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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2253-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.T.,

SVP-35-00.

________________________________________________________________

November 1, 2011

Argued October 25, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-35-00.

Lewis P. Sengstacke, Assistant Deputy Public Defender, argued the cause for appellant R.T. (Joseph E. Krakora, Public Defender, attorney).

Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney).

PER CURIAM

R.T. appeals from a judgment entered on September 20, 2010 that continued his involuntary commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We reject R.T.'s claim that the State's proofs fell short of establishing by clear and convincing evidence that he is highly likely to engage in acts of sexual violence if not involuntarily confined. We affirm.

I.

On June 7, 1995, when R.T. was nineteen years old, he lured B.H. and his older brother R.H. into a wooded area behind the apartment complex where the boys lived with their mother. After the older boy left the area, B.H. said he needed to use the bathroom. R.T. told the child to pull down his pants. When B.H. did so, R.T. fondled the boy's penis.

R.T. subsequently pled guilty to second-degree sexual assault in connection with that incident. Prior to sentencing, Jeffrey Allen, Ph. D., conducted a psychological evaluation of R.T. to determine whether he should be sentenced to the Adult Diagnostic and Treatment Center (ADTC) at Avenel as a compulsive and repetitive sex offender. During that evaluation, R.T. admitted to Dr. Allen that he had also fondled B.H. on a prior occasion. He also admitted to touching the penis of R.H. on two separate occasions, and to molesting at least two other boys, who were four or five years old, while the children were in the woods behind R.T.'s apartment complex. R.T. admitted to being sexually aroused by "little boys."

In keeping with Dr. Allen's recommendation, the sentencing judge ordered R.T. to serve his five-year prison sentence at the ADTC. Upon his discharge from the ADTC, R.T. was transferred to the Ann Klein Forensic Psychiatric Hospital on January 11, 1999, where he agreed to undergo hormone treatments to suppress his deviant sexual fantasies.

On January 10, 2000, the State filed a petition seeking R.T.'s commitment pursuant to the SVPA. Following a hearing on December 4, 2000, the judge found that R.T. was a sexually violent predator, and approved R.T.'s commitment to the STU for control, care and treatment. At the nine annual review hearings conducted between 2001 and 2009, the judge ordered R.T.'s continued commitment as a sexually violent predator.1 The present appeal was taken from the order dated September 20, 2010, which was entered following the review hearing held on that date by Judge John A. McLaughlin.

At the hearing, the State presented testimony from Dean De Crisce, M.D., a forensic psychiatrist. In his September 16, 2010 report, which was received in evidence, Dr. De Crisce diagnosed R.T. as suffering from pedophilia (sexually attracted to males), alcohol abuse with possible alcohol dependence, and dysthymic disorder (depression). He also diagnosed R.T. as suffering from borderline intellectual functioning and personality disorder "not otherwise specified, with antisocial, schizoid and avoidant traits."

In his report, Dr. De Crisce observed that R.T. had also been convicted of setting a fire in a dumpster behind a high school. When asked whether he became sexually aroused when setting the fire, R.T. answered in the affirmative. De Crisce opined that this additional form of deviant sexual arousal created an increased risk for R.T. to reoffend as a sexually violent predator. Dr. De Crisce also identified other disorders from which R.T. suffers that are "significantly correlated with a higher risk of sexual recidivism." The most notable include: schizoid or avoidant behavioral traits, and a personality disorder characterized by "significant social detachment and [a] poor relationship history." Together, these have caused, and predispose, R.T. to "turn[] to children for companionship and sexual activity because he felt . . . rejected by his [adult] peers," as such disorders "interfere with creating and maintaining [appropriate] relationships in which to satisfy . . . interpersonal needs."

In his testimony at the hearing, Dr. De Crisce noted that he had been forced to prepare his September 2010 report without the benefit of a face-to-face assessment of R.T. because R.T. had refused to participate; however, Dr. De Crisce had treated R.T. for "a number of years," had evaluated him in 2007 and 2008 and had reviewed the treatment team notes, all of which enabled him to prepare a forensic report despite R.T.'s refusal to cooperate. When asked to describe R.T.'s participation in treatment over the past year, Dr. De Crisce responded that R.T. "has had a number of problems." He explained:

He is engaged in treatment, at least at a minimal level. He's had difficulty completing successfully modules [sic], and has only completed very few. Many of them have been inconsistent leading to his incompletes.

[His treatment team has] stated repeatedly that when [R.T.] is challenged in a group, he may not come back to group for a number of periods, even weeks, come back to group. . . .

. . . .

He does attend group fairly consistently. He's fairly detached. He looks at the ceiling, the floor, falls asleep during group. He is not disruptive behaviorally and will give some input to other peers when prompted, but is felt to be . . . disengaged in the treatment process. . . . He has a very minimal level of understanding [of] treatment concepts, given that he has essentially been in some type of treatment [for] the better part of 15 years.

Dr. De Crisce also reported that R.T. had been placed in the Modified Activities Program (MAP) due to behavioral problems and was, at the time of the hearing in September 2010, still there.

Dr. De Crisce described "a number of risk factors that contribute to [R.T.'s] high risk of reoffense." He pointed to R.T.'s "history of treatment dropout [and] treatment refusal." Additionally, R.T. has had "a number of victims" and has "continued to report continued [deviant] arousal over the years, and he's had poor functioning in the community prior to incarceration and a history of substance abuse."

The doctor opined that R.T. continues to suffer from a mental abnormality that affects his emotional, cognitive and volitional capacity "such that he is likely to sexually re-offend if not kept under the care, control and treatment of a secure facility such as the STU." Asked to characterize R.T.'s risk to sexually reoffend if not confined to the STU, Dr. De Crisce answered, "Highly likely."

The State also presented the testimony of Joy Ellick, Psy. D., a clinical psychologist who had prepared an annual report on behalf of R.T.'s treatment team. The treatment team reached the same diagnoses for R.T. as had Dr. De Crisce. The team unanimously recommended that R.T. remain in his current "Phase 2" treatment level due to his indifferent attitude to treatment and his lack of progress. According to Dr. Ellick, "Phase 2 is part of the orientation phase in treatment where . . . residents are still continuing to get used to . . . discussing their [arousal] dynamics [and] their offenses." Only when residents have made progress in their treatment are they permitted to advance to phase 3, which is considered "the core phase of treatment." She emphasized that phase 2, the treatment level the team had recommended for R.T., is designed for "residents [who] are [still] in the beginning stages of treatment[.]"

Dr. Ellick described R.T. as "not actively engaged in treatment." She noted that "[a]lthough he attends most of his [treatment] groups, . . . he's typically observed closing his eyes. His treaters weren't sure if he's actively listening when he's closing his eyes during group." Because of his "limited participation," it had been "difficult to discern" what if anything he was "learning from group." She explained, "we really don't have a clear understanding of what is going on with him, given his poor participation in group." Dr. Ellick also identified another "concern" expressed by the treatment team, namely, that R.T. "takes a limited number of floors," which meant that he very seldom contributed anything to the group therapy sessions and participated in the treatment process very infrequently.

Dr. Ellick also described the results of the Static-99R test that she administered to R.T., noting that the test is an actuarial measure of relative risk for sexual offense recidivism.2 According to Dr. Ellick, R.T. "received a total score of 5," which placed him in the "Moderate-High Risk Category for being charged or convicted of another sexual offense." She opined that R.T. had made little progress over the past year, and recommended that he remain involuntarily committed to the STU.

In an oral opinion rendered at the conclusion of the testimony, Judge McLaughlin credited the opinions rendered by Drs. De Crisce and Ellick, and accepted their diagnoses of pedophilia, dysthymic disorder, alcohol abuse, pyromania, personality disorder N.O.S. and borderline intellectual functioning. The judge concluded:

[T]he State has proven by clear, convincing and unrefuted evidence that these disorders cause him serious difficulty [in] control[ling] his harmful sexually violent behavior, such that it's presently highly likely that he will reoffend in the reasonabl[y] foreseeable future if not committed to the STU. I find . . . a number of factors, that currently elevate that risk, including his Static-99 scores, combination of personality disorder and pedophilia, the history of offending against male child victims that are unrelated, his history of early alcohol abuse, the early age of his offense, and his poor response to treatment, which to date has been ineffective.

Accordingly, the judge ordered R.T.'s continued commitment to the STU under the SVPA, with a review hearing to be conducted on September 12, 2011. This appeal followed.

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. 2003). We accord the "utmost deference" to the trial judge's "determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). A trial court's determination will not be modified unless it reveals a clear mistake in the exercise of the trial judge's broad discretion. V.A., supra, 357 N.J. Super. at 63.

New Jersey's SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). As the Court recently observed in In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators."

In commitment proceedings initiated pursuant to the SVPA, the State must demonstrate that the individual "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 the individual poses a "threat to the health and safety of others" because of his or her likelihood of engaging in sexually violent acts due to a "serious difficulty in controlling his or her harmful behavior such that it is highly likely" that he or she will reoffend. J.M.B., supra, 197 N.J. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).

"Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). The trial court must address "present serious difficulty with control," and the State must establish its case by clear and convincing evidence. W.Z., supra, 173 N.J. at 132-33 (emphasis in original). Measured by this standard, the September 20, 2010 order must be affirmed.

First, the uncontroverted evidence in the record demonstrates that R.T. suffers from pedophilia and a personality disorder, both of which constitute "a mental abnormality or personality disorder" that satisfies the first portion of N.J.S.A. 30:4-27.26. The only issue in dispute is whether, as the State argued before Judge McLaughlin, such mental abnormalities cause R.T. to be "highly likely," W.Z., supra, 173 N.J. at 132, to reoffend.

Based upon our careful review of the record in light of R.T.'s arguments on appeal, we are satisfied, as was Judge McLaughlin, that R.T. is "highly likely" to reoffend if released to the community. Our review of the judge's findings and conclusions demonstrates that he properly evaluated both the actuarial and clinical evidence before him. The record amply supports his conclusion that: R.T.'s diagnoses are unchallenged; his insight into his deviant arousal and history of sexual violence is non-existent; his risk factors remain unabated; and his progress in treatment has been insubstantial. We conclude that the record fully supports Judge McLaughlin's findings and satisfies the State's heavy burden of proof that R.T. continues to qualify as a sexually violent predator and should remain involuntarily confined.

1 R.T. appealed only the 2005 order, which we affirmed. In re Civil Commitment of R.L.T., No. A-0690-05 (App. Div. February 23, 2006).

2 Dr. Ellick's written report describes the Static-99R as an instrument that has a greater degree of accuracy in predicting sexual recidivism than the original Static-99 test.