### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2374- 21
IN THE MATTER OF THE CIVIL COMMITMENT OF R.H., SVP- 487

- 08.

________________________

Submitted April 23, 2024

– Decided May 9, 202 4 Before Judges Enright, Paganelli and Whipple

. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. SVP- 487 -08. Jennifer Nicole Sellitti, Public Defender, attorney for appellant R.H. (Carol L. Widemon, Designated Counsel, on the brief). Matthew J. Platkin, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen J. Slocum, Deputy Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2374

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R.H. appeals from a February 2022 order continuing his civil commitment
in the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. 1 We affirm.
We glean the relevant facts and procedural history from the record. In 1998, R.H. ple ad ed guilty to the sexual assault of an eight-year- old male and was sentenced to seven years in prison. While inca rcerated, R.H. ple ad ed guilty

to aggravated sexual assault and criminal sexual cont act with another male child

. The second guilty plea encompassed pre-incarceratio n activity with a child between the ages of twelve and fifteen years old th at lasted "over a protracted period of time." On the second plea, R.H. was sent enced to fourteen years in prison. After serving his sentences, R.H. was admitted to t he STU in April 2008, and civilly committed in July 2009. R.H. was disch arged in August 2016 after his treatment team determined his risk of reoffendi ng "would be sufficiently mitigated with an appropriate discharge plan."

1 We use initials to refer to R.H. because records pe rtaining to civil commitment proceedings under the SVPA are deemed confidential under N.J.S.A. 30:4- 27.27(c) and are excluded from public access pursua nt to Rule 1:38 -3(f)(2).3 A- 2374

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However, within five months of R.H.'s discharge, his parole officer received information from the Linden Police Departm ent that R.H. might have been using a Facebook profile

— under the alias "BO"

— to contact women he knew in his childhood

. The women reported this activity to the police and provided screenshots of the Facebook messages. The messages consisted of BO attempting to arrange a playdate between the women' s children and BO's alleged "nephew." Upon further investigation, R.H. admitte d to maintaining the Facebook account; using the alias BO; and messaging the women to set up playdates with their children. A search of R.H.'s phone revealed: (1) he visited pornographic websites; (2) "links on his browser hi story were titled 'rape,' 'boy sexually abused,' and 'meet young boys'"; and (3) h e "frequented the casual sex classifieds on [C]raigslist." R.H.'s activities vi olat ed the conditions of his discharge, and he was returned to the STU in 2017. R.H. filed an application for release from the term of civil commitment. In February 2022, the judge conducted a one-day hea ring. During the hearing, the judge admitted experts' reports and their curri culum vitae into evidence. She also heard testimony from the State's witnesses Rog er Harris, M.D., an expert in the field of forensic psychiatry; and Christine Zavalis, Psy.D., an expert in the field of forensic psychology. Dr. Zavalis was a member of R.H.'s treatment4 A- 2374

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team. 2 The judge also heard testimony from R.H. and Christ opher Lorah, Ph.D. , R.H.'s expert in the field of forensic psychology. Dr. Harris opined R.H. "insufficiently progressed i n treatment to succeed on release." He stated R.H.'s "overall pattern of sexual offending was significant." He also noted R.H.'s "inability to c ontrol his sexual arousal and denial of his offenses." The doctor indicated: just prior to [R.H.'s] August 2016 discharge from t he STU, he was utilizing social media during his furlo ughs to engage in high-risk behavior and to reinforce hi s deviant sexual behavior, searching internet sites f or "rape", "boys sexually abused" and "meet young boys. " [R.H.] was viewing pornography involving rape and sexual abuse. He was also arranging for play dates with women and their minor children. He quickly demonstrated an inability to self-regulate his devi ant sexual behaviors. Dr. Harris testified R.H. was only addressing issue s that returned R.H. to the STU in 2017. The doctor noted R.H. scored a five on the Static-9 9R, 3

2 See N.J.S.A. 30:4- 27 -3(b).

3 "The Static-99R is an actuarial tool, designed to p redict the recidivism risk of sexual offenses in adult male sex offenders who hav e been convicted of at least one sexual offense." Commonwealth v. George, 477 Mass. 331 , 335 n.2 (Mass. 2017). The Static-99R is a revised version of the Static- 99. Ib id.; s ee also In re Civil Commitment of R.F. 217 N.J. 152, 164 n.9 (201 4) (quoting In re5 A- 2374

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indicating an above average risk to reoffend. In a ddition, Dr. Harris indicated R.H.'s dynamic and psychiatric factors increased hi s risk to reoffend. The judge deemed Dr. Harris's testimony "credible w ith no obvious interest in the outcome of the case." She noted his "demeanor was unremarkable, he was confident in his testimony, ul timate diagnosis, and recommendations." Dr. Zavalis noted R.H.'s "current engagement with t reatment at the ST U [wa]s superficial." She concluded he remained mani pulative and surrounded himself with chaos. The doctor also stated R.H. sco red a five on the Static- 99R , indicating an above average rate to reoffend. Dr. Zavalis noted, in the STU, R.H. had "more stability and behavioral controls in place." The doctor opined that: given the static and dynamic risk factors assessed and the level of treatment progress achieved, [R.H.] remain[ed] at high risk to sexually reoffend if not confined to a secure setting such as the STU. Althou gh he ha[d] remained a member of the therapeutic community and appear[ed] actively engaged in treatment, though superficially, the recommendation . . . [wa]s that he remain in Phase 3B [at the STU]. [R.H.] w[ould] be encouraged to demonstrate active

Commitment of R.S., 173 N.J. 134, 137 (2002)) (expl aining "that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfin ding under the SVPA.'").6 A- 2374

- 21 engagement in treatment by addressing the team's recommendations as outlined in his treatment plan. The judge found Dr. Zavalis "credible with no obvio us interest in the outcome of the case." She noted the doctor's "deme anor was unremarkable, she testified consistently with her report, she was con fident in her testimony, ultimate diagnosis, and recommendation." Dr. Lorah recommended "immediate discharge planning ." The doctor credited R.H. for "journal[ing], attend[ing] substa nce abuse groups, and [being] actively involved in his treatment." Further, the judge noted Dr. Lorah's finding that R.H. "scored a four (4) on the Static- 99R which place[d] him in the 'above average' risk category to reoffend." Dr. Lorah det ermined R.H. demonstrated: (1) "sexual preoccupation"; (2) "poor cognitive pro blem solving"; and (3) "antisocial traits" but "ha[d] not shown th[ese] be havior[s] since his return to the STU." Dr. Lorah opined R.H.'s "predisposing disorders d[i d] not currently impact his emotional, cognitive, and/or volitional capacit y to such a degree as to make him highly likely to sexually reoffend in the forese eable future." Therefore, Dr. Lorah concluded R.H. was "highly likely to comply w ith his conditional discharge planning." The conditions the doctor rec ommended included: (1) supervised and unsupervised furloughs; (2) group an d individual therapy; (3)7 A- 2374

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evaluation and monitoring of his relationships and reactions to life stressors by professionals; (4) "meet[ ing ] with supervising authorities regularly and other stipulations commonly mandated for released sex off enders"; (5) no contact with minors; (6) GPS monitoring, with authorities taking action if R.H. was "discovered near areas known for prostitution, alco hol, and drugs"; (7) official action "if he visit[ ed ] any high -risk places such as parks, schools, beaches, or other places where minors congregate "; (8) curfew; (9) restricted internet and phone use and "monitored to limit contact with porn ography and [] social media dating sites"; and ( 10 ) continued treatment in the community. Although the judge found Dr. Lorah "was confident in his testimony, ultimate diagnosis, and recommendations," she found his testimony to be "less credible" because of the doctor's "obvious interest in the outcome of the case,"
since he was a "hired expert." In addition, the judge note d Dr. Lorah was "defensive at times." The judge summarized R.H.'s testimony. She found h e testified: (1) the "opinions from his treatment team were authored by 'a social worker'"; (2) he gave one hundred percent in treatment and was not b eing superficial; and (3) his "treaters" took his return personally. Moreover, w hile noting R.H. stated he took full responsibility for his relapse, she determined his testimony "suggest[ed] the8 A- 2374

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opposite." She found R.H. "minimized his behaviors while on release, suggesting the reason he failed . . . was that he did not uti lize his support team, " and "appeared to blame his treatment team for his p resent circumstances." Ultimately, the judge determined R.H.'s testimony " did not add anything to th[e] hearing" and "detracted" from Dr. Lorah's testimony

. After assessing "the evidence submitted at the hear ing, including the testimony of the experts, . . . [the judge] f[ound] . . . the State ha[d] shown by clear and convincing evidence that [R.H.] ha[d] a h igh likelihood of reoffending if released from the secure control of the STU." The judge also found: the testimony of Dr. Zavalis most credible and compelling. [The doctor's] report suggest[ed] a thorough analysis was completed regarding [R.H.] 's past and current progress while remaining in the therapeutic community. [The doctor] admit[ted R.H. ] appear[ed] actively engaged in treatment, although he [wa]s encouraged to remain vigilant about the issue s he ha[d] acknowledged ha[d] impacted his ability to meaningfully benefit from treatment in the past. These include[ed] not being fully engaged, limited transparency, secret-keeping, manipulating, not applying what he ha[d] learned while at the STU, be ing overconfident, not being vulnerable, being attentio n seeking, and intentionally creating chaos. In addition, the judge concluded R.H.'s9 A- 2374

- 21 sexual history [was] quite significant as to the issues of his impulsivity and inability to control his emotio ns and actions. The index offenses, coupled with his devi ant sexual behavior while on release, unequivocally show[ ed ] th[e] court that [R.H. wa ]s unable to rationally control his emotions and behaviors when he [wa]s met with challenges which require[d] a utiliz ation of skills learned while at STU, including relapse prevention techniques. Ultimately, the judge determined R.H.'s current diagnosis, coupled with Antisocial Personal ity Disorder, cause[d her] to have significant concerns

. Additionally, [R.H.'s] deviant sexual behavior was cultivated during his prior furloughs in anticipati on of his last discharge. It [wa]s clear he [wa]s able t o contain his deviant behavior in a controlled settin g, however, the court [wa]s less convinced he ha [d] fully acquired the skill s necessary to control his behavior when not met with a controlled setting. Even Dr. L orah appear[ed] to recommend significant controls over [R.H. 's ] treatment and independence, despite opini ng that he [wa]s ready for discharge. The court f[oun d] that when [R.H.] was presented with a situation involving freedom from authority and accountability, he failed to successfully utilize the strategies ta ught at STU and reverted immediately to deviant sexual behavior. [R.H.] ha [d] yet to fully embrace all treatment modalities available to him, as set forth in Dr. Zavalis'[s] report, and could certainly benefit fro m continued relapse prevention. On appeal, R.H. contends the judge erred by : (1) failing to "focus on whether [ he ] was a present danger to the community" and, inste ad, used historic statements, behaviors, and reports; and failed to c onsider positive information10 A- 2374

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in Dr. Zavalis's testimony and report; and (2) omit ting from her analysis "the very low rates of recidiv ism for persons with R.H.'s Static-99R score." R.H. requests our de novo review, for entry of judgment, a nd an immediate discharge plan.
We begin our discussion with a review of the principles governing our analysis. "T he scope of appellate review of a commitment determ ination is extremely narrow." R.F., 217 N.J. at 174 ( quoting In re D.C. , 146 N.J. 31, 58 (1996)). " The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid.
In addition, "[w]e give deference to the findings of . . . judges because they have the 'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. ( quoting State v. Johnson , 42 N.J. 146, 161 (1964)). "Accordingly, [ we will] not modify a trial court's determination either to commit or release an individual unless the 'record reveals a clear mistake.'" Id. at 175 (quoting D.C., 146 N.J. at 58)

. "So long as the trial court's findings are supported by 'sufficient credible evidence present
in the record,' those findings should not be disturbed." Ibid. ( quoting Johnson , 42 N.J. at 162 ).11 A- 2374

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The SVPA permits the State to involuntarily commit a person, if by clear and convincing evidence, the State can

establish three elements: (1) that the individual has been convicted of a sexually violent offense, (2) t hat he suffers from a mental abnormality or personality disorder, and (3) that as a result of his psychiatr ic abnormality or disorder, "it is highly likely that the individual wi ll not control his or her sexually violent behavior and will reoffend." [ 4 ] [Id. at 173 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)) (internal citations omitted).]
S ee also N.J.S.A. 30:4-27.26. The SVPA "requires annual court review hearings on the need for continued involuntary commitment." W.Z., 173 N.J. at 133 ; see N.J.S.A. 30:4- 27.35. "Th[e] periodic reviews . . . allow adequat e opportunity to assess fresh information concerning the committee's dangerousnes s." Ibid. "[E]xpert witnesses in the fields of psychiatry and psychology routinely play leading roles in SVPA commitment hearings." In re Civil Commitment of D.Y., 218 N.J. 359, 382 (2014); s ee N.J.S.A. 30:4

- 27. 30(b). An expert can "rel[y] on prior evaluations, treatment records, [and] other appropriate

4 The parties have stipulated to elements (1) and ( 2).12 A- 2374

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documents" in reaching their opinion. In re Civil Commitment of A.Y., 458 N.J. Super. 147, 170-71 (App. Div. 2019).
The judge can consider "the testimony of experts and the risk assessment instruments on which they rely," as they constitute "pivotal proofs on the question [of] whether [an] individual is highly likely to offend again." Matter of P.D., 243 N.J. 553, 568 (2020). However, "[a] trial judge is 'not required to accept all or any part of [an] expert opinion[] .'" R.F., 217 N.J. at 174 (second and third alterations in original) (quoting D.C., 146 N.J. at 61) . "The ultimate determination is 'a legal one, not a medical one, even though it is guided by medical expert testimony.'" Ibid. (quoting D.C., 146 N.J. at 59 ). We apply these well-established principles to the m atter here, and affirm. Initially, we reject R.H.'s request for a de novo r eview. A de novo review would be inapposite to our deferential standard of review

. Moreover, R.H.'s contention the judge erred by cons idering historical, rather than fresh, information is misplaced for two reasons. First, experts rely on historical information to reach their opinions. See A.Y., 458 N.J. Super. at 17 0- 71 . As a corollary, a judge's reliance on an expert' s opinion would similarly include historic information. Second, the judge's conclusion was based on R.H.'s present condition. The judge noted she had "significant concerns" and13 A- 2374

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R.H. "ha[d] yet to fully embrace all treatment modalities available to him

. . . and could certainly benefit from continued relapse prevention." R.H.'s contention the judge failed to consider Dr. Zavalis's positive information is similarly misplaced. Fir st, the judge could accept or reject any part of an expert 's opinion. See R.F. , 217 N.J. at 1 74 . Second, the judge noted
the positives in Dr. Zavalis's statement that R.H. was actively, alb eit superficially, engaged in treatment and had "more s tability and behavioral controls in place" in the STU. Finally, while acknowledging a judge can "consider, weigh, or even reject" actuarial assessment information, R.H. none theless argu es the judge erred by "omit[ ting ] any consideration of " his Static-99R score in the context of certain "dynamic risk factors." R.H. further conte nds Dr. Lorah did a more thorough analysis. Th ese arguments have no merit. The judge could reject R.H.'s Static- 99R score and could accept or reject the expert's opin ion. I d. at 164, 174. Given this latitude, and our deference, we conclude there is no reason to question her analysis or her consideration of R.H.'s Static- 99R score or the experts' opinions.14 A- 2374

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To the extent we have not addressed any of R.H.'s remaining arguments, we conclude they lack sufficient merit to warrant discussion in a w ritten opinion. R. 2:11-3(e)(1)(E). Affirmed.