March 11, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.W.K. SVP-248-02
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-248-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2008
Before Judges Parrillo and Baxter.
R.W.K. appeals from the June 5, 2007 order that continued his 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. R.W.K. was initially committed to the STU on June 7, 2002. His commitment has been previously reviewed and continued on September 16, 2002, February 27, 2003, February 24, 2005 and January 24, 2006. We affirm.
R.W.K.'s predicate offense was a January 8, 1999 conviction for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). That conviction resulted from R.W.K. forcing his ten-year-old cousin, S.R., to perform oral sex on him and engage in vaginal intercourse. S.R. was classified as neurologically and perceptually impaired and emotionally disturbed. R.W.K. was sentenced to a five year and eleven month term of imprisonment to be served at the Adult Diagnostic and Treatment Center at Avenel.
At the time R.W.K. victimized his cousin S.R., he was on probation and was a registered sex offender as the result of a juvenile adjudication of delinquency. This juvenile adjudication was for a 1994 aggravated sexual assault on his six-year-old cousin, M.M., in which R.W.K. performed anal sex on M.M..
After R.W.K. maxed out on his Avenel sentence, the State petitioned for involuntary commitment to the STU. When R.W.K. was first admitted to the STU, he was diagnosed with: pedophilia, sexually attracted to males and females, non-exclusive type; and personality disorder, NOS, with anti-social traits. Those diagnoses have not changed in the ensuing five years.
In November 2006, the Treatment Progress Review Committee (TPRC) prepared an annual report in anticipation of the June 2007 review hearing. In that November 2006 report, the TPRC specified that R.W.K.'s Static-99 measure was a score of 3, placing him at a Medium-Low risk of recidivism. Despite that test result, the TPRC recommended that R.W.K. be maintained at his current Phase-2 treatment level, and not be moved to a higher level, because his treatment progress was minimal and his attendance at treatment sessions was sporadic. The TPRC commented that R.W.K.'s participation in treatment was marked by "poor attendance and low levels of motivation," all of which "handicapped his treatment progress."
At the May 24, 2007 hearing that underlies the June 5, 2007 order, Dr. Brian Friedman, a psychologist, elaborated on the TPRC's conclusion that R.W.K. had made little progress in his treatment over the past year. When asked whether the pedophilia diagnosis "will just spontaneously remit or go away," Friedman responded "no, absolutely not." He explained:
For [R.W.K.], especially, [pedophilia] was present at a relatively early age. Early onset sexual deviance is a risk factor in and of itself. And it suggests that this pattern developed when he was . . . relatively young. . . . [I]t is not the kind of pathology that just goes away. It requires specific intervention [and] treatment techniques to attempt to reduce that arousal pattern over time.
His module involvement has been variable. He's completed a few modules; others, he has not attempted adequately, has not completed certain assignments. His process group participation has also waxed and waned.
[E]ven as recently as . . . January , he was placed on treatment probation status. . . . [M]ore recently he has returned and become somewhat more active . . . . but during this review period, he just was not consistent enough and active enough to be viewed as being [in] the core phase of treatment.
At the hearing, Dr. Friedman was also asked to explain R.W.K.'s personality disorder diagnosis. According to Dr. Friedman, that diagnosis was justified by the evidence of R.W.K.'s impulsivity, aggressiveness, deceitfulness, and his demonstrated lack of regard for social norms and the rights of others.
At the May 24, 2007 hearing, the State also presented the testimony of Dr. Stanley Kern, a psychiatrist. Kern opined that "R.W.K. presently suffers from a mental abnormality or personality disorder that affects him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence." Dr. Kern also agreed with the observations of the TPRC when he observed that R.W.K. has made only "minimal progress toward the problem of his dangerousness because his performance in treatment vacillates . . . ." Dr. Kern opined that R.W.K. had made "moderate progress" toward developing victim empathy, only "minimal progress" toward understanding his pattern of deviant sexual arousal, and "no progress" toward understanding the enhanced risk that substance abuse presents for reoffending.
Dr. Kern also opined that R.W.K.'s thirty-seven unexcused absences from treatment sessions between January 2006 and April 2007 were highly significant because "if he doesn't go to his sessions, he's not going to get anything from treatment." When asked to explain why R.W.K. had failed the Relapse Prevention module, he explained that treatment staff were forced to remove R.W.K. because of non-attendance.
Kern also expressed concern about R.W.K.'s history of alcohol and marijuana abuse because those substances "are disinhibitors [that] facilitate . . . acting out because [the individual] has difficulty controlling [his] impulses under the influence of these substances."
Kern also observed that during the ten occasions over a fifteen-month period that R.W.K. had "taken the floor" to discuss his problems at some length, R.W.K. had discussed his risk of reoffending on only two occasions. On the other eight, he merely complained about "being incarcerated and being in a facility like this," causing Dr. Kern to characterize R.W.K. as adopting a "victim of the system stance."
On cross-examination, Kern was asked to explain whether the diagnosis of pedophilia was correct in light of the criteria contained in the Diagnostic and Statistical Manual-IV (DSM) that require the actor to be sixteen years of age at the time of the conduct in question. Kern responded that the DSM criteria are "general guidelines" and are not "hard and fast rules." Kern was also asked about R.W.K.'s score on the Static-99 that placed him at a thirty-seven percent risk of reoffending. In response, Kern explained that R.W.K.'s failure to conscientiously attend treatment sessions elevated his risk of reoffending beyond the score he received on the Static-99. R.W.K. did not testify and presented no witnesses.
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(b). "[T]he State must prove
[a] 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 re-offend." 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 committee will re-offend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
In her ruling, Judge Perretti concluded that R.W.K. remained in an "early stage of treatment" because of his "persistent lack of involvement with therapy . . . [and] his inconsistent attendance . . . [and] failure to complete assignments." The judge also observed that R.W.K.'s "victim of the system stance" had interfered with his involvement in sex offender therapy and impeded his ability to benefit from treatment. She emphasized the portion of Dr. Friedman's testimony in which he explained that the condition of pedophilia "will not simply go away" and that R.W.K.'s "early onset of the condition" intensified his need for treatment, thereby making his sporadic attendance and indifferent attitude even more problematic.
The judge also reviewed the enhanced risk of recidivism that resulted from R.W.K.'s combined diagnoses of pedophilia, personality disorder, and substance abuse. She observed that R.W.K.'s personality disorder enabled him to victimize a child without feeling any of the remorse that would ordinarily deter such victimization, and that his substance abuse acted as a disinhibitor, making it "easier" for him to "act upon his pedophilic impulses." The judge also found that in light of R.W.K.'s substantial need for treatment, his history of thirty-seven unexplained absences from treatment sessions was especially problematic because it prevented him from developing the relapse prevention techniques that he needed. Finally, Judge Perretti reasoned that:
It is noteworthy that [R.W.K.] committed his second sex offense while on probation for the first and after he had been classified as a Tier-1 offender under Megan's Law. It is clear that the assessment of risk in that context was obviously incorrect. It can be inferred that the low Static[-99] score does not apply to this particular respondent. In addition, the actuarials . . . are not predictive of the respondent individually[,] . . . but . . . merely give statistics for a group.
The court is clearly convinced that [R.W.K.] continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his volitional, cognitive and emotional functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior as appears from his repetition of a sex offense while on probation for an earlier such offense. His second victim was younger than his first, indicating that his deviance was escalating.
[R.W.K.] is thus highly likely, if not confined for further care, to within the foreseeable future, recidivate by committing sexually violent offenses. [He] is committed for an additional year's treatment . . . .
On appeal, R.W.K. argues that the evidence presented by the State was insufficient to satisfy the standard established by the Court in W.Z., supra. Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless 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).
Measured by this standard, the June 5, 2007 order must be affirmed. Having reviewed the record, we conclude there is no meritorious basis for us to disturb Judge Perretti's decision, and we affirm substantially for the reasons she stated in her cogent oral opinion of May 24, 2007. R.W.K.'s argument that the evidence was insufficient to warrant his involuntary commitment lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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