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

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1466-08T21466-08T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.W.R.,

SVP-229-02.

_______________________________

 

Argued: April 1, 2009 - Decided:

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-229-02.

Joan Van Pelt, Deputy Public Advocate, argued the cause for appellant R.W.R. (Ronald K. Chen, Public Advocate, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

R.W.R., who is now forty-three years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of October 7, 2008, continuing his commitment to the STU following an eighth review hearing. On appeal, R.W.R. contends the court inappropriately credited the testimony of the State's witnesses and the recommendation of the TPRC that he be demoted from Phase Four. More particularly, R.W.R. argues the sole basis for his demotion was because he was having a consensual adult homosexual relationship at the STU, which is an insufficient basis to infer that he would be highly likely to sexually re-offend if released. Based on our review of the record, we are not persuaded by appellant's arguments and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of October 7, 2008.

I.

A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment 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 re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; 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); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an 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." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).

The scope of appellate review of a trial court's decision in a commitment proceeding 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); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

II.

R.W.R. was initially committed to the STU by an order entered on January 31, 2002. Review hearings were held on March 13, 2003, April 6, 2004, March 23, 2005, September 20, 2005, February 9, 2006, January 11, 2007, and January 30, 2008, in which judgments of continued commitment were entered. R.W.R. appealed the 2004 and 2006 orders, which we affirmed. In Re Civil Commitment of R.W.R., No. A-4595-03T2 (App. Div. Nov. 10, 2004); In Re Civil Commitment of R.W.R., No. A-3124-05T2 (App. Div. June 13, 2006). Following the last evidentiary review hearing conducted on October 7, 2008, a judgment of continued commitment was entered, which is the subject of this appeal. The October 7, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. R.W.R. readily admits that he committed various sexual acts with four boys between the ages of eleven or twelve and sixteen and that he groomed them by gaining their trust. Moreover, he made available alcohol, marijuana and pornography in his apartment for the boys to use. Specifically, on August 7, 1998, he was convicted of two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(5), for molesting twin brothers over a three-year period, as well as burglary, theft and drug charges. He received an aggregate four-year custodial sentence, which included nine months for the sex offenses. While R.W.R. was incarcerated, two other male victims came forward claiming R.W.R. molested them. Consequently, on October 22, 1999 R.W.R. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2c(4), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and on February 25, 2000, he was convicted of second-degree sexual assault. He was sentenced to concurrent terms of six years at the Adult Diagnostic and Treatment Center in Avenel (ADTC), also concurrent to the term for which he was already serving. R.W.R. was transferred to the ADTC on June 27, 2000. Prior to his release, the State filed a petition for civil commitment and R.W.R. was transferred to the STU and temporarily committed by order of January 31, 2002.

At the review hearing that is the subject of this appeal, the court heard testimony on behalf of the State from Dr. Marta Scott, a psychiatrist, and Dr. Doreen Stanzione, a psychologist and member of the Treatment Progress Review Committee (TPRC), and on behalf of R.W.R. from Dr. Pius Essandoh, a clinical psychologist who treated R.W.R. at the STU, and Dr. Timothy P. Foley, a psychologist. The court also accepted into evidence Dr. Scott's report of October 2, 2008, the TPRC report of Dr. Stanzione of July 24, 2008, R.W.R.'s treatment progress notes from January 6, 2008 through September 15, 2008, and Dr. Foley's report of October 2, 2008.

Dr. Scott diagnosed R.W.R. with paraphilia NOS, with a focus on boys ranging from ages thirteen to sixteen years old. She also diagnosed him with cannabis and alcohol abuse and personality disorder with antisocial and narcissistic traits. She stated this condition made his risk to re-offend high. R.W.R. had admitted to drinking alcohol in high school and to daily marijuana use for a period of time. He had also taken LSD, ecstasy and mushrooms. He admitted selling and distributing narcotics to school children. Dr. Scott was of the opinion that R.W.R.'s substance abuse was relevant because alcohol and drugs were a part of the "grooming" of his victims.

Dr. Scott acknowledged that R.W.R. was very intelligent and had a good understanding of his sex offender cycle. She noted her concern, however, that when R.W.R. was confronted with a stressful situation, even in a strictly controlled setting as the STU, he struggled with applying the techniques he learned, such as relapse prevention. Instead, he resumed his prior acting-out behavior. A particular concern in Dr. Scott's opinion was evidence that R.W.R. had resumed a sexual relationship with W.T., another resident of the STU, who was of limited cognitive development. R.W.R. told her he resumed this relationship because he was upset about being discharged from the therapeutic community (TC) in May or June. R.W.R. did not self-disclose the relationship but waited to bring it to group until the situation had become public knowledge among the TC. The relationship demonstrated to Dr. Scott an inability or unwillingness to abide by the STU's rules. It was further significant because it fit the pattern of a re-enactment of R.W.R.'s "M.O." to groom an individual who had less understanding of his surrounding and to engage in a pattern of manipulative and secretive behavior, which R.W.R. had previously utilized in his offending activities with children and adolescents. It was also clear evidence to the psychiatrist that when R.W.R. was faced with an emotional challenge, he immediately returned to his old dysfunctional behavior. Dr. Scott further found problematic R.W.R.'s lack of remorse and empathy towards W.T., because although he claimed to be fond of him, he had no qualms about engaging in a relationship knowing it would also jeopardize W.T.'s progress at the STU.

Dr. Stanzione explained that R.W.R. had been in Phase Four, which was the maintenance phase of treatment in which an individual had already completed treatment and was working on mitigating risk. The treatment team had asked for his demotion to Phase Three in which an individual is still working on core issues. She explained that R.W.R.'s treatment team recommended he be demoted a level because he was not being receptive to feedback from others and was being verbally aggressive at times in the TC but the TPRC felt at the time the behavior was not problematic enough to warrant a demotion. However, when it later came to light that R.W.R. had resumed the sexual relationship with W.T., though he knew he was under a magnifying glass, the TPRC demoted him to Phase Three. Dr. Stanzione explained that the demotion was not merely because R.W.R. had engaged in a sexual relationship with another resident and broken the rules, but that his conduct was indicative of a greater problem, and she reiterated the same concerns articulated by Dr. Scott.

Dr. Pius Essandoh, who was involved in R.W.R.'s treatment from the end of May 2008, testified that he and some members of the treatment team disagreed with the decision that R.W.R. should be placed in the "MAP" program in which privileges such as jobs, TV, and game systems were revoked.

Dr. Foley was of the opinion R.W.R. was a relatively low-risk to re-offend, and with court oversight and community supervision for life requirements, believed R.W.R. would be a good candidate for a conditional discharge. At the time Dr. Foley interviewed R.W.R., however, the most recent sexual relationship with W.T. had not come to light, and R.W.R. had not admitted his recent encounters to Dr. Foley. Nevertheless, Dr. Foley was not of the opinion that this sexual relationship made
R.W.R. a greater risk in the community. He did, however, acknowledge the relationship, with the attendant nuances, to be a setback in treatment.

At the conclusion of the hearing, Judge Serena Perretti placed a thorough and comprehensive decision on the record. The court detailed the TPRC notes, crediting R.W.R. with the fact that he had taken at least ten floors during the current year and had participated in numerous modules. The court noted, however, that R.W.R. did not utilize his relapse prevention skills or arousal reconditioning when he resumed his sexual relationship with W.T. around late May or early June of 2008. Nor did he recognize his build-up or seek aid from his process group. Moreover, it appeared from the treatment notes that the only reason R.W.R. took the floor on July 21, 2008 to discuss his incidents of sexual contact with W.T. was because the situation had become public knowledge among the TC and he had a treatment team meeting approaching and was facing phase demotion. Judge Perretti did not believe that W.T. was victimized by R.W.R. and was satisfied this was a consensual sexual relationship between the two men. Nonetheless, the relationship was contrary to the rules, and R.W.R. "knew that it was very problematic behavior in light of the past testimony of Dr. Zeiguer" at his prior review hearing. Furthermore, the court found it was clear that R.W.R. "interfered with W.T.'s opportunity to progress toward furlough and release in order to satisfy his own sexual needs -- thus, demonstrating lack of remorse, lack of empathy, and disregard for the rights and welfare of others."

Judge Perretti credited Dr. Scott's diagnosis and conclusion, setting forth in detail the expert's testimony and opinion that R.W.R.'s recent inappropriate sexual behavior demonstrated that he still had difficulty controlling his sexually violent behavior and was highly likely to recidivate if discharged at this time. The court noted Dr. Scott's conclusion that the combination of R.W.R.'s "personality disorder with its characteristics of lack of remorse, lack of empathy, and lack of regard for the welfare of others facilitates [R.W.R.'s] acting on deviate sexual behavior."

In contrast, the court expressly discredited Dr. Foley's diagnosis and continuing conviction that R.W.R. was less than likely to commit future acts of sexual violence and could be adequately supervised in the community at this time. The court noted that R.W.R. could not comply with the rules, even in a controlled environment such as the STU; did not use the techniques that he had been taught; and was currently demonstrating his lack of control over his sexual desires as well as continuing to demonstrate the characteristics of his personality disorder.

Judge Perretti summarized her findings in the following way:

The testimony presented by the State of Dr. Scott and Dr. Stanzione, together with the treatment notes . . . are clear and convincing proof that [R.W.R.] continues to be a sexually violent predator who suffers from abnormal mental conditions and personality disorder that influence his volitional, cognitive and emotional functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior. And it is clear that [R.W.R.] is highly likely to commit sexually violent acts within the foreseeable future if he is not continued for further care in a confined environment.

Inasmuch as [R.W.R.] has been quite properly demoted from Phase-4 to Phase-3 of treatment, this court sees no reason to continue to provide in a form of order for the separation of discharge planning for [R.W.R.]. Discharge planning at this time is not appropriate. . . .

The court ordered a review in one year.

Judge Perretti expressed the reasons for her decision and rejection of Dr. Foley's opinions about R.W.R.'s diagnosis, finding those opinions were unsupported by the factual record. The judge accepted the contrary opinions respecting the appropriate diagnosis and treatment status of R.W.R. offered by the State's witnesses as being well-supported by the evidence in the record. Contrary to R.W.R.'s assertion, the demotion was not just based on a rule violation of R.W.R. having sex with another consenting adult male at the STU. For the reasons articulated at length by the State's experts and detailed in the treatment notes, R.W.R. had previously been counseled by Dr. Zeiguer regarding his relationship with W.T. and had terminated that relationship. However, when faced with disappointment and stress, rather than using relapse prevention or other coping techniques that he had been taught at the STU, he resorted to his prior inappropriate conduct and acted out sexually, employing an M.O. that he had previously utilized in his offending activities with children and adolescents. R.W.R. also gave no regard to the consequences of the relationship to himself or the other resident, and further kept the relationship a secret until he was forced to disclose it. Even his expert Dr. Foley found that was a setback in treatment.

The court properly relied upon the expertise of the TPRC, who demoted R.W.R. and discontinued his discharge plan, as it was clear he had additional work to do. The clear and convincing evidence of record in this case supports the trial court's conclusion that R.W.R. has not made sufficient progress in the STU's programs "tailored to address the specific needs of sexually violent predators" and that he remains in need of continued treatment under the SVPA. See N.J.S.A. 30:4-27.34b. As the conclusion that R.W.R. continues to suffer from a mental abnormality or personality disorder that presently causes a serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence, In Re Commitment of W.Z., supra, 173 N.J. at 132, we discern no abuse of discretion by the court in continuing to confine him to a secure facility for treatment.

 
Affirmed.

By agreement of the parties and permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

(continued)

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14

A-1466-08T2

RECORD IMPOUNDED

April 29, 2009