On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...