IN THE MATTER CIVIL COMMITMENT OF T.Q.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3904-04T2
3904-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.Q.W.

SVP-131-00

________________________________

 

Argued October 3, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New

Jersey, Law Division, Civil Part, Essex County,

SVP No. 131-00.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant, T.Q.W.

(Yvonne Smith Segars, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent, the State of New Jersey (Peter C. Harvey, Attorney General of New Jersey, attorney).

PER CURIAM

Appellant, T.Q.W., appeals from a judgment entered on March 8, 2005, ordering his continued treatment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-17.24 to -27.38. Appellant was initially committed to the STU in 2000. The judgment now under review was entered after his fourth review hearing. On appeal, appellant argues that the State presented insufficient evidence to support his continued commitment, relied on hearsay, and ignored other evidence. We have thoroughly reviewed the record, and we find appellant's arguments lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.

In affirming the January 7, 2004 order that continued T.Q.W.'s involuntary civil commitment after his third review hearing, we provided the following background:

In 1975, T.Q.W. was convicted of committing a series of four rapes in 1974. He received a thirty year sentence. He was released on parole on January 11, 1983. However, beginning in August 1983, while he was on parole and receiving outpatient therapy at the Adult Diagnostic and Treatment Center, he committed another series of attacks on women, all of which had a sexually violent component. As a result of the first incident, he was convicted of robbery and received a twenty-year sentence. Although he was not convicted of any sex offenses in connection with these incidents, he has admitted to sexually assaulting the women involved.

At T.Q.W.'s third review hearing in January, 2004, Dr. Kern testified that appellant suffers from paraphilia and an anti-social personality disorder, which continues to make him likely to engage in acts of sexual violence if not confined to a secure facility. While Dr. Kern acknowledged the recent progress T.Q.W. was making in therapy, he opined that it was insufficient to mitigate his risk to reoffend and that he still posed a high risk of committing further sexually violent offenses if released. This evidence was unrefuted. Consequently, Judge Perretti ordered continued one-year confinement, and we affirmed.

At the fourth review hearing held on March 8, 2005, which is the subject of this appeal, Dr. Kern again testified, based in part on his then recent interview of T.Q.W., that appellant continues to suffer from paraphilia NOS and anti-social personality disorder, as evidenced by his long criminal history and violence accompanying not only the underlying predicate crimes committed in 1973 and 1974, but also the two unprosecuted offences committed while on parole. According to Dr. Kern, T.Q.W. is presently in Phase Two of treatment, and although his participation in groups has been good generally, he still exhibits limited remorse, lack of observable victim empathy, limited comprehension of the components involved in his arousal patterns, and an absence of well-developed relapse prevention strategies. As a result, T.Q.W. needs to better understand his offense cycle and his deviant sexual arousal. Dr. Kern thus concluded that T.Q.W. "presents a significant risk to reoffend", and that it is "highly likely that he will not control his sexually violent behavior."

Judge Perretti agreed, crediting Dr. Kern's testimony over that of T.Q.W.'s expert, Dr. Fulford, who disagreed with Dr. Kern's diagnosis. In this regard, Judge Perretti found:

. . . Dr. Fulford . . . differs with the diagnosis of paraphilia because he does not see that there is any indication that [T.Q.W.]'s preference -- sexual preference was for rape.

There is no doubt that [T.Q.W.] enjoyed it. He says that in the treatment notes

. . . . There is no doubt from what he has said about the '74 rapes that after the first one, he went back looking for more. The charges in 1983 . . . did follow upon sex offender therapy and during sex offender therapy. This is a matter which must be considered as it bears on the strength of [T.Q.W.]'s drive to rape.

I'm satisfied that the diagnosis of paraphilia made by Dr. Kern is amply supported as is his diagnosis of antisocial personality disorder.

It is explained by the psychiatrist that antisocial personality disorder is a pervasive disregard for the rights of others. The person does what he wants when he wants it without regard to anything outside of his immediate wishes. It also implicates problems with impulses. And there can be no doubt that the offenses committed while [T.Q.W.] was on parole indicate that he has problems with controlling his impulses.

According to Dr. Kern, the conditions that he diagnosed predisposed [T.Q.W.] to commit sexually violent acts because they diminish his volitional, emotional, and cognitive capacities. According to the psychiatrist, [T.Q.W.] has serious difficulty controlling his sexual behavior and his risk "at this point" is "significant" although it is "not the worst." Dr. Kern evaluates the risk as highly likely to re-offend.

. . . .

. . . [T.Q.W.] did not display any complete insight into his criminal behavior. According to Dr. Kern, he continues to minimize his criminal activity.

Judge Perretti also agreed with the conclusion of another of the State's testifying experts, Dr. Gambone, a psychologist, who explained the conclusion of the Treatment Progress Review Committee (TPRC), that T.Q.W. remain in Phase Two of treatment. On this score, Judge Perretti noted:

Particularly, Dr. Gambone noted, after passing Relapse Prevention I and II, [T.Q.W.] should be able to show some understanding of his criminal history, what caused him to commit the sex crimes, and what steps are necessary or what strategies might be necessary to prevent relapse. The report reads at Page 10, "[T.Q.W.] exhibits a tendency toward anxiety and defensive anger when challenged therapeutically." [T.Q.W.]'s responses . . . certainly support that observation.

Crediting the State's proofs, Judge Perretti found that T.Q.W. remained a sexually violent predator in need of further treatment.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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." N.J.S.A. 30:4-27.26. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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 re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33 (emphasis added). See also In re Commitment of J.M.H., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow", and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 48 (1996).

 
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of March 8, 2005.

Affirmed.

By agreement of the parties, the appeal was argued without briefs. We set forth the arguments raised by appellant based upon the presentation at oral argument.

(continued)

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A-3904-04T2

RECORD IMPOUNDED

November 4, 2005