March 2, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF J.C. SVP 529-09
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-529-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2010
Before Judges Reisner and Yannotti.
The State appeals from a September 18, 2009 order of the trial court finding that the State failed to prove by clear and convincing evidence that J.C. is a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The order directed his release from the Special Treatment Unit into the custody of the Division of Parole, which by law must supervise him for the rest of his life.*fn1 N.J.S.A. 2C:43-6.4; N.J.A.C. 10A:71-6.11. The State also appeals from a November 10, 2009 order denying its motion for reconsideration. We initially granted the State's motion for a stay and accelerated this appeal. We now affirm.
After a convicted sex offender (offender) has served the sentence impose for his crimes and is ready to be released, the State may seek to have the offender civilly committed under the SVPA. N.J.S.A. 30:4-27.28. However, the State and Federal constitutions preclude the State from civilly confining the offender unless the State proves "by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002); Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed. 2d 856 (2002). Thus, the constitutionality of the SVPA depends on our adherence to a system that holds the State to that heavy burden of proof in every case. See W.Z., supra, 173 N.J. at 126. If the State proves its case, the offender is civilly committed to a special facility known as the Special Treatment Unit (STU). If the State does not prove its case, the offender must be released from physical confinement. However, as part of the original criminal sentence, the offender will be subjected to parole supervision for life. N.J.S.A. 2C:43-6.4; N.J.A.C. 10A:71-6.11.
Each contested SVPA case is heard before a Superior Court judge who hears the witnesses testify, makes determinations as to their credibility, makes findings of fact, and decides whether the State has carried its burden of proof as a matter of fact and law. Where both sides present testimony from expert witnesses, it is the trial judge's responsibility to decide which side's experts are more convincing. Typically, in SVPA cases the State presents testimony from mental health experts employed by the STU. Unlike many cases, in this case an STU psychologist who had evaluated J.C. on behalf of the State and found that he did not meet the standard for civil commitment, testified in favor of J.C. A second psychologist, retained by the defense, likewise testified for J.C. The State presented testimony from one witness, an STU psychiatrist, whose testimony the trial judge found unconvincing.
Whether the State wins or loses at the trial level, our standard of appellate review is the same. In light of the special expertise of the SVPA judges, we owe "the utmost deference" to their decisions, and we will not disturb the trial court's determinations absent a clear abuse of discretion. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). See also In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225-26 (App. Div. 2007); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We must uphold the trial judge's findings of fact as long as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). And, as with all cases in which a trial judge hears witnesses testify, we owe particular deference to the judge's decision as to whether the witnesses are credible. See State v. Locurto, 157 N.J. 463, 474 (1999). Cesare v. Cesare, 154 N.J. 394, 412 (1998).
With those legal standards in mind, we summarize the most pertinent evidence. In 2003, J.C., then age thirty-eight, was indicted for sexually assaulting J.R., a sixteen year old girl who was living with her mother and J.C. He was also indicted for attempting to sexually molest two other girls both of whom had been overnight guests visiting J.R. On September 9, 2003, he entered into a plea bargain in which he pled guilty to aggravated sexual assault on J.R. and the State dismissed the indictments concerning the other two girls. J.C. was sentenced to seven years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. After he was found to be a repetitive and compulsive sex offender, he was ordered to serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) where he would undergo sex offender treatment.
Evidence in the record indicates that J.C. forced J.R. to have a sexual relationship with him over a four-year period starting when she was twelve years old. According to the victim, J.C. would slap her and pull her hair if she resisted, and he forced her to have sexual intercourse, oral sex, and on one occasion, anal sex. While J.C. initially claimed the relationship was consensual, he eventually admitted that it was not. There also appears to be no dispute that during a sleepover, he approached J.R.'s eight year old friend, pulled down her underwear and offered her money to let him perform oral sex on her. When she refused, he retreated. Similarly, on two occasions, he began sexually touching a cousin of J.R. who was sleeping over at the house, but abandoned his attempts when she told him to stop.
J.C. told at least one mental health evaluator that he had sex with two girls in Puerto Rico who were between thirteen and fourteen years old. However, he later stated that his encounter was with only one girl, whom he met in a bar, and she had appeared to be much older than fourteen. He contended that the earlier report was a miscommunication due to his difficulty speaking and understanding English.*fn2
According to J.C.'s statements to mental health experts at the ADTC and the STU, he was repeatedly sexually assaulted when he was a child. He developed serious drug and alcohol problems beginning when he was a teenager. He dropped out of school after the sixth grade.
At the ADTC, J.C. made some progress in sex offender therapy and completed a program of substance abuse treatment. When J.C. was close to completing his term of imprisonment, the State sought to have him civilly committed under the SVPA. Based on evaluations by Dr. Salem and Dr. Kurra, neither of whom later testified at the commitment hearing, J.C. was temporarily committed to the STU on April 1, 2009. The hearing on his permanent commitment took place on August 26, 2009.
At the hearing, the State presented testimony from Dr. Pogos Voskanian, a psychiatrist who evaluated J.C. on August 3, 2009. When Dr. Voskanian interviewed him, J.C. initially asked for a Spanish interpreter but agreed go ahead with the interview in English after being told that the interview would have to be re-scheduled if he needed an interpreter. Dr. Voskanian opined that J.C. had no difficulty communicating in English. Included in Dr. Voskanian's report were summaries of reports from two mental health professionals, Dr. Moscovich and Dr. Kalal, who conducted risk evaluations on J.C. while he was incarcerated at the ADTC and did not recommend him for civil commitment under the SVPA. However, Dr. Voskanian reached a different conclusion.
Dr. Voskanian diagnosed J.C. with the following pathologies: pedophilia, substance abuse, and personality disorder not otherwise specified (NOS) with anti-social traits. He concluded that J.C. was highly likely to reoffend based on the ages and number of his victims, his lack of progress in sex offender therapy at ADTC, J.C.'s failure to sufficiently address his own childhood history of molestation, and J.C.'s history of alcohol and drug abuse for which he had (according to Dr. Voskanian) not been successfully treated.*fn3 Dr. Voskanian agreed that J.C. scored a "one" on the Static-99, a risk assessment test, which indicated a low risk to reoffend. However, he downplayed its importance, contending that the Static-99 required no expertise to complete and was a relatively insignificant predictor of recidivism.
Dr. Voskanian agreed that an incest offender was less likely to reoffend than a non-incest offender. He equivocated on the issue of whether J.C.'s offense against J.R. was incest; he was not sure whether J.C. moved in with the girl's mother for the purpose of molesting the girl, or whether he had a relationship with the mother and then turned to molesting her daughter. However, based on J.C.'s history of molesting two of J.R.'s young friends who were not living in the household, as well as either one or two young teenage girls in Puerto Rico, Dr. Voskanian did not believe that J.C. was an incest offender. Dr. Voskanian did not find significant the fact that both of J.R.'s friends were physically within J.C.'s household when he approached them, nor did he find significant that one of the girls was related to J.R. and considered J.C. her "uncle." Dr. Voskanian found the fact that J.C. approached these girls in a sexual manner to be more significant than the fact that he refrained when the girls told him to stop.
Dr. Doreen Stanzione, a psychologist employed by the STU, evaluated J.C. on August 24, 2009, at the request of the Attorney General's office to determine whether he met the criteria for civil commitment under the SVPA. She found that he did not. Dr. Stanzione was the only one of the three expert witnesses who interviewed J.C. with a Spanish-speaking interpreter. Dr. Stanzione diagnosed J.C. as having pedophilia, paraphilia NOS, hebephilia, and personality disorder NOS with antisocial features. Based on his low scores on the Static-99 and the MinSOST, which is another risk assessment test, plus the way J.C. committed his offenses, Dr. Stanzione opined that he was at a low to moderate risk of reoffending. She found it significant that he chose victims who were within his household rather than attacking strangers.
Dr. Stanzione disagreed with Dr. Voskanian's view of the Static-99. She testified that "if you look at... research, it's one of the most supported instruments which is why... at this institution [STU] we use it all the time." She also testified that peer consultation was part of evaluating patients; she had "a high degree of psychological certainty" in her evaluation of J.C., based in part on her consultations with other mental health professionals at the STU. "[F]rom my peer consultation, I don't think there is anyone who has felt differently." She also testified that J.C.'s "treatment team at ADTC gave the same score as [she] did" on the MinSOST. She further testified that there was "no empirical support" for ignoring the risk assessment tests and making risk assessments based solely on clinical judgment; rather the best approach was to consider both the test results and clinical judgment.
Dr. Stanzione, who participated in discharge planning for patients at the STU, testified that community supervision for life (CSL) would be an important factor in helping J.C. to avoid reoffending. In particular, he would be subjected to urine monitoring to address possible drug abuse, and he would not be permitted to live in a household with children. On cross-examination, she agreed that she did not base her risk assessment on J.C.'s offenses being incest offenses. While acknowledging the seriousness of J.C.'s crimes, she explained that risk assessment could not be based on one's "visceral response" to the nature of the crime:
But when you look at risk, it's not just the visceral response. It is the likelihood that that person will commit that offense again.
So for [J.C.], with the CSL and with the treatment that he has had five and a half years, though not spectacular, he's made changes in his thinking, I still do not believe that that would elevate his risk to highly likely to reoffend.
J.C. also presented testimony from Dr. Barry Katz, a psychologist, who opined based on his interview with J.C., his review of the pertinent records, and the actuarial assessments, that J.C. was not highly likely to reoffend. After scoring the tests himself, Dr. Katz agreed that J.C.'s very low score of "one" on the Static-99 was accurate. He calculated the MinSOST score at zero. He further testified that J.C.'s Static-99 and MinSOST assessments had been done multiple times over the years by different experts, and they had always revealed either a low or moderate risk. He also strongly disagreed with Dr. Voskanian's view that these tests were unimportant or that they could be administered by persons having no specialized training. Like Dr. Stanzione, Dr. Katz testified that "the only way that you could [assess J.C. as highly likely to reoffend] would be to react emotionally off the offense and not look at it from a scientific point of view."
Dr. Katz testified that he viewed J.C.'s offenses as similar to incest, because he committed them against girls living in, or present in, his household. J.C. "shows no pattern of going out [and] searching out victims at the mall, etcetera, where we would have to worry about that as being an issue." Like Dr. Stanzone, Dr. Katz viewed CSL as a mitigating factor, because it was likely to help J.C. to avoid reoffending. In particular, as a condition of CSL, J.C. could not live in a household with children. Dr. Katz also considered that J.C. had participated in substance abuse treatment at ADTC, and that he could be required to participate in outpatient drug and sex offender therapy as part of CSL. Like Dr. Stanzione, he also found it significant that J.C. stopped his sexual overtures when J.R.'s two friends told him to stop.
In a lengthy opinion placed on the record on September 14, 2009, the trial judge found that the State had proven that J.C. "suffers from pedophilia, paraphilia, substance abuse and personality disorder," which "caused him difficulty in controlling his harmful sexually violent behavior." However, he concluded that the State had not met its burden of proving that J.C. was highly likely to reoffend if released.
In considering the testimony of Dr. Voskanian, the judge discounted his reliance on J.C.'s alleged offenses against one or more girls in Puerto Rico because "we know nothing about the circumstances of that encounter in Puerto Rico that warrants... considering it as a factor." In particular, J.C. reported that he met a girl in a bar, and she appeared to be much older than fourteen, which was the legal age of consent in Puerto Rico. The judge also considered Dr. Voskanian's equivocal testimony as to whether J.C. had a "familial" relationship with J.R. He noted that Dr. Voskanian almost completely discounted the statistical risk assessments that showed J.C. was at a low risk to reoffend.
The judge credited the testimony of Drs. Katz and Stanzione that J.C.'s offense history mitigated his risk of reoffense, in that "his offending was limited in scope to the house where he was residing with the victim. He did not go out seeking victims [and]... did not attempt to bring potential victims into the house." The judge also considered as a mitigating factor that J.C. abandoned his attempted sexual overtures when the two other victims told him to stop. He found that showed "some control on the part of [J.C.]" The judge agreed with Drs. Stanzione and Katz that CSL was a mitigating factor which would "further lessen [J.C.'s] risk to offend in the community." The judge also credited the defense doctors' opinions concerning the validity of the Static-99 and the MinSOST, which showed a low to moderate risk of reoffence.
The State filed a motion for reconsideration. On November 10, 2009, the judge rendered an oral opinion denying that motion. In response to the State's contention that he had erred in relying on CSL in reaching his conclusions, the judge clarified that:
If I gave the impression that the only way that [J.C.'s] likelihood to reoffend would [be] below highly likely, [was] if he abided by my conditions [of CSL], it was not my intention.
In this case both Dr. Stanzione a staff psychologist at the S.T.U. and Dr. Katz a psychologist retained by [J.D.], both of whom qualified as experts in the field of psychology, rendered opinions that [he] was not highly likely to reoffend in the reasonably foreseeable future.
They did not render their opinions contingent on the Court's placing conditions on [J.C.].
Instead, the judge accepted the experts' views that J.C. was already at a low to moderate risk to reoffend based on the risk assessment tests and his offense history, and that the availability of CSL was just another mitigating factor. The judge further noted that the conditions he had imposed in his earlier order embodied conditions to which J.C. was already subject under the CSL statute and regulations. Relying on In re Civil Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002), the judge opined that he had legal authority to issue an order subjecting J.C. to conditions of release, but emphasized that his findings as to J.C.'s low likelihood of reoffending were not based on those conditions.
In order to insure or to fortify the protection of the public I highlighted the conditions... to which [J.C.] would otherwise [be] subjected to under the community supervision for life requirements as an additional precaution to protect the public. But they were not necessary to make the finding that the State did not prove by clear and convincing evidence that [J.C.] met the requirements of the sexually violent predator act.
The State appealed from the court's two orders. J.C. has not cross-appealed from those provisions of the September 18, 2009 order requiring him to comply with the CSL statute and setting additional conditions consistent with CSL.
As previously indicated, our review of the trial judge's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459; In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63.
Having thoroughly reviewed the record, we find no basis to disturb the trial judge's determination that the State did not prove that J.C. is at a high risk to reoffend if released. The State's contention, that "the trial court's determination that J.C. should be released is a manifestly mistaken exercise of discretion," amounts to an argument that the decision is against the weight of the evidence. In essence, the State asks us to second-guess the trial judge's decision to credit the defense experts instead of the State's expert. But that is not our role. See State v. Locurto, supra, 157 N.J. at 474.
Moreover, even on a cold record, we find no basis to disagree with the judge's credibility determinations. The defense experts clearly explained the bases for their opinions, and considered the objective risk assessment tests such as the Static-99, their own clinical judgments, and the judgments of J.C.'s treatment team. By contrast, Dr. Voskanian took the unorthodox view that the risk assessment tools (on which the State routinely relies when they show high risk) were essentially worthless and required no expertise to administer. See In re Commitment of R.S., 173 N.J. 134, 136-37 (2002); In re Commitment of JJF, 365 N.J. Super. 486, 491-92 (App. Div.), certif. denied, 179 N.J. 373 (2004). He considered only his own clinical assessment. He ignored the opinions of multiple other experts, including the ADTC evaluators, who examined J.C. and found that he did not warrant civil commitment. We find no basis here to depart from the usual rule requiring our deference to the trial judge's credibility determinations. Locurto, supra, 157 N.J. at 474.
We also disagree with the State's contention that the trial judge relied on CSL as a "fail safe" or a determinative factor in his decision. Neither the defense experts nor the judge ever opined that J.C. was at high risk to reoffend, but was transformed into a low risk by the prospect of CSL. The trial judge made clear that he was making no such finding. Rather, he credited the defense experts' opinions that J.C. did not present a high risk to reoffend, and viewed CSL as simply an additional mitigating factor that would help him avoid offending after his release.
In E.D., we indicated that "the right to conditionally discharge a person who has been committed under the SVPA is an inherent power of the court." E.D., supra, 353 N.J. Super. at 453. However, since J.C. has not cross-appealed from the conditions set forth in the September 18, 2009 order, and the State has not suggested that they should not be enforced if J.C. is released, we need not further address the court's authority to include the conditions in the order.*fn4
We affirm the order entered on September 18, 2009, requiring J.C.'s release because the State did not prove its case in support of civil commitment, and we affirm the November 10, 2009 order denying the State's motion for reconsideration. The order we entered on November 20, 2009 staying J.C.'s release is hereby vacated effective twenty-five days after the date of this opinion. The stay is continued for that brief period to provide time to prepare for J.C.'s release into the community.