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In re Civil Commitment of D.K.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 4, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF D.K.R., SVP-152-01

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-152-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2008

Before Judges Carchman and Simonelli.

Appellant D.K.R. appeals from an order of March 19, 2008, continuing his involuntary civil commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38.

The issue before us is limited. 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 that 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 reoffend. [In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The trial judge 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 reoffend 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).

Appellant, now 58 years-old, was convicted of two counts of sexual assault and six counts of aggravated sexual assault.

The victims were appellant's step-children - step-daughter, D.R., age twelve, and step-son E.B., also age twelve. These crimes occurred numerous times over a period spanning March of 1981 to January of 1984, some of which took place within six- months of appellant being placed on parole after release from incarceration resulting from another sexual offense.

Dr. Shawn McCall, the reporter for the Treatment Progress Review Committee (TPRC) did not testify, but his report was admitted without objection. Dr. McCall was discouraged by the appellant's lack of progress over the past year. Appellant indicated that he is less engaged in treatment now than in earlier periods and has a limited understanding of sex offense dynamics. "[H]is continued denial of the Predicate Offense and continued refusal to take meaningful steps toward addressing it raise serious concerns by the TPRC." Dr. McCall was also discouraged by the fact appellant has not come any closer to taking a polygraphic examination and has not performed in a more substantial part of his treatment.

Dr. McCall found appellant suffers from pedophilia (sexually attracted to both sexes, non-exclusive), alcohol dependence (with physiological dependence, sustained full remission, in a controlled environment), and antisocial personality disorder. Dr. McCall and the TPRC suggested appellant become "vigorously reengaged in his treatment." McCall found also that despite the fact appellant wants to go home, he fails to grasp the gravity of his "cantankerous performance in Process Groups, failure to comply with program requirements, and consistent denial of his predicate offense, despite his prior admission of the predicate offense, do not encourage a perception that he is anywhere near being prepared to be discharged."

Dr. McCall recommended appellant take Relapse Prevention 2, submit to a substance abuse evaluation and comply with their recommendations, and also take a polygraph through his attorney about his predicate offense. The panel suggested that appellant take a "Deviant Arousal polygraph" through the State to develop some trust with the polygraph process. Ultimately Dr. McCall and the TPRC recommended that appellant remain in Phase 2 because "of his resistance to engage in critical components of treatment such as Psycho-educational modules, meaningfully participating in his Process Group, and the Polygraph Examination."

The State's expert, Dr. Michael McCallister, noted that appellant refused to meet with him for an interview. Dr. McCallister diagnosed defendant with paraphilia, NOS, pedophilia (non-exclusive), history of alcohol abuse (dependence cannot be excluded), antisocial personality disorder, conditional (Provisional) academic skills disorder, history of tympanoplasty, moderate problems with the legal system, and GAF, current 45 danger to others.

Dr. McCallister, also concluded that appellant is responding poorly to his sex offender treatment. Further, the denial of the predicate offense suggests that he continues to be at significant risk to sexually act out in this fashion. Dr. McCallister also acknowledged that appellant is deliberately refusing to address his sexual deviancy.

Ultimately Dr. McCallister opined that appellant has difficulty controlling his sexual offending behavior, and characterized appellant as a high risk to sexually re-offend if his commitment is not continued.

Judge Perretti concluded:

The evidence presented by the State was clear and convincing and uncontradicted. It is clear that this [appellant] continues to suffer from abnormal mental conditions and personality disorders that influence his cognitive, emotional, and volitional functioning so as to predispose him to commit sexually violent acts. Dr. McCallister in his testimony described how deviant arousal relates to emotion, how the [appellant's] behavior relates to volition, and how the [appellant's] attitudes relate to cognition. It is clear that as a result of his predisposition and the combination of his diagnosed conditions that he has serious difficulty controlling his sex offending behavior. He demonstrated this in the community by re-offending within six months of being released on parole from imprisonment for prior sex offenses and his continuing to sexually offend against his two step children over a period of time while he was attending mental health services. This [appellant] is clearly highly likely to commit sexually violent offenses in the foreseeable future if not continued in commitment for further care if the [appellant] continues to reject therapy he must be confined for the protection of the public.

The scope of review of an order for commitment is limited and narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion," In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We do not find such an abuse in this case as this record well supports continued commitment under the SVPA.

Affirmed.

20081204

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