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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2472-05T22472-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.X.G. SVP-83-00

 

Argued May 16, 2006 - Decided June 13, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-83-00.

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

(Yvonne Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney).

PER CURIAM

R.X.G. appeals from the order of January 3, 2006, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

R.X.G. was initially committed under the SVPA in May 2000, following service of a sentence for three counts of aggravated sexual assault upon three of his cousins, aged four, five and seven. We last considered his commitment in October 2004, at which time we affirmed the continuation order then before us for review. As a part of our opinion on that appeal, we noted that R.X.G. had refused to participate in therapy at the STU and had refused to be interviewed by the State's expert in anticipation of the hearing on his continued commitment. See N.J.S.A. 30:4-27.30b. For reasons we expressed in that opinion, we affirmed that order continuing his commitment. In re Commitment of R.X.G., SVP-83-00, No. A-2587-03T2 (App. Div. Oct. 20, 2004).

The standards that guide our analysis of the issues presented on appeal are well-settled. An involuntary civil commitment can follow service of a criminal sentence or other 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. The State must prove "a threat to the health and safety of others because of the likelihood of [the committee] engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). It must demonstrate, "by clear and convincing evidence," id. at 130, "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." Id. at 132. The trial court must address the committee's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

At the December 22, 2005 hearing, the State presented the testimony of Dr. Gambone, who is a psychologist and a member of the Treatment Progress Review Committee (TPRC) and Dr. Kern, a psychiatrist who had examined R.X.G. Dr. Gambone testified that R.X.G. had not attended the TPRC meeting or otherwise participated in that process. In addition, Dr. Gambone testified that R.X.G. had not participated in recommended treatment including treatment modules relating to anger management, arousal reconditioning and relapse prevention, among others.

Dr. Kern testified that he had diagnosed R.X.G. as suffering from an anti-social personality disorder and pedophilia of a non-exclusive type. In light of R.X.G.'s minimal participation in treatment, his defensive and belligerent behaviors and attitudes, his extended absences from his process group, and his recent history of infractions at STU that had led to his assignment to the modified activities program during 2005, Dr. Kern opined that R.X.G. was highly likely to reoffend if released.

R.X.G. presented the testimony of Dr. Callender, who is both the facilitator of and one of the therapists for his process group. She explained that, with the exception of a two-month period during which R.X.G. attended sessions in order to avoid a loss of privileges for refusal to participate in treatment, R.X.G.'s participation in his treatment has been inconsistent. She also testified that during a discussion with R.X.G. the day before the hearing, he had again declined to participate in any of the recommended treatment modules.

Judge Freedman rendered his comprehensive oral opinion containing his findings and conclusions on December 23, 2005. In relevant part, he noted that the evidence as to R.X.G.'s diagnosis and the propriety of his commitment was uncontradicted. Referring to Dr. Callender's testimony, he noted that she had not offered any opinions contrary to those given by Dr. Kern, but had testified only about the facts of R.X.G.'s treatment. As to that, the judge noted that:

Dr. Callender, . . . basically, indicated that . . . with interventions by Dr. Callender and -- and the other members of the treatment team has managed to get [R.X.G.] to, at least, make a start with regard to treatment, but certainly, there was no indication of any kind that he has made any real progress to the point of reducing his risk.

Referring to the testimony offered by Dr. Kern, the judge noted that R.X.G. is "in the early stages of treatment." The judge also found that R.X.G.'s statements to the doctor in which "he denied having a cycle, or a deviant arousal, or sexual triggers" supported Dr. Kern's opinion that R.X.G. was "in denial." Judge Freedman concluded as follows:

I am satisfied by clear and convincing evidence [based on] the testimony [of] Dr. Gambone with regard to [R.X.G.'s] lack of treatment progress and Dr. Kern with regard to his diagnosis and his opinions with regard to dangerousness. Based on my review of the record, I think that . . . there's ample support for his statements and conclusions in the record. I find that [R.X.G.] does, in fact, suffer from a paraphilia in the form of pedophilia on axis one and he also suffers from anti-social personality disorder on axis two. That these two mental abnormality and personality disorders individually and . . . particularly in combination are very dangerous and clearly predispose him based on his conduct in the past to engage in acts of sexual violence that, if he were to be released now, he would have serious difficulty in controlling his sexually violent behavior due to the fact that he has not had sufficient treatment and that he would be highly likely, within the reasonably foreseeable future to engage in this conduct again.

His . . . mental abnormality in the form of pedophilia and his personality disorder clearly affect him in all three areas -- emotional, cognitive, and volitional, particularly volitional. Pedophilia, as the Doctor testified to, does not remit by itself. It's an orientation that can be brought under control by treatment, but this man has not gotten into the treatment.

Based on our review of this record, we conclude that the evidence abundantly supports Judge Freedman's decision and his order continuing R.X.G.'s commitment. The scope of our review in matters of this kind is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Apart from more generally applicable standards of review, we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." Ibid.; In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We can make no such determination on the record before us.

Affirmed.

 

(continued)

(continued)

6

A-2472-05T2

RECORD IMPOUNDED

June 13, 2006