IN THE MATTER OF THE CIVIL COMMITTMENT OF J.K.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0628-05T20628-05T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF J.K.W.

 
__________________________________________________________

Argued January 11, 2006 - Decided January 30, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, SVP-40-00.

Mary Foy, Assistant Deputy Public Defender, argued

the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Heather Ellis,

Assistant Deputy Public Defender, of counsel).

Lisa Marie Albano, Deputy Attorney General,

argued the cause for respondent (Peter C. Harvey,

Attorney General, attorney; Ms. Albano, of

counsel).

PER CURIAM

J.K.W. appeals from an order entered on August 10, 2005, continuing his 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 order for temporary involuntary commitment was entered on February 2, 2000, and, following a final hearing, judgment was entered on July 17, 2000. Orders continuing J.K.W.'s involuntary civil commitment were entered on August 21, 2001, February 21, 2003, August 13, 2003, December 13, 2004, and August 10, 2005. We now affirm the judgment of August 10, 2005.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

Three witnesses testified at the hearings on August 9 and 10, 2005. Stanley R. Kern, M.D., a psychiatrist, and Manuel A. Iser, Ph.D., a psychologist, testified for the State; Timothy P. Foley, Ph.D., a psychologist, testified on behalf of J.K.W. J.K.W.'s history of committing various sexual offenses, taken from Dr. Kern's report and the annual report of the Treatment Progress Review Committee (TPRC), is as follows:

The predicate offenses occurred between August and December 1983. [J.K.W.] committed various sexual acts on a three year old male, a seven year old female, an eight year old female and a ten year old male. He had been babysitting for his victims at his apartment. He removed his clothes and told his victims to do the same. The victims reported that they were given marijuana to smoke, he would blow marijuana smoke into the victim's mouth. The victims were made to watch pornography. The defendant would make everyone [get] naked and get into bed. One victim reported that he touched her on the vagina with his penis. She was also hit by him with a belt for refusing to go to bed with him. The eight year old girl related a similar experience and stated that [J.K.W.] 'put his dick in her pussy.' She also stated 'white stuff came out of his dick.' The 10 year old male reported that the defendant had 'masturbated in front of the victims.' About 1/19/84 he was arrested and charged and about 6/25/84 he plea bargained down to two counts of Sexual assaults and two counts of Endangering the Welfare of a Child.

. . . .

On or about 6/23/96 [J.K.W.] was observed masturbating while sitting in his vehicle while observing young children. He pled guilty and received five years probation. On or about 2/27/98 [J.K.W.] was again arrested for [l]ewdness and violation of probation for masturbating in his vehicle next to a playground occupied by young children ages 4 and 5 years.

. . . .

On January 21, 2000, he was convicted of a violation of probation and sentenced to 18 months incarceration.

In a prior decision affirming the continuation order of December 13, 2004, we noted that Dr. Foley had testified that if J.K.W. "is released to the community with an approved plan, he does not present a threat through sexually violent behavior." We also noted that Dr. Foley acknowledged that J.K.W. "suffers with Pedophilia and Exhibitionism as well as a history of Polysubstance Abuse in remission." In affirming the decision of December 13, 2004, to continue involuntary commitment, we stated:

The judge reviewed the treatment records and noted that appellant continues to suffer "from adverse mental conditions, abnormal mental conditions, and personality disorders that adversely impact his cognitive, emotional, and volitional capacities in such a way as to predispose him to commit sexually violent acts." Given appellant's long history of repetitive offenses against children and a lifetime of anti-social behavior, the judge found that Dr. Apolito's opinion, that appellant "has serious difficulty controlling his sexual behavior" and is highly likely to recidivate, was credible.

Similarly, on August 10, 2005, after reviewing the entire record, including J.K.W.'s treatment records since the hearing on December 13, 2004, the trial court rendered an oral decision which included the following:

There is simply no record of treatment having gone on since this case was heard over a year ago. The treatment notes took up where they left off with the respondent lethargic and sleeping. And end with the respondent sleeping.

The TPRC interviewed the respondent, and it appears that he [has] given inconsistent account of his number of victims. It is here that he says quite clearly that he had a male victim, because when asked how long he was molesting his victims, he stated, "The three year old for about four months I pulled on his penis."

. . . .

The TPRC . . . unanimously approves [J.K.W.] for phase three on the basis of the recommendation of his treaters. They report that he is taking a number of modules, indeed, a considerable number of modules. They feel that he has recently appeared to be making an effort towards focusing on the topic. That was in March of this year. The treatment notes show somewhat elevated participation during that period, and then retrogression.

The treaters do appear to give respondent credit for trying.

. . . .

And in April he had a confrontation in the process group with one of the therapists.

He used inappropriate language directed to that therapist. To be more important as it bears on the respondent's overall condition is the following entry for the April summary.

On April 25th [J.K.W.] was asked to present his cycle to the group. He gave his build up as his wife being sick and [angry]. He mentioned a male victim but said that was a mistake. When questioned, [J.K.W.] became defensive, cussing at Dr. Imit saying he was out to hurt the group.

The fact of the matter is there was a male victim, and indeed, the respondent admitted that when he appeared before the TPRC.

There can be little therapy going on if this respondent is denying in group what is known to be the fact and becoming offensive and angry when the therapist challenges him.

This is not a little thing. The challenge went directly to the offenses which should be developed if there is to be any successful therapy.

This demonstrates to me that the respondent is resisting efforts to assist him.

. . . .

Dr. Iser who is the only person testifying who has personal knowledge was sure that the respondent can profit from regular process group treatment here. In his opinion this respondent does not even require treatment in a special group. He has the intellect that would permit him to participate.

I've already observed that the respondent's major problem appears to be his lack of participation, not his inability.

In any event, the court is not persuaded by Dr. Foley's suggestion. Dr. Foley does not know why the respondent is lethargic in group. He suggests that the [actual STATIC 99] score which is a high risk category would be mitigated by the respondent's treatment and his age. The same suggestion was made when Dr. Foley testified [at] the last hearing and it was not any more persuasive now than it was then.

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the reviewing 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). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (quotation marks omitted). A reviewing court must be mindful that the Legislative intent in adopting the Act was "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." In re Civil Commitment of V.A., supra, 357 N.J. Super. at 64 (quotation marks omitted).

 
We affirm the judgment continuing J.K.W.'s involuntary commitment substantially for the reasons expressed by Judge Perretti in her comprehensive oral opinion on August 10, 2005. The record fully supports her findings and her conclusion that the State met its burden of proving, by clear and convincing evidence, that J.K.W. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend. W.Z., supra, 173 N.J. at 132.

Affirmed.

(continued)

(continued)

8

A-0628-05T2

RECORD IMPOUNDED

January 30, 2006