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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0643-06T20643-06T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

K.W.S., SVP-232-01.

____________________________________

 

Argued March 14, 2007 - Decided April 5, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

SVP-232-01.

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

David L. DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (Stuart Rabner, Attorney General, attorney).

PER CURIAM

K.W.S. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order of August 17, 2006, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Serena Perretti, J.S.C.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, 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 reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004), certif. denied, 186 N.J. 607 (2006); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The parties stipulated to Dr. Michael R. McAllister's qualifications as a psychiatrist. Dr. McAllister testified primarily to the August 15, 2006 report he prepared after he attempted to interview K.W.S. and the opinions and conclusions contained therein, although he also addressed other reports.

Dr. McAllister testified that K.W.S.' risk is increased because his offender history showed he was equally willing to abuse males and females. The doctor also noted that K.W.S. was identified to have a "significant history involving alcohol and marijuana," had engaged in sexually inappropriate actions in the STU, and had failed several rehabilitation modules due, in part, to poor attendance. Furthermore, as time passed, K.W.S. had become less and less inclined to participate in interviews.

Dr. McAllister indicated that K.W.S. has a tendency to engage in minimization, deception and denial when confronted with his sexual behavior and, when asked directly about whether he had engaged in sexual offenses other than those he pled guilty to, K.W.S. got red in the face and stammered, a reaction not previously demonstrated in response to other questions and which Dr. McAllister believed was indicative of emotional conflict and a desire not to be forthright.

Dr. McAllister also testified that K.W.S. admitted the reason he chose his particular victims was because they were around, rather than for any particularly calculated reason. This was significant to the doctor because it indicated he had an "extremely strong deviant sexual urge," "very poor self control," and a "potentially far greater victim pool" than his convictions indicate. In conclusion, Dr. McAllister diagnosed K.W.S. with pedophilia, an impulse control disorder, substance abuse, personality disorder, a predisposition to engage in acts of sexual violence, and, finally, an "extreme" risk of recidivism.

On cross-examination, Dr. McAllister testified that K.W.S. admitted to sexually assaulting all four victims and that his version of events was at least partially consistent with the official record. The doctor further indicated that to his knowledge, K.W.S. had not misbehaved recently, abused substances at any time, tried to contact children at any time, or been found with any pornography. The doctor also testified that the treatment notes indicated K.W.S. had taken an important step by presenting an autobiography and taking the floor. Finally, Dr. McAllister stated that although K.W.S. claimed in 2005 that he had no thoughts about children, he did not find that claim credible.

In response to questions by the court, Dr. McAllister stated that he had interacted with K.W.S. on many occasions other than interviews, that K.W.S.' communication and cognitive skills were of an average to low-average level, and that he separately diagnosed an impulse control disorder because, in his opinion, its severity distinguished it from K.W.S.' personality disorder.

On redirect, Dr. McAllister reinforced his conclusion that K.W.S. was not credible when he claimed not to be aroused by children, and opined that the lack of clarity in K.W.S.' autobiography could be due to many factors.

Finally, on recross, the doctor testified that by all indications, K.W.S. was taking medication prescribed for depression but with the hoped-for benefit of decreasing sexual impulses.

The parties also stipulated to Dr. Brian Friedman's qualifications as a qualified psychologist. Dr. Friedman's testimony was based upon his role as a member of the Treatment Progress Review Committee (TPRC). The members of the TRPC are psychologists responsible for reviewing the progress and treatment of persons committed to the STU. Dr. Friedman testified that K.W.S. is currently in Phase Two of treatment, which is the phase where individuals are expected to invest themselves in treatment and accept responsibility for their behavior. In Phase Three, individuals are expected to consistently attend and complete rehabilitation modules, demonstrate significant motivation to address and attempt to change their behavior, and be much more in control of their behavior. Both K.W.S.' treatment team and the TPRC recommended that he remain in Phase Two.

Dr. Friedman testified that K.W.S. has had mixed results with his rehabilitation modules. He successfully completed several substance abuse modules and one directed at social skills. However, K.W.S. also failed to complete several other modules such as arousal reconditioning, personal victimization, and anger management. Dr. Friedman also testified as to several things revealed by K.W.S.' treatment team, including the fact that his participation and attendance had regressed recently. Moreover, K.W.S. has engaged in sexual misbehavior on at least three occasions while committed at the STU, he uses gifts to get close to people, just as he did with the victims of his underlying offenses, and he has not fully completed any significant treatment requirements. Dr. Friedman also testified that the treatment group indicated he uses minimization and denial techniques to portray himself as a victim, that he lies easily and frequently, and that he often engages in borderline sexually inappropriate behavior. In sum, Dr. Friedman described K.W.S. as an individual with poor motivation to address his issues or change his behavior.

Dr. Friedman also had the opportunity to interview K.W.S. on May 24, 2006. This interview revealed that K.W.S. continued to have sexual fantasies of children and that he masturbated to them, that he had been sexually active at STU, that he felt his prescription medication helped him control his sexual drive, and that he tends not to be very active in treatment. K.W.S. also indicated that he had been having feelings and urges to engage in physical violence. Dr. Friedman further testified that at the end of the interview, K.W.S. also alleged that his daughter had just died, a report met with skepticism due to its conflict with a previous statement, and the general consensus that K.W.S. deceives in an attempt to garner sympathy.

At the conclusion of Dr. Friedman's testimony, he gave his diagnoses of K.W.S., which included pedophilia; sexual attraction to males and females, nonexclusive type, reinforced by masturbation; alcohol dependence and marijuana abuse; personality disorder; and borderline intellectual function. Finally, Dr. Friedman testified that he recommended additional treatment for K.W.S., which would require him to take his rehabilitation and substance abuse treatment seriously in terms of attendance, participation, and application of techniques to his everyday life.

On cross-examination, Dr. Friedman testified that (1) the TPRC's recommendation for continued Phase Two treatment was a unanimous decision of doctorate level psychologists; (2) K.W.S. has not been violent or hostile to those around him; (3) there is no evidence of drug abuse; (4) K.W.S.' report of his crimes is generally consistent with the official record; (5) K.W.S. has never been placed on treatment refusal status or treatment probation, although he is close to the latter; (6) and, finally, he has acted on sexual thoughts of children in the recent past and needs professional help rather than advice from his peers.

On redirect, Dr. Friedman stated that K.W.S. had recently told him he had been having recent urges to hit someone, although there is no evidence that he acted on these feelings. At this time, the State successfully moved the reports of Dr. McAllister, Dr. Friedman, and the treatment notes of K.W.S. into evidence as P-2, P-4 and P-5, respectively.

K.W.S.' counsel argued that although his client's treatment history is checkered, he has given generally consistent accounts of his offenses, he was honest with the TPRC about his urges, and he has taken steps to admit his issues and, therefore, he presents a lesser risk and the State cannot meet its burden of showing, by clear and convincing evidence, that K.W.S is highly likely to commit acts of sexual violence in the future.

In response, the State argued that K.W.S. was an extreme risk for many reasons: he already has a history of reoffending after release, he has engaged in sexual activity while confined, there are no limits on the type of person he has sexual urges toward, he does not participate in his treatment, he lies, he portrays himself as a victim, and he refuses to address his issues.

From the evidence, Judge Perretti found,

The respondent can be seen, not only through his acts but through his recent revelations, that he is a pedophile currently acting upon pedophilic urges. It is pointed out in the testimony and in the reports that the respondent's grooming activity, which he uses and acknowledges using within the institution, is of the same nature as he uses or used in his sexual misbehavior with the four prepubescent victims of his criminal activity.

There is no question about the basis for the TPRC's view that the respondent remains in the beginning stages of his treatment. In spite of the long period of time that he has been here, he remains in Phase 2.

. . . .

There is a very serious difficulty controlling sex behavior for this respondent. The psychiatrist rates the risk as extreme.

The diagnoses are not contradicted. The evidence presented was clear and convincing. The Court is clearly convinced that the respondent continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorder that adversely impact his cognitive, volitional and emotional capacities in such a way as to predispose him to commit sexually violent acts.

He has sever[e] difficulty controlling his sexually violent behavior. He cannot control his sexual urges, even within a structured setting. He is seen to be repeating the grooming patterns that he used in order to exploit his prepubescent victims for his pedophilic satisfactions.

The risk he presents is extreme. He is highly likely to recidivate by committing sexually violent offenses if not continued for further care and treatment.

It may be that the respondent could be persuaded to follow through on the acknowledgements that he made to the TPRC in late May of this year. However, it is noted that since making the acknowledgements that he made, his treatment has so far fallen off that he now and for several months has not been going to treatment at all.

There will be a one-year review.

The evidence supports the finding that K.W.S. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). The conclusion that he 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 is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.

 
Affirmed.

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36(a).

(continued)

(continued)

11

A-0643-06T2

RECORD IMPOUNDED

April 5, 2007