April 29, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF R.R., SVP-158-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-158-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 1, 2009
Before Judges Axelrad and Parrillo.
R.R., who is now forty years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of August 4, 2008 continuing his commitment to the STU following a ninth review hearing. On appeal, R.R. argues the court erred in crediting the testimony of the State's witnesses and in finding the State met its burden with clear and convincing evidence that he continues to have serious difficulty controlling his sexually violent behavior. More particularly, R.R. submits the court erroneously ceased his furlough treatment program based on prior sexual behavior in the STU.*fn1 Based on our review of the record we are not persuaded by appellant's arguments and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of August 1, 2008.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment 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 W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
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); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court'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., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
The August 4, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. R.R. was initially committed to the STU by an order entered on July 23, 2001. Review hearings were held from 2002 through 2007, in which judgments of continued commitment were entered, none of which were appealed.*fn2 Following the last evidentiary review hearings conducted on April 1, July 11, July 15, July 23, and August 1, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.
R.R. was arrested for the predicate offense on October 11, 1989, when he was twenty-one, for multiple counts of aggravated sexual assault, sexual assault, criminal sexual contact, and endangering the welfare of a child. On March 15, 1990, he pled guilty to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), four counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and was sentenced to twenty years' imprisonment with a ten-year period of parole ineligibility to be served at the Adult Diagnostic and Treatment Center at Avenel (ADTC). The charges arose after an investigation by the Eatontown Police revealed R.R. had sexually assaulted numerous teenage boys over a three-year period. R.R. initiated the offense by befriending the young boys, all of whom lived in his neighborhood. The friendships led to physical wrestling with the victims, leading next to physical touching in the boys' private areas. R.R. would then gauge whether the victims were resistant to his advances, interpreting their silence as license to progress with further sexual behavior. All tolled, R.R. performed oral and anal sex upon, and had oral and anal sex performed on him by twelve different victims, whose ages during the time of the offenses ranged from nine to sixteen. R.R. was also convicted in 1989 for receiving stolen property and possession of a handgun, for which he was sentenced to two years' probation, after he was already in custody for the predicate offense. While in prison, R.R. continued to act out in a sexual manner, often with young inmates of a somewhat diminished capacity, exploiting them using the same methods used on his prior victims. R.R. continued his activities, despite being told to cease any and all sexual activities.
R.R. was evaluated while at the ADTC and diagnosed in 2001 with pedophilia, males, non-exclusive; paraphilia NOS; polysubstance abuse; and borderline intellectual functioning and rule out personality disorder. Prior to his release, the State filed a petition for civil commitment and he was transferred to the STU and temporarily committed by order of February 23, 2001.
Beginning in June 2007, R.R. entered Phase 5 of his treatment, which entitled him to take a series of supervised and unsupervised furloughs outside the STU, after which R.R. would be debriefed. The furloughs continued through October 2007, becoming increasingly longer, and resulting in his being considered for conditional release from the STU, pending the completion of a series of polygraph examinations. During the first polygraph examination, R.R.'s answers revealed he was being deceptive in certain responses, and the second examination revealed R.R. had engaged in certain sexual and masturbatory activities, though it remained unclear as to whether these incidents occurred during the furlough period or at a prior time. R.R.'s furlough program was then cancelled.
R.R.'s most recent review hearings addressed the cancellation of the furlough program and spanned several days, culminating on August 1, 2008 with an oral opinion terminating his furloughs and continuing his commitment. At the review hearing, the court heard testimony on behalf of the State from Dr. Marta Scott, a psychiatrist, and Dr. Debra Roquet, a psychologist involved in the therapeutic community at the STU, and R.R.'s psychologist, Dr. Timothy Foley. The court also accepted into evidence Dr. Scott's report of March 25, 2008, the TPRC report of November 28, 2007, R.R.'s treatment progress notes, and Dr. Foley's report of March 30, 2008.
Dr. Scott explained that the furloughs and discharge planning were stopped after a polygraph was conducted in December 2007 and R.R. failed on two questions that concerned his recent and current sexual activity in the STU. During their interview, he admitted that he had touched other residents in the STU in an inappropriate manner but he did not admit to any oral or other form of sexual engagement. R.R. told Dr. Scott that he would pass by residents and would try to touch their private parts through their pants, or would hug residents and sort of "feel them out," and he also stated that others would touch him in that manner. R.R. further told her he had two encounters with an individual that included flirtation and touching only, which "felt good." Dr. Scott believed the incidents occurred within the six-month period of the polygraph. She indicated, however, that it was immaterial if the incidents occurred prior to R.R.'s going out on furloughs because he had previously gotten into trouble at the ADTC for engaging in inappropriate sexual behavior with other residents and knew that such conduct would not be tolerated and would jeopardize his discharge. Dr. Scott was of the opinion that R.R. still had serious difficulties controlling his sexual-offending behavior, making him highly likely to sexually re-offend. She stated he needed to do the following to fall below highly likely and/or get back on track of furloughs and discharge planning:
[H]e would have to demonstrate, within this highly controlled setting, that he can -- he can control his impulses, sexual impulses with other inmates, and he would have to be able to give evidence of it on the polygraph test, that he's able to do such thing, and I would also make a recommendation that his medication dose [of Zoloft that he started on February 1, 2008] would be increased, and the response monitored and perhaps followed up by polygraph exams, to ascertain that the reported improvement is valid and real.
[A]ccording to prior treatment reports, he seemed to have this sort of cycle of doing something in, like every six months. Because of that, I would say that a year would be a minimum to kind of cover that pattern, to ascertain that he's able to maintain it behind the typical time frame [to go in the institution, controlling these impulses].
On cross-examination, Dr. Scott acknowledged that during furloughs, there was no indication that R.R. was sexually inappropriate with anyone on the street. Moreover, in treatment notes, R.R. revealed that he had seen young boys, found them attractive and had used his appropriate relapse prevention strategies.
Dr. Roquet testified that she had written a majority of R.R.'s progress treatment notes from February 1 until the beginning of July 2008, and she had been working with R.R. since August or September 2006. Dr. Roquet testified that in January 2008, R.R. expressed to her that he was upset and angry at the staff and system with requiring that he not act out sexually in the STU. R.R.'s inappropriate conduct consisted of what he called "fly-bys," or grabbing someone's buttocks as he walked by them, and "drive-bys," which involved touching the penis of another resident. Dr. Roquet explained that R.R. seemed to be struggling with where he needed to set his boundaries and had been "playing" with his sexual urges and testing the limits of what he could control, as exemplified by a recent incident where he was seen hugging another resident. Dr. Roquet also noted an incident on May 27, 2008, where R.R. engaged in manipulative behavior to obtain a "cube-mate" (two bunks together) with whom he had been sexually intimate in the past.
Dr. Roquet gave the following opinion of the goals she wanted R.R. to reach in treatment before he resumed furloughs:
There are two issues that are of concern in particular right now. One has to do with this idea of sexual compulsivity. The reasons that that's important is because when he is discharged from the STU, [R.R.] who knows treatment and who knows interventions, what he needs to bring that together is a very, very good understanding of when he needs to use his interventions.
He needs to have a very good internalized sense of where to set the boundaries for himself of what is and what is not ok. He needs to know his triggers.
If he does not accept that there is a compulsive element to his sexual urges, if he is not seeing that[,] if he takes a certain step or goes beyond a certain boundary or doesn't act on a certain trigger or if he plays around that boundary, and this is something that he has talked about playing, playing with his deviants, that things can then go out of control.
I think that that's a high risk for him. I think he can get himself into a high-risk situation. He needs to recognize clearly what his boundaries are, what his high-risk situations are in order to be safe when he's outside of the STU.
I have a concern that he does not [now know these things].
He needs to have his -- his own set of rules that are internalized, and by that, I mean, not experience this as something being imposed from the outside so it sets him up to then go into rebellion and acting out.
Dr. Roquet further explained that R.R. needs to understand his cycle, arousal patterns, triggers and the behaviors that put him at high risk, and without those tools, he would be more likely to "act out sexually in an illegal way."
Dr. Foley testified that R.R. used relapse prevention strategies in several incidents, including during an Alcoholics Anonymous meeting in which R.R. was exposed to many pictures of young people hanging on the walls of the church where the meeting was held. R.R. had also told Dr. Foley of an occurrence in the mall where he had seen a young boy walking in his direction and he turned and walked the other way rather than risk temptation. Dr. Foley opined that R.R.'s admitted institutional violations should not require the elimination of his furloughs since the violations occurred in the year prior and since R.R. had had twelve successful supervised and unsupervised furloughs since that time. Furthermore, the incidents R.R. admitted to were brief, while clothed, and involved another STU resident who bore no resemblance to R.R.'s pool of victims. Dr. Foley found that the incident did not indicate a pattern of behavior on R.R.'s part but was instead an indiscretion. According to Dr. Foley, these consensual incidents within the institution would not correlate to an increased risk for sexual re-offending. Dr. Foley recommended that R.R. be placed back on a gradual furlough program, requiring him to complete an additional six furloughs before being considered for discharge.
On August 1, 2008, Judge Perretti placed a thorough and comprehensive decision on the record. She found the record to be inconsistent regarding whether R.R.'s incidents of sexually touching another resident occurred before or during the furlough program. She also noted there was no evidence of any sexual behavior on R.R.'s part in the STU since his initial admission. However, the court stated the fact that R.R. did not report his inappropriate sexual behavior when it first happened and did not process the arousals accompanying the behavior during his therapy sessions produced a reasonable inference that R.R. would not process deviant arousals which might occur during community-based therapy. The court then reviewed the positions of each of the experts before concluding the testimonies of Drs. Scott and Roquet supplied clear and convincing proof that R.R. continued to have serious difficulty controlling his sexually violent behavior, as demonstrated by his continued prohibited sexual conduct in the STU. Judge Perretti found particularly compelling the testimony of R.R.'s principal therapist, Dr. Roquet, regarding some of his current problems and the goals that he needed to reach before it would be appropriate for him to resume furloughs. Judge Perretti then concluded:
The testimon[ies] of Drs. Scott and Roquet was clear and convincing. The respondent continues to be a sexually violent predator.
He suffers from abnormal, mental conditions and personality disorders 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 he has demonstrated by his numerous repetitive sexually violent offenses in the community and his continuing to engage in prohibited sexual conduct in the institution.
It is clear that he will be highly likely to recidivate by committing sexually violent acts within the foreseeable future if not confined for further treatment.
It appears to the Court that the respondent is continuing in treatment in spite of his serious setbacks and has not been found to be acting inappropriately for approximately one year, although the respondent's inappropriate sexual conduct is not clearly related to a definable chronology.
The court ordered a review on March 19, 2009.
The court's decision did not turn on R.R.'s masturbating habits on Zoloft or his relapse prevention strategy regarding the hypothetical fifteen-year old. The judge appropriately credited the institutional concerns that R.R. was not quite ready to resume furloughs in the community and from a treatment perspective first had to reach some additional goals. We are satisfied there was ample evidence in the record to support the court's crediting of the testimony of the State's experts' conclusion that R.R. continues to suffer from a mental abnormality or personality disorder that presently causes his serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend. As the court's decision is supported by clear and convincing evidence, In Re Commitment of W.Z., supra, 173 N.J. at 132, we discern no abuse of discretion by the court in suspending R.R.'s furloughs and continuing to confine him to a secure facility for treatment.