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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3127-05T23127-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.W.K.

SVP-248-02

_____________________________________

 

Argued September 25, 2006 - Decided October 11, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

SVP-248-02.

Patrick Madden, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

Cindi S. Collins, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Acting Attorney General,

attorney).

PER CURIAM

We affirm the order of January 24, 2006, continuing R.W.K.'s involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

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 132-34; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record and considering argument of counsel, we are satisfied that the State has met its burden in this case.

We previously affirmed R.W.K.'s commitment to the STU in an opinion dated August 18, 2004. In re Commitment of R.W.K.,

No. A-1130-02T2 (App. Div. Aug. 18, 2004). As indicated in our prior opinion, R.W.K. molested his six-year old male cousin and a ten-year old girl. Both offenses were committed when he was a juvenile. The second offense was committed while he was on probation for the first offense. He has had no opportunity to commit any offenses as an adult, because he has been confined since his conviction for the second offense.

At R.W.K.'s most recent hearing in 2006, the State presented testimony from Dr. Iser, a psychologist, and Dr. Zeiguer, a psychiatrist. According to Dr. Iser, who testified on behalf of the Treatment Progress Review Committee (TPRC), R.W.K. was in Phase 2 of treatment, because he had not "taken the floor" often enough in therapy groups, he had not admitted important details of his offenses, and he displayed "chronic resistance toward full participation in sex offender therapy," particularly in the area of relapse prevention.

Dr. Zeiguer diagnosed R.W.K. as having personality disorder NOS and substance abuse problems. He also diagnosed R.W.K. as having pedophilia, based on his history of having molested two children, a boy and a girl, and on his having committed the second offense even after receiving therapy for the first offense. Dr. Zeiguer also concluded that R.W.K. was not being truthful about his "deviant arousal," in that he denied being sexually attracted to children. Although R.W.K. had previously admitted his deviant arousal to doctors at Avenel, he told Dr. Zeiguer that those doctors were lying in their reports. Dr. Zeiguer concluded that R.W.K. was in "the beginning" of his "continuum of treatment," that he lacked insight into his "sexual[ly] offending behavior" and had not accepted responsibility for his offenses, and that he was at a high risk to reoffend if released. Dr. Zeiguer testified that he did not consider the results of a prior diagnostic test, known as the Able screen, although it showed that R.W.K. had an interest in young girls "two to ten years of age," nor did he consider the results of another test, the Static 99.

In a thorough and detailed oral opinion, placed on the record on January 23, 2006, Judge Freedman credited the testimony of Doctors Iser and Zeiguer and concluded by clear and convincing evidence that:

[R.W.K.] has not progressed far enough. He clearly has a personality disorder and a[n] Axis I diagnosis of pedophilia. These, in combination and along with his potential drug and alcohol use, predispose him as his record clearly shows to engage in acts of sexual violence and . . . based on his lack of sufficient progress and treatment if [he] were released now he would in fact have serious difficulty controlling his sexually violent behavior to such an extent that . . . he is in fact highly likely to [reoffend]. . . .

[R.W.K.] has got to make a breakthrough in treatment, he's got to start admitting what he needs to admit and so that he can discuss it and work on it and create appropriate relapse prevention strategies.

Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless "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).

Having reviewed the record we conclude that there is no basis for us to disturb Judge Freedman's decision, and we affirm substantially for the reasons stated in his cogent opinion. None of R.W.K.'s arguments, including R.W.K.'s lack of adult offenses, the judge's failure to consider actuarial test results, and R.W.K.'s alleged misdiagnosis as having pedophilia, have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

(continued)

(continued)

5

A-3127-05T2

RECORD IMPOUNDED

 

October 11, 2006