W.G. v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0908-16T2
W.G.,

        Appellant,

v.

NEW JERSEY DEPARTMENT
OF HUMAN SERVICES,

     Respondent.
____________________________

              Submitted January 29, 2018 – Decided March 20, 2018

              Before Judges Messano and O'Connor.

              On appeal from the New Jersey Department of
              Human Services.

              W.G., appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Amy Beth Cohn,
              Deputy Attorney General, on the brief).

PER CURIAM

        W.G., civilly committed to the Special Treatment Unit (STU)

pursuant to the New Jersey Sexually Violent Predator Act (SVPA),


N.J.S.A. 30:4-27.24 to -27.38, appeals from the September 20,

2016 final agency decision of the Department of Human Services
(DHS), denying his grievance.    For the reasons that follow, we

affirm.

                                  I

    We    discern   the   following   facts   from   the   record.    The

residents of the STU are subject to certain rules, many of which

are described in a "Residents' Guide To The STU" (Guide), a

handbook each resident is provided when admitted into the STU.

According to the Guide, residents who "fail to improve their

participation in treatment despite placement on Treatment

Probation will be placed on Treatment Refusal status."        As the

Guide explains, residents must be motivated to fully participate

in treatment.   To encourage such participation, depending upon

the circumstances, the privilege of possessing certain items or

obtaining a job within the STU may be granted or withheld in

order to motivate a resident to fully engage in treatment.

    Consistent with this approach, the Guide states a resident

who refuses to participate in treatment in a meaningful manner

will be notified in writing he is placed on "Treatment

Probation."   If placed on probation, the written notice shall

provide a brief explanation of the reasons he has been put on

probation and, "unless obvious[,] . . . the conditions that must

be met to successfully complete the term of probation."


                                  2
                                                               A-0908-16T2
    There is a form of remedy that is more severe than being

placed on Treatment Probation, and that is being placed on

"Treatment Refusal" status.     The Guide advises that those who

fail to improve their participation in treatment despite being

placed on Treatment Probation will be placed on Treatment

Refusal status.     Unlike when placed on Treatment Probation, the

Guide does not impose any requirement that those placed on

Treatment Refusal status receive written notice of being placed

on such status, including an explanation of the reasons for such

placement and the conditions that must be met to be taken off of

such status.

    W.G. was placed on both Treatment Probation and Treatment

Refusal status, yet still did not fully participate in

treatment.     Therefore, on January 8, 2016, W.G. and his

treatment team entered into a "behavior contract," in which W.G.

agreed to engage in or refrain from certain behavior.        Although

W.G. did not sign the contract, it is not disputed he verbally

agreed to its terms during a group treatment session.

    Specifically, W.G. agreed to bring a notebook to group

sessions to record any feedback he received from the staff and

his peers and, at the end of each session, to discuss such

feedback with the staff "to ensure consistency and

understanding."     In addition, for the ensuing ninety days, he
                                   3
                                                              A-0908-16T2
consented to limiting his comments to three per group session,

none of which was to exceed two minutes, was to pertain to the

person "taking the floor or the issue they were discussing," and

was not to include W.G.'s own experiences.

    W.G. further agreed that, "prior to taking another floor[1],"

he would present the staff with a list of his five most

"therapy-interfering" behaviors, such as lying or "over-talking

others," and suggest ways to manage such behavior during group

sessions.    Finally, he agreed that, over the succeeding ninety

days, he would not confront "housekeeping" with any problem

unless he first attempted to resolve such problem with three

"peer support team members."    If unable to resolve the problem,

he consented to discussing the problem in a group session for a

maximum of five minutes.

    The contract also provided that, if he did not meet the

terms of the contract, he would be "redirected" one time per

group session.    If he did not comply with such "warning," he

would be asked to leave the group and would receive an unexcused

absence.    If he received two unexcused absences from a group

within a month because of a violation of the contract, his

treatment team had the discretion to recommend either Treatment


1
   The record does not clarify what was meant by "taking another
floor."
                               4
                                                          A-0908-16T2
Probation or placement on Treatment Refusal status.     The

contract also noted that if he were placed on Treatment Refusal

status, the privilege of having a job or possessing certain

items would be suspended.

      In April 2016, W.G.'s team placed him on "Treatment

Refusal" status because he failed to adhere to the terms of the

contract.    The record does not reveal the manner in which he

violated the contract but, significantly, W.G. does not dispute

that he did so.     In response to being placed on Treatment

Refusal status, W.G. submitted a DHS Request/Grievance Form, the

internal form used by STU residents to resolve grievances.

      In such form W.G. set forth a number of complaints.      In a

brief statement, a member of the STU staff rejected his

grievance and, in turn, W.G. submitted an administrative appeal.

Those grievances W.G. asserted in his administrative appeal that

are relevant to the issues on appeal are:

            (1) There is no information about a "behavior

contract" in the Guide and, thus, the contract was "invalid;"

            (2)   DHS altered recognized procedures by which to

provide a resident with a Treatment Probation notice and should

have used a Treatment Probation form instead of the contract;

and


                                  5
                                                              A-0908-16T2
         (3)   The contract violated the terms of a settlement

agreement in which DHS entered in the matter Alves v. Main, No.

01-789 (DMC), 2
012 U.S. Dist. LEXIS 171773 (D.N.J. Dec. 4,

2012).

    As a remedy for his grievances, W.G. demanded the contract

be withdrawn and a Treatment Probation notice be issued setting

forth: (1) his treatment team's objectives; (2) the consequences

if he fails to meet those objectives; and (3) clear time frames.

    STU Unit Director Tina Spagnuolo rejected the relief W.G.

sought in his administrative appeal.   In her decision, she noted

that, before entering the contract, W.G. had been placed on

Treatment Probation and Treatment Refusal status several times

for failing to fully engage in treatment, but to no avail.

Therefore, his treatment team determined to place him on a

behavior contract as another way of addressing his conduct.

    Spagnuolo pointed out W.G. failed to adhere to the terms of

the contract, which warned he may be placed on Treatment Refusal

status as a consequence.   She concluded her opinion by providing

W.G. with the following advice:

         You are welcome[] to begin addressing the
         concerns outlined in the behavior contract
         and reengage in sex offender specific
         treatment in orientation group. Once this
         [is] done on a consistent basis, you [will]
         be placed back into a regular sex offender
         specific process group and be removed from
                               6
                                                         A-0908-16T2
         [Treatment Refusal] status. In light of the
         above, I do support the treatment team's
         current handling of your treatment
         trajectory.

         I urge you to consider the time you have
         spent at the STU and if you have used it
         wisely. I encourage you to being to think
         about your future and what you envision for
         yourself. Then begin to start working
         towards those goals by engaging meaningfully
         in treatment and working yourself off
         [Treatment Refusal] status and to eventually
         becoming a candidate for discharge. . . .
         When you decide you are ready to reengage in
         treatment, we will be here to support you.

    This appeal ensued.

                              II

    On appeal, W.G. raises the following arguments for our

consideration:

         POINT I: REPONDENT INFRINGED UPON
         APPELLANT'S ADMINISTRATIVE DUE PROCESS
         RIGHTS WHEN RESPONDENT, NEW JERSEY
         DEPARTMENT OF HUMAN SERVICES, UTILIZED AN
         UNRECOGNIZED TREATMENT FORM TO PLACE
         APPELLANT ON TREATMENT REFUSAL STATUS, WHICH
         IS A FORM THAT DEPARTS FROM THE INTERNAL
         MANAGEMENT PROCEDURES OF THE SPECIAL
         TREATMENT UNIT, AND WHICH VIOLATES THE TERMS
         OF THE SETTLEMENT AGREEMENT ARISING FROM THE
         ALVES v. MAIN LAWSUIT.

         POINT II: UNIT DIRECTOR TINA SPAGNUOLO
         CIRCUMVENTED THE PROCEDURES OF RESPONDENT
         NEW JERSEY DEPARTMENT OF HUMAN SERVICES'
         REMEDY SYSTEM WHEN SHE ANSWERED IN THE WRONG
         PART OF APPELLANT'S REMEDY FORM, WHICH
         PREVENTED APPELLANT FROM RECEIVING A
         RESPONSE FROM THE CLINICAL DIRECTOR OR
         DESIGNEE. (Not raised below.).
                               7
                                                        A-0908-16T2
      In his brief, W.G. clarifies his argument points to some

extent.   He contends his procedural due process rights were

violated because DHS used the contract to place him on Treatment

Refusal status.    Specifically, he argues the contract was

deficient because:

            (1) the Guide does not refer to a behavior contract2

and, according to him, "a behavior contract is not the official

notice the [DHS] is supposed to give residents who are placed on

Treatment Probation";

            (2) the contract did not advise why he was placed on

"Treatment Probation" and what he needed to accomplish to avoid

being placed on Treatment Refusal status; and

            (3) the contract failed to reasonably inform W.G. of

"the time frames associated with the length of his probation and

refusal placements, nor the length of intervals of [Treatment

Refusal], nor any other relevant time frames."

      W.G. also maintains DHS failed to comply with the

settlement agreement reached in the Alves matter.    Finally,

he claims Spagnuolo placed her decision on that part of the form

that is normally reserved for the Clinical Director to place his

decision.    He contends that by placing her decision on the wrong

2
    A complete copy of the Guide was not provided in the record.

                                  8
                                                           A-0908-16T2
part of the form, Spagnuolo precluded the Clinical Director from

rendering a decision in this matter.    W.G. did not assert the

latter argument when before the agency.    We note here DHS is not

contending W.G. failed to exhaust any administrative appeal

before filing his notice of appeal in this court.

    The scope of our review of an agency decision is limited.

In re Stallworth, 
208 N.J. 182, 194 (2011).     "An appellate court

ordinarily will reverse the decision of an administrative agency

only when the agency's decision is 'arbitrary, capricious or

unreasonable or [] is not supported by substantial credible

evidence in the record as a whole.'"    Ramirez v. Dep't of Corr.,


382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway

State Prison, 
81 N.J. 571, 579-80 (1980)).

    "A reviewing court 'may not substitute its own judgment for

the agency's, even though the court might have reached a

different result.'"   Stallworth, 
208 N.J. at 194 (quoting In re

Carter, 
191 N.J. 474, 483 (2007)).     "This is particularly true

when the issue under review is directed to the agency's special

'expertise and superior knowledge of a particular field.'"     Id.

at 195 (quoting In re Herrmann, 
192 N.J. 19, 28 (2007)).

    However, "an appellate court is 'in no way bound by the

agency's interpretation of a statute or its determination of a

strictly legal issue[.]'"   Carter, 
191 N.J. at 483 (quoting
                                 9
                                                           A-0908-16T2
Mayflower Sec. Co. v. Bureau of Sec., 
64 N.J. 85, 93 (1973)).

Indeed, an agency's "interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference."   Manalapan Realty, LP v. Twp. Comm.

of Twp. of Manalapan, 
140 N.J. 366, 378 (1995).

    Here, W.G.'s principal argument is that his procedural due

process rights were violated because DHS used the contract to

place him on Treatment Refusal status.     Among other arguments,

he also maintains the Guide does not refer to a behavior

contract, and a contract is not the kind of notice a resident is

to receive when placed on "Treatment Probation."

    First, a copy of the entire Guide is not in the record, a

deficiency that has hampered our review.     Rule 2:6-1(a) requires

that the appendix contain parts of the record "essential to the

proper consideration of the issues."     Second, assuming the Guide

does not refer to behavior contracts, W.G. was not placed on

Treatment Probation but Treatment Refusal status.    The Guide

does not require one placed on Treatment Refusal status receive

any written notice in advance.   Third, and more important, what

cannot be overstated is the context in which W.G. entered into

the subject contract.

    W.G. was not fully participating in treatment.     The

treatment team had placed W.G. on both Treatment Probation and
                               10
                                                             A-0908-16T2
Treatment Refusal status several times in the past to induce him

to fully engage in treatment, without success.   The team

determined to use a different remedy to confront W.G.'s

difficulty with fully engaging in treatment.   Instead of putting

W.G. on Treatment Refusal status which, according to the Guide,

it was at liberty to do, the team permitted and W.G. agreed to

enter into the subject contract.   There is no question this

remedy was far more innocuous than being placed on Treatment

Refusal status.

    The contract clearly specified the manner in which W.G. was

to behave under certain situations, predominantly in group

therapy.   The conduct he consented to engage in under the terms

of the contract was not punitive at all.   In fact, it was

designed to be therapeutic.   W.G. agreed that, if he did not

adhere to the terms of the contract, the team had the discretion

of placing him on Treatment Refusal status if he had two

unexcused absences (as defined by the contract) from the group

because of a violation of the terms of the contract.

    W.G. does not cite and we were unable to find any authority

to support the premise that the use of the contract under these

particular circumstances violated his rights to procedural due

process.   In fact, the State has considerable discretion in

determining the treatment for a person committed under the SVPA.
                               11
                                                            A-0908-16T2
M.X.L. v. N.J. Dep't of Human Servs./N.J. Dep't of Corr., 
379 N.J. Super. 37, 48 (App. Div. 2005).     "[T]he States enjoy wide

latitude in developing treatment regimens" for sex offenders.

Kansas v. Hendricks, 
521 U.S. 346, 368 n.4 (1997).

        Here, the State used the contract to treat W.G. in a

fashion other than placing him on Treatment Probation or

Treatment Refusal status because the latter two remedies did not

work.    W.G. agreed to the terms of the contract.    For reasons he

does not divulge, he violated the contract, although he does not

reveal the consequences of being placed on this status.        He does

not state what privileges, if any, were suspended.3

     The Guide does state that residents placed on Treatment

Refusal status "will not be assigned institutional jobs or

allowed privilege possession[s] such as personal televisions

unless clinically contradicted."      If he lost the kind of

privileges mentioned in the Guide, no procedural due process

protection was violated.    See M.X.L., 
379 N.J. Super. at 48

(noting the suspension of personal television and job

opportunities does not trigger procedural due process

protections).    If he endured any other consequence, we are


3
   The record indicates that when placed on Treatment Refusal
status in the past, the privilege of holding a job within the
unit and possessing certain entertainment devices was suspended.

                                 12
                                                               A-0908-16T2
foreclosed from addressing it because W.G. declined to identify

what it was.

    We have considered W.G.'s remaining arguments, and conclude

they are without sufficient merit to warrant discussion in a

written opinion, see Rule 2:11-3(e)(1)(E), but add the following

brief comments.

    W.G.'s argues DHS violated the settlement agreement which

it entered in the Alves matter.    In that matter, certain

residents of the STU brought a class action suit against various

public officials of the State of New Jersey concerning their

treatment and other issues.   The matter settled, and one of the

provisions in the settlement agreement was the State would not

intentionally prolong a STU resident's treatment.

    Here, in his brief before us, W.G.'s argument DHS violated

the settlement agreement is cryptic.   When before the DHS, he

argued, without elaboration, that the contract intentionally

prolonged his treatment.   To the extent that is his argument on

appeal, we are unable to discern any basis for it.    The contract

was designed to facilitate and, thus, expedite W.G.'s treatment,

not prolong it.   There is nothing about and W.G. failed to

identify how the terms of the contract extended treatment.




                                  13
                                                             A-0908-16T2
    In summary, there was sufficient credible evidence in the

record to support the agency's decision. Given our highly

deferential standard of review, we find no reason to reverse it.

    Affirmed.




                               14
                                                        A-0908-16T2