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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3917-11T2

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

SVP-83-00.

_____________________________

November 2, 2012

Argued October 15, 2012 Decided

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-83-00.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

R.G. appeals from a March 16, 2012 order of the Law Division continuing his involuntary civil commitment to the Special Treatment Unit (STU) for custody, care, and treatment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

R.G. is currently thirty-two years of age. In January 1997, he pled guilty as a juvenile to three predicate offenses of aggravated sexual assault, N.J.S.A. 2C:14-2(a), upon his three young cousins, ages four to seven, in June 1996. He was initially committed under the SVPA in May 2000. Subsequent reviews were held, and R.G.'s commitment was continued after each of those reviews.

The present review was conducted on March 16, 2012. At this hearing, the State presented expert testimony from Dr. Marta P. Scott, a psychiatrist, and Dr. Debra Roquet, a psychologist and member of the Treatment Progress Review Committee (TPRC) within the STU. R.G. testified on his own behalf, but presented no other testimony.

Because R.G. refused to be interviewed, Dr. Scott relied on numerous other sources of information, including previous psychiatric and psychosexual evaluations of R.G., TPRC reviews, progress notes from the STU, and police reports. She diagnosed R.G. with pedophilia, alcohol abuse, and antisocial personality disorder, with a provisional diagnosis of sexual sadism.

According to Dr. Scott:

The diagnosis of Pedophilia predisposes [R.G.] for future acts of sexual violence, it is persistent, and does not spontaneously remit.

However, the infliction of pain, suffering or humiliation did not seem to be a central element in [R.G.'s] documented sex offenses, thus the provisional diagnosis for Sexual Sadism. As of note, [R.G.] was apprehended at a very early age (16), given more opportunity he might have eventually played out these violent fantasies in more detail.

Moreover, the fact that R.G. committed the predicate sexual offenses at such a young age indicated to Dr. Scott a pathology that is deeper ingrained and thus has a poorer prognosis.

With respect to the diagnosis of alcohol abuse, Dr. Scott noted that "[w]hile alcohol abuse in and of itself does not predispose one for sexual violence, it may increase the risk of reoffending as substances are known to disinhibit sexual behavior." And as to the diagnosis of antisocial personality disorder, Dr. Scott stated:

There is evidence of conduct disorder with onset prior to the age of 15. [R.G.] was caught shoplifting, set fire to his mattress, was involved in fights, was truant from school. After his apprehension at an early age he continued to demonstrate significant difficulties in adhering to social norms, following rules. Even in highly controlled settings he repeatedly displayed impulsivity, interpersonal aggression. He violated and disregarded the right[s] of others as evidenced by his repeated MAP placements at the STU and his termination from the Pinelands Center where he made homicidal threats towards a therapist. He lacks remorse or empathy for his victims.

The diagnosis of Antisocial Personality Disorder also predisposes [R.G.] to future acts of sexual violence.

Besides the predicate offenses, Dr. Scott referenced previous evaluations in 1999 and 2000 in which R.G. stated he had masturbated to aggressive sexual fantasies and admitted to sexual activities with children that went uncharged. One such fantasy involved choking his 6-year old cousin until R.G. ejaculates. He also had violent and lethal fantasies involving a female staff member at the Pinelands facility. Dr. Scott also referenced "several instances of inappropriate displays of angry and aggressive behavior in group[,]" and a physical altercation at the STU on October 29, 2011, that resulted in R.G.'s placement on Modified Activities Program (MAP) status.

R.G.'s score on the Static-99R test corresponded with a high-moderate risk for sexual recidivism, though Dr. Scott acknowledged that the test was designed for adult sex offenders. Dr. Scott believed R.G. was making progress up until some time in 2010, when he was placed on treatment probation and then treatment refusal status for failing to attend treatment sessions.

As a member of the TPRC, Dr. Roquet met with R.G. on January 17, 2012 and reported that although he had in the past made progress in Phase III of treatment, the TPRC recommended that R.G. be placed back in Phase I because of a "marked deterioration . . . in [R.G.'s] conduct, and participation in treatment." He not only refused to attended sex offender-specific treatment, but also treatment refusal orientation, which does not address sex offender-specific issues. The recommendation also took into account R.G.'s assault and his "difficulties conforming his behavior to be able to successfully participate in the MAP group . . . ."

R.G. testified that his recent behavioral problems arose after he was transferred to a new facility in 2010 that he likened to "prison" and "a nightmare." He denied the extent of his lack of participation in treatment sessions and modules, and offered excuses such as having to change cells one day. He claimed he did not know he was supposed to go to the treatment orientation group because of his treatment refusal status, and that he would have gone had he known.

At the close of evidence, Judge Mulvihill concluded that R.G.'s commitment should continue. The judge found convincing Dr. Scott's opinion that R.G.'s deviant arousal is deeply ingrained and has a poor prognosis, and focused on R.G.'s admission to having sexually violent fantasies while in confinement, and his assault and treatment refusal. The judge also credited Dr. Roquet's testimony, including that R.G. has had no productive engagement in treatment, while finding R.G.'s testimony to not be "very credible in terms of [level of] interest, his demeanor." The judge concluded:

I find that there has been clear and convincing evidence, number one, that [R.G.] has been convicted of sexually violent offense[s], number two, that [there is] clear and convincing evidence that [R.G.] suffers from a mental abnormality or personality disorder that does not spontaneously remit that does predispose him to sexual violence, effects [sic] him emotionally, cognitively, volitionally, and that the only way that his pedophelia [sic] can be mitigated is by way of treatment.

He's had very little treatment and now he's regressed in terms of treatment refusal status. . . .

I find clear and convincing evidence that he's highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care, and treatment, that he is a threat to the health and safety of others because of the likelihood of his engaging in sexually violent acts.

And the State has demonstrated that [R.G.] has serious difficulty controlling . . . sexually harmful behavior and [that it is] highly likely he will not control his sexually violent behavior and will re-offend if not confined in the STU. This is a present serious difficulty.

This appeal follows.

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 over dangerous sexual behavior[,]" and the state must establish "that it is highly likely that" the individual will reoffend "by clear and convincing evidence." Id. at 132-33. See also In re Civil Commitment of J.H.M., 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 individual 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 individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126-33. "[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 Civil 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, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of March 16, 2012.