July 31, 2012
NEW JERSEY STATE PAROLE BOARD, RESPONDENT,
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Lihotz and Baxter.
Plaintiff K.M. appeals from a January 13, 2011 final agency decision of the New Jersey State Parole Board (Board), which denied plaintiff's request to modify the conditions of community supervision for life (CSL) to permit him to reside, unconditionally, with his minor son, T.M. The Board's decision permitted K.M. to live in the home with T.M., but prohibited K.M. from being in the home overnight if his son was present. In reaching that decision, the Board relied on the results of a September 2, 2010 polygraph examination, which showed that K.M.'s response was "deceptive" when he was asked whether he had "sexual contact with any minor since 2009." However, in refusing to modify the CSL condition, the Board failed to address the opinions of the three psychologists who opined that although K.M. presented a risk to young girls, it was extremely unlikely that he would target a male child, such as his son. Accordingly, we reverse and remand to the Board for further findings of fact.
In June 2001, K.M. was living with his girlfriend Darlene, and with Darlene's seven-year old daughter Jennifer and her ten-year old daughter, Melissa.*fn1 Jennifer reported to authorities that K.M. had touched her vagina over her clothing while they were watching television. Melissa reported that K.M. had touched her vagina both over and under her clothing, and had done so on several occasions. When Detective Troso of the Burlington County Prosecutor's Office confronted K.M. with Jennifer and Melissa's allegations, K.M. insisted that he had not touched either of the girls.
Nine months later, an eight-year old girl, who was a friend of Jennifer and Melissa, told her mother that K.M. had "French-kissed" her and touched her crotch area. The child also reported that K.M. asked her to put her hand in his pants, but she refused.
On March 31, 2003, K.M. pled guilty to three counts of endangering the welfare of a child, based upon the sexual molestation of Jennifer, Melissa and their eight-year old friend. A psychological report prepared prior to sentencing established that K.M. was a repetitive and compulsive sex offender. The psychologist recommended that K.M. be sentenced to the Adult Diagnostic and Treatment Center at Avenel. At the time of sentencing on August 29, 2003, the judge sentenced K.M. to a three-year term of imprisonment at Avenel and imposed the mandatory condition of CSL.
On August 15, 2005, K.M. was released from Avenel, at which time he began serving his CSL term. Pursuant to the conditions of CSL, because K.M.'s victims were minors, K.M. was required to refrain from residing "with any minor without the prior approval of [his] assigned parole officer." K.M. was residing with Darlene, whom he had married in the interim, and with their son T.M., who was born in 2000.*fn2 K.M.'s parole officer refused to permit K.M. to reside with Darlene and T.M. unless T.M. slept elsewhere. As a result, T.M. began staying overnight at the home of his maternal grandparents.
K.M.'s request to live with his son on a permanent and unconditional basis was denied by the Board in 2006, 2008, and 2010, for the following reasons: K.M. was classified as a repetitive and compulsive sex offender; two of his three victims were the daughters of his current wife, which raised questions about her ability to supervise contact between K.M. and any of her children, in this case, T.M.; K.M. continued to deny that he fondled his daughters' eight-year old friend even though he had pled guilty to doing so; and the results of a polygraph examination revealed that K.M. was being deceptive when he answered "no" when asked whether he had any sexual contact in the past two years with anyone under the age of eighteen.
On November 22, 2010, K.M. filed a request for reconsideration of the denial of his request to reside unconditionally with his son T.M. In support of that request, K.M. pointed to the reports of three psychologists, none of whom opined that K.M. presented a risk of committing a sex offense against a male child. The first report, prepared on July 1, 2003 by Phillip Witt, Ph.D., at the request of K.M., found that "it [was] difficult to imagine [K.M.] committing any additional sex offense while under [the] intense scrutiny [of CSL]." However, "[t]o be on the safe side," Dr. Witt recommended that K.M. "should have no unsupervised contact with minor females." (emphasis added). Dr. Witt did not specify any risk to males.
The second report was prepared by Sean Hiscox, Ph.D., at the request of K.M.'s parole officer, for the specific purpose of "assess[ing] the risk that [K.M.] presents to the community, particularly in regard to his son, [T.M.]." Dr. Hiscox opined:
Regarding [K.M.'s] risk to his son specifically, there are no indications of sexual interest in young boys in general or his son in particular. There have been no allegations of pedophilic . . . sexual activity or interest towards boys. Consequently, given the present information it is my opinion that [K.M.] does not represent a significant sexual risk to his son. . . . .
In addition, he should continue to not have unsupervised contact with young girls. [(Emphasis added).]
The third evaluation was performed by Kenneth Singer, M.S.W., on February 23, 2008, again at the request of K.M.'s parole officer. Mr. Singer commented that "it is not unusual for heterosexual offenders to select males, particularly for convenience or easier access." Singer found it significant, however, that K.M.'s "admitted and alleged victims*fn3 . . . have all been female." He opined that "given the dynamics of this situation, it is probable that [K.M.] would not be targeting his own son."
On January 13, 2011, the Board denied K.M.'s request for reconsideration. After summarizing K.M.'s request, the Board provided only one reason for denying the request, namely, K.M.'s response to the polygraph examination:
Please be advised that on December 29, 2010 the Adult Panel reviewed your request and denied your request that your client be permitted to reside with his son, [T.M.]. Of concern to the Panel is that on September 2, 2010[,] during a second polygraph examination, your client was found to be deceptive on the single issue examination regarding whether he had "sexual contact with any minor since 2009."
The Board did not address the opinions rendered by Witt, Hiscox and Singer.
On appeal from the Board's January 13, 2011 decision, K.M. maintains: the special condition of CSL -- which prohibits him from residing in the home overnight if T.M. is present -- must be vacated, as the condition is arbitrary and capricious; the CSL condition at issue "violates the express public policy that parents have a constitutional right to raise their children"; the record contains "no substantial evidence to support the CSL condition"; and in applying the legislative policies to the facts, the Board "clearly erred in reaching its conclusions."
The scope of our review of Parole Board decisions is narrow. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). Because Parole Board determinations "are highly individualized discretionary appraisals," such decisions should not be reversed "unless found to be arbitrary . . . or an abuse of discretion[.]" Ibid. (internal citations and quotation marks omitted). Nonetheless, when conducting our review, we remain mindful that the "Legislature's primary purpose in enacting Megan's Law was to increase the protection of the citizens of New Jersey from recidivism by CSL defendants." Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 188 (App. Div. 2004), appeal dismissed, 187 N.J. 487 (2006).
A defendant convicted of endangering the welfare of a child by engaging in sexual conduct that impairs or debauches the morals of a child, in violation of N.J.S.A. 2C:24-4(a), is subject to a special sentence of parole supervision for life.
N.J.S.A. 2C:43-6.4(a).*fn4 In addition to the twenty standard conditions of CSL, if the victim of an offense committed by the parolee is a minor, special conditions apply. As relevant here, such additional conditions specify that an offender must: refrain from residing with any minor without the prior approval of the assigned parole officer.
However, "[w]hen the minor is in the physical presence of his or her parent or legal guardian," the Board is authorized to waive the prohibition on the parolee "residing with any minor."
The Board is authorized to demand that any offender who is serving a special sentence of CSL submit to a polygraph examination annually. N.J.S.A. 30:4-123.88. The purpose of the polygraph is to "obtain information necessary for risk management" and to "reduce the offender's denial mechanisms." Ibid.
The 2010 polygraph results upon which the Board relied in reaching its January 13, 2011 decision are certainly of concern, as the results suggest that K.M. may not have been truthful. But the Board's reliance on the 2009 polygraph results -- without discussing or mentioning the opinions of Witt, Hiscox and Singer -- is troubling. The Board's disregard of those three psychological opinions -- two of which were prepared at the request of the Board's own parole officers --strikes us as arbitrary and capricious, because all three psychologists opined that K.M. did not present a risk to his son T.M. See Trantino, supra, 154 N.J. at 25 (requiring the Board to consider all relevant factors).
We reverse the Board's January 13, 2011 decision and remand for reconsideration of K.M.'s request, with instructions that the Board give explicit consideration to the three psychological reports we have identified. On remand, we do not foreclose the right of the Board to again insist that K.M. not reside in the home if T.M. is present, but the Board must give full consideration to those reports and must explain how the opinions expressed therein bear on the Board's ultimate decision.
Reversed and remanded.