February 2, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF R.Q., SVP-330-03.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-330-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 28, 2009
Before Judges Payne and Miniman.
R.Q. has appealed from the March 17, 2009 decision and order of Judge Mulvihill finding by clear and convincing evidence that he continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment; continuing his commitment to the State of New Jersey Special Treatment Unit; and scheduling a further review hearing on March 10, 2010. On appeal, R.Q. argues that the State failed to meet its burden of proof. We affirm.
On December 21, 1999, four-year old S.C. told her mother that her uncle, R.Q., had forcefully grabbed her, brought her into his bedroom and sexually molested her while masturbating. R.Q. admitted the incident to S.C.'s mother and admitted to S.C.'s grandmother that he had assaulted the child on numerous occasions. At the time of these events, R.Q., who was born in January 1980, was nineteen years of age. He was charged with three counts of sexual assault and one count of endangering the welfare of a child. On January 31, 2000, R.Q. pled guilty to a single count of second-degree sexual assault. He was evaluated at the Adult Treatment and Diagnostic Center (ADTC) and was found to be a repetitive and compulsive sexual offender. R.Q. was sentenced to four years in the ADTC. He maxed out on his sentence on July 7, 2003.
In July 2003, proceedings were commenced by the State, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, to have R.Q. committed to a State Special Treatment Unit (STU) for care and treatment as a sexually violent predator. Following the termination of his prison sentence, R.Q. was temporarily committed to the Special Treatment Center Annex in Avenel, New Jersey, pursuant to N.J.S.A. 30:4-27.28, and after a hearing conducted pursuant to N.J.S.A. 30:4-27.29, R.Q. was found to be a sexually violent offender under the SVPA, and his commitment was continued.
The record also reflects that, in 2003, while still incarcerated in the ADTC, R.Q. was charged by the Mercer County Prosecutor's office with two counts of aggravated sexual assault, two counts of sexual assault, and one count of endangering the welfare of a minor, arising from R.Q.'s acts of fellatio with an eleven-year-old deaf boy that R.Q. had met as the result of his employment as a bus aide at the school for the deaf that the boy attended. R.Q. pled guilty to one count of first-degree aggravated sexual assault, and he was sentenced to time served with no probation on the understanding that he had already been civilly committed pursuant to the SVPA.
Review hearings pursuant to N.J.S.A. 30:4-27.35 were held on September 15, 2004, March 23, 2005, September 20, 2005, March 30, 2006, September 30, 2006, September 20, 2007, and, most recently, on March 17, 2009. At the March 2009 hearing, testimony was given by psychiatrist Marta Pek Scott, and her report and the annual review report of the Treatment Progress Review Committee (TPRC)*fn1 were admitted as direct evidence. Additionally the notes of R.Q.'s treatment were admitted as a foundation for the experts' opinions.
Dr. Scott interviewed R.Q. for one hour on March 10, 2009. Her testimony and report were based on that interview, together with documents reviewed by her pertaining to R.Q.'s offense and treatment. Dr. Scott testified that when she questioned R.Q. about his prior sexual offenses, he admitted to what he had to because it was on the record. However, R.Q. denied that he had threatened his niece, whereas she said that he had done so, and he only admitted to one incident with the eleven-year-old boy, whereas the boy claimed that R.Q. had performed fellatio on five separate occasions. In connection with allegations that he was sexually involved with another committee at the STU, R.Q. replied only that "[w]e haven't gotten caught yet." He did, however, admit to a three-year affair with an inmate at the ADTC, thereby, according to the TPRC, demonstrating an ability and willingness to break the rules. According to Dr. Scott, R.Q.'s admissions showed that he had made "some progress" and that he had accepted some responsibility for what had occurred.
However, she found that it would be "very important" for R.Q. "to fully come to understand and take responsibility for" his conduct in order to derive benefit from the treatment offered to him.
Dr. Scott noted additionally that R.Q. had recently admitted that there was a "possibility" the he was attracted to children. This, the doctor found, suggested that R.Q. had started to make some progress toward a general understanding of the full extent of his deviant sexual arousal, and that his tentative admission was "a very important first step" in starting the work that R.Q. would need to do to be released from the STU. According to Dr. Scott, "without realizing his deviant arousal and attraction to children, he cannot engage in any meaningful way in treatment."
Additionally, Dr. Scott noted R.Q.'s juvenile criminal history, consisting of charges of simple assault and false public alarm on December 15, 1992, simple assault on July 13, 1993 and aggravated assault on October 20, 1995. While at the ADTC, he had been charged with threatening a corrections officer with bodily harm and with refusing to undress and enter a hospital observation room. R.Q. also had a lengthy history of angry outbursts at the STU. According to the TPRC report, R.Q. had been noted to "respond with 'rageful' anger and disrespect around group members and therapists, upon the slightest confrontation" regarding his alleged sexual relationship with another committee. However, R.Q. told the TPRC that his anger was "better than it had been" and that he was last out of control in a confrontation with staff in the prior year. He had taken anger management courses on several occasions, and was advised to employ the techniques taught there.
Dr. Scott testified further that R.Q. had been diagnosed with factitious disorder as the result of his fabricated claim while at the ADTC that he had stomach cancer and had been treated with radiation. He had also been diagnosed with conversion disorder as the result of pseudo seizures occurring at the STU. These conditions, Dr. Scott thought, were indicative of R.Q.'s tendency to manipulate his environment and to attempt to gain attention. Dr. Scott additionally stated that R.Q. had been diagnosed with attention deficit disorder and had been treated with psychotropic medications from the age of six until approximately five years ago. R.Q. stated that he felt better after the psychotropic medications had been discontinued. R.Q. had been psychiatrically hospitalized on three occasions with suicidal ideations: once in 1993 and twice in 1997. However, he stated that the symptoms were faked, and that he merely sought to get out of his abusive father's home.
Dr. Scott diagnosed R.Q. with pedophilia, finding he was sexually attracted to both males and females, and his conduct was not limited to incest. She stated that the pedophilia would not spontaneously remit, and that it was "persistent." Dr. Scott also diagnosed R.Q. with personality disorder not otherwise specified with antisocial and borderline features.
R.Q. had no history of substance abuse.
In retelling his family history, R.Q. reported that his father and grandfather had been imprisoned for "sex crimes."
R.Q. stated that he had been sexually molested by his mother's brother from the age of eight to thirteen and that he was physically and psychologically abused by his father. The uncle was currently imprisoned for a sex crime committed on someone other that R.Q. His recent call to R.Q. at the STU had led R.Q. to have flashbacks to the uncle's prior conduct.
Dr. Scott testified further that she had reviewed the TPRC's report of February 20, 2009 as well as the notes of R.Q.'s treatment. Those records indicated that R.Q. had been in a therapeutic community until June 2008, when he was removed as the result of "his inability to exercise behavioral controls in group and not utilizing the resources that the TC offered to its members." Since then, R.Q. had enrolled in eight treatment modules. He had demonstrated consistent attendance and had demonstrated improved participation in floor discussions and feedback to other group members. R.Q. was presently in Phase 2 of treatment - a status that Dr. Scott regarded as reflecting a lack of progress on R.Q.'s part. According to her, R.Q. "ha[s] not been doing too well in treatment, so far." However, he had submitted and presented to his process group his sexual history questionnaire and autobiography and had offered to undergo arousal polygraph examinations, although none had been offered to date.
Dr. Scott opined that R.Q.'s impulse control issues were hindering his progress in treatment and posing an increase in his risk for relapse after release. The Static-99 risk prediction instrument, as applied to R.Q., produced a score of seven on a range from zero to twelve, thereby placing him in the high risk category for reoffense. The risk of reoffense was increased by R.Q.'s personality disorders. Dr. Scott acknowledged that R.Q.'s pedophilia could be addressed by treatments teaching control of impulses. However, R.Q. had not received enough treatment to overcome his predisposition to offend. As a consequence, the doctor found it "highly likely" that R.Q. would sexually reoffend if he were not committed to the STU.
At the conclusion of the hearing, the court summarized the evidence presented, finding Dr. Scott to have been a "very credible" witness. He then concluded that the State had offered clear and convincing evidence that R.Q. was a sexually violent predator in need of involuntary commitment; that he had committed a predicate sexually violent offense; that he suffered from mental abnormalities that exacerbated his problems; and that it was highly likely that R.Q. would engage in further acts of sexual violence if released at this time. The judge did not consider the allegation that R.Q. had a sexual relationship with another committee in reaching his conclusion, finding that the allegation remained unproven.
R.Q. argues that the State failed to prove, by clear and convincing evidence, all the elements necessary to continue his commitment at the STU. We disagree.
The SVPA provides that "[t]he Attorney General may initiate a court proceeding for involuntary commitment under this act of an inmate who is scheduled for release upon expiration of a maximum term of incarceration...." N.J.S.A. 30:4-27.28(c). "If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a). Anyone so committed "shall be afforded an annual court review hearing of the need for involuntary commitment as a sexually violent predator. The review hearing shall be conducted in the manner provided in [N.J.S.A. 30:4-27.30]." N.J.S.A. 30:4-27.35.
In conducting our review of a judge's determination in a commitment proceeding, we must accord that determination the utmost deference and modify it only where the record reveals a clear abuse of discretion. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). Our responsibility is to "canvass the record inclusive of the expert testimony to determine whether the findings made by the trial judge were clearly erroneous." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div. 2007) (citing In re D.C., 146 N.J. 31, 58-59 (1996)), aff'd, 197 N.J. 563 (2009).
Our review of the record satisfies us that R.Q. meets the definition of a "sexually violent predator," which the SVPA defines as a person who has been convicted... of a sexually violent offense... and 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.
The record provides clear evidence that R.Q. was convicted of a second-degree sexually violent offense, as also defined by N.J.S.A. 30:4-27.26, and that he suffers from mental abnormalities consisting of pedophilia and a personality disorder with antisocial and borderline features that "affect [his] emotional, cognitive or volitional capacity in a manner that predisposes [him] to commit acts of sexual violence." Ibid. (defining "mental abnormality"). Further, the record offers clear proof that R.Q. remains "likely to engage in acts of sexual violence," which conclusion can be reached when "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid. The State must prove that threat 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] the reasonably foreseeable future." In re Commitment of W.Z., 173 N.J. 109, 132 (2002).
In W.Z., the Court rejected the position that such a loss of control must be total and complete. Id. at 128. It accepted the use of actuarial instruments for the purposes of proving the likelihood of recidivism. Id. at 133. Here, both Dr. Scott and the TPRC relied on the Static-99 in categorizing R.Q. as falling into a high risk category for recidivism. Both Dr. Scott and the TPRC believe that R.Q. had begun to, but had not fully acknowledged his sexual urges towards children and their origin.
Ultimately, both Dr. Scott and the TPRC concluded that R.Q. had not yet developed the skills necessary to understand his arousal and offense cycles, and that this step was necessary to prevent relapse. Thus, both recommended additional treatment. We find no fault in that conclusion.
In summary, the evidence identifies R.Q. as an individual with a criminal sexually violent history who suffers from diagnosed mental disorders. Both Dr. Scott and the TPRC expressed some optimism about R.Q.'s progress, but tempered that optimism by recognizing that R.Q.'s progress was, to date, just a start in necessary treatment. Absent further treatment, both foresaw a high likelihood of recidivism. We regard those conclusions to have been supported by clear and convincing evidence. There was no abuse of discretion on the part of Judge Mulvihill in continuing R.Q.'s civil commitment.