December 19, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF F.Z.S. SVP-393-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-393-05.
Michael Denny, Assistant Deputy Public Defender, argued the cause for appellant F.Z.S. (Joseph E. Krakora, Public Defender, attorney).
Daniel Kelly, 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.Z.S. appeals from a May 6, 2013 order of the Law Division continuing his involuntary commitment to the New Jersey Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
F.Z.S. was born in 1949 and is currently sixty-four years old. He 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. On October 22, 1984, he pled guilty to 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.Z.S. pled guilty to the predicate offense, 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. According to the victim, who had been diagnosed with genital herpes and had been hospitalized with suicidal ideation in December 1998, F.Z.S., a family friend with whom she had been living at the time, sexually abused her on several occasions in his home by touching her with his penis and vaginally penetrating her, and then threated to kill her if she told anyone about these incidents.
On April 7, 2005, the Law Division entered an order temporarily committing F.Z.S. to the STU, and on August 23, 2005, following a full hearing, the court entered a judgment declaring F.Z.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 On appeal, we affirmed the court's decision in an unpublished opinion.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., A-0625-05 (App. Div. Dec. 15, 2006). Since the initial order, F.Z.S.'s commitment has been continually ordered. See In re the Civil Commitment of F.Z.S., A-4611-06 (App. Div. Jan. 14, 2008); In re the Civil Commitment of F.Z.S., A-6207-07 (App. Div. Jan. 9, 2009); In re the Civil Commitment of F.Z.S., A-3325-11 (App. Div. June 11, 2012).
The most recent review, which is the subject of this appeal, was conducted on May 6, 2013, at which time the State presented the expert testimony of Dr. Indra Cidambi, a psychiatrist, and Dr. Debra Roquet, a psychologist and a member of the Treatment Progress Review Committee (TPRC) that conducted the most recent evaluation of F.Z.S, and the author of its report dated December 8, 2012. F.Z.S. offered no conflicting evidence.
Dr. Cidambi did not have an opportunity to meet with F.Z.S., as he declined to be interviewed. Therefore, she based her evaluation of F.Z.S. on conversations with his treatment team, a review of his STU chart and records, and past evaluations. Dr. Cidambi noted that F.Z.S. did not admit to the offenses; he only admitted to having sex with his fifteen-year-old step-daughter, claiming that he mistook her for his wife in a drunken stupor.
In this regard, Dr. Cidambi pointed specifically to F.Z.S.'s extensive substance abuse history, noting that he had been drinking since age sixteen, and that this behavior escalated in 1968. F.Z.S. had been diagnosed with delirium tremens due to alcohol withdrawal when he was first incarcerated, and despite his condition, he had received no substance abuse treatment. Moreover, F.Z.S. had an extensive trauma history, beginning with physical abuse from his father. F.Z.S. also had a younger brother who was hit by a bus and killed while F.Z.S. was babysitting him. Dr. Cidambi further pointed to F.Z.S.'s three marriages, two of which ended in divorce and the third, in estrangement.
Dr. Cidambi diagnosed F.Z.S. with pedophilia, paraphilia NOS, alcohol dependence and personality disorder NOS with antisocial features. According to Dr. Cidambi, the combination of personality disorder and sexual pathologies increases the risk of reoffending. Furthermore, the alcohol dependence added to the risk of reoffense and increased "impulsivity, so the risk remains higher." Significantly, these conditions do not spontaneously remit.
Indeed, without treatment, F.Z.S. is not able to mitigate the risk factor and F.Z.S.'s treatment so far had been insufficient to mitigate the risk. According to Dr. Cidambi, F.Z.S. "doesn't seem to understand that he needs treatment."
Dr. Cidambi further explained that F.Z.S. had "done poorly" in his treatment in STU, having refused treatment from 2005 until June 2012, and then only sporadically taking part. Moreover, at the time of hearing, F.Z.S. was currently on "treatment refusal status." Although he had at one point advanced to Phase Two, he had been returned to Phase One. He had completed only the drug and alcohol education B, trauma group, relapse prevention I, emotional awareness, and anger management II modules. On the other hand, he had not done substantial work on any other module, and was not currently participating in treatment. Dr. Cidambi concluded that F.Z.S. was highly likely to reoffend if his commitment was not continued.
In accord, Dr. Roquet testified that F.Z.S. was not currently assigned to any process groups because he was on treatment refusal status. Treatment team records indicated that F.Z.S. had participated only sporadically in treatment. He was alternately "not participatory" and "excitable or easily frustrated or angered when challenged at all." F.Z.S. was on treatment refusal status until May 2012, then participated in a regular process group during which he took a "couple of floors." He discussed his prior treatment refusal status and his offense history in that group. However, this offense history was consistent with his version of events, in which he only had sexual contact with his step-daughter one time, when she was fifteen, because he mistook her for her mother. According to Dr. Roquet, F.Z.S. "did not take any responsibility for his treatment refusal status." Instead, he "tended to present as a victim of the system, as a victim of other people, as someone who has been wrongly treated." F.Z.S. returned to treatment refusal status in October 2012 due to problems with his group participation.
During the TPRC panel's forty-minute interview of F.Z.S., Dr. Roquet noted that his demeanor was unusual, he was "overtly and deliberately kind of leaning towards [her] and staring at [her] and kind of grinning." He expressed a number of complaints about the staff at STU, and said that he was going to die there. He also told the panel that going to treatment was a "big mistake." When asked whether his sexual offenses had anything to do with his civil commitment, he replied angrily, "I would need a lawyer to talk to you about that, and not yours."
Dr. Roquet diagnosed F.Z.S. with pedophilia, alcohol dependence and personality disorder NOS with antisocial and paranoid features. She characterized him as "intimidating[, ] violent, aggressive individual who frightened . . . his victims and directly threatened each of his victims[, ]" further noting that in an earlier interview in 1999, he had indicated that his step-daughter had initiated sexual contact with him. Indeed, it was "very remarkable . . . the extent at that time [to] which he deflected responsibility for his conduct onto the victim." Moreover, Dr. Roquet found that F.Z.S.'s failure to participate in treatment made it difficult for the panel to know the "current strength of the paraphilia" since he refused to discuss his offenses. Accordingly, the TPRC recommended that F.Z.S. complete Phase One of treatment and "would like to see him engage in treatment."
At the close of evidence, Judge Mulvihill concluded that F.Z.S.'s commitment should continue. Acknowledging that F.Z.S.'s "actuarial risk is low to moderate" for reoffending, the judge expressed "if he actually sustained meaningful engagement in treatment, he could move towards conditional discharge in a short period of time ... but he'd have to demonstrate compliance with treatment, engage in sex offender specific treatment, [and] acknowledge, address and modify [his] angry anti-system and anti-authority stance." In ordering F.Z.S.'s continued commitment, Judge Mulvihill reasoned:
Even with his medical conditions and his age, he basically has had no meaningful treatment effect and [there is] clear and convincing evidence that he's been convicted of sexual violent offenses, clear and convincing evidence that he continues to suffer from a mental abnormality or personality, that is, pedophilia, attracted to females, and a personality disorder [and] [c]lear and convincing evidence that presently he's highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment.
This appeal follows.
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 Mulvihill in his oral opinion of May 6, 2013. Affirmed.