October 7, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF M.H., SVP-295-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-295-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 23, 2009
Before Judges Axelrad and Espinosa.
M.H., who is currently sixty-one years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designed 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 April 14, 2009, continuing his commitment to the STU following a third review hearing. On appeal, M.H. argues the court erred in crediting the testimony of the State's psychiatrist and in finding the State met its burden with clear and convincing evidence that he continues to have serious difficulty controlling his sexually violent behavior such that it is likely he will re-offend if not confined.*fn1 Based on our review of the record, we are not persuaded by appellant's arguments 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 James Mulvihill in his oral decision of April 14, 2009.
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 (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 A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); 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 April 14, 2009 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. M.H. was initially committed to the STU by a final order entered on June 18, 2003. Review hearings resulted in orders that have continued commitment. M.H. has appealed the initial order and the order following the first review hearing; we affirmed both by way of unpublished opinions. See In re Civil Commitment of M.X.H., No. A-5780-02T2 (App. Div. March 2, 2006); In re Civil Commitment of M.H., No. 2375-06T2 (App. Div. May 29, 2007). Following the last review hearing conducted on April 14, 2009, a judgment of continued commitment was entered, which is the subject of this appeal.
Appellant has had a long history of sexually violent offenses and juvenile and adult criminal behavior, which we have detailed at length in our earlier opinions. In 1986, M.H. pled guilty to aggravated sexual assault of a thirteen-year-old boy by anal intercourse at knifepoint, which served as the predicate offense under the SVPA, N.J.S.A. 30:4-27.26.
At the review hearing that is the subject of this appeal, Dr. Sarah Gleacher, a psychiatrist, and Dr. Rosemarie Stewart, a psychologist and member of the Treatment Progress Review Committee (TPRC) testified for the State, and Dr. Jeffrey Singer, a psychologist, testified on behalf of M.H. The State's psychiatrist testified that M.H. "remains a partially treated sex offender," still in Phase 3 of five phases of treatment. His Static-99 score of nine placed him in the high-risk category to sexually re-offend. Dr. Gleacher further opined that M.H.'s age did not affect her conclusion of high risk as "he's medically healthy," "a robust man" and "doesn't have any debilitating diseases."
Moreover, it was the unanimous recommendation of the TPRC that M.H. remain in Phase 3 of treatment and continue to work on and complete the modules in the core phase treatment and participate more in group. The TPRC also recommended that M.H. repeat the Victim Empathy treatment module, which has been an area of weakness for M.H.
As in prior hearings, M.H.'s psychologist disagreed with the finding of the State's experts and that previously adopted by the court regarding M.H.'s diagnosis of paraphilia. Dr. Singer further opined that the risk of recidivism by a sixty-one-year-old rapist was virtually non-existent and concluded that with supervision, out-patient treatment and urine monitoring, M.H.'s risk to re-offend would be low.
At the conclusion of the hearing, Judge Mulvihill placed a thorough and comprehensive decision on the record. The judge expressly credited the testimony of Dr. Gleacher as to her diagnosis of M.H.'s condition and did not find credible Dr. Singer's conclusion that M.H. was not suffering from paraphilia. The court also found more credible the opinion of the State's psychiatrist that M.H.'s age did not render him a low risk to re-offend. Based on the credible proofs before it, the court found it to be "very clear... that if [M.H.] were released at this particular time, he would highly likely use alcohol and that would trigger him committing a sexual violent offense probably against a teenage boy or girl."
Judge Mulvihill concluded:
I find that it's clear and convincing evidence that [M.H.] has been convicted of the requisite sexual[ly] violent offense or offenses, clear and convincing evidence I find that he continues to suffer from paraphilia and mental abnormality, and also antisocial personality disorder. I find that by clear and convincing evidence and also with the alcohol problem, it's clear at this particular time... that [M.H.] is highly likely to engage in further acts of sexual violence if he uses alcohol as a trigger if not confined in a secure facility for control, care and treatment.
And that he has not done enough in treatment to mitigate... being predisposed to sexual violence. His risk is still very high but he is making progress and hopefully next year he will make enough progress that there may be an agreement between the attorney general and the public advocate about -- about [M.H.]. But at this time, he will be continue[d] at the S.T.U. and I find that if he were released now, he has not completed treatment, he really is in sort of... in the beginning stages of really getting into the flow of treatment.
That the State has proved by clear and convincing evidence that the health and safety of others that he's a threat to that, there's a high likelihood of his engaging in sexually violent acts,... the State has proven clear[ly] and convincingly that [M.H.] has serious difficulty controlling his sexually harmful behavior, highly likely he will not control his sexually violent behavior, highly likely to use alcohol, [and] highly likely he will re-offend.
And I find this to be a present serious difficulty to control and the mere fact that he's making progress in phase three of treatment has not mitigated the predisposition, has not lowered the risk and it's highly likely [by] clear and convincing evidence that [M.H.] will re-offend.
The court ordered a review on April l, 20l0.
In reviewing the record on appeal, we conclude that all the judge's findings are supported by testimony the judge was entitled to credit, these findings are entitled to our deference, and the judge did not abuse his discretion in continuing the commitment of M.H. pursuant to the SVPA. The court acknowledged the progress M.H. made at the STU but was not satisfied, under the totality of factors presented in the record, that M.H. had made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and that he remained in need of continued treatment under the SVPA. See N.J.S.A. 30:4-27.34b. The court held the State to the proper standard of "clear and convincing evidence" and set forth in detail its basis for crediting the diagnosis and risk assessment of the State's expert over that of M.H.'s expert. Moreover, the record does not support the claim of M.H. of any evidentiary infirmities by the State's experts or court's references to hearsay documents or information. See, e.g., In re Civil Commitment of A.E.F., supra, 377 N.J. Super. at 484-90; In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55-58 (App. Div. 2004).