On appeal before Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-278-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2009
Before Judges Axelrad and Espinosa.
C.A.H. was committed to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38 in October 2002. Following his eighth review hearing pursuant to N.J.S.A. 30:4-27.35, appellant was adjudged to be a sexually violent predator in continued need of involuntary civil commitment. He appeals from that order.*fn1 We affirm.
The State presented the testimony of Sarah Gleacher, M.D., a psychiatrist, and Shawn McCall, Psy.D., a psychologist, on the Treatment Progress Review Committee (TPRC). Appellant declined to be interviewed by Dr. Gleacher or the TPRC. It was not until the day of the hearing that appellant indicated a willingness to be interviewed. Stating that appellant had refused to be interviewed in the past, the court declined to adjourn the hearing for an interview and proceeded with the hearing.
Both Dr. Gleacher and Dr. McCall agreed upon diagnoses of paraphilia NOS and transvestic fetishism. Dr. Gleacher explained that appellant's history of assaulting children met the criteria for paraphilia, which includes sexual acts with non-consenting persons, as appellant's victims included a thirteen year old and a fourteen year old. This explanation was consistent with the reasons given in the TPRC report for that diagnosis. Appellant's sexual offenses presented a pattern of breaking into the victims' homes, entering their bedrooms while they were sleeping, threatening the victims with bodily harm and forcing them to leave their homes to sexually assault them. In her report, Dr. Gleacher noted that paraphilias are difficult to treat and the condition does not remit spontaneously. Based upon her review of the available records, Dr. Gleacher found that appellant "has been minimally engaged in treatment at the STU over the past year" and that he "remains an untreated sex offender at the present time . . . at high risk to reoffend if he were to be discharged at this time."
Dr. McCall reported that it was the unanimous recommendation of the TPRC that appellant continue in Phase 2 of the treatment, the "rapport-building phase in which an individual . . . comes to develop a willingness to engage in treatment, and to participate, and to give treatment a chance . . . ." Dr. McCall described appellant's progress in treatment: "I'm fairly pleased to say that it seems like he's trying to work now some more . . . and continuing with some of that kind of early . . . work." Dr. McCall understood that appellant "still has some difficulties in his process group as well with attendance in general" and observed that "attendance still does remain an issue and that puts into question if he's really engaged in treatment at this point." Dr. McCall declined to opine as to whether appellant was ready to move to the next phase of treatment, noting in part that an interview of appellant would be needed before reaching such an opinion. Dr. McCall also testified that appellant has a tendency to get excessively focused in a potentially negative way with female staff and that he has failed to complete revisions to his sexual history questionnaire that are necessary before a polygraph can be administered. Dr. McCall noted that appellant still had "difficulty moving beyond understanding his own pain and problems to understanding how he inflicted onto others." Appellant was administered the Static-99, an actuarial instrument designed to estimate the probability of sexual and violent recidivism among males who have been convicted of at least one sexual offense. His score placed him in the high risk category.
In this appeal, appellant challenges the sufficiency of the evidence presented, arguing that the State failed to prove, by clear and convincing evidence, the elements necessary to continue his commitment pursuant to the SVPA. Specifically, he challenges the findings that he is "highly likely" to reoffend if not confined at the STU and that he suffers from a mental or emotional condition which may cause him to reoffend sexually. He argues further that the trial court erred in failing to find that he had improved sufficiently so that his confinement was no longer required. We find no merit in these arguments.
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 an 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., 173 N.J. 109, 132-33 (2002); 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. The State retains 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. 30:4-27.32(a). "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). "Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (2009) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).
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 (citing 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 canvass 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).
It is undisputed that appellant was convicted of a sexually violent offense. Therefore, to sustain its burden under the SVPA here, the State was required to present clear and convincing evidence that appellant "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. "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. To prove the threat of recidivism, the State must "demonstrat[e] that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she ...