November 25, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF F.D., SVP-202-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 12, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-202-01.
Joan D. Van Pelt, argued the cause for appellant F.D. (Joseph E. Krakora, Public Defender, attorney; Ms. Van Pelt, Designated Counsel).
David L. DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).
Before Judges Parrillo and Kennedy.
F.D. appeals from the January 29, 2013 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
F.D. is fifty-seven years of age and has been civilly committed to the STU since October 2001. F.D. has a life-long history of alcohol and substance abuse, and admittedly used to trade drugs for sex. F.D. also has an extensive criminal history.
While the predicate offense for his civil commitment occurred in 1997, F.D.'s sexual offense history dates back to 1976 and contains six incidents, five of which resulted in convictions. We have previously set forth in detail, and will not repeat here, except for a summary of the predicate offense, F.D.'s past history of sexually violent conduct. In re Civil Commitment of F.D., No. A-5929-08 (App. Div. Feb. 1, 2010) (slip op. at 3-5).
In January 1997, F.D. was walking and conversing with a woman when he grabbed her by the neck, placed a gun to her side and told her to "keep quiet and keep walking." F.D. led her into an intersection, pointed a handgun at her and forced her to perform oral sex on him. He then forced her onto the ground behind a parked truck, vaginally raped her twice, and struck her on the head with the handgun.
On June 2, 1997, F.D. pled guilty to criminal sexual contact in the fourth degree and criminal restraint in the third degree. N.J.S.A. 2C:14-3b; N.J.S.A. 2C:13-2. He was sentenced to a flat three-year term.
In November 2000, F.D. plead guilty to fourth degree criminal sexual contact, N.J.S.A. 2C:14-3B, and fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)3. On February 2, 2001, he was sentenced to an eighteen-month term. The plea agreement resulted from a June 26, 2000, incident in which F.D. forced a woman to perform oral sex on him, hit the woman with a stick until she agreed to have sex with him, and then had intercourse with the woman.
Prior to F.D.'s release from incarceration, the State petitioned for his commitment to the STU under the SVPA. After a probable cause hearing, F.D. was temporarily committed to the STU in October 2001, and a final hearing was held on May 7, 2002. Since his initial commitment, F.D. has been recommitted to the STU during all annual review hearings.
The review hearing at issue took place on January 29, 2013. During this hearing, the court heard testimony from Dr. Michael Kunz, a psychiatrist, and Dr. Rosemarie Vala Stewart, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC). Dr. Michael Foley, a clinical and forensic psychologist, testified on F.D.'s behalf.
F.D. has been diagnosed with the following medical and psychological conditions: HIV, Hepatitis C, hypertension, hypercholesterolemia, paraphilia NOS, cocaine abuse, alcohol abuse, antisocial personality disorder, mild mental retardation and borderline intellectual functioning. F.D. also has a history of two traumatic brain injuries resulting from being hit by a car and hit by a baseball bat. X-rays show brain damage.
According to Dr. Kunz, because sex offender treatment is cognitive behavioral treatment, F.D.'s mild mental retardation makes it more difficult for him to learn and fully understand treatment concepts.
Dr. Kunz noted that the combination of anti-social personality disorder, a "condition where one has a consistent pattern of disregard for the rights of others, " and F.D.'s "sexual pathology of paraphilia, " which manifests as becoming sexually aroused not only by sex, but also by the violence perpetrated against his victims, results in an increased risk to re-offend because "there are two mechanism[s] by which one is driven toward sexually offending."
When asked to evaluate F.D.'s progress in treatment and risk of reoffending if released, Dr. Kunz stated that he did not believe that F.D. had received enough treatment to "adequately learn to control [his] impulses" to act on his disorders. Dr. Kunz testified that F.D. was at a high risk to reoffend unless he remained in the STU. Dr. Kunz evaluated F.D. at a score of seven on the Static-99R risk assessment, a high score which places him in a "group of offenders associated with high risk of sexual reoffending."
Prior to the January 29, 2013 review hearing, F.D. underwent a Sexual History Polygraph and a Current Arousal Polygraph. Before taking these polygraphs, F.D. admitted to additional unreported sexual offenses and victims on his sexual history questionnaire.
Both Dr. Kunz and Dr. Stewart noted the significance of F.D. reporting new victims after being in the STU for almost eleven years. Dr. Kunz testified that it was possible that F.D. was only just starting to "seriously address his  sexual offending history[, ]" indicating that F.D. was still in the "fairly early stages of treatment. "F.D.'s admission of additional victims after being in the STU for so long raised doubts for Dr. Stewart about F.D.'s "real understanding of what his deviant arousal is, " about how strong the arousal is and whether he is able to control it.
Dr. Stewart noted that F.D. is actively involved in treatment at the STU: he has attended and completed numerous modules, he is actively involved in several self-help and process groups, and he works in the medical ward with terminally ill residents.
However, despite F.D.'s extensive involvement in treatment, Dr. Stewart testified that the TPRC recommends that F.D. remain in Phase III of treatment at the STU. F.D. would need a very high level of control and treatment to effectively manage his risk if released, and it is the opinion of the treatment team that F.D. does not have "a good grasp of his arousal." Dr. Stewart's evaluation produced a Static-99R score of eight, putting F.D. in a very high risk category.
Dr. Stewart also opined that because F.D. lived outside the law for the majority of his life, as evidenced by his "repetitive disregard for the law, " F.D. "does not have a good basis of  preparation for living within the confines of a normal working, law abiding life . . . ." Furthermore, the treatment team "is not very clear on how [F.D.] would really deal with his arousal" if he were released.
Defense counsel called Dr. Foley who evaluated F.D. on December 4, 2012 and prepared a report based on that evaluation. Dr. Foley concurred with Dr. Kunz and Dr. Stewart's diagnoses of anti-social personality disorder and polysubstance dependence, but he did not agree with the paraphilia NOS non-consent diagnosis. Dr. Foley believed that F.D. has demonstrated that he is "likely to be amenable to a conditional discharge" from the STU, which should include a program addressing sexual education to address F.D.'s understanding of his HIV status.
Following the conclusion of testimony, Judge Pursel ordered F.D.'s continued commitment to the STU. Judge Pursel stated that he was giving deference to the treatment team at the STU because they have "a better grasp of [F.D.]'s" ongoing conduct at the STU, and they were "in a better position to analyze his strengths and weaknesses, and his risks than are some of the professional witnesses who appear."
Judge Pursel held that the State proved, by clear and convincing evidence, that F.D. is still "highly likely to engage in further acts of sexual violence if not confined in a secure facility." This appeal followed.
Pursuant to the SVPA, an involuntary civil commitment can follow service of a sentence, or other criminal disposition, 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior[, ]" and the State must establish "that it is highly likely that" the individual will reoffend "by clear and convincing evidence." Id. at 132-33 (emphasis added); 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).
Once an individual has been committed under the SVPA, a court must conduct 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 upon 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., supra, 173 N.J. at 126-32. "[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.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow[, ]" and the trial court's decision should 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) (citing 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 significant amount of expert testimony in the record and determine whether the lower 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 judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Pursel in his oral opinion of January 29, 2013.