June 14, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF M.C. SVP-161-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-161-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2012
Before Judges Lihotz and St. John.
Appellant M.C. appeals from the December 14, 2011 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. M.C. argues the State failed to prove he is highly likely to reoffend, and suggests the record does not support the finding that he currently suffers from a mental abnormality or personality disorder, which makes him likely to engage in acts of sexual violence if not confined. We disagree and affirm.
These facts were presented by the State during the commitment review hearing. The evidence was uncontroverted.
On January 7, 1998, while on probation for a delinquency adjudication for the sexual assault, N.J.S.A. 2C:14-2, of a six-year-old girl, M.C. was arrested and later convicted of second degree sexual assault, ibid., against a six-year-old boy. M.C. was sentenced to five years imprisonment. On November 9, 1998, the judgment of conviction was amended to add community supervision for life.
On March 28, 2001, prior to the expiration of his criminal sentence, the State moved for M.C.'s civil confinement as a sexually violent predator. The judge accepted M.C.'s stipulation to commitment and ordered M.C.'s confinement at the STU. Thereafter, M.C. stipulated to his commitment on September 25, 2001, March 22, 2002, December 16, 2002, June 28, 2005, September 22, 2006, and September 19, 2008, which resulted in the court's continued commitment.
A September 10, 2009 consent order provided the STU would prepare a comprehensive transition and discharge plan and allow M.C. limited furloughs. Treatment setbacks prevented the preparation of the discharge plan.
Following a December 6, 2011 review hearing, Judge Philip
M. Freedman considered the testimony of the State's expert witnesses and reviewed the submitted documentary evidence, finding the State proved by clear and convincing evidence that M.C. suffers from a mental abnormality and a personality disorder, which predisposes him to engage in acts of sexual violence. Specifically, M.C. has serious impulsivity issues and a lack of adequate relapse prevention techniques, causing him serious difficulty in controlling his sexual urges, such that in the reasonable foreseeable future he would be highly likely to reoffend and engage in acts of sexual violence if released. On December 14, 2011, the judge issued a judgment continuing M.C.'s involuntary civil commitment to the STU. M.C. appealed.
An involuntary civil commitment may follow service of a criminal sentence, 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. "An inability to control one's sexually violent behavior is the very essence of the SVPA." In re Commitment of W.Z., 173 N.J. 109, 129 (2002). The State bears the burden of proving such a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts exists, "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." Id. at 132. The court must address the offender's "present serious difficulty with control[,]" id. at 128 (internal quotation marks omitted), and must establish by clear and convincing evidence that it is highly likely that the committee will reoffend. See id. at 132-34. Accord In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). "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 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)), cert. denied, __ U.S. __ , 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
Our review of a trial court's findings regarding a civil commitment under the SVPA 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). We modify a judgment of commitment "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).
Following our review, we reject M.C.'s challenge to the sufficiency of the State's proofs. We determine the record fully supports the findings of fact underpinning Judge Freedman's conclusion that continued commitment is required.
M.C. does not dispute his diagnoses for pedophilia, both prepubescent males and females, attention deficit hyperactivity disorder (ADHD), and a personality disorder, NOS. He also does not challenge he committed a requisite predicate offense, N.J.S.A. 30:4-27.26. Rather, M.C. challenges the trial court's finding that the evidence clearly and convincingly demonstrated his inability to adequately control sexually harmful conduct, maintaining he is not highly likely to reoffend. M.C. seeks a conditional discharge from the STU.
Maryanne DeSantis, M.D., a psychiatrist working at the STU, examined M.C. prior to the hearing. She based her opinion not only on the results of that interview, but also upon her review of M.C.'s records, progress notes, and the STU Treatment Progress Review Committee (TPRC) report. Dr. DeSantis explained pedophilia is "a chronic condition[,]" which "will not go away" but is "treatable[.]" During his interview with Dr. DeSantis, M.C. admitted his attraction to prepubescent children. A June 2010 progress note recorded M.C.'s statement of his strong arousal to children and how he felt more powerful around them. Although M.C. can describe his offending cycle and use aversion scripts appropriately, he cannot relate them to his own behavior. Dr. DeSantis stated this partially results from M.C.'s ADHD, which causes impulsivity so "there's less thinking about consequences[,]" which in her opinion, made him more likely to reoffend.
Dr. DeSantis detailed this connection. She noted in the past year, M.C.'s hyperactivity and poor judgment caused him to spend six months in Modified Activity Placement (MAP). The circumstances surrounding this modified placement included telephoning the young sons of a woman M.C. met, "maybe on a computer" using Facebook and, despite being redirected, attempting to obtain a telephone number of a construction worker whom he saw working at the STU and "impulsively . . . return to stalking the worker whenever he felt he was not being observed by staff." M.C. was demoted from Phase IV to Phase III because of this and other deviant oppositional behavior. Over the past two years, M.C. had demonstrated an inability to control his impulsive desires, which Dr. DeSantis opined would cause M.C. great difficulty "adjusting to life outside of an institution[.]"
Further, she noted M.C. evinced "traits of narcissism" as he "enjoys being the center of attention." This need, described as desiring "what you want when you want it and where you want it," caused serious difficulty and impeded M.C. from controlling urges and containing his sexually offending behavior. She noted M.C. also had difficulty with social cues, and showed "difficulty in normal interactions" with adults; he makes inappropriate comments and acts without thinking. Dr. DeSantis concluded M.C. was "highly likely" to reoffend in the foreseeable future if discharged.
On cross-examination, Dr. DeSantis admitted there was no current information on whether M.C. could control his deviant arousal. However, a polygraph taken two years ago showed signs of deception.
Paul Dudek, Ph.D., a member of the TPRC, submitted a report relating M.C.'s evaluation after consideration of a clinical interview, six-month summaries from treatment providers, group and module notes, and module completion certifications. He stated, over the past year, M.C. had been "quite inconsistent in terms of his overall participation. There's been some period of being productive[ and] a number of instances where he's been quite disruptive to the group process." These problems included talking out of turn, making "a number of inappropriate comments in group that are often sexualized in nature" reflecting sexual preoccupation, intentionally being "provocative in the group setting[,]" verbally lashing out when he receives perceived negative feedback, making sexualized comments to the facilitators, and insulting peers. Although M.C. completed an anger management module, he admitted he was unlikely to apply what he learned because he was "not ready" and enjoyed being "provocative and manipulative." This untoward behavior resulted in his group requesting M.C. be ejected. Finally, Dr. Dudek stated M.C. rather enjoys the attention so the negative consequences of his impulsive and sexually provocative behavior were unlikely to initiate a modification in that behavior. He was discharged from the therapeutic community and the TPRC recommended M.C. return to Phase III.
Finally, M.C. had difficulty with discharge planning. His parents, who would have been a positive influence upon him, had at one point reconsidered their participation and assistance were he discharged. Later, they suggested they would move to help M.C.'s fresh start, a circumstance M.C. rejected. Overall, Dr. Dudek stated M.C. needs to develop strategies to manage his impulsivity, complete modules on relapse prevention and arousal reconditioning, and concentrate on developing problem solving skills.
Judge Freedman credited the State's experts, particularly Dr. Dudek, that M.C.'s mental abnormalities affect him "emotionally, cognitively[,] and volitionally, as does his ADHD" such that "if released he would have serious difficulty controlling his sexually violent behavior and that within the reasonably foreseeable future he would be highly likely to engage in acts of sexual violence because of the lack of adequate control over himself[ and] adequate relapse prevention techniques[.]"
Although M.C. has made great strides toward rehabilitation, which he is encouraged to continue, the record fully supports Judge Freedman's finding that he is not eligible for conditional discharge because he poses a present high risk of reoffense unless confined to a secure facility where he is provided treatment. We, therefore, affirm the December 14, 2011 order continuing M.C.'s involuntary civil commitment to the STU.
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