A. and reviewing the January 31, 2008 TPRC report. Dr. Voskanian's impression was that J.A. had not processed his offenses to understand his own pathology based on the fact that he recounted them without empathy or remorse, a finding which echoes the TPRC's recommendation for J.A. to re-do certain aspects of treatment. Of notable concern to Dr. Voskanian was that J.A.'s statements to him contradicted the TPRC's January 31, 2008 report, even though treatment progress had not changed in the interim. For instance, J.A. told Dr. Voskanian that he was thinking sexually about adults only and that he would rate his risk to re-offend at one, yet acknowledged to the TPRC that he was still sexually attracted to children and that his risk to re-offend was four. Nothing in the interview changed Dr. Voskanian's diagnosis or recommendation.
After reviewing the record at length, Judge Freedman found the testimony of Dr. Voskanian to be credible, while, on the other hand, Dr. Katz' opinions and recommendations were conditioned on J.A. taking and passing a sexual arousal polygraph test. Also, Dr. Katz repeatedly emphasized that as a condition of discharge, J.A. needed to be placed in a halfway house for sexual offenders to monitor his compliance, which the judge noted was not a viable option because no such facility existed. Rather, the record amply supported Dr. Voskanian's expert opinion. Since June 21, 2007, J.A. has taken the floor only four times and has required prompting to do so; and in all clinical activities, has been a non-vocal participant. J.A. has not completed victim impact letters; the TPRC reported that J.A. admitted to still being aroused by children from the ages of 3 to 11; J.A.'s history shows an incapacity to control deviant sexual desires; and the January 31, 2008 TPRC report, together with Dr. Voskanian's findings, indicated that J.A. had a variety of sexual pathologies that remained untreated.*fn6 Moreover, Dr. Carlson corroborated Dr. Voskanian's opinion, citing the TPRC's opinion that J.A. has not fully integrated the treatment principles in spite of his capacity to do so.*fn7
In addition to crediting the testimony of Drs. Voskanian and Carlson, the judge was also satisfied that the axis one and two diagnosis of J.A. was "pedophilia and personality disorder . . . which predisposed him to engage in acts of sexual violence . . . and his admissions since treatment show as well to such a degree that he would have, in fact, serious difficulty in controlling his sexually violent behavior if he were released, and that he would be highly likely in the reasonably foreseeable future if released to engage in acts of sexual violence." Accordingly, an order was entered on June 25, 2008, continuing J.A.'s involuntary commitment to the STU as a sexually violent predator with review to be held May 12, 2009. This appeal follows.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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." N.J.S.A. 30:4-27.26. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating 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." W.Z., supra, 173 N.J. at 132. The court must address "his or her present serious difficulty with control[,]" and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n 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." Id. at 130.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of June 25, 2008.