In re Care & Treatment of Twilleger

No. 104,274

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
JOHNNY D. TWILLEGER.


SYLLABUS BY THE COURT

1.
The Kansas Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq.,
controls the civil commitment of persons who are deemed to be sexually violent
predators.

2.
If a person is found to be a sexually violent predator, he or she is placed in the
custody of the Secretary of the Kansas Department of Social and Rehabilitation Services
(SRS) "until such time as the person's mental abnormality or personality disorder has so
changed that the person is safe to be at large." K.S.A. 59-29a07(a).

3.
The Sexual Predator Treatment Program (SPTP) is comprised of seven treatment
phases that must be completed by a committed person who has been placed in SRS
custody. The first five phases of the SPTP involve inpatient treatment at Larned State
Hospital, while phase six is located at Osawatomie State Hospital.

4.
In phase seven of the SPTP, also known as transitional release, a committed
person remains in SRS custody but lives independently as they prepare to return to the
community. Advancement to phase seven of the SPTP requires an order of the district
court.

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5.
Generally, courts should defer to the judgment of the mental health professionals
on the treatment staff of the SPTP regarding treatment methods that are appropriate for a
particular person.

6.
K.S.A. 59-29a08 provides for an annual review hearing of a person who has been
civilly committed as a sexual predator. At that hearing the district court must determine
whether there is probable cause to believe that the person's mental abnormality or
personality disorder has so changed that he or she is safe to be placed into transitional
release.

7.
K.S.A. 59-29a08(a) provides that if a person who has been civilly committed as a
sexual predator is indigent and makes an appropriate request, the district court may
appoint a qualified professional to examine the person in connection with the annual
review hearing. The decision whether to appoint a qualified professional to perform an
examination in connection with the annual review hearing rests in the sound discretion of
the district court.

8.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable. If reasonable persons could differ as to the propriety of the action taken by
the trial court, then it cannot be said that the trial court abused its discretion.

9.
Under the SVPA, in determining whether to appoint an independent examiner at
the annual review stage, the district court must make findings of fact and conclusions of
law to allow for appellate review. Because a probable cause determination under the
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SVPA is comparable to the probable cause determination made at a preliminary hearing
in a criminal proceeding, appellate courts apply a de novo standard of review.

10.
When a person committed under the SVPA seeks to be placed by the district court
into transitional release, he or she has the burden to establish probable cause for a second
hearing or trial on the issue, and the court must view the evidence in the light most
favorable to the committed person.

Appeal from Cowley District Court; NICHOLAS ST. PETER, judge. Opinion filed August 26, 2011.
Affirmed.

Clayton E. Soule, of Taylor, Krusor & Passiglia, LLP, of Winfield, for appellant.

Christine M. T. Ladner, assistant attorney general, and Steve Six, attorney general, for appellee.

Before GREENE, C.J., MALONE and BRUNS, JJ.

BRUNS, J.: Johnny D. Twilleger was civilly committed to the custody of the
Secretary of the Kansas Department of Social and Rehabilitation Services (SRS) in
September 2003. Since that time, he has been a resident in the Sexual Predator Treatment
Program (SPTP) at Larned State Hospital and at Osawatomie State Hospital. Twilleger
appeals various decisions made by the district court following an annual review hearing
held on March 5, 2010. For the reasons set forth in this opinion, we affirm the district
court's decisions.

FACTUAL AND PROCEDURAL BACKGROUND

Between 1987 and 1999, Johnny Twilleger was convicted of four sex offenses
against prepubescent females, and he has been a registered sex offender since 1997. In
February 2003, a petition was filed in the Cowley County District Court alleging that
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Twilleger was a sexually violent predator as defined by the Kansas Sexually Violent
Predator Act (SVPA), K.S.A. 59-29a01 et seq. He stipulated to the allegations set forth in
the petition, and he was ordered into SRS custody in September 2003.

Prior to being placed in SRS custody, Twilleger was diagnosed as meeting the
criteria for "Pedophilia, sexually attracted to females, limited to incest, nonexclusive
type" and "Personality Disorder, NOS, with narcissistic, obsessive-compulsive, and
passive-aggressive features." In annual reports submitted to the district court from 2004
to 2009, one or more licensed psychologists found that Twilleger remained a "sexually
violent predator" and continued to suffer "from a mental abnormality which makes it
likely that he will engage in repeat acts of sexual violence."

For several years, Twilleger steadily progressed through the treatment phases of
the SPTP. In November 2007, Twilleger reached phase six of the program and was
placed by SRS into a transition house located on the grounds of Osawatomie State
Hospital. While in this structured outpatient setting, he was allowed increased interaction
with the community, including working for a construction company and obtaining a
driver's license.

Unfortunately, Twilleger violated several program rules at the transition house,
including having contact with one of his victims, who is now an adult. Although
Twilleger was allowed to continue in phase six of the SPTP after he agreed to have no
further contact with his victim, he placed a call to her in December 2008. While in phase
six of the SPTP, it was also noted that Twilleger had issues with respecting authority, had
difficulty getting along with the other residents, and had failed several polygraph tests.
Thus, Twilleger was demoted to phase three of the SPTP and was returned to Larned
State Hospital for further inpatient treatment on December 29, 2008.

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After his return to Larned State Hospital, Twilleger advanced to phase four of the
program. On September 29, 2009, SRS filed a Yearly Report of Resident's Mental
Condition. The Yearly Report was signed by Austin T. DesLauriers, Ph.D., a licensed
psychologist and the clinical director of the SPTP. In his report, Dr. DesLauriers
concluded "that Mr. Twilleger's mental abnormality is not so changed that it would yet be
safe for [him] to be placed in full transitional release at this time." The following day, the
district court appointed legal counsel to represent Twilleger, who had previously filed a
pro se motion for transitional release and a motion for appointment of counsel.

On October 27, 2009, Twilleger's counsel filed a petition for review and placement
into transitional release program and a motion seeking reinstatement into transitional
release program on his behalf. Subsequently, on February 2, 2010, a motion seeking
appointment of independent expert pursuant to K.S.A. 59-29a08(a) was also filed by
counsel on behalf of Twilleger.

An annual review hearing was held by the district court on March 5, 2010. At the
hearing, the district court also heard the pending motions. Twilleger was transported to
the hearing and testified on his own behalf. The State called Dr. DesLauriers, Dr. Marc
Schlossberg, a licensed psychologist in Lenexa who had provided outpatient treatment to
Twilleger while he was residing at the transition house, and Stacey Paige, the director of
the transition house, as witnesses.

On April 5, 2010, the district court entered an 11-page memorandum opinion and
journal entry of judgment, which set forth specific findings of fact and conclusions of
law. The district court stated that it did not believe the appointment of an independent
expert to perform an evaluation was necessary at that point in time. The district court also
stated that it had never ordered Twilleger into transitional release (phase seven of the
SPTP) and, as such, that the procedures set forth in K.S.A. 59-29a08(f) were not
applicable. Finally, the district court concluded that probable cause did not exist to
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believe Twilleger's mental condition had changed such that he should be entitled to a trial
on whether he should be ordered into transitional release at that point in time. Thereafter,
Twilleger timely filed this appeal.

ISSUES PRESENTED AND ANALYSIS

There are three issues presented on appeal. First, did Twilleger's placement by
SRS in the transition house on the grounds of Osawatomie State Hospital qualify as
transitional release and, if so, was he denied his rights pursuant to K.S.A. 59-29a08(g)
when he was demoted from the transition house to Larned State Hospital without a
hearing? Second, did the district court err in denying Twilleger's motion for the
appointment of an independent examiner pursuant to K.S.A. 59-29a08(a)? Third, is there
probable cause to believe that Twilleger's mental state or personality disorder has so
changed that he is safe to be placed into transitional release?

Overview of Kansas Sexually Violent Predator Act

The SVPA controls the civil commitment of persons who are deemed to be
sexually violent predators. A "sexually violent predator" is defined as "any person who
has been convicted of or charged with a sexually violent offense and who suffers from a
mental abnormality or personality disorder which makes the person likely to engage in
repeat acts of sexual violence." K.S.A. 59-29a02(a). Although the term "personality
disorder" is not defined in the SVPA, the term "mental abnormality" is defined as "a
congenital or acquired condition affecting the emotional or volitional capacity which
predisposes the person to commit sexually violent offenses in a degree constituting such
person a menace to the health and safety of others." K.S.A. 59-29a02(b).

If a jury or trial judge finds a person to be a sexually violent predator, he or she is
committed to SRS custody "until such time as the person's mental abnormality or
personality disorder has so changed that the person is safe to be at large. Such control,
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care and treatment shall be provided at a facility operated by [SRS]." K.S.A. 59-29a07(a).
Once in SRS custody, a sexually violent predator is entitled to a yearly review of his or
her mental condition pursuant to K.S.A. 59-29a08(a). The committed person is entitled to
be represented by counsel at an annual review hearing, but he or she is not entitled to be
personally present at the hearing. K.S.A. 59-29a08(a). Likewise, the committed person
"may retain, or if the person is indigent and so requests the court may appoint a qualified
professional person to examine such person" in connection with the annual review
hearing. (Emphasis added.) K.S.A. 59-29a08(a).

If the district court concludes at an annual review hearing "that probable cause
exists to believe that the person's mental abnormality or personality disorder has so
changed that the person is safe to be placed in transitional release, then the court shall set
a [second] hearing on the issue." K.S.A. 59-29a08(c)(1). At the second hearing or trial,
the committed person is afforded the same rights as he or she was entitled to during the
initial commitment proceeding, including the right to a trial by jury. K.S.A. 59-
29a08(c)(3). In addition, in preparation for the second hearing or trial, the committed
person "shall also have the right to have experts evaluate [him or her] and the court shall
appoint an expert if the person is indigent and requests an appointment." (Emphasis
added.) K.S.A. 59-29a08(c)(3). Moreover, the State is once again required to prove
beyond a reasonable doubt "that the committed person's mental abnormality or
personality disorder remains such that the person is not safe to be placed in transitional
release and if transitionally released is likely to engage in acts of sexual violence." K.S.A.
59-29a08(c)(3).

K.S.A. 59-29a08(g) Is Not Applicable to This Action Because Twilleger Was Never
Ordered into Transitional Release by the District Court.

Twilleger contends that because he was transferred by SRS from Larned State
Hospital to a transition house located on the grounds of Osawatomie State Hospital, he
had been placed in the transitional release program. He also contends that a committed
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person does not need court approval to be placed in transitional release. As a result,
Twilleger argues that he was entitled to the procedural rights set forth in K.S.A. 59-
29a08(g) before he was removed from the transition house and returned to Larned State
Hospital for further inpatient treatment.

The SPTP is comprised of seven treatment phases that must be completed by a
committed person who has been placed in SRS custody. The first five phases involve
inpatient treatment at Larned State Hospital, while phase six involves placement in a
transition house located at Osawatomie State Hospital. In phase six, although the
committed person is given the opportunity to demonstrate his or her ability to perform
independent tasks such as getting a job and purchasing a cell phone, he or she continues
to reside in a facility operated by SRS.

In transitional release, which is phase seven of the SPTP, a committed person
remains in SRS custody but lives independently in preparation for his or her successful
return to the community and court-monitored conditional release. If a committed person
successfully completes all seven phases of the SPTP, he or she may be placed by the
district court on conditional release. At that point, the person will no longer be in SRS
custody. K.S.A. 59-29a19(a). After a minimum of 5 years of violation-free placement on
conditional release, the committed person may be finally discharged from civil
commitment by the district court pursuant to the terms of K.S.A. 59-29a19(b).

The SVPA provides three ways for a committed person to be ordered into
transitional release or phase seven of the SPTP. First, as indicated above, if probable
cause is found at an annual review hearing pursuant to K.S.A. 59-29a08(a), the district
court must hold a second hearing or trial at which the State has the burden to prove
beyond a reasonable doubt that placement of the committed person into transitional
release is not appropriate. K.S.A. 59-29a08(c)(1), (3). Second, if the Secretary of SRS
finds that the committed person is a candidate for transitional release, authorization may
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be given for the person to petition the district court for placement pursuant to K.S.A. 59-
29a10(a). Third, the committed person can petition the district court without the
Secretary's approval pursuant to K.S.A. 59-29a11(a).

Regardless of which procedure is used, it is clear that a court order is required for
placement of a committed person into transitional release. In the present action, there is
nothing in the record to reflect that Twilleger was ever ordered by the district court into
transitional release or phase seven of the SPTP. Rather, a review of the record reveals
that the highest level of the SPTP reached by Twilleger was phase six, when he was
placed by SRS in the transition house on the grounds of Osawatomie State Hospital. As a
result of several violations of program rules, including contact with one of his former
victims, Twilleger was demoted by SRS from phase six to phase three of the SPTP and
was returned to Larned for further inpatient treatment.

It has been recognized that courts should generally defer to the judgment of the
mental health professionals on the treatment staff of the SPTP regarding treatment
methods that are appropriate for a particular person. See Merryfield v. State, 44 Kan.
App. 2d 817, 821, 241 P.3d 573 (2010) (citing Youngberg v. Romeo, 457 U.S. 307, 322-
23, 102 S. Ct. 2452, 73 L. Ed. 2d 28 [1982]); Allison v. Snyder, 332 F.3d 1076, 1079 (7th
Cir. 2003). Here, we find that the mental health professionals working with the SPTP
appropriately exercised their judgment to promote Twilleger to phase six of the program
and to demote him to phase three of the program as a result of his actions while a resident
of the transition house. Furthermore, because Twilleger had never been ordered into
transitional release by the district court, we conclude that the procedures set forth in
K.S.A. 59-29a08(g) are not applicable in this case.


The District Court Did Not Abuse Its Discretion in Denying Twilleger's Motion for the
Appointment of an Independent Examiner.
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Twilleger claims that he had the right to have an expert appointed to conduct an
independent examination of his condition pursuant to K.S.A. 59-29a08(a). The relevant
portion of this statute, which addresses the procedure for annual review of a committed
person's mental condition, provides that "[t]he person may retain or if the person is
indigent and so requests the court may appoint[,] a qualified professional person to
examine such person." K.S.A. 59-29a08(a). Our court has held that "[t]he legislature's use
of the word 'may' in K.S.A. 2007 Supp. 59-29a08(a) dictates that [appointing an examiner
at the annual review stage] should be left to the discretion of the district court." In re
Care & Treatment of Williamson, Nos. 99,553 and 99,554, 2009 WL 248229, at *3 (Kan.
App. 2009) (unpublished opinion), see also In re Care & Treatment of Miles, 42 Kan.
App. 2d 471, 474, 213 P.3d 1077 (2009) ("[T]he statute . . . permits the court in its
discretion to appoint a qualified professional person for an independent examination of
the person committed."). We thus review this issue under an abuse of discretion standard.

Here, the district court thoughtfully considered whether to appoint an independent
examiner in connection with the annual review hearing. In its decision, the district court
set forth four reasons for concluding that the appointment of an independent examiner
was not necessary at that point in time. First, in finding the 2009 evaluation by the SPTP
treatment staff to be objective, the district court noted that Twilleger had advanced up to
phase six of the program "relatively quickly" based on prior evaluations completed by the
same evaluators. Second, the district court noted that Twilleger had not only been
evaluated by the treatment staff at Larned State Hospital, but he had also been evaluated
by Dr. Marc Schlossburg, a licensed psychologist from Lenexa who treated Twilleger
when he resided at the transition house at Osawatomie State Hospital. Third, the district
court found that based on the evidence presented at the hearing, all of the facts supported
the conclusion that Twilleger remained a sexually violent predator. Fourth, the district
court found that the cost of retaining an independent professional to evaluate Twilleger
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was not justified at that point in time based on the evidence presented at the annual
hearing.

It is important to recognize that the State did not have independent experts testify
at the annual review hearing. Rather, the State relied upon the evaluations performed by
the mental health professionals who actually treated Twilleger. Unlike K.S.A. 59-
29a08(c)(3), which states that a district court "shall" appoint an expert if an indigent
person so requests in preparation for a second hearing or trial, a district court clearly has
the discretion to determine whether to appoint an independent expert at the annual review
stage pursuant to K.S.A. 59-29a08(a).

"Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable. If reasonable persons could differ as to the propriety of the action taken by
the trial court, then it cannot be said that the trial court abused its discretion. [Citation
omitted.]" Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). Based on
his multiple violations of program rules while he was in phase six of the SPTP, Twilleger
had demonstrated that he was not yet ready to be promoted to phase seven or transitional
release. Moreover, at the time of the annual review hearing, Twilleger was only in phase
four of the seven phase treatment program. Thus, we conclude that the district court did
not abuse its discretion when it denied Twilleger's request for the appointment of an
independent examiner pursuant to K.S.A. 59-29a08(a).

There Is Not Probable Cause to Believe That Twilleger's Mental Condition or
Personality Disorder Has So Changed as to Make It Safe for Him to Be Placed into
Transitional Release.

After considering the evidence presented at the annual review hearing, the district
court found "that the conclusion within the [2009 Yearly Report] that Mr. Twilleger
remains a sexually violent predator is supported by the facts." Moreover, the district court
found that probable cause did not exist at that point in time to believe Twilleger's
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condition had changed such that he was entitled to a second hearing or trial regarding
placement into transitional release. In particular, the district court was concerned about
Twilleger's failure "to understand the boundary between himself and one of his victims"
when he was in phase six of the SPTP. The district court was also concerned that
Twilleger had been "exhibiting narcissistic behaviors and failed his last polygraph
examination."

When a person committed under the SVPA seeks to be placed by the district court
into transitional release, he or she has the burden to establish probable cause for a second
hearing on the issue. In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 592, 239 P.3d
871 (2010). Hence, the district court must consider the evidence in the light most
favorable to the committed person to "determine whether there is sufficient evidence to
cause a person of ordinary prudence and action to conscientiously entertain a reasonable
belief that the committed person's mental abnormality or personality disorder has so
changed that the person is safe to be placed in transitional release." 44 Kan. App. 2d at
592-93. Since a probable cause determination under the SVPA is comparable to the
probable cause determination made at the preliminary hearing stage of a criminal
proceeding, it is appropriate that we apply the same de novo standard of review under the
SVPA as we apply in the criminal context. See 44 Kan. App. 2d at 590-91.

Here, the evidence at the annual review hearing consisted of Twilleger's testimony
and testimony of mental health professionals who had treated him in the SPTP. Although
Twilleger testified that he believed he had sufficiently progressed in the SPTP to be ready
for transitional release, such a position is not supported by the evidence. Significantly,
although he discounted the significance of his violation of the rules while he resided at
the transition house, Twilleger admitted during his testimony that he had "flunked"
several polygraph tests, that he had made a gift for one of his victims, that he put his
victim's phone number on the "fave-five" list on his cell phone, that he agreed to take his
victim's phone number off his cell phone, that he subsequently placed a call to the
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victim's number, that his victim called him back, and that he got defensive when his
psychologist found the victim's number on his cell phone.

The testimony of Dr. Austin DesLauriers, the clinical director of the SPTP,
highlights the significance of Twilleger's conduct when he was a resident of the transition
house:

"Of chief concern to me was that John did not seem to see the potential problems
there [in contacting one of his victims]. He also spoke in one of the e-mails I had . . . that
he had concerns that [his victim] would feel abandoned again. And to me, that was a very
inappropriate perspective for someone who had offended against another person because
it spoke to the idea of somehow there had been an abandonment earlier, and somehow
there was a relationship there.

"[T]hat somehow in John's mind there was still a real connection there.

"And to me, that's also a risk factor."

In his 2009 Yearly Report, Dr. DesLauriers had concluded that Twilleger's
"mental abnormality is not so changed that it would yet be safe for [him] to be placed in
full transitional release at this time." In support of this position, Dr. DesLauriers testified
at the annual review hearing that Twilleger required further inpatient treatment at Larned
"to focus on . . . how there might be some real problems with maintaining contact with
his victim, and that in some way his perspective . . . needed altering in order for him to be
a safe person." Dr. DesLauriers further testified that in his opinion, "the process worked
as it should, because the point of phase six is to identify if there are issues that maybe
aren't worked all the way through and need more attention."

In addition, Twilleger's psychologist while he was a resident of the transition
house, Dr. Marc Schlossberg, echoed Dr. DesLauriers' concerns. Dr. Schlossberg testified
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that when he found out that Twilleger had made a gift for one of his victims, he "was
stunned" and believed that "there is a risk of re-victimization, at least psychologically,
that we're concerned about." Dr Schlossberg further testified that "[t]he idea that [the gift]
was to kind of direct [the victim's] spiritual path had me concerned in terms of teaching
someone [Twilleger] had victimized the right way." Finally, Dr. Schlossberg testified that
Twilleger failed to accept responsibility for contacting one of his victims and attempted
to blame others for his actions.

After reviewing the record in the light most favorable to Twilleger, we agree with
the district court that there was not sufficient evidence to cause a person of ordinary
prudence to conscientiously entertain a reasonable belief that Twilleger's mental
abnormality or personality disorder had so changed that he was safe to be placed in
transitional release at the time of the annual review hearing held on March 5, 2010.

Affirmed.

GREENE, C.J., concurring: I write separately only to express concern regarding
the majority's suggestion that in evaluating the decision of the staff to demote Twilleger
from phase 6 to phase 3 of the program, we "should defer to the judgment of the mental
health professionals on the treatment staff of the SPTP regarding treatment methods that
are appropriate for a particular person." I recognize that this principle is correctly cited to
Merryfield v. State, 44 Kan. App. 2d 817, 821, 241 P.3d 573 (2010), but I respectfully
suggest that the Merryfield panel was overbroad in lifting this principle from Youngberg
v. Romeo, 457 U.S. 307, 322-23, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982).

The United States Supreme Court in Youngberg addressed the due process rights
of an involuntarily committed mentally retarded person, who claimed that his "training"
had been inadequate. The Court merely suggested that, "[i]n determining what is
'reasonable'—in this and in any case presenting a claim for training by a State—we
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emphasize that courts must show deference to the judgment exercised by a qualified
professional." (Emphasis added). 457 U.S. at 322-223. I respectfully suggest that
although we may defer to such professionals on the reasonableness of minimally
adequate training for such persons, it is quite a different matter to "defer" to such
professionals on the more important questions of individual progress of the person toward
goals and advancement through "phases," and ultimately on the question whether the
person's abnormality or disorder has so changed that the person is safe to be at large.

Moreover, I respectfully suggest that the Supreme Court's use of the term "defer"
was taken out of context by the Merryfield panel. I do not believe the Supreme Court has
mandated that courts step aside completely in such matters. In fact, the Court suggested
that a question of training adequacy, if made by a professional, may not lead to liability
for the professional unless "the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or standards as to demonstrate
that the person responsible actually did not base the decision on such a judgment."
(Emphasis added.) 457 U.S. at 323.

The constitutionality of our Sexually Violent Predator Act is dependent on
statutory and constitutional due process considerations. See Kansas v. Hendricks, 521
U.S. 346, 117 S. Ct. 2072, 138 L. Ed 2d 501 (1997). It is necessary to balance on a case-
by-case basis the liberty of the individual and the demands of an organized society. Poe
v. Ullman, 367 U.S. 497, 542, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961) (Harlan, J.
dissenting) (quoted in Youngberg, 457 U.S. at 320). Outright "deferral" to institution
professionals on matters of individual progress toward stated goals is not in keeping with
this court's responsibility to balance fundamental rights against institutional demands.

I concur in the judgment here because I agree with the ultimate conclusion that
overwhelming evidence supported a reasonable belief that Twilleger's abnormality or
disorder had not so changed that he was safe to be placed in transitional release.