July 2, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF R.F. SVP-490-08
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-490-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 17, 2009
Before Judges Winkelstein, Fuentes and Gilroy.
The State appeals from the order of the trial court dismissing its petition for the civil commitment of R.F. under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The court found that the State had not met its burden of proving, by clear and convincing evidence, that R.F. suffers from a mental defect or psychiatric condition that renders him likely to commit a sexually violent act. After carefully reviewing the record developed before the trial court, and in light of prevailing legal standards, we reverse.
We derive the following facts from the record developed before the trial court.
R.F. committed his first sexual crime in May 2004, three months before his eighteenth birthday. His victim was a twelve-year-old girl identified here as A.M. R.F. admitted to sexually assaulting A.M. in a bathroom. He placed his hand over the victim's mouth to prevent her from calling out, and threatened to choke her if she made any noise. R.F. then lifted the child's shirt, licked her stomach and breasts, removed her pants after placing her in the bathtub, and attempted to penetrate her anally with his penis. R.F. was unable to complete the assault only because A.M.'s sister knocked on the door.
He committed his second sexual crime two months later. In July 2004, R.F. sexually assaulted a thirteen-year-old girl identified here as J.W. According to J.W., R.F. assaulted her while the two were in a wooded area in the back of a residence known as the "club house." R.F. forced J.W. to the ground, pulled on her pants and underwear, covered her mouth when she attempted to scream, vaginally penetrated her, and ejaculated on her body. J.W. told the police that R.F. held a knife near her throat and threatened her not to tell anyone.
When questioned by the police, R.F. admitted to vaginally penetrating J.W. He claimed that the sexual act was consensual, with J.W. being the one who initiated the encounter. They had been together for three days before the incident. According to R.F.'s mother, at the time of these occurrences, R.F. had been diagnosed as suffering from Bi-polar Disorder and Attention Deficit Hyper-Activity Disorder (ADHD). He was taking Adderall, one 10 mg dose per day for the ADHD, and Depakote, 1500 mg per day for the Bi-polar Disorder.
The police charged R.F. with aggravated sexual assault, sexual assault, criminal sexual contact, endangering the welfare of a child, and possession of a knife for an unlawful purpose.*fn1
Because he was on probation for unrelated offenses, R.F. was also charged with violation of probation. While in the county jail awaiting trial on these charges, R.F. was charged with aggravated assault against a corrections officer.
Given R.F.'s psychiatric disorders, the trial court ordered an independent evaluation to determine his competency to stand trial. On February 7, 2005, psychologist Peter D. Paul, Ph.D. examined R.F. at the Dwyer-Keogh Correctional Facility. In a report dated February 15, 2005, Dr. Paul found R.F. competent to stand trial.
On March 24, 2005, R.F. pled guilty, pursuant to a negotiated agreement with the State, to two counts of third-degree endangering the welfare of a child, and one count of aggravated assault. When asked by the court to provide a factual basis for his guilty plea to the endangering the welfare of a child charges, R.F. admitted to engaging in sexual acts with both A.M. and J.W.
The court sentenced R.F. to a term of five years. Because he was found to be a compulsive and repetitive sexual offender under N.J.S.A. 2C:47-1, the court ordered that he serve his sentence at the Adult Diagnostic and Treatment Center (ADTC). In December 2007, after completing just over two years of his five-year sentence, the ADTC determined that R.F. was not benefiting from the treatment offered at this facility, terminated his commitment, and transferred him to a general population correctional facility. The ADTC termination report made the following recommendations:
[R.F.]'s risk for sexual offense recidivism was estimated using the Static-99 and the MnSOST-R. His scores on these instruments suggest that he is in the moderate-high and high risk categories, respectively, to reoffend sexually. This corresponds with the clinical impression that [R.F.] is at high risk to sexually re- offend. [R.F.]'s poor impulse control is demonstrated by the disciplinary charges he received while in custody.
It appears that detention time and loss of recreation time have not mitigated [R.F.]'s poor impulse control and acting out behaviors within the institution as he continues to receive charges. Additionally, it appears as though community supervision is not a deterrent, as [R.F.]'s instant offenses were committed while under supervision for a previous Simple Assault charge. [R.F.]'s risk level is not sufficiently mitigated by his limited progress in treatment. Therefore, [R.F.] should be screened for possible civil commitment as a Sexually Violent Predator.
When [R.F.] is released into the community, sex offender specific aftercare is strongly recommended. [R.F.] must work on developing relapse prevention strategies, social skills, anger management, and his abilities to control his impulses. It is recommended that [R.F.] have no unsupervised contact with minors. In addition, [R.F.] should attend mental health treatment in the community to continue monitoring his psychiatric symptoms. [R.F.] should be referred to community-based programming such as Integrated Case Management Services (ICMS).
R.F. continued to have difficulties after his transfer to the general population, incurring a number of disciplinary infractions. It is undisputed that his adjustment problems are related to his cognitive limitations and social and emotional disorders. He has poor insight as to the root causes of his anti-social behavior and has exhibited a general lack of empathy toward his victims.
On May 23, 2008, faced with his pending release from custody after completion of his sentence, the State filed a petition for R.F.'s commitment under the SVPA. The petition was supported by two clinical certificates attesting for the need to place R.F. at a secured facility to both provide treatment and safeguard the public.
The court granted the State's petition, finding probable cause to believe that R.F. was a sexually violent predator in need of commitment. Thereafter, the court conducted a plenary hearing over a three-day period commencing on December 11, 2008, and ending on December 18, 2008.
Psychologist Dr. Roger Harris, the author of the report terminating R.F.'s commitment at the ADTC, was the first witness called by the State. Dr. Harris reaffirmed his earlier findings and recommendations. He diagnosed R.F. as suffering from pedophilia involving young pubescent or near-pubescent girls, ranging between ten through thirteen years of age. R.F. admitted to being strongly aroused by these girls and he has exhibited poor impulse control. Because R.F. views himself as being in the same age group as his victims, Dr. Harris opined that R.F. is highly likely to reoffend if not committed in a secured facility.
The second witness called by the State was psychologist Dr. Shawn McCall. He examined R.F. and reviewed the records of his criminal activities, psychiatric disorders, and treatment history. Dr. McCall concurred with Dr. Harris's findings and recommendations. Of particular concern to Dr. McCall was R.F.'s history of non-compliance while at the ADTC, in general population, and even in his current detention facility. Dr. McCall opined that his use of violence while committing the crimes, coupled with his antagonistic attitude while confined, demonstrated that R.F. suffers from an anti-social personality disorder. The MMPI test confirmed his diagnosis.
Although R.F. functions intellectually at a below average range, Dr. McCall did not diagnose him as mentally retarded. R.F. presented himself as aware of his current predicament, holding and maintaining a conversation with Dr. McCall throughout his interview. R.F. admitted engaging in sexual activities with A.M. and J.W., yet denied any responsibility for his behavior. In fact, he feels that he was forced into "taking the rap" for something he did not do.
His only expression of remorse was made in a bizarre, self-serving manner, indicating that he was not likely to reoffend because he did not want to eat the facility's food again. According to Dr. McCall, this kind of whimsical minimization of the magnitude of his crimes is indicative of his poor insight, and renders him likely to reoffend.
Dr. McCall did not diagnose R.F. as suffering from pedophilia, involving females, or non-exclusive paraphilia, non-consent. In his view, despite the accounts given by the victims, and R.F.'s admission of criminality, the record was not conclusive as to whether R.F. had a consensual relationship with A.M. and J.W.
Dr. McCall diagnosed R.F. as suffering from an anti-social personality disorder (ASPD). In his opinion, this psychological condition renders R.F. highly likely to reoffend. The compulsive and repetitive qualities of his offenses, and the escalation of violence from one offense to the next, are all indicative of his proclivity to engage in this type of antisocial behavior. Dr. McCall opined that, without treatment in a secure facility, R.F. was likely to reoffend in a sexually deviant manner.
R.F. called physician Dr. Vivian Shnaidman as an expert witness. Dr. Shnaidman examined R.F. over a two-hour period, and reviewed his criminal and treatment records. She testified that, although R.F. was not able to tell her about his sexual crimes, he saw his victims as within his peer group. Dr. Shnaidman discounted the seriousness of the crimes committed by R.F. In her view, the court's willingness to approve a guilty plea to endangering the welfare of a child indicated that the court assessed the evidence supporting the more serious crimes as weak. Thus, in her opinion, the issue of "consent" remains in contention.
Dr. Shnaidman dismissed as "irrelevant" that R.F. committed the two sexual crimes while on probation, because, in her opinion, R.F. believed he was "safe" because he was less than eighteen years old at the time. She also opined that, in addition to ADHC and Bi-polar Disorder, R.F. is intellectually and cognitively impaired. These "deficits" contributed to R.F.'s difficulties in complying with the treatment offered at the ADTC.
Dr. Shnaidman did not endorse the idea of releasing R.F. into the community outright. She opined that R.F. needs a number of support services, including medication and psychotherapy in order to successfully cope with the social stressors he is likely to encounter living outside a controlled environment. These services could be made available to R.F. in a community-based facility. Thus, in her opinion, R.F. did not meet the criteria for commitment under the SPVA.
Against this evidence, the trial court found that the State had not met its burden of proving, by clear and convincing evidence, that R.F. suffers from a mental defect, or psychiatric condition that renders him likely to commit a sexually violent act. The court emphasized that R.F. was only seventeen years old at the time he engaged in sexual relations with twelve-year-old A.M. and thirteen-year-old J.W. Thus, in the trial court's view, R.F's relative youth mitigates in favor of his belief that he was within the victims' age group, and lessens his culpability.
We start our analysis by reaffirming the basic principles that will govern our discussion. In order to commit a person under the SPVA the State must prove, by clear and convincing evidence, that the person has committed past sexually violent acts; that he suffers from a mental condition or defect and that creates a risk that this person will commit other sexually violent acts in the future if not committed to a secured treatment facility. In re the Commitment of P.C., 349 N.J. Super. 569, 575 (App. Div. 2002); N.J.S.A. 30:4-27.32(a).
Whether the State has met this burden of proof lies in the sound discretion of the trial court. In re Registrant G.B., 147 N.J. 62, 79 (1996). The scope of appellate review of the trial court's findings 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). We will modify or reverse the trial court's determination only when the record does not support the court's findings or where there has been a clear mistaken exercise of discretion. Ibid.
Here, we are satisfied that the record does not support the trial court's determination that R.F. does not qualify for commitment under the SPVA. The trial court's analysis erroneously focused on R.F.'s distorted perspective of his role with respect to his victims. R.F. was not the girls' peer in any respect. His behavior was calculating and predatory. He sought out the girls with the intention of engaging in sexual activity, with or without their assent. Of course, it must be emphasized that because they were thirteen years old or twelve years old, the girls were legally incapable of consenting to any type of sexual activity.
However, R.F. did not engage in mere sexual acts. He forced A.M. into a locked bathroom where he violently sexually assaulted her. He then threatened her not to report the incident to anyone. As to J.W., he lured the child into a secluded area, then forcibly sexually assaulted her at knife point. And he committed these offenses while on probation.
After being found a compulsive and repetitive sexual offender, R.F. failed to take advantage of the treatment made available to him at the ADTC. He consistently failed to abide by the rules and regulations of the correctional system, including assaulting a corrections officer.
His continued denial or minimization of the harm he caused his victims is not only indicative of his unwillingness to accept responsibility for his crimes, but it reveals his distorted and pathological perception that he was acting in an age-appropriate manner when he assaulted the girls.
The trial court's determination unduly discounted the testimony of the State's expert witnesses. The opinions of these two psychologists are well-supported by the record and amply substantiate the State's petition for R.F.'s commitment under the SVPA. Dr. Shnaidman's testimony materially differed from the testimony of the State's witnesses only in one respect, the services necessary to address R.F.'s psychiatric disorders. Missing in Dr. Shnaidman's analysis is the danger posed to the community at large by the precipitous release of a young man who has consistently failed to take advantage of the psychological treatment offered to him while incarcerated. This history of noncompliance renders R.F. highly likely to re-offend if released under the conditions suggested by Dr. Shnaidman.