May 19, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.X.H., SVP-332-03.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-332-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Sapp-Peterson and Messano.
R.X.H. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order of April 4, 2007, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. 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; N.J.S.A. 30:4-27.32(a).*fn1
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); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is extremely narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A). We add the following comments.
R.X.H. was temporarily committed on August 14, 2003, and final judgment declaring that he is a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment was entered on February 9, 2004. That commitment was affirmed on appeal. In re Civil Commitment of R.X.H., No. A-3522-03T2 (App. Div. Dec. 2, 2006). An order continuing his commitment was entered on April 4, 2007, which is the subject of this appeal.
The hearing that preceded entry of the April 7, 2007 order under appeal was held the same day. Dr. Stanley R. Kern, a psychiatrist, testified for the State. No witnesses testified on behalf of R.X.H. The parties stipulated to Dr. Kern's qualifications. The primary basis for Dr. Kern's testimony was his own report dated March 12, 2007, which was based upon several sources of information, including treatment records and Dr. Kern's personal examination.
At the time of the hearing, R.X.H. was in a Phase Two treatment status, the lower range of the STU five-phase treatment program. The Treatment Plan Status Review of June 30, 2006 revealed that R.X.H. continued to deny that he was a sex offender, despite one earlier admission of this fact, showed no evidence of remorse for his sexual conduct, and demonstrated no ability to empathize with others. The review also found that R.X.H. had a miniscule knowledge of relapse prevention strategies.
Dr. Kern, based upon his evaluation and the records he reviewed, diagnosed R.X.H. as paraphilia NOS, psychosis NOS, antisocial personality disorder, and borderline intellectual functioning. His diagnosis of paraphilia NOS was based upon R.X.H.'s charges of sexual assault in 1992 and 1986. Dr. Kern opined that this conduct was indicative of "recurrent, intense, sexually-arousing behavior" without meeting any "specific criteria of a particular type of paraphilia." His diagnosis that R.X.H. acted in an anti-social fashion was based upon R.X.H.'s total disregard for the rights of other people as evidenced by his long history of juvenile offenses and adult offenses of various kinds, including sexual offenses. He also opined that R.X.H. "has a disturbed thought process so that he doesn't think things through logically." He gave as an example the fact that R.X.H. differentiated himself from the other persons committed to the STU because he followed the rules and regulations and the other people did not.
On cross-examination, Dr. Kern acknowledged that although over a twenty-two year period, R.X.H. had been accused of sexually-related offenses on six occasions, a number of the offenses were dismissed and he was acquitted of sexual assault in 1985.
Based upon the evidence presented, Judge Perretti found:
The evidence presented by the state was clear and convincing. The court is clearly convinced that the respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts.
He has demonstrated in the past his serious difficulty controlling his sexually violent behavior and has demonstrated even in controlled environment that he acts out sexually. His risk, according to the psychiatrist, is very high. It is highly likely that the respondent will commit sexually violent acts if not continued for further care and custody.
The evidence supports the finding that R.X.H. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). We agree, as counsel argued before this court, that continued commitment based upon unproven charges presented in hearsay fashion during the hearing does not meet the clear and convincing standard of proof the state must satisfy in order to justify an order directing the continued involuntary commitment of a sexually violent predator. Here, however, the court focused upon R.X.H.'s prior treatment progress, evidenced by his failure to have completed any of the "programmatic requirements." The judge specifically pointed to R.X.H.'s "unwilling[ness] to accept the feedback of others and accept[ing] no responsibility for his crimes[,]" as well as his inconsistent participation in group programs. The conclusion that he continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.