June 17, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF B.R., SVP-63-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-63-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Sapp-Peterson and Messano.
B.R. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntarily civil commitment pursuant to the Sexually Violent Predator Act (the SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the November 8, 2007, order of Judge Philip M. Freedman, that continued his commitment after an annual review hearing that took place on October 30, 2007. B.R. does not contest that the State produced sufficient evidence demonstrating that he continues to "suffer from a mental abnormality or personality disorder that makes [him] 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. Rather, he argues that he "has made incredible strides" in his treatment at the STU, and that the institution should be ordered to begin "discharge planning" for his eventual release. After due consideration of the record and applicable legal standards, we affirm.
B.R. was first committed to the STU on April 3, 2000, following a sentence he served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel as a result of his conviction for aggravated sexual assault upon a six-year old boy. That predicate offense involved repeated episodes that occurred on at least five occasions between October 1 and December 31, 1992. We affirmed B.R.'s commitment to the STU on May 23, 2002. In re Civil Commitment of B.R., A-666-01 (App. Div. May 23, 2002). On May 24, 2005, we once again affirmed his continued commitment following his third re-commitment hearing. In re Civil Commitment of B.L.R., A-5186-03 (App. Div. May 24, 2005).*fn1
At the hearing that gives rise to this appeal, the State presented the testimony of Doctor Michael McAllister, a staff psychiatrist at the STU. McAllister evaluated B.R.'s progress during 2007, most recently on October 3, 2007, a few weeks before the hearing.
McAllister reviewed the treatment notes of the STU and the report prepared by the Treatment Progress Review Committee (TPRC). He noted that in the most recent interview he conducted, B.R. displayed "a deliberate deceptiveness and a deliberate attempt to paint himself in such a way that would attempt to make himself look as it he didn't need treatment." McAllister noted the disparity between B.R.'s admissions to the TPRC that he had "sexual fantasies about boys since an early age," and his statement to McAllister that he had no such fantasies "preceding the crime." He noted B.R.'s statements to the treatment team at Avenel that he would "go to malls, parks and video arcades to be around young boys in connection with his sexual attraction to them," in contrast to his claim to McAllister that these were "just places he would go," with no sexual purpose involved.
McAllister reached the conclusion that B.R. had "a rather severe sexual deviance which he [was] attempting to minimize and mislead about. And that he has not been fully open and honest about in his treatment." McAllister acknowledged the TPRC's conclusion that B.R. had shown "an improvement in his participation" in treatment; however, given B.R.'s denial of deviant thoughts he had previously admitted, McAllister opined that if "[B.R.] w[as] at liberty and he considered his liberty interest to be in danger because he was having deviant thoughts, it d[idn't] suggest . . . that [B.R.] would be willing to be open or honest about it." McAllister rendered a diagnosis that B.R. suffered from pedophilia, "with a sexual attraction both to male and female prepubertal children . . . not limited to family members." He also opined that B.R. suffered from a personality disorder that was "both narcissistic . . . and antisocial." He further noted B.R.'s history of alcohol abuse and noted "some learning disability difficulties." McAllister concluded that B.R.'s "risk to sexually re-offend if he was liberty would be extremely high."
On cross-examination, McAllister acknowledged that B.R. had made "significant progress" in treatment, as demonstrated by his recent participation in group therapy and his submission to polygraph testing. He further acknowledged that the progress notes displayed B.R.'s "decrease in impulsivity" and a greater ability to control certain impulses "at this time."
The State's next witness was Nicole Paolillo, a staff psychologist at the STU and a member of B.R.'s TPRC. She reviewed the treatment notes and the most recent TPRC report, dated October 8, 2007. Paolillo noted that B.R. was recently "demonstrating a higher tolerance for frustration," was "remaining in group," "following the recommendations" of his treatment providers, and "complying with polygraph examinations." In short, B.R. was "generally presenting as more cooperative in the process." On cross-examination, Paolillo noted that "in contrast to his previous participation," B.R. had demonstrated "a positive step."
In his oral opinion issued on November 8, 2007, Judge Freedman reviewed B.R.'s prior history and treatment, noting the significant number of occasions in the past when B.R. had admitted having experienced deviant sexual arousal around children from a young age. He noted B.R.'s admission to the TPRC that he continued to "have current sexual arousal to children." Judge Freedman noted that the TPRC had recommended that B.R. be advanced to Stage Three treatment in its most recent report, significant progress considering the committee's earlier recommendation, made in February 2007, that he remain at Stage Two treatment.
Judge Freedman found that indeed B.R. had made progress since February 2007, but also found that he remained "a sexually violent predator," whose "mental abnormality and . . . personality disorder" "predispose[d] him to engage in active sexual violence." The judge concluded that B.R. "would have a serious difficulty [in] controlling his sexual[ly] violent behavior," and "would be highly likely to engage in this conduct again within the reasonably foreseeable future." Judge Freedman entered the order of continued commitment which set October 8, 2008, as the date for B.R.'s next commitment review.
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63, (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial judge's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). On appeal, "[t]he appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
As we noted above, at the re-commitment hearing, and before us at oral argument, B.R.'s counsel did not contest the propriety of his continued commitment. Rather, he urged that we reverse the order under review and remand the matter to Judge Freedman for the entry of an order that would require the STU to commence discharge planning for B.R. He urged this based primarily upon the increased participation that B.R. demonstrated in his therapy and his decision to follow the treatment recommendations made. Counsel argued that this, in conjunction with the alleged predisposition against his client that he contends Dr. McAllister has demonstrated, and the TPRC's own ambiguity regarding B.R.'s onset of pedophilic thoughts and behavior, presented a total picture of someone who deserved to be considered for conditional discharge in the near future.
Judge Freedman considered at length the progress that B.R. had most recently demonstrated. He further credited fully the testimony of the State's experts, noting that McAllister himself acknowledged the progress, despite his earlier opinion that B.R. "would never do it." In short, Judge Freedman rejected B.R.'s assertion that McAllister was somehow predisposed against him.
The record clearly demonstrates that B.R.'s progress is of relatively recent vintage. In February 2007, the TPRC observed he failed to comply with treatment recommendations and participated in therapy in a limited fashion, noting that "[u]ntil a substantial degree of effort is demonstrated, [B.R.] will remain stagnant in treatment." Eight months later, in October 2007, the TPRC readily acknowledged his improvement, but noted "his advancement" was of a "tenuous nature," and recommended his advancement to Phase Three, "contingent upon his ability to address all of the panel's recommendations." In particular, the TPRC noted B.R. needed "to shed clarity to the confusion around his sexual deviance."
It is, of course, B.R.'s contention that this demonstrates the State's inability to prove his pedophiliac thoughts were long-standing, i.e., dating back to his teenage years, as opposed to his current claim that they began at the time he victimized the six-year old boy, i.e., when he was in his early twenties. However, Judge Freedman took thorough note of the contradictory statements that B.R. has made over the years, both as to the timing of the onset of his pedophiliac thoughts and his conduct as a result. He accepted the experts' conclusions that B.R. himself failed to demonstrate insight into his condition because he essentially sought to "mislead" the experts and "minimize" his deviant thoughts and behavior. The judge noted B.R.'s "current sexual arousal to children."
In our earlier opinion, we noted,
Our SVPA requires that civil committees be provided with appropriately tailored treatment to address the specific needs of sexually violent predators. N.J.S.A. 30:4-27.34(b). The State has considerable discretion in determining the treatment for a person committed under the SVPA. [In re Civil Commitment of B.R., A-666-01 (App. Div. May 23, 2002) (slip op. at 13) (citing Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed. 2d 734 (2001))(emphasis added).]
Judge Freedman concluded that although B.R. had made significant progress, the recommendations of the TPRC, McAllister, and Paolillo to maintain Phase Three treatment modalities were amply supported by clear and convincing evidence, and that any planning for his conditional discharge was premature. We find no basis to disturb that conclusion.