IN THE MATTER CIVIL COMMITMENT OF R.X.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3362-04T23362-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.X.K.,

SVP-120-00.

 

Argued: December 7, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number SVP-120-00.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Leilani Holgado, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

R.X.K. is involuntarily civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons determined to be sexually violent predators in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the judgment of the Law Division entered on March 2, 2005, continuing his involuntary civil commitment to the STU after an evidentiary hearing conducted before Judge Philip Freedman on January 27, 2005, February 3, 2005, and March 2, 2005. In accordance with an agreement of the parties, this appeal is to be determined on the record as supplemented by oral argument, but without briefs.

At argument, R.X.K. argued that the decision of the trial court that he is a sexually violent predator who suffers from an abnormality that causes serious difficulty in controlling sexual violent behavior such that commission of another sexually violent offense is highly likely without continued involuntary commitment in a secure facility for custody, care and treatment is not adequately supported by clear and convincing evidence in the record. R.X.K. also argued that the trial court violated the rights of committed patients set forth in N.J.S.A. 30:4-24.2d(3), and improperly relinquished control of the court to the Department of Corrections, when it permitted R.X.K. to be shackled while the review hearing was being conducted.

We disagree with both contentions advanced by R.X.K., and affirm substantially for the reasons articulated by Judge Philip M. Freedman in his oral opinions delivered on these issues on January 28, 2005, and March 2, 2005.

On May 19, 1996, R.X.K. pled guilty to second-degree sexual assault, based on a July 13, 1995 charge that he had sexually assaulted a fourteen year-old boy multiple times over a five-year period, and had introduced that victim to a priest who then engaged in fellatio with the victim. Prior to his release from the prison term he was serving on that conviction, a petition seeking the involuntary civil commitment of R.X.K. pursuant to the SVPA was filed on September 21, 2000.

A temporary commitment order was entered on September 30, 2000, based on clinical certificates issued by Dr. Roger Harris and Dr. Lawrence A. Siegel, both psychiatrists, diagnosing R.X.K. as suffering from paraphilia and concluding that he was at a high risk for reoffending. After an evidentiary hearing conducted in the Law Division on March 27, 2001, and April 16, 2001, a final order of commitment of R.X.K. to the STU was entered.

Orders continuing his commitment were entered on March 18, 2003, and on September 22, 2003, after R.X.K. stipulated that the State's proofs established that he continued to be a sexually violent predator in need of involuntary treatment.

An evidentiary review hearing was conducted on June 18, 2004, and June 23, 2004, resulting in an order continuing R.X.K.'s commitment. As we have noted, the evidentiary review hearing leading to entry of the March 2, 2005 order on appeal, continuing his commitment was conducted on January 27, 2005, February 3, 2005, and March 2, 2005.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, 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 reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63 (App. Div.). The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

At the commencement of the hearing on January 27, 2005, counsel for R.X.K. orally moved that R.X.K. "be unshackled for the court proceedings." After noting that similar motions in SVPA commitment proceedings had been made in the past, Judge Freedman ruled, in pertinent part:

It's my understanding that the Legislature has established the Department of Corrections as the agency who's in charge of the operation of this institution and the security involved in it. And . . . this is the procedure that they put on. And it's my understanding, the reason they do that is to provide for the possibility of someone trying to rush the corrections officer who is in possession of a firearm. There's one officer in the courtroom with a firearm, and that's what the purpose of that shackling is, . .. to inhibit anyone from being able to rush the person with a firearm.

And, obviously, . . . you can make a judgment on a case-by-case basis as to who might be a risk, and I'm certainly not qualified to do that. . . .

So this is a procedure they have established, I don't see any reason to interfere with it. The fact that [R.X.K.] is wearing a shackle in no way affects me with regard to the merits of this case, since I just decided, for the record, the reason why he's wearing them; not because he individually is considered a particular risk, there is no such decision made, it's just a procedure that applies to everyone, so that we don't have to make individual decisions as to who's at risk and who isn't. . . .

* * * *

I'm not going to interfere with the Department of Corrections' security arrangements.

R.X.K. contends that any restraints placed on him are governed by the terms of N.J.S.A. 30:4-24.2d, which provides that committed patients shall be free from physical restraint except in emergency situations. We disagree. The Legislature has determined that "because of the nature of the mental conditions from which sexually violent predators suffer and the danger they present, it is necessary to house involuntarily committed sexually violent predators in an environment separate from persons committed under [N.J.S.A. 30:4-27.1 to -27.23] or otherwise confined." N.J.S.A. 30:4-27.25d. The SVPA specifically provides that "[t]he Department of Corrections shall be responsible for the operation of any facility designated for the custody, care and treatment of sexually violent predators, and shall provide or arrange for custodial care of persons committed pursuant to this act[,]" N.J.S.A. 30:4-27.34a, while "[t]he Division of Mental Health Services in the Department of Human Services shall provide or arrange for treatment for a person committed pursuant to this act." N.J.S.A. 30:4-17.34b.

In apparent recognition of the differences between a sexually violent predator committed pursuant to the SVPA and a mentally ill person committed pursuant to N.J.S.A. 30:4-27.1 to -27.23, N.J.S.A. 30:4-27.34 was amended by L.2003, c. 156, 1, effective August 15, 2003, to provide:

d. Notwithstanding the provisions of [N.J.S.A. 30:4-24.2] or any other law to the contrary, the rights and rules of conduct applicable to a person subject to involuntary commitment as a sexually violent predator pursuant to [N.J.S.A. 30:4-27.24 to -27.38] shall be established by regulation promulgated jointly by the Commissioner of Human Services and the Commissioner of Corrections, in consultation with the Attorney General. The regulations promulgated under this subsection shall take into consideration the rights of patients as set forth in [N.J.S.A. 30:4-24.2], but shall specifically address the differing needs and specific characteristics of, and treatment protocols related to, sexually violent predators. In developing these regulations, the commissioners shall give due regard to security concerns and safety of residents, treatment staff, custodial personnel and others in and about the facility.

[Emphasis added.]

Thus, it is evident the Legislature has recognized that the rights of patients set forth in N.J.S.A. 30:4-24.2 cannot be applied in blanket fashion when dealing with sexually violent predators. Indeed, the requisites for involuntary commitment under the SVPA is that the person has committed a sexually violent offense, and suffers from a mental abnormality or personality disorder that makes it highly likely that the person will reoffend if not confined in a secure facility designated for custody, care and treatment. N.J.S.A. 30:4-27.26; W.Z., supra, 173 N.J. at 132.

Judge Freedman found that the presence of shackles did not impede R.X.K.'s ability to communicate with counsel or participate in the hearing; indeed, he testified. The judge stated that the hearing was being conducted at the STU in the presence of an armed guard, and that the purpose of the shackles in these cases was "to inhibit anyone from being able to rush the person with a firearm." The judge noted that the security policy of the Department of Corrections within its facility was being uniformly applied and did not affect his decision in any way concerning the merits of the case.

These circumstances are in contrast to those in a criminal proceeding where the credibility of a defendant or witness who testifies in shackles before a jury could be improperly impugned. See State v. Smith, 346 N.J. Super. 233, 238-39 (App. Div. 2002). Accordingly, we find no misapplication of discretion by Judge Freedman in denying the request by counsel for R.X.K. that the shackles be removed.

Prior to commencement of the hearing, R.X.K. also moved for an order precluding the introduction of certain reports and other materials and to bar the State's psychiatrist from testifying concerning same. Judge Freedman ruled, as follows:

Well, he's merely pointing out some places in the record that he's utilizing and coming to his conclusion. The Appellate Division has ruled on this subject a number of times. It's really undisputed in this court by any expert who's ever testified, including all of the experts who have testified for respondents and on behalf of respondents that, in doing these type of evaluations, psychiatrists and psychologists look to the history of the case, and that history includes presentence reports, prior evaluations, police reports, transcripts of pleas and sentences, other clinical evaluations by other clinicians, treatment notes at ADTC or elsewhere, prior psychiatric hospitalizations, if any, and treatment notes here; and that these are the types of records utilized by experts of this kind . . . in doing this kind of risk assessment evaluation.

And no one has ever disagreed with this. All of the State and respondents' experts that have ever testified here have all done exactly the same thing: They list all of the records that they've utilized and the history that they reviewed. And it's been the testimony of all of them that, in this profession and in this type of evaluation, this is what's done.

The rules of evidence allow that, when . . . experts of a kind agree that it's the normal course to rely on certain types of documentation, including hearsay, that they can do it. And the Appellate Division ruled on this many time, and commented on any number of cases.

* * * *

If [the expert] uses [hearsay] to rely on to make his diagnosis, then the Appellate Division has indicated that's not a proper use.

With respect to the treatment notes from R.X.K.'s therapists, the judge stated:

These records are business records of this institution. These experts rely on the treatment records in evaluating the dynamic factor of treatment effect, and I don't see any other way how they can do it, except to examine the treatment records.

* * * *

They're not being produced to introduce that opinion or those statements as being truthful; they're merely being introduced as documents relied on by the expert in reaching his conclusion. And the rules clearly allow them to do that, if they're the type of documents that experts of this kind rely on. And there's no question that treatment records to any physician as history is very important in reaching their opinion.

The State produced the testimony of Dr. Michael R. McAllister, a psychiatrist, who examined R.X.K. on January 25, 2005. When asked about his review of reports, records and evaluations of R.X.K., Dr. McAllister stated: "I arrive at my own conclusions and diagnoses, independent of the previous reports." He explained why it is important to review background information when conducting an evaluation, as follows:

It allows the most complete picture of the individual, drawing from the historical data over a number of years, and from the benefit of the perspective of multiple individuals. It also provides history of statements from [R.X.K.] himself over a period of time. Such an approach is the standard when conducting these types of evaluations.

More specifically, Dr. McAllister discussed how his uses that information:

Well, as I've mentioned previously, the materials are reviewed for their clinical inferences. The diagnoses that are listed are certainly considered against the clinical inferences in the data upon which they may be based; and, as I've noted previously, I arrive at my own diagnosis.

An example would be that Dr. Siegel had raised the possibility of possible organic brain syndrome, which diagnosis I discarded in favor of a mental illness diagnosis.

Dr. McAllister testified that R.X.K. is suffering from paraphilia NOS and bipolar affective disorder symptoms that adversely affect his judgment as well as his cooperation and participation in treatment. He noted that R.X.K. has refused to take medication prescribed to combat these conditions, and that he shows no evidence of significant gain in treatment. Dr. McAllister stated that R.X.K. also suffers from a personality disorder NOS, and that his risk to sexually reoffend "remains quite significant."

Julie McBride, a therapist and member of R.X.K.'s treatment team, testified that R.X.K.'s participation in therapy has been sporadic and inconsistent.

R.X.K. produced the testimony of Dr. Jeffrey Allen, a psychologist. Dr. Allen performed a psychological examination of R.X.K. on January 6, 2005, using psychological assessment instruments to measure his risk for reoffending. Dr. Allen testified that the results of those tests disclosed that R.X.K. posed only a low to moderate risk for reoffending, and it was certainly not highly likely that he would commit another sexually violent offense. Dr. Allen stated that he had ruled out the diagnosis of any personality disorder. He also noted that R.X.K. had been molested by Catholic priests when he was young.

R.X.K. testified and admitted that he sexually assaulted a fourteen year-old boy over a five-year period, engaging in oral sex. He denied fondling his daughter during a visitation session at the STU, as had been alleged, and stated he would not reoffend if released.

In considering the evidence presented, Judge Freedman rendered the following findings and conclusions, in pertinent part:

[R.X.K.] has been here for some time. When he was last before the court I believe I indicated to him . . . some inclination if I could find myself satisfied that he had some understanding of why he committed the offenses that he did to fashion some sort of discharge plan of this case.

In response to that it seems [R.X.K.'s] participation in treatment deteriorated, became even more spotty than it had been prior to that time. And I'm going to go through the treatment record briefly. In this particular case, there's really no dispute between the experts with regard to the fact that [R.X.K.] suffers from a mental abnormality. His own expert in answers to questions posed to him agreed with that.

* * * *

So, [Dr. Allen] basically bases his opinion [that R.X.K. poses a low to moderate risk to reoffend] on the Static 99 [test results]. And that's where I part company with him. And he's a credible witness. Dr. Allen is without question a credible witness and he's a knowledgeable person. But he takes the position that the actuarial control. And the Supreme Court of New Jersey has dealt with that issue in [In re Commitment of R.S.], 173 N.J. 134 (2002), when they affirm[ed] the Appellate Division and this court in its holding that the Static 99 is one aspect to be considered among all the rest in determining whether or not a commitment is required.

* * * *

Dr. McAllister testified about how he prepared his report. And his reliance [on] the type of documents that he relied on. He reported on his interview with [R.X.K.] He pointed out a number of conflicts in the story that he told him from the one that he told Dr. Foley at the outset. And he also pointed out how this sexual offending with the boy started.

* * * *

He's testified that the paraphilia of the kind that the respondent has do not spontaneously remit. He feels that recently [R.X.K,] has taken steps backward in treatment. He's now denying things that he previously admitted. . . .

[Dr. McAllister] felt that at the present time [R.X.K] does suffer from a mental abnormality and a personality disorder as well as in the form of a paraphilia bipolar disorder of some kind, a personality disorder. That he's predisposed to engage in acts of sexual violence. That is sexual contact with young boys. And that he would have a serious difficulty controlling his behavior if he were discharged. And he felt that the risk remains quite significant is how he put it, which this court equates with highly likely.

* * * *

So, it's clear to me from the testimony that's been presented here that [R.X.K.] has in fact regressed with regard to his treatment. . . .

* * * *

And all that I just reviewed is P-5 in evidence in this matter. So, . . . I think it's very, very clear from this recitation that I've just made at length that despite what I suggested and indicated to [R.X.K.] the last time he was before the court, it apparently had no impact on him or else he's incapable of reacting to it. Because, rather than improve or show improvement with regard to his participation in treatment . . . , his participation has decreased.

* * * *

I'm inclined, and I do in fact accept Dr. McAllister's view at this time with regard to his risk. I'm satisfied by clear and convincing evidence that -- and it's not in dispute, that [R.X.K.] suffers from a mental abnormality and a personality disorder. Or, that at least there's no dispute about the mental abnormality in the form of paraphilia and possibly a pedophilia. He probably also has a personality disorder that . . . predisposes him based on his history to engage in acts -- and his admissions as to his sexual arousal -- to engage in acts of sexual violence with young children, under-age children.

That he would, if he was released, to have a serious difficulty controlling his sexual behavior, and would be highly likely within the reasonably foreseeable future to engage in this kind of conduct again. . . .

* * * *

I also find by clear and convincing evidence that the information that that expert relied on was in fact the kind used by psychiatrists and psychologists in making these kind of risk assessments.

Dr. Allen relied on exactly the same kind of information that Dr. McAllister relied on. I don't think there's any dispute about that at all. The only dispute between the two experts, as I said at the outset, is whether he is highly likely or not [to reoffend]. If the Static 99 [results] control . . . then things would be very simple here. And we [would] just look at the score and that would be the end of the case.

The judge then issued a judgment on March 2, 2005 continuing the commitment of R.X.K. under the SVPA and scheduled a review hearing for November 1, 2005.

The evidence in this record supports Judge Freedman's finding that R.X.K. has not made sufficient progress in the STU treatment program "tailored to address the specific needs of sexually violent predators" and remains in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The judge's conclusion that R.X.K. continues to suffer from a mental abnormality and personality disorder that causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is consistent with controlling legal principles, and is supported by clear and convincing evidence in the record. See W.Z., supra, 173 N.J. at 132; R. 2:11-3(e)(1)(A).

 
Affirmed.

At argument, the parties agreed to simultaneously submit letter briefs on the issue of whether the trial court erred in denying R.X.K.'s application that he be free of shackles during the hearing.

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

Neither party has cited to any such regulations and it appears that this legislative mandate, as yet, has not been complied with, notwithstanding the August 15, 2003 effective date of this amendment. If so, such a delay in meeting this statutory mandate is inexplicable.

R.X.K. has submitted a transcript of a SVPA commitment hearing before a different judge, where that judge directed removal of the shackles.

Not Otherwise Specified

We were informed at argument that this scheduled review hearing has been postponed pending our decision in this appeal.

(continued)

(continued)

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A-3362-04T2

RECORD IMPOUNDED

December 30, 2005