August 9, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF D.B., SVP-61-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-061-00.
Peter Latimer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Justin Conforti, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).
Before Judges Messano and Lihotz.
D.B. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (the SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the order of June 4, 2012, that continued his commitment after a hearing, and set April 17, 2013, as the date for his next annual review. He argues that the State failed to present sufficient evidence demonstrating he continues to "suffer from a mental abnormality or personality disorder that makes [him] 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. In particular, D.B. contends that after ten years of Phase Three treatment at the STU, it was appropriate to commence Phase Four therapy and prepare a furlough plan leading to D.B.'s discharge with appropriate conditions.
After due consideration of the record and applicable legal standards, we affirm, substantially for the reasons expressed by Judge Philip M. Freedman.
D.B. was initially committed by order of March 21, 2000. A series of orders have continued his commitment thereafter, two of which we affirmed on appeal. See In re Civil Commitment of D.X.B., No. A-2979-03 (App. Div. Dec. 17, 2004); In re Civil Commitment of D.X.B., No. A-6693-04 (App. Div. Mar. 2, 2006), certif. denied, 187 N.J. 79 (2006).
The hearing that resulted in the order under review occurred over two days in May 2012. Nicole Paolillo, a staff psychologist and member of the Treatment Progress Review Committee (TPRC) at the STU, testified. It was the TPRC's recommendation that D.B. remain in Phase Three treatment. Paolillo noted that D.B. had taken "multiple [deviant arousal] polygraphs" over his years of treatment, and, with one exception, "there was deception indicated in all of them." Paolillo testified that D.B.'s Static-99R test score was indicative of "a moderate to high risk category."
Doctor Alberto Mario Goldwaser, a psychiatrist, testified regarding the report of his interview of D.B. on April 4, 2012, and the conclusions he reached therein. Goldwaser "did not find any sign of psychiatric illness" in D.B., but he noted "[t]he most outstanding aspect" of "concern" was D.B.'s "evasiveness." He diagnosed D.B. with "Paraphilia NOS, " noting he experienced "recurrent and intense sexual urges, fantasies or behaviors involving sexual arousal to persons who[, ] by virtue of employed force are unable to consent or resist." Goldwaser further diagnosed D.B. with "exhibitionism" and "substance abuse, alcohol and marijuana."
Goldwaser also considered "sexual sadism" as a possible diagnosis, based upon D.B.'s statements that "he was aroused by fear, humiliation and pain. He had fantasies of producing a great deal of pain [in] women that he would rape." Goldwaser diagnosed D.B. with "personality disorder NOS with antisocial and narcissistic features." Goldwaser opined that D.B.'s substance abuse problems "would embolden [him], or give more permission, to do whatever he wants to do." D.B. was "predispose[d] . . . to sexual violence, " would have "serious difficulty controlling his sexual offending behavior, " and was "highly likely to reoffend."
D.B. called two witnesses from the STU, Ronald Gonzalez and Tashana Mitchell, to address entries in the treatment records regarding D.B. being placed on "treatment probation." During one of the treatment sessions with Gonzalez, D.B. acknowledged "stalking behavior" with respect to the victim of his last crime. He perceived that Gonzalez knew the victim personally, and, although Gonzalez denied knowing the victim or conveying that impression during the group session, there was some corroboration in the record that Gonzalez said he obtained certain information from the victim herself.
Mitchell indicated that D.B.'s attendance became sporadic, and that led to suspension of his treatment. The fair import of the testimony was that, while D.B. objected to continuing therapy with Gonzalez, he never refused to participate.
D.B. also called Christopher Lorah, a psychologist, as an expert witness. Lorah diagnosed D.B. with "Paraphilia Not Otherwise Specified, nonconsent, " a diagnosis Lorah acknowledged was "unusual." Lorah stated D.B. "suffers from a condition involving non-consensual sex, " but could not conclude he was a sadist. Lorah believed D.B. was "on a positive treatment trajectory" and "would be highly likely to comply with stipulations and conditions for conditional discharge."
In his comprehensive oral opinion, Judge Freedman referenced the November 2011 treatment note reflecting Gonzalez's statement that he had received information about D.B.'s stalking behavior "from the victim herself." The judge noted that references to D.B. being placed on "treatment probation for excessive absences" were unjustified. On the entire issue, the judge concluded that, although he was not going to consider D.B. for "conditional discharge" "at this point, " he was going to "call [D.B.] into court and determine whether he wishes to go back to the [Therapeutic Community (TC)] at this time[, ] [a]nd if he does, it's going to be . . . [in] my order . . . that he be restored to the TC." Alternatively, Judge Freedman indicated that if D.B. wished to return to Gonzalez's group, he would so order his return.
The judge then thoroughly reviewed the testimony of the other witnesses. Crediting the State's experts, and finding that "the testimony of . . . [Lorah] [was] not much different, " Judge Freedman found it was essentially "conceded" that D.B. "has a deviant arousal to coercive sex and . . . admitted that stalking is part of his cycle." The judge found by "clear and convincing evidence" that D.B. "suffers from a mental abnormality in the form of a paraphilia and a personality disorder, that . . . clearly predisposes him to engage in acts of sexual violence." Judge Freedman further found that "the conditions . . . he suffers from, particularly in combination, create a high risk" of re-offense. He ordered D.B.'s continued commitment and this appeal followed.
We briefly set forth the standards that guide our review.
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.
[In re Commitment of W.Z., 173 N.J. 109, 132 (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). The trial "judge'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., 339 N.J.Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)), or a "lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J.Super. 218, 225 (App. Div. 2007) (citation omitted). "Moreover, the committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference." Id . at 226 (citation omitted).
Here, the judge accepted the expert opinions offered by Goldwaser and Paolillo, and noted that Lorah's opinion regarding D.B. was essentially the same, differing only as "a matter of degree." In other words, even Lorah conceded that D.B. continued to experience deviant arousal from coercive sexual fantasies and had acted out on these fantasies in the past.
Regarding D.B. alternative argument, conditional discharge is predicated upon the court finding that "the person will not be likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community so as to render involuntary commitment as a sexually violent predator unnecessary." N.J.S.A. 30:4-27.32c(1). "If the difficult commitment burden is satisfied, release should follow only 'when a court is convinced that [the committee] 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.'" T.J.N., supra, 390 N.J.Super. at 226 (quoting W.Z., supra, 173 N.J. at 130).
Although the record does not reflect whether Judge Freedman had further contact with D.B. regarding his preferred future treatment modality, we assume that the experts at the STU carried forth as required. In any event, we find no basis to reverse the order continuing D.B.'s confinement and treatment since Judge Freedman's findings are supported by sufficient evidence, Rule 2:11-3(e)(1)(A), and the order did not result from a mistaken exercise of judicial discretion.