June 11, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF F.S., SVP-393-05.
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-393-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2012
Before Judges Lihotz and St. John.
Appellant F.S. is civilly committed to the Special Treatment Unit (STU) at the Adult Diagnostic Treatment Center, which is a custodial facility designated for the treatment of persons in need of commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from a February 8, 2012 order compelling the continuation of his involuntary civil commitment after his annual review required by N.J.S.A. 30:4-27.35. Following our review of the record and applicable law, we affirm.
F.S. was first convicted of a sexually violent offense in 1984 based on evidence that he had engaged in multiple sexual acts with his stepdaughter, D.S., when she was between four and fifteen years of age. He was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), for which he was sentenced to a seven-year State prison term. On January 27, 2005, F.S. pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), stemming from sexual acts perpetrated against a nine-year-old girl in 1997, for which he was sentenced to a five-year State prison term.
On April 7, 2005, the Law Division entered an order temporarily committing F.S. to the STU, and on August 23, 2005, following a full hearing, the court entered a judgment declaring F.S. a sexually violent predator in need of involuntary commitment. On appeal, we affirmed the court's decision in an unpublished opinion. In re the Civil Commitment of F.Z.S., No. A-0625-05 (App. Div. Dec. 15, 2006). Since the initial order, F.S.'s commitment has been continually ordered. See In re the Civil Commitment of F.Z.S., Docket No. A-4611-06 (App. Div. Jan. 14, 2008); In re the Civil Commitment of F.Z.S., No. A-6207-07 (App. Div. Jan. 9, 2009).
F.S. now appeals the most recent commitment order filed on February 8, 2012. During the hearing, the State presented expert testimony of psychiatrist Dr. Pogos Voskanian. Because F.S. refused to attend his psychiatric evaluation on January 19, 2012, Dr. Voskanian prepared his evaluation based on collateral sources of information identified in his report dated January 23, 2012, which included a prior interview with F.S. conducted in September 2010.
Dr. Voskanian's diagnosis of F.S. includes pedophilia (sexually attracted to females), personality disorder NOS, and alcohol dependence. Dr. Voskanian explained that the combination of pedophilia and personality disorder NOS increases the risk of F.S. sexually reoffending because he possesses no empathy. Dr. Voskanian stated that one "can see this fluctuated degree of anger and the verbal aggression, impulsivity, which still persists." In combination with pedophilia and personality disorder, alcohol use further increases F.S.'s risk of sexually reoffending.
Dr. Voskanian testified that pedophilia does not remit spontaneously, however, through treatment one can learn to control impulses caused by the disorder. F.S. is currently on Phase One treatment refusal at the STU. Dr. Voskanian also stated that, since he interviewed F.S., the current treatment information related to his progress reflects F.S. "did not make any attempt to engage [in] treatment, and would not take any responsibility for his offenses."
During the September 2010 interview, Dr. Voskanian asked F.S. to discuss his sexual offending history. F.S. admitted that there was once sexual contact with D.S. but that he was intoxicated and "she looked identical to [his] wife." With respect to the nine-year-old, F.S. said he did not willingly engage in sexual contact with her, alleging she entered his bedroom and straddled him. From his review, Dr. Voskanian concluded F.S "remains highly impulsive, a highly labile individual, and at high risk to sexually reoffend."
F.S. took the stand on his own behalf. He confirmed that he once had sexual relations with D.S. when she was fifteen but that he was intoxicated and mistook D.S. for his wife. F.S. denied that anything sexual happened with the nine-year-old and said he was trying to get the charges dismissed.
At the close of the hearing, the court found "by clear and convincing evidence, that [F.S.] is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment." The judge noted F.S. suffers from pedophilia, which does not mitigate on its own. He further noted F.S. has refused to engage in treatment and is currently on treatment refusal status. As a result, F.S. "has not demonstrated any command over his sexual assault cycle, because he refuses to engage in treatment or admit that the offenses ever occurred."
A person who has committed a sexually violent offense may be confined pursuant to the SPVA if he "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26(b). In order to establish commitment, the individual must pose "a threat to the health and safety of others" because it is likely he will engage in sexually violent acts. In re Commitment of W.Z., 173 N.J. 109, 132 (2002).
An order of continued commitment under the SVPA, like an initial order of 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 reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).
Annual Reviews are required to determine whether the person committed will be released or that there is a continued need for involuntary commitment. N.J.S.A. 30:4-27.35. Release is warranted "when a court is convinced that [he] . . . will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [the] plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130.
In reviewing a trial court's decision in a commitment proceeding, appellate review is "extremely narrow[,]" and "should be accorded the 'utmost deference.'" In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). The trial court's determination will be subject to modification "only where the record reveals a clear abuse of discretion." In re Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, __ U.S. __, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). A reviewing court must "canvas the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. See State v. Locurto, 157 N.J. 463, 470--71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). F.S. has not demonstrated any progress in his treatment, as he refuses to engage in treatment and denies fault for the underlying sexual acts. He continues to suffer from a mental abnormality, pedophilia, and a personality disorder such that he remains a serious danger to society and is highly likely to reoffend. We therefore affirm substantially for the reasons stated by Judge Pursel in his oral opinion of February 8, 2012.
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