May 22, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF L.S.K., SVP-389-04.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-389-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Sapp-Peterson and Messano.
L.S.K. 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 November 2, 2007, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Serena Perretti, J.S.C., in her oral opinion of November 2, 2007.
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.
Prior to being committed to the STU in 2005, L.S.K., who is now forty-one, had served a seven-year custodial sentence at the Adult Diagnostic and Treatment Center (ADTC) arising out of his guilty plea to first-degree aggravated sexual assault, two counts of second-degree sexual assault, and one count of third-degree endangering the welfare of a child. Those offenses were committed against L.S.K.'s two nephews and niece. In addition to those convictions, L.S.K. was also convicted of second-degree sexual assault of a fifteen-year-old girl in 1989.
Following his initial commitment to the STU on January 12, 2005, a final order of commitment was entered in May 2005. Subsequent orders continuing his commitment were entered on December 2, 2005 and November 8, 2006. Both orders were affirmed on appeal. See In re Civil Commitment of L.S.K., No A-2270-05T2 (App. Div. June 14, 2006); see also In re Civil Commitment of L.S.K., No. A-1800-06T2 (App. Div. April 10, 2007). An order continuing his commitment was entered on November 2, 2007.
The hearing that preceded entry of the November 2, 2007 order under appeal was held the same day. Dr. Michael R. McAllister, a psychiatrist, and Dr. Rosemarie Stewart, a psychologist and member of L.S.K.'s treatment team, testified on behalf of the State. No witnesses testified on behalf of L.S.K. The parties stipulated to Dr. McAllister's and Dr. Stewart's qualifications. The primary basis for Dr. McAllister's testimony was his report, as L.S.K. declined an interview. Dr. Stewart was a member of L.S.K.'s Treatment Progress Review Committee (TPRC).
At the time of the hearing, L.S.K. was in Phase Two of STU's five-phase program. The Multidisciplinary Treatment Team Report of June 27, 2007 revealed that L.S.K. needed to continue Phase Two treatment, given there was dirty urine, the possession of pornography, possession of a credit card, as well as a lack of participation and motivation in the treatment.
Dr. McAllister testified he conducted his evaluation of L.S.K. without the benefit of an interview with L.S.K. because L.S.K. did not wish to participate. Based upon the records he reviewed, Dr. McAllister diagnosed L.S.K. as suffering from pedophilia, paraphilia, various forms of drug abuse, and antisocial personality disorder. Dr. McAllister testified that from his review of the records, L.S.K. had performed poorly in his substance abuse and sexual offender treatments, was generally uncooperative, remained unable to empathize with his victims, and as a result was at a very high risk to re-offend sexually. The doctor explained that the presence of the personality disorder would lend itself to continued sexual offending, while L.S.K.'s diagnosis for both pedophilia and paraphilia created a wider potential victim pool.
Dr. Stewart testified that during the review period, L.S.K. had significant engagement in treatment, to the point that initially the TPRC had unanimously voted to move L.S.K. to Phase Three but ultimately found that Phase Two was more appropriate because the marked improvement only reflected six months of significant improvement. During the same review period, L.S.K. had been placed in a modified activities program (MAP), had dirty urine, possessed pornography and exhibited "a lack of participation and motivation." Consequently, TPRC actually stated in its report "that [L.S.K.] could be a serious candidate for phase advancement" if he continues on this positive course.
Based upon the evidence presented, Judge Perretti found:
The evidence presented by the State was clear and convincing. The Respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influences emotional, volitional, and cognitive functioning in such a way as to predispose him to commit sexually violent acts.
This Respondent has, clearly, demonstrated his serious difficulty controlling his sex offending behavior by his repetitive sex offending, and his sex offending after sanctions.
He is highly likely to commit sexually violent offenses in the foreseeable future if not confined for further treatment and for the protection of the public to, which, he poses a considerable danger.
During oral argument before this court, L.S.K.'s counsel, citing In re Civil Commitment of A.H.B., 386 N.J. Super. 16 (App. Div.), certif. denied, 188 N.J. 492 (2006), argued that Dr. McAllister was not a member of L.S.K.'s treatment team, contrary to N.J.S.A. 30:4-27.30(b). Additionally, counsel argued that the court's characterization of the evidence as uncontradicted did not render the evidence competent and thus did not meet the clear and convincing burden the State must satisfy to secure an order of continued commitment. Finally, defense counsel asserted the judge below improperly cut off trial counsel's cross-examination of Dr. Stewart.
In our review of the record, we find no clear abuse of the judge's discretion in continuing the order of commitment. Despite the marked improvement in his treatment participation for several months, the extent of the improvement had only been during the six months leading up to the review. During the first part of the year, which was after the court had issued the November 8, 2006 order continuing L.S.K.'s commitment at STU, L.S.K's conduct was not marked by significant participation in treatment.
We also disagree that Dr. McAllister was not a member of L.S.K.'s team within the meaning of N.J.S.A. 30:4-27.26, which defines treatment team to include "individuals, agencies or firms which provide treatment, supervision or other services at a facility designated for the custody, care and treatment of sexually violent predators." Dr. McAllister's curriculum vitae, to which the parties stipulated, lists his employment as a staff member at STU. As we noted in A.H.B., supra, we consider Dr. McAllister as a member of L.S.K.'s "treatment team even though the doctor himself may not have provided any treatment services to [L.S.K.]" 386 N.J. Super. at 26.
Finally, the portion of the record where counsel claims that the court improperly cut off trial counsel's cross-examination addressed Dr. Stewart's report ruling out paraphila:
Q: You gave [L.S.K.] a rule out paraphilia, correct?
Q: And that's because you only have one instance that may point to a paraphilia?
A: Of non[-]consent, yes.
Q: Of non[-]consent.
A: Or hebaphilia.
Q: Now, is non[-]consent listed in the DSM as a paraphilia, as an element of paraphilia?
THE COURT: No, it's not specifically mentioned, but it's in the Catch All and I've heard it a thousand times.
[PUBLIC ADVOCATE]: Are you saying you don't want to hear it, again, Your Honor?
THE COURT: I am, indeed, saying I don't want to hear that argument again.
Inasmuch as Dr. Stewart did not diagnose L.S.K. as paraphilia non-consent, we fail to discern the relevance of this questioning. Nonetheless, the better approach of the court would have been to inquire of trial counsel the purpose for the questioning rather than to answer the question that was posed to the witness and then express a desire not to hear any further testimony in this regard.
In summary, the evidence supports the finding that L.S.K. 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). 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.