IN THE MATTER CIVIL COMMITMENT OF R.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1798-06T21798-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.L. SVP-327-03

_______________________________________________________________

 

Argued September 26, 2007 - Decided October 31, 2007

Before Judges Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-327-03.

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

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

PER CURIAM

R.L. appeals from an order continuing his involuntary civil commitment to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The appeal was presented without briefs by agreement of the parties and with the permission of the court. R.L. argues that the trial judge's conclusion to continue his civil commitment was against the weight of the evidence. We disagree and affirm.

The SVPA defines a "sexually violent predator" as a person "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).]

Our review of a trial court's commitment decision is "extremely narrow," as that determination is given "'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) (quoting 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. 2003), certif. denied, 177 N.J. 490 (2003).

The facts regarding R.L.'s criminal history are taken from our prior opinion affirming the initial December 5, 2003 judgment of civil commitment. On March 3, 1993, R.L., then age thirty-four, pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2a, and sexual assault, N.J.S.A. 2C:14-2b. R.L. admitted that he sodomized his son and fondled one of his son's playmates. The victims were ages six and four. These were not R.L.'s first convictions. At age eighteen, R.L. pled guilty to two downgraded charges of debauching the morals of a minor; the victims were ages nine and thirteen. He also had pled guilty to harassment, a downgrade of the original charge of promoting prostitution. And as a youth, he was caught, after he forced a ten-year-old to engage in fellatio, but was never charged. R.L. admitted involvement in juvenile adjudications that included possession of a controlled dangerous substance (marijuana), incorrigibility, truancy, and falsely reporting a fire by pulling a fire alarm. During an evaluation prior to sentencing, R.L. acknowledged that he suffered from substance abuse and reported that he had been sexually involved with "hundreds" of boys between the ages of seven and sixteen. He agreed that he was in need of special treatment.

The sentencing judge concluded R.L.'s conduct was "characterized by a pattern of repetitive, compulsive behavior" and that he was amenable to treatment. R.L. was sentenced to a term of incarceration of seventeen years, with a minimum parole ineligibility period of five years, to be served at the Adult Diagnostic Treatment Center (ADTC) pursuant to N.J.S.A. 2C:47-3.

Prior to R.L.'s anticipated release from the ADTC, the State petitioned for his civil commitment pursuant to the SVPA. Civil commitment was ordered, after a hearing, on December 5, 2003. Although the initial commitment order contained a provision for a review hearing on November 4, 2004, no further review occurred because R.L. signed a waiver of further review pending appeal. We affirmed the judgment of civil commitment in an unpublished opinion. In re Civil Commitment of R.L., No. A-2146-03 (App. Div. Jan. 30, 2006).

A review hearing was scheduled for June 16, 2006. At R.L.'s request, the review was conducted on the stipulated record. Written reports were submitted on behalf of the State by Robert S. Carlson, PsyD., a psychologist employed at the Treatment Progress Review Committee (TPRC) of the STU, and Vivian Chern Shnaidman, M.D., a clinical psychiatrist employed at the STU. Extensive STU treatment notes, beginning December 12, 2003 and ending May 15, 2006, were admitted into evidence, limited by N.J.R.E. 703 and N.J.R.E. 808. No testimony was presented and R.L. did not appear or present any additional evidence.

Dr. Carlson and the other members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU. The TPRC met on June 23, 2006, to consider R.L.'s progress. R.L. declined to appear before the TPRC for evaluation.

On November 3, 2004, R.L. attended a prior TPRC meeting. Therapists treating R.L. reported his near perfect attendance in group therapy and recommended his need to address his past offenses, his sexual assault cycle, relapse prevention, empathy for his victims, and his rage. At that time, R.L. expressed a recognition of the need for sex offender treatment because he considered himself a sexually violent predator, but he disagreed with civil commitment at the STU. As a result of its review, the TPRC at that time had recommended R.L. advance to phase two concentrating on: taking responsibility for all of his sexual offenses; improving the quality of his participation in group process by "taking the floor" and being receptive to group feedback; identifying the specifics of his sex offense cycle including arousal triggers and grooming patterns; and developing empathy for his victims. R.L. had made little progress since that review due to his anger and inconsistent participation in group therapy.

R.L., who is now forty-eight years of age, completed and passed two treatment modules, Relapse Prevention I and Substance Abuse Interim, and enrolled in two additional modules: Art Therapy, in which he excelled, and Anger Management where his participation was "sub par." Reports suggest R.L. has refused to participate in other recommended modules, including Anger Management Treatment.

Past treatment notes reveal R.L. discussed his experiences abusing drugs and alcohol and being sexually victimized as a child. Although his accounts were inconsistent, R.L. has identified as many as twenty children victims. He has verbalized remorse, mostly for the abuse of his son, and at times demonstrated empathy when addressing other residents.

R.L. was discovered engaging in sexual relations with another resident on March 21, 2005. Thereafter, his group attendance began to lapse and he declined to take his medication. With additional therapy, R.L. resumed his attendance and now attends group therapy consistently.

More recent treatment notes show R.L.'s overall progress has been impeded by his unwillingness to fully participate to address his personal issues and his inability to control his anger. His therapists noted that R.L. developed "an either or attitude in which he is either silent or he is aggressive and intimidating in his confrontation of other residents." R.L.'s therapists report he maintains a "victim of the system" perspective and that "his anger and rage interfere with his engagement in the treatment process."

Dr. Carlson's report listed diagnosis impressions as (1) Axis I: pedophilia, attraction to males, nonexclusive, alcohol dependence (in institutional remission), and cannabis abuse (in institutional remission); and (2) Axis II: personality disorder, NOS.

As a result of its review of R.L.'s records of treatment and interviews with his treating therapists, the TPRC noted that R.L. "brings some substantial ability to the treatment process but consistently inhibits his engagement through reluctance or stubbornness." In the absence of the opportunity to interview R.L., the TPRC could not recommend advancement in his treatment phase.

Dr. Shnaidman sought to evaluate R.L. on June 20, 2006. Dr. Shnaidman prepared her May 31, 2006 report without benefit of a clinical interview or mental status examination because R.L. failed to appear after relaying a message that "he did not wish to speak with this psychiatrist at this time." Dr. Shnaidman utilized her clinical interview with R.L. performed on May 1, 2003, and R.L.'s past treatment records, but did not review the TPRC report, believing that none had been prepared. Also, she reviewed current treatment notes.

Since entering the STU, although R.L. had engaged in sex-offender specific treatment, Dr. Shnaidman noted R.L. "has not engaged in treatment to the extent that his reoffense risk would be mitigated." Dr. Shnaidman reported R.L.'s score of a plus five on the Static 99, which reflects a moderate to high risk of sexual reoffense, and a plus eleven on the MnSOST-R suggesting an elevated risk of sexual reoffense.

Dr. Shnaidman opined that R.L. has an Axis I diagnosis of pedophilia, boys, non-exclusive type, paraphilia, NOS (hebephilia, adolescent boys), polysubstance abuse, in institutional remission and an Axis II diagnosis of antisocial personality disorder. She concluded that treatment efforts were thwarted by R.L.'s "anger at his situation, his anger toward this psychiatrist and other treators and evaluators," which "strongly suggests that he feels he has been civilly committed unfairly, a concept he shared in his therapy groups."

She further concluded that due to his mental abnormalities, R.L. remained highly likely to commit further acts of sexual violence if not confined to a secure facility for continued control, care and treatment. She commented further:

Without the understanding and the belief that his sexually violent behavior was serious enough to result in incarceration and civil commitment, [R.L.] is clearly unprepared to process his deviance and to learn and internalize any relapse prevention skills in any meaningful way. Although he is technically in Phase 3 of treatment, for this individual, this phase will probably last for many more years. A sex offender needs to acknowledge the seriousness of his behavior and work on changing his personal characteristics that led to that behavior. If he simply focuses on his anger and resentment, no progress has been [sic] made to the actual goal of treatment.

On appeal, R.L. argues that the trial court's decision relied upon the State's expert's report, which failed to properly consider evidence in the record. It is clear from Judge Freedman's oral opinion rendered on June 27, 2006, that he thoroughly analyzed all the evidence presented in reaching his determinations, including the TPRC records not considered by Dr. Shnaidman. Although crediting Dr. Shnaidman's opinion, the trial judge examined the factual basis established in the record supporting her diagnosis. We note that Dr. Shnaidman's omission does not render her opinion "not credible," as argued by defendant. Judge Freedman specifically bottomed his conclusion on the evidence, not on matters of credibility or demeanor. We conclude no abuse of discretion is presented.

R.L.'s decision to forego current evaluations by Dr. Shnaidman and the TPRC limited the evidence available for review by the trial judge to the therapists' notes, the TPRC report, and the expert's opinion, all of which were fully considered. We are satisfied that the evidence presented amply supports Judge Freedman's conclusion that clear and convincing proof demonstrated that R.L. continues to suffer from abnormal mental conditions and personality disorders that adversely influence his cognitive, emotional and volitional capacities in such a way as to predispose him to commit sexually violent acts. His findings that R.L. "has a serious inability in controlling his behavior to such a degree that he would be highly likely in the reasonably foreseeable future to engage in similar conduct if released now" are consistent with the clear and convincing evidence. See W.Z., supra, 173 N.J. at 132.

Affirmed.

(continued)

(continued)

11

A-1798-06T2

RECORD IMPOUNDED

October 31, 2007