IN THE MATTER OF THE CIVIL COMMITMENT OF F.Z.S. (SVP-393-05, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0336-18T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF F.Z.S.,
SVP-393-05.
___________________________
Argued September 25, 2019 – Decided October 31, 2019
Before Judges Koblitz and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-393-
05.
Susan Remis Silver, Assistant Deputy Public
Defender, argued the cause for appellant F.Z.S.
(Joseph E. Krakora, Public Defender, attorney; Susan
Remis Silver, on the briefs).
Stephen J. Slocum, Deputy Attorney General, argued
the cause for respondent State of New Jersey (Gurbir
S. Grewel, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Stephen J. Slocum, on the brief).
PER CURIAM
F.Z.S., born February 1949, appeals from the September 5, 2018 Law
Division order continuing his civil commitment to the Special Treatment Unit
(STU), the secure facility designated for the custody, care, and treatment of
sexually violent predators committed pursuant to the Sexually Violent Predator
Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
An involuntary civil commitment can follow service of a sentence, or
other criminal disposition, for "a sexually violent offense," including sexual
assault, 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. See also N.J.S.A. 30:4-27.25. Annual review hearings to determine
whether the person remains in need of commitment, despite treatment, are
required. N.J.S.A. 30:4-27.35.
Following his incarceration for a sexually violent offense, F.Z.S. was
civilly committed in 2005 to the STU pursuant to the SVPA. Since that time,
F.Z.S.'s commitment has been reexamined at annual review hearings. In each
instance, the trial court has determined that F.Z.S. continues to meet the SVPA's
criteria for civil commitment and, on appeal, we have affirmed that
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determination.1 This is F.Z.S.'s seventh appeal of his commitment following a
review hearing conducted on May 29, 2018.
We need not recount at length F.Z.S.'s past history of sexually violent
conduct and aberrational sexual behavior. We incorporate the facts and
procedural history set forth in our six prior unpublished decisions, which have
conclusively established as the law of the case that F.Z.S. committed the
predicate sexually violent offense required under the SVPA. See State v.
Reldan, 100 N.J. 187, 203 (1985) (reciting elements of the law of the case
doctrine). Briefly, F.Z.S. was first convicted of a sexually violent offense based
on evidence that he sexually assaulted his step-daughter from 1973 to 1984 by
engaging in multiple sexual acts, including fondling and sexual intercourse,
while she was between four and fifteen years of age. When F.Z.S.'s then wife
and mother of the victim eventually discovered F.Z.S. naked in her daughter's
bedroom, F.Z.S. threatened the victim and her mother with a gun if they reported
1
In re the Civil Commitment of F.Z.S., No. A-0625-05 (App. Div. Dec. 15,
2006); In re the Civil Commitment of F.Z.S., No. A-4611-06 (App. Div. Jan. 14,
2008); In re the Civil Commitment of F.Z.S., No. A-6207-07 (App. Div. Jan. 9,
2009); In re the Civil Commitment of F.S., No. A-3325-11 (App. Div. June 11,
2012); In re the Civil Commitment of F.Z.S., No. A-5009-12 (App. Div. Dec.
19, 2013); In re Civil Commitment of F.S., No. A-0912-15 (App. Div. July 19,
2016).
A-0336-18T5
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him. F.Z.S. ultimately pled guilty in 1984 to second-degree sexual assault of
his step-daughter and was sentenced to a seven-year State prison term.
F.Z.S.'s second conviction for a sexually violent offense was based on
evidence that he sexually assaulted an underage family friend, with whose
family he had been living from 1992 to 1996, by engaging in multiple sex acts,
including digital and penile penetration, when the victim was between six and
nine years old. F.Z.S. threatened to kill the victim if she told anyone. The
molestation was discovered when the victim was diagnosed with genital herpes
and hospitalized for suicidal ideation. Following a 2002 jury trial on the related
charges, F.Z.S. was convicted of first-degree aggravated sexual assault, second-
degree sexual assault, fourth-degree child endangerment, and fourth-degree
child neglect. He was sentenced to eighteen years of imprisonment, with a nine-
year parole disqualifier. In 2004, F.Z.S.'s convictions were overturned on
appeal, resulting in his guilty plea in 2005 to second-degree child endangerment
for which he received a five-year State prison sentence.
Additionally, F.Z.S. was charged with attempted rape in 1975, but the
charge was later downgraded to simple assault. Ultimately, F.Z.S. pled guilty
to soliciting prostitution and received a suspended sentence, claiming that the
charge arose over a monetary dispute with a prostitute. Also, F.Z.S.'s non-sexual
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offending history included a 1977 conviction for resisting an officer, for which
he received a suspended sentence, and a 1996 conviction for harassment,
downgraded from terroristic threats.
At the review hearing, which is the subject of this appeal, the State
presented two expert witnesses, Dr. Marta Scott, a psychiatrist who conducted a
forensic evaluation, including an interview of F.Z.S. on January 30, 2018, and
Dr. Zachary Yeoman, a psychologist and member of the Treatment Progress
Review Committee (TPRC) 2 that conducted F.Z.S.'s annual review on April 3,
2018. Relying on their evaluations and review of the type of information relied
upon by others in their scientific community, both State experts testified in favor
of continued commitment. F.Z.S. presented the testimony of Dr. Timothy Foley,
a psychologist. After conducting an evaluation, which included interviewing
F.Z.S. on September 27, 2017, Foley recommended that F.Z.S. be released to a
supervised setting in the community. All three experts' qualifications were
accepted without objection, and their reports as well as various treatment notes
relied upon in formulating their opinions were admitted into evidence.
2
The members of the TPRC are psychologists responsible for reviewing the
progress and treatment of persons committed to the STU.
A-0336-18T5
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Both State experts agreed that F.Z.S. suffered from a mental abnormality
and personality disorder, which predisposed him to sexually reoffend. They
diagnosed F.Z.S. with pedophilic disorder, non-exclusive type, sexually
attracted to females; other specified personality disorder, with anti-social traits;
and alcohol use disorder, severe, in a controlled environment. F.Z.S.'s diagnoses
were predicated upon his protracted sexual molestation of two pre-pubescent
females, his "pervasive pattern of maladaptive behaviors" demonstrated by his
"disrespect [of] social norms," "disregard for the well-being of others," and "lack
of remorse," as well as his problematic pattern of excessive alcohol use since
adolescence, including alcohol use at the time of his sex offenses. Both experts
opined that these conditions affect F.Z.S. emotionally, cognitively, and
volitionally, cause him to have serious difficulty controlling his sexual
offending behavior, and do not spontaneously remit but require treatment
interventions to control and mitigate the associated risks. They agreed that, to
date, F.Z.S. has not been able to adequately reduce his risks through treatment .
Additionally, both State experts scored F.Z.S. as "1" on the Static-99R,3
placing him in the "[a]verage [r]isk" range to sexually reoffend "compare[d] to
3
"The Static-99 is an actuarial test used to estimate the probability of sexually
violent recidivism in adult males previously convicted of sexually violent
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other sex offenders."4 Scott explained that a Static-99R score reflects "a relative
estimate[,]" rather than F.Z.S.'s "individual risk," and, "as such, is really not an
absolute guide for overall risk measurement[,]" or "accepted to be used as a sole
way of reoffense assessment." In F.Z.S.'s case, Scott identified at least eight
"additional risk factors," including (1) "a history of substance abuse," (2) "a
strong deviant arousal, in that he repeatedly offended against his victims under
circumstances when detection was high[,]" (3) the fact that "[h]e offended
against his victims while he had [a] consenting age-appropriate sexual partner
available[,]" (4) his "comorbid antisocial personality structure" resulting in him
"reoffend[ing] after previous consequences[,]" (5) his "cognitive distortions[,]"
(6) a "demonstrated inability to comply with treatment recommendations and
supervision[,]" (7) "negative emotionality and hostility[,]" and (8) "[l]ack of
motivation and poor understanding of his crimes."
offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citing
Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)).
4
Scott acknowledged that "less than five percent of the people with a Static[-
99R] score of [one] were observed to have reoffended." Yeoman also scored
F.Z.S. as "9" on the Stable-2007, another actuarial risk assessment tool
"developed to assess change in intermediate term risk status, [and] assessment
needs," and to "help predict recidivism in sexual offenders." According to
Yeoman, a score of nine "would be toward the upper end of the moderate range
of dynamic risk."
A-0336-18T5
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Regarding mitigating factors, Scott acknowledged that "typically,
advanced age or treatment effect can serve as mitigating circumstances."
However, according to Scott, although F.Z.S. was then sixty-nine-years-old, "his
age and medical conditions" did not "represent significant mitigating effect[,]"
because of "his modus operandi," and the fact that he has not participated in
meaningful treatment. Scott acknowledged that "after the age of [seventy],
sexual recidivism [was] almost non-existent for convicted sex offenders."
Nonetheless, Scott stated "[c]hild molesters . . . reportedly can recidivate even
at a later age," as opposed to individuals who only display non-pedophilic rape
behaviors. She attributed the phenomenon to the fact that "there is less effort
required to molest a child than to overpower an adult female." Further, although
antisocial personality traits can decrease with age, Scott did not "believe that
[F.Z.S.]'s antisocial characteristics have diminished at all."
Yeoman also opined that F.Z.S.'s advanced age in conjunction with his
extant antisocial personality traits did not adequately reduce his risk of
reoffending. Yeoman explained:
[I]t's reasonable to expect someone who did not still
suffer from these personality deficits [at F.Z.S.'s age]
to be able to appropriately problem solve in this
circumstance . . . . [F]or example, okay, they are giving
me this path, maybe I should change the way I'm doing
things so I could get out of here. But, unfortunately,
A-0336-18T5
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those personality traits are still alive in [F.Z.S.] and
really skew the way he perceives things and how he
believes he should do things.
Scott testified she was only able to conduct a "brief" mental status
examination of F.Z.S. because he terminated the interview when she asked about
his sexual offending history. According to Scott, F.Z.S. first responded "that he
had not abused anyone and . . . had no victims[,]" and, when pressed, "again
emphatically denied any charges against him." Scott did not attribute F.Z.S.'s
denials to memory loss associated with the aging process because "apart from
[admissions during] original police interviews," F.Z.S. has been consistently
"denying" his sex offenses. During the aborted encounter, Scott described
F.Z.S. as "irritable," "angry," and "impulsive." She explained that he
"demonstrated low frustration tolerance" and "lack of victim empathy."
According to Scott, F.Z.S. met the criteria for high-end borderline
intellectual functioning. He reportedly has a "[second] grade" reading and
writing ability. To address his cognitive limitations, in 2014, he was placed in
a cognitive life skills group, which provided "a slower [treatment] pace" but was
removed for non-participation. Regarding his medical history, F.Z.S. was
diagnosed with hearing loss in his left ear from an accident that occurred when
he served in the military from 1968 to 1970 as an explosives expert. Scott also
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testified that F.Z.S. "has some medical diagnoses that are not unusual for
someone of his age," including "arthritis," "high blood pressure, increased lipid
levels," "non-insulin dependent diabetes, genital herpes, and coronary artery
disease," for which "he had a coronary artery bypass surgery in 2009."
Although F.Z.S. had no history of institutional infractions or placements
in the Modified Activities Program (MAP) 5 during his thirteen years at the STU,
his treatment record was reportedly inadequate. Yeoman testified that he and
the treatment team recommended "[t]hat [F.Z.S.] be maintained in phase one of
treatment" because F.Z.S. has "remained on treatment refusal status and that's
an appropriate phase designation for people who don't participate in treatment."
Yeoman opined that F.Z.S. has not received "enough treatment . . . to adequately
. . . control the impulses caused by [his] disorders[,]" and "has been stagnant for
. . . his time at the STU." He testified that during F.Z.S.'s interview, F.Z.S.
stated that what he learned in therapy was to "'get the hell away from New
Jersey,'" and that if he could leave the State "all of his problems would have
been solved and will be solved."
5
"MAP is a component of the clinical treatment program at the STU that focuses
on stabilizing disruptive or dangerous behaviors." M.X.L. v. N.J. Dep't of
Human Servs./N.J. Dep't of Corr., 379 N.J. Super. 37, 45 (App. Div. 2005).
A-0336-18T5
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Scott confirmed there was "no documentation of [F.Z.S.] receiving any
formal psychiatric treatment . . . during his incarceration or at the STU." Scott
recounted statements attributed by past evaluators to F.Z.S. while he was
incarcerated, during which F.Z.S. "endorsed . . . statements of potentially
distorted beliefs about children and child molesting[,]" and disagreed with the
characterization of his past sexual behavior "as deviant." Scott stated "[F.Z.S.]
was admitted to the STU in 2005 as an untreated sex offender[,]" who was
"generally disengaged and openly hostile in treatment." She continued "[h]e
seem[ed] to perseverate on anti-systemic issues and injustices" and "refuse[d]
to acknowledge or to begin to address his sexual history or sexual pathology."
More recently, F.Z.S.'s April 2016 comprehensive treatment plan review
"indicated that [he] continue[d] to refuse sex offender treatment, continue[d] to
deny committing any sex offenses, and remain[ed] focused on the legalities of
his case."
Scott explained further that although F.Z.S.'s October 2016 review
showed F.Z.S. attended treatment sessions, "he did not engage in sex offender
specific treatment," and "rarely contributed to the group." Instead, he
"continued to focus on legal issues." Similarly, his April 2017 review showed
that F.Z.S. "was again a treatment refuser[,]" and his October 2017 review
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indicated that F.Z.S. "stopped attending treatment" in November 2016. The
October 2017 review also noted that F.Z.S. "does not have a sexual assault cycle
or a relapse prevention plan[,]" "has not attended or completed any modules or
programmatic requirements[,]" and "speaks as if he is being persecuted and does
not bear any responsibility for his commitment." In that regard, according to
Scott, F.Z.S. remained "invested in attacking the system," rather than engaging
in treatment.
Scott acknowledged that as a result of a joint effort to jumpstart F.Z.S.'s
treatment, F.Z.S.'s April 2018 review indicated that F.Z.S. started attending
group treatment again and participated in four "individual sessions, during
which time he was agreeable and cooperative[.]" However, according to Scott,
those efforts were not successful because during the sessions, F.Z.S. was not
"participating and remained quiet." Likewise, Yeoman testified that after
consulting with F.Z.S.'s individual treatment provider for the four individual
sessions, he was advised there was "no treatment progress" as F.Z.S. "use[d] the
time to convince [the therapist] of his innocence."
Regarding substance abuse treatment, despite F.Z.S.'s extensive substance
abuse history, which included being "intoxicated on a daily basis" after "his son
was reportedly murdered in 1968," being "intoxicated at the time of his index
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[sexual] offense[,]" and losing "his driver's license for driving while
intoxicated[,]" Scott testified F.Z.S. "ha[d] no history of substance abuse
treatment in the community[,]" and "refuse[d] to participate in substance abuse
treatment" at the STU as recommended back in 2006. Scott indicated this was
significant because "substance abuse seemed to have contributed to his
offenses." However, more recently, F.Z.S. attended a total of eight Alcoholics
Anonymous self-help group meetings between February 26 and April 23, 2018.
Scott opined that F.Z.S. "remain[ed] . . . [a] high risk" to sexually reoffend
"in the foreseeable future if not recommitted to the STU for further treatment."
She testified that, to date, F.Z.S. had not "been able to adequately reduce his risk
to sexually reoffend through treatment" given his lack of participation in
meaningful treatment since his commitment in 2005. In light of that opinion,
she did not believe F.Z.S. "would be highly likely to comply with conditions"
of a conditional discharge plan if released because F.Z.S. "ha[d] not been
compliant with a variety of recommendations" since his commitment, including
"his refusal to [attend] sex offender specific groups" and "substance abuse
groups[,]" as well as his frequent refusal to be meaningfully "evaluat[ed] by
psychiatrists" in connection with his sex offenses. Scott testified that although
F.Z.S. "belong[ed] to a group of sex offenders who could potentially [b]e
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monitored," she "[had] no evidence or reason to believe that [F.Z.S.] would be
willing to comply with conditions of a potential discharge based on his
performance at the STU."
While Yeoman agreed that F.Z.S. "remain[ed] a high risk individual with
regard to sex offending[,]" he acknowledged that there was "a degree of
supervisability to [F.Z.S.'s] offending." According to Yeoman, F.Z.S. had saved
$16,000 while housed at the STU, with which he could "afford to go to a classy
boarding home where there's 24/7 supervision, and GPS monitoring," as noted
by the judge. Based on victimology, Yeoman agreed that in one scenario, F.Z.S.
would "have to get into a relationship with some woman who has children or
grandchildren" in order to reoffend as his past child victims were not strangers.
However, Yeoman explained that there was no way to be sure that such a
scenario would be the only way that F.Z.S. could reoffend because "nobody at
the facility knows him" to "any reasonable degree[,]" given his general refusal
to engage in treatment over his thirteen years at the STU. Yeoman believed that
if F.Z.S. "engage[d] in treatment, his trajectory towards discharge would be
relatively short." However, Yeoman noted that "even with that clear path to
discharge, [F.Z.S. was] dug in" and was "going to continue to pursue" his release
on his own terms.
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In contrast, Foley opined that F.Z.S.'s risk of sexually reoffending was
"below highly likely" if he were discharged with a "conditional discharge plan,"
which included an "[a]pproved and supervised residence, GPS monitoring," and
"some sort of counseling." In rendering his opinion, Foley relied on F.Z.S.'s
"history" of sex offending in "intra[-]familial" settings only, and his advanced
"age." Foley also relied on the fact that "[F.Z.S.] has been easy to manage during
his [thirteen] years" at the STU based on the absence of any record of "MAP
placements[,]" "violence," "sex," "pornography[,]" or "drug[]" use. Foley
believed F.Z.S. would comply with discharge conditions, would remain in a
boarding home, and would not abscond from the State if released.
Foley rejected the State's contention that F.Z.S. would not comply with
discharge conditions because of his intransigence in refusing treatment at the
STU. Foley explained:
[W]e know . . . that denial is not related to recidivism. [6]
He's basically in total denial. And he has been for a
long period of time. It's unrelated to recidivism. So, at
that point, at his stage of life being almost [seventy],
what are you really going to treat? What are you really
going to do to reduce his already negligible to non-
existent risk?
6
Yeoman agreed "we cannot assume that denial increases risk for the average
sex offender."
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Foley pointed out that F.Z.S. did cooperate in four individual therapy sessions
conducted in an effort to address his non-compliance in group therapy. Foley
observed that given F.Z.S.'s hearing problems and cognitive limitations, "in a
group it may be . . . harder for [F.Z.S.] . . . to hear[,]" "follow[]," and
"comprehend[]." Foley believed F.Z.S.'s cooperation in the individual therapy
sessions "demonstrated a willingness and an ability and an amenability to going
to . . . treatment -- whatever is prescribed when he gets into the community."
On September 5, 2018, the judge entered an order continuing F.Z.S.'s
commitment in the STU.7 In an oral opinion, the judge agreed with the opinions
of the State's experts, finding their testimony "very credible" and "very
forthright." On the other hand, while the judge found the defense expert to be
"a credible witness[,]" he did "not agree" with Foley's opinion. See R.F., 217
N.J. at 174 ("A trial judge is 'not required to accept all or any part of [an] expert
opinion[]'" because the decision to commit "is 'a legal one, not a medical one,
7
The judge's decision was delayed awaiting the results of a deviant arousal
polygraph examination arranged by F.Z.S.'s counsel. The polygraph was
administered on August 28, 2018. According to F.Z.S., his negative response to
the polygraph questions inquiring whether he had "masturbated to fantasies of
having sex with any of [his] victims" or "any female children" within the past
six months "showed no significant reaction." However, his response to the
question inquiring whether he had "masturbated to fantasies of having sex with
any child under the age of eighteen" within the past six months showed "a
significant reaction."
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even though it is guided by medical expert testimony.'" (alterations in original)
(quoting In re D.C., 146 N.J. 31, 59, 61 (1996))).
According to the judge, F.Z.S. is "basically disengaged" and "hostile[,]"
and has refused treatment on a "regular basis[,]" as a result of which he "has not
advanced in the last [thirteen] years" at the STU. The judge found there was
"clear and convincing evidence" that F.Z.S. "continue[d] to suffer a mental
abnormality and personality [disorder]," that these disorders did "not
spontaneously remit," and that each still "affect[ed] him emotionally,
cognitively, [and] volitionally." The judge concluded there was clear and
convincing evidence that F.Z.S. was "highly likely to sexually reoffend" if
released. The judge also found that because F.Z.S. has "[s]erious difficulty
controlling sexual violent behavior[,]" and has been non-compliant with
treatment, he would not "be highly likely to adhere to conditions of conditional
discharge" if released. This appeal followed.
On appeal, F.Z.S. raises the following points for our consideration:
POINT I
THE TRIAL COURT IMPROPERLY COMMITTED
F.Z.S. WITHOUT CONSIDERING IF HIS
PLACEMENT IN A RESIDENTIAL PROGRAM
WITH [TWENTY-FOUR]-HOUR SUPERVISION
AND NO ACCESS TO CHILDREN WOULD
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SUFFICIENTLY REDUCE HIS RISK TO
SEXUALLY REOFFEND.
POINT II
THE STATE DOCTORS ONLY OFFERED
INADMISSIBLE NET OPINION WHEN THEY
FOUND THAT F.Z.S. WAS AT HIGH RISK TO
SEXUALLY REOFFEND (NOT RAISED BELOW).
We begin with a review of the governing principles. An order of
continued commitment under the SVPA, like an initial order, must be based on
"clear and convincing evidence that an individual who has been convicted of a
sexually violent offense, suffers from a mental abnormality or personality
disorder, and presently has serious difficulty controlling harmful sexually
violent behavior such that it is highly likely the individual will re-offend" if not
committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47
(App. Div. 2004) (citing In re Commitment of W.Z., 173 N.J. 109, 120, 132
(2002)); see also N.J.S.A. 30:4-27.32(a). N.J.S.A. 30:4-27.26 defines a
"'[m]ental abnormality'" as "a mental condition that affects a person's emotional,
cognitive or volitional capacity in a manner that predisposes that person to
commit acts of sexual violence." The mental abnormality or personality disorder
"must affect an individual's ability to control his or her sexually harmful
conduct." W.Z., 173 N.J. at 127.
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"'Likely to engage in acts of sexual violence' means the propensity of a
person to commit acts of sexual violence is of such a degree as to pose a threat
to the health and safety of others." N.J.S.A. 30:4-27.26. At the SVPA
commitment hearing, "the 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." W.Z., 173 N.J. at 132. Like the initial order of
commitment, in order to continue to commit the individual, the court must assess
the offender's "present serious difficulty with control over dangerous sexual
behavior." Id. at 132-33 (emphasis in original); see also In re Civil Commitment
of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003).
On the other hand, "an 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." W.Z., 173 N.J. at 130. To that end, N.J.S.A.
30:4-27.32c(1) allows a court to "find a committee 'not likely' to engage in acts
of sexual violence, and authorizes conditional release of such a person upon a
finding that 'the person is amenable to and highly likely to comply with a plan
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19
to facilitate the person's adjustment and reintegration into the co mmunity.'"
Ibid. (emphasis in original) (citation omitted).
Our scope of review of a judgment for commitment under the SVPA "is
extremely narrow." R.F., 217 N.J. at 174 (quoting D.C., 146 N.J. at 58). We
must "give deference to the findings of our trial 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)). Moreover, "[t]he judges who hear SVPA cases generally are
'specialists' and 'their expertise in the subject' is entitled to 'special deference.'"
Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App.
Div. 2007)).
Accordingly, a SVPA judge's determination either to commit or release an
individual is accorded substantial deference and should not be modified by an
appellate court "unless the record reveals a clear mistake." Id. at 175 (citations
and internal quotation marks omitted). Thus, "[s]o 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);
see also In re Commitment of J.M.B., 197 N.J. 563, 597 (2009).
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Applying our limited standard of review, we affirm the judge's order
continuing F.Z.S.'s commitment. The judge's conclusions are amply supported
by the evidence presented at the review hearing, and consistent with the law
governing SVPA proceedings. From our careful review of the record, we are
satisfied that the judge appropriately determined that F.Z.S.'s failure to
meaningfully engage in treatment to reduce the risks associated with his
conditions was sabotaging the potential for his release.
F.Z.S. argues "the State failed to prove that he is now 'highly likely' to
[sexually reoffend] if he were discharged with an appropriate conditional
discharge plan" because the State's expert psychiatrist, Dr. Scott, refused to
"assess F.Z.S.'s risk with an appropriate residential placement," that "barred his
access to children" and included "GPS monitoring." According to F.Z.S., given
the mitigating factors for his re-offense risk, including his advanced age, his low
Static-99R score, being "fully rule-compliant at the STU[,]" and being offense
free for over twenty-two years, the fact that the State's "experts expressed
concern that F.Z.S. had not 'engaged' in treatment at the STU" was "irrelevant if
F.Z.S. [could] be discharged with conditions that [would] render him less than
'highly likely' to sexually reoffend."
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We are cognizant of the goals of de-escalation of custody restraints, as
expressed in In re Civil Commitment of V.A., 357 N.J. Super. 55, 64 (App. Div.
2003). There, we explained that "[i]n a situation where the State is unable to
justify the continued confinement of the committee based on the progress the
committee has made during his period of confinement," the intent of the
Legislature in enacting the SVPA "is best effectuated by releasing the committee
subject to intermediate levels of restraint." Ibid. (quoting In re Civil
Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002)). We defined
the term "intermediate levels of restraint" as "envision[ing] a comprehensive
treatment program in which the restraints on individual liberties associated with
institutional confinement are gradually relaxed, eventually leading to outright
release into the community." Ibid. However, to warrant such de-escalation,
"[a]t the very least, the committee must demonstrate successful adjustment to
successive reductions of restrictions within the structured environment of a
secured facility as a prerequisite to consideration for a conditional release[,]" in
order "to provide the trial judge with a rational and more reliable basis to assess
the committee's likelihood of successful reintegration into society." Ibid.Here, the judge was mindful, as are we, of the mitigating factors that will
allow F.Z.S. to reenter society without risking the welfare of others.
A-0336-18T5
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Nonetheless, the judge credited the opinions of the State's experts, rejected
F.Z.S.'s, and concluded that the State justified by clear and convincing evidence
F.Z.S.'s continued confinement based on F.Z.S.'s lack of progress. Given our
limited standard of review, we defer to the considered assessment of the judge
that F.Z.S. is not yet ready for that next big step given the remaining obstacles
to his release, and the negative risk factors otherwise identified by the State's
experts. Indeed, the record supports the judge's finding that F.Z.S. has not
demonstrated sufficient progress during this review period to show that he can
take responsibility for his behavior in the community. That said, we are satisfied
that the order for continued commitment presently before us is sustainable,
anticipating that F.Z.S. may well present an even better candidate for a discharge
plan when his next review session takes place. We do not, of course, preordain
any result in that review, but simply observe that statutory criteria for continued
commitment should not remain satisfied indefinitely.
Next, F.Z.S. argues for the first time on appeal that the State's experts
offered "inadmissible net opinions because neither State doctor gave any
empirical basis" nor "demonstrate[d] the soundness of their methodology" in
rendering their opinion that F.Z.S. remained highly likely to sexually reoffend.
F.Z.S. continues that without their testimony, "the State fail[ed] to meet its
A-0336-18T5
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burden of proof by clear and convincing evidence." Ordinarily, we "decline to
consider issues not presented to the trial court unless they 'go to the jurisdiction
of the trial court or concern matters of great public interest[,]'" neither of which
applies here. Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368
N.J. Super. 190, 196 (App. Div. 2004) (quoting Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973)).
"Even so, the net opinion doctrine requires experts to 'be able to identify
the factual bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are [scientifically]
reliable.'" Matter of Civil Commitment of A.Y., 458 N.J. Super. 147, 170 (App.
Div. 2019) (alteration in original) (quoting Townsend v. Pierre, 221 N.J. 36, 55
(2015)). Here, both of the State's experts interviewed F.Z.S. and relied on
clinical information, other appropriate documents, and actuarial instruments that
supported their conclusions. They provided the factual bases for their
conclusions and explained the methodologies they employed. See In re
Commitment of R.S., 173 N.J. 134, 137 (2002) (acknowledging that "a testifying
expert . . . may rely on actuarial as well as clinical information when formulating
an opinion concerning future dangerousness[,]" with the actuarial assessment
information constituting "simply a factor to consider, weigh, or even reject").
A-0336-18T5
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As we stated in A.Y., where we rejected a similar challenge to the State's
experts' opinions, "[t]he methodology utilized by the State's experts satisfied the
requirements imposed by the Court in [In re Accutane Litigation, 234 N.J. 340(2018),]" A.Y., 458 N.J. Super. at 173, which adopted the factors set forth in
Daubert v. Merrel Dow Pharms., Inc., 509 U.S. 579 (1993), and required experts
"to demonstrate" they applied "scientifically recognized methodology in the way
that others in the field practice the methodology." Accutane, 234 N.J. at 399-
400. Here, the experts' "testimony confirmed their opinions were based on a
comprehensive review of data and information of the type relied upon by others
in their scientific community[.]" A.Y., 458 N.J. Super. at 171. The fact that the
experts "fail[ed] to account for some particular condition or fact which the
adversary considers relevant[,]" or failed "to give weight to a factor thought
important by an adverse party does not reduce [the] testimony to an inadmissible
net opinion if [it] otherwise offers sufficient reasons which logically support
[the] opinion." Id. at 169 (citations omitted).
Affirmed.
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