October 18, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF C.F., SVP-446-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-446-06.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).
Before Judges Waugh and Accurso.
Appellant C.F. appeals the Law Division's November 13, 2012 order continuing his civil commitment as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
We set forth the following facts and procedural history in our 2009 opinion affirming C.F.'s initial commitment to the Special Treatment Unit (STU):
C.F. is currently a fifty-year-old manwith a history of sexually deviant behavior and pedophilic acts. His first documented incident occurred in 1989; it involved a fourteen-year-old boy whom C.F. picked up as the child was walking home from a friend's house. According to the victim, C.F. abducted him, took him to a remote location, and began fondling him. The boy managed to flee by striking C.F. with a pair of pliers.
C.F. was eventually apprehended, charged and indicted with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; second-degree sexual assault, N.J.S.A. 2C:14-2c; and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He pled guilty pursuant to a negotiated agreement to fourth-degree criminal sexual contact, N.J.S.A. 2C:24-3b, and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced in December 1989 to a one-year term of probation, conditioned upon reporting to his probation officer, performing 100 hours of community service and participating in outpatient counseling.
According to the Gloucester County Probation Department, C.F. violated the conditions of his probation less than two months after he was sentenced. In the violation of probation report filed with the court, his probation officer charged that C.F. did not: (1) report as directed; (2) attend the out-patient counseling program; (3) complete the 100 hours of community service; or (4) appear at a scheduled departmental hearing.
The second incident occurred in 1992; this victim was a ten-year old boy. According to the police report, C.F. rode up on his motorcycle and approached the victim as the child was walking home. He offered the boy $20 to watch him masturbate. C.F. was charged with third-degree prostitution, N.J.S.A. 2C:34-1b(7) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He pled guilty pursuant to a negotiated agreement to third-degree prostitution, N.J.S.A. 2C:34-1b(7) and was sentenced to a four-year term of imprisonment, to run concurrent to an undisclosed term for violating probation. C.F. was thirty-four years old at the time.
The third incident occurred in June 1998. The victim was a twelve-year-old boy who, according to police reports, C.F. lured into his apartment on the pretext of helping C.F. move some furniture. Once inside the apartment, C.F. fondled the child. The molestation quickly escalated to C.F. performing fellatio on the boy. The police investigation discovered another child victim who alleged that C.F. had given him beer and cigarettes and let him watch pornographic movies. This boy also claimed to have seen other boys of similar age in C.F.'s apartment.
The police eventually charged C.F. with one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2c; two counts of third-degree promoting prostitution, N.J.S.A. 2C:34-1b(7); five counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; two counts of second-degree photographing a child in a prohibited sexual act, N.J.S.A. 2C:24-4b(4); and one count of fourth-degree possession of photographs of a child in a prohibited sexual act, N.J.S.A. 2C:24-4b(5)(b). He pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1).
C.F. was examined at the Adult Diagnostic and Treatment Center (ADTC), and found to be a compulsive and repetitive sexual offender, thus falling within the purview of the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. In the 1999 report prepared for the sentencing court by one of the ADTC staff psychologists, C.F. admitted to experiencing "masturbation fantasies for young boys, despite his arrest and incarceration for the [then] present offense." The court sentenced C.F. to a term of ten years to be served at the ADTC.
As the end of his sentence approached, the ADTC treatment staff prepared psychiatric and psychological evaluations to determine C.F's eligibility for commitment under the SVPA. In a report dated September 1, 2006, Dr. Anna Rossi opined that C.F.'s prognosis was "poor" and he was at high risk to sexually reoffend and should therefore be referred to the Special Treatment Unit ("STU") at the completion of his sentence.
In this report, Dr. Rossi provided a comprehensive review of C.F.'s psychiatric and substance abuse history. The report noted that C.F. failed to adhere to institutional directives, incurring numerous disciplinary infractions while at the ADTC. Dr. Rossi diagnosed C.F. as suffering from "Paraphilia NOS, Sexually Attracted to Adolescent Males." According to generally accepted actuarial predictors, C.F. presented a high risk of reoffending. Other ADTC staff therapists concurred with Dr. Rossi's assessment that C.F. remained a serious threat if released.
Against this backdrop, on December 7, 2006, the State filed a petition for civil commitment under the SVPA. The petition was supported by two clinical certificates. By order dated December 15, 2006, the court found probable cause to detain C.F. at the STU pending further review.
[In re C.F., No. A-5326-09 (App. Div. May 4, 2009) (slip op. at 1-6).]
Following a plenary commitment hearing, the Law Division found "that the State had met its burden of proving, by clear and convincing evidence, that C.F. suffers from a mental condition that makes him highly likely to engage in sexually deviant behavior with young boys." We affirmed the resulting order of commitment. Id. at 8.
Once an individual has been committed under the SVPA, there must be an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains on the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in In re Commitment of W.Z., 173 N.J. 109, 131-32 (2002). "[A]n 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." Id. at 130.
C.F. was the subject of review hearings in October 2009, September 2011, and November 2012. Following each review hearing, the judge conducting the hearing determined that the State had met its burden of showing, by clear and convincing evidence, that C.F. was a sexually violent predator whose continued commitment was required under the statute. In this appeal, C.F. challenges the order entered following the review hearing held on November 13, 2012.
At that hearing, the State argued that C.F. requires continued treatment while confined at the STU. Although conceding that C.F. has made progress and was in phase-three treatment, the State's witnesses nevertheless concluded that he was not ready for discharge and is highly likely to reoffend at that time.
The notes of the mental health professionals introduced in evidence at the hearing reflect that C.F. still has trouble with victim empathy, needs further treatment regarding substance abuse problems, needs to repeat several treatment modules to reinforce what he has learned, has poorly developed relapse prevention skills, and continues to display a propensity for immediate gratification. The psychiatrist noted that C.F. continued to struggle with his deviant pedophilic arousal, including "pop up fantasies" involving young boys.
C.F.'s diagnoses by the State's psychiatrist and his treating psychologists include paraphilia (hebephilia), pedophilia, personality disorder with antisocial features, and substance abuse and dependence problems. Indra K. Cidambi, M.D., the State's psychiatrist, noted in her report that C.F. had admitted to ten victims between the ages of six and twelve, which she described as within the age range of pedophilia.
Both Cidambi and Hemisha Patel, Psy.O., who testified on behalf of C.F.'s treatment team, acknowledged his progress, but nevertheless opined that he needed further treatment while confined at the STU. Patel's report outlined the proposed treatment areas. Based on the Static-99 actuarial test used for assessing the recidivism rate of sexually violent predators, as well as their examination of C.F. and the records, the State's testifying psychiatrist and psychologist opined that, within a reasonable degree of certainty in their respective fields of expertise, C.F. presented a high risk of repeating sexual offenses if released from the structured environment of the STU.
At the hearing, the defense focused on the fact that C.F. passed a polygraph test that indicated he had not fantasized about deviant arousal or behavior within the prior six months. In addition, Timothy Foley, Ph.D., the defense psychologist, opined that the pedophilia diagnosis was incorrect because C.F. was attracted to adolescent boys, rather than prepubescent boys. He asserted that such an attraction is not a psychiatric disorder.
Foley also testified that C.F. only commits offenses when under the effects of alcohol and opined that C.F. had his problem with alcohol under sufficient control to warrant conditional discharge. In response to a question from C.F.'s attorney as to whether C.F. was "highly likely to commit an act of sexual violence in the foreseeable future, " Foley responded "[n]ot with a comprehensive conditional discharge plan."
The judge found the State's witnesses more convincing and accepted their diagnoses of C.F. as correct. He concluded, by the required standard of proof, that C.F. continued to need treatment at the STU and that he was not ready for discharge.
An involuntary civil commitment is appropriate 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(b).
[T]he State must prove [a] threat [to the health and safety of others because of the offender's likelihood of engaging in sexually violent acts] 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. [W.Z., supra, 173 N.J. at 132.]
The judge considering such a commitment must address the offender's "present serious difficulty with control over dangerous sexual behavior, " and the State must establish, by clear and convincing evidence, "that it is highly likely that" the offender will reoffend. Id. at 132-33; see also In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow, " and the trial judge's decision must be given the "'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)); see also In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the [trial] court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the trial judge's findings, which were made using the clear and convincing evidence standard, are amply supported by "sufficient credible evidence." State v. Locurto, 157 N.J. 463, 470-71 (1999) (citations and internal quotation marks omitted). Although there was clearly a difference of opinion between the experts for the State and C.F.'s expert, the judge found the former to be more credible. That conclusion is also amply supported by the record. We see no indication that the judge dismissed C.F.'s progress out of hand or that he failed to consider whether he was ready for a conditional discharge at that time. Once we conclude that there is sufficient support for the judge's decision in the record, our appellate function has been completed.