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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON e n c
IN THE MATTER OF THE DETENTION OF: No. 75679-6-1 Consolidated w/No. 75697-4-1 BRADLEY WARD,
Respondent, DIVISION ONE v.
STATE OF WASHINGTON, UNPUBLISHED OPINION
Appellant. FILED: December 12. 2016
Spearman, J. —Bradley Ward has been housed in facilities on McNeil
Island operated by the Department ofSocial and Health Services (DSHS) since he stipulated to commitment under the Sexually Violent Predator Act (SVPA) in 1991. This case is the latest appeal arising from ongoing litigation concerning
Ward's conditional release to a less restrictive alternative (LRA) and his
confinement in DSHS facilities. In the present action, the State and DSHS appeal
the trial court's orders transferring Ward to a private facility at DSHS's expense
and denying the State's motion to revoke Ward's LRA. We conclude that the trial court erred because it did not follow the statutory procedure in ordering Ward
transferred or in ruling on the State's motion to revoke. We reverse and remand. No. 75679-6-1/2 Consolidated w/No. 75697-4-1
FACTS
This court has heard three previous cases concerning Ward's detention, in
re Detention of Ward. 125 Wn. App. 381, 104 P.3d 747 (2005) (Ward I): inre
Pet, of Ward. 188 Wn. App. 1048, 2015 WL 4232058 (2015) (WardJi); ]n_re_Det
of Bradley Ward, 195 Wn. App. 1049, 2016 WL 4443697 (Ward III). We set out
many of the background facts in Ward II, 188 Wn. App. 1048, 2015 WL 4232058. But because the facts are central to this ongoing dispute, we summarize them
again here.
Ward demonstrated deviant sexual behavior from a young age. When he
was sixteen, he suffered a traumatic brain injury that decreased his ability to
control his behavior. Ward stipulated to commitment as a sexually violent
predator (SVP) in 1991. From 1991 to 2007, he was housed at the Special Commitment Center (SCC), a total confinement facility on McNeil Island operated by DSHS. Ward's condition improved and in 2007, the parties agreed to his conditional release to the Secure Community Transition Facility (SCTF).
The SCTF, which is also located on McNeil Island, is a lower security facility than the SCC. Persons conditionally released to the SCTF experience greater freedom and are expected to be more independent than persons confined at the SCC. The order approving Ward's release to the SCTF is conditioned upon his participation in sex offender treatment; demonstrable progress in treatment; and compliance with facility rules, staff instructions, and state laws. The conditional release order states that the SCTF has agreed to
accept Ward. No. 75679-6-1/3 Consolidated w/No. 75697-4-1
For several years, Ward made good progress while housed at the SCTF
and was assessed as a low risk to reoffend. For the first time since his
commitment, staff members believed that Ward might transition to an off island
facility. But in 2012, Ward began experiencing psychotic symptoms and his
behavior deteriorated. His treatment providers attributed Ward's mental decline
to the stress of potentially leaving McNeil Island.
DSHS moved Ward between the SCTF and the SCC several times.
According to DSHS, it moved Ward to the SCC when his mental state
deteriorated to such a point that living at the SCTF was not safe for him or for
other residents. Ward's treatment provider expressed concern that the
environment at the SCC exacerbated Ward's mental illness. DSHS maintained
that it was better able to assess and manage Ward's condition at the SCC than
at the SCTF.
Ward has been continuously housed at the SCC since October 2012. In
2012-13, the SCC frequently placed Ward in solitary confinement. During one
period in 2012-13, Ward spent 276 out of 413 days in solitary. In 2014, the State filed a motion to revoke Ward's LRA pursuant to RCW
71.09.098. Ward II. 2015 WL 4232058 at *3. The trial court denied the State's
motion and ordered Ward returned to the SCTF. jd, at *4. The order states that
Ward shall be transported to the SCTF within 45 days. Separately, the trial court also ordered an unconditional release trial pursuant to RCW 71.09.090. Ward III,
WL 4443697 at *1, n.1. No. 75679-6-1/4 Consolidated w/No. 75697-4-1
This court placed a stay on Ward's transfer pending appeal. While the
appeal was pending, Ward filed a motion to dismiss his commitment as a
sexually violent predator (SVP). Ward III. 195 Wn. App. 1048, 2016 WL 4443697
at *1. He argued that, because the SCC failed to provide adequate treatment, he
should be released from the SCC and detained for evaluation at a mental health
facility. The trial court denied Ward's motion for insufficient evidence but granted
a hearing on the merits of the motion. The trial court ruled that, if it found that
continued commitment at the SCC violated Ward's constitutional or statutory
rights, it had authority to order Ward's unconditional release. This court granted
discretionary review on the question of whether the hearing was properly ordered
and placed a stay on proceedings.
Throughout 2014 and 2015, Ward's mental health remained poor and his
behavior was erratic. Ward's unconditional release hearing was continued
multiple times due to his psychosis.
Ward was not involved in sex offender treatment (SOT) during 2014 or
2015. Ward's SOT provider, psychologist Mark B. Whitehill, stated that Ward was
incapable of benefitting from SOT due to his mental state. Whitehill stated that
Ward's mental state appeared to dampen his sexual tendencies. He opined that
Ward's mental illness lowered his risk of committing another sexually violent
offense but increased his risk of engaging in general violence. In Whitehill's
opinion, Ward needed intensive clinical psychiatric care not available at the SCC.
Whitehill suggested that Western State Hospital would be a more appropriate
placement for Ward. No. 75679-6-1/5 Consolidated w/No. 75697-4-1
Whitehill reported on Ward's sentiments about his housing and treatment.
Ward denied wanting to be transferred to Western State. He occasionally
expressed a desire to return to the SCTF, but often described the SCC as "quiet"
and "comfortable." Clerk's Papers (CP) at 1255. Ward sometimes expressed a
desire to live at the "Golden SCTF" in Venice, Italy. CP at 1263.
Psychiatrist Mark McClung conducted Ward's annual review in March
2015. McClung concluded that Ward's behavior posed a safety risk to himself
and others. He also concluded that Ward's efforts to elude staff members
indicated that an LRA would not adequately protect the community. McClung
assessed Ward as a high risk to reoffend.
In July 2015, this court issued its opinion in Ward II. 2015 WL 4232058.
We held that the trial court did not abuse its discretion in denying the State's
motion to revoke under RCW 71.09.098. jd at *7. In particular, the Ward II court
noted that the trial court "thoughtfully analyzed" each factor required by the
statute. ]± at *5. The stay on Ward's transfer to the SCTF was lifted on
September 4, 2015. DSHS did not transfer Ward.
In September 2015, a female staff member at the SCC reported that Ward
assaulted her. The staff member, Brandie Young, often helped Ward shower.
According to Young, on this occasion Ward began to shower with his pants on.
When she told him to take his pants off, Ward grabbed her arm with one hand
and her shirt collar with the other. Young hit Ward with her open hand and
pushed his chest. Ward fell backward, pulling Young with him by her shirt. Young stated that Ward continued to hold her shirt and "claw at" her with his other hand No. 75679-6-1/6 Consolidated w/No. 75697-4-1
until help arrived. CP at 878. McClung spoke with Ward about the incident.
According to McClung, Ward stated that he grabbed Young because she was
being bossy and he needed to assert power over her.
On October 14, the SCC's superintendent, Mark Strong, revoked Ward's
permission to reside at the SCTF. Based on Ward's recent behavior and his
annual review, Strong asserted that placement at the SCTF was not in Ward's
best interest and did not adequately protect the community.
On November 20, the State again petitioned to revoke Ward's LRA. The
State asserted that Ward had repeatedly violated the conditions of his release
and that he needed more supervision and treatment than he could receive at the
SCTF. In addition, the State argued that the trial court was required to revoke
Ward's LRA because he no longer had permission to reside at the SCTF and
because he was not participating in SOT as required by his conditional release.
The State also asserted that conditions at the SCC had improved since the last
revocation hearing.
As evidence that Ward had violated the conditions of his release, the State
submitted incident reports documenting Ward's behavior throughout 2014 and
2015. The reported behavior included incidents of Ward urinating and defecating
on himself, refusing to shower or change clothes, entering common rooms
naked, entering off-limits areas, grabbing staff members' badges and wrists,
hitting staff members, and threatening staff members. Evidence of the alleged No. 75679-6-1/7 Consolidated w/No. 75697-4-1
assault included incident reports and deposition testimony from Young and a
member of the security team who responded to assist her.1
The parties agreed to continue the hearing on the State's motion to revoke
until June 2016. Between November 2015 and May 2016, the parties had various
disputes about scheduling and discovery. On May 15, the State struck the
hearing on its motion to revoke due to a scheduling conflict. On May 23, Ward
filed a motion to hold the SCC in contempt for failing to transfer Ward to the
SCTF. According to Ward's counsel, she filed the contempt motion because the
hearing on the motion to revoke had not been rescheduled and she wanted to
prompt action on Ward's behalf.
The trial court heard arguments on Ward's contempt motion on June 20,
2016. The SCC argued that its authority to revoke permission to reside at the
SCTF was distinct from the court's authority to continue or revoke an SVP's
conditional release to an LRA facility. The SCC asserted that the court had
authority to approve conditional release to some other facility but could not divest
the SCC of its authority to consent to residence at the SCTF.
The trial court found the SCC in contempt for willfully failing to comply with
the order to return Ward to the SCTF but stated that it did not know what
remedies were available. The court noted that "everyone agrees that it would be
more appropriate for Mr. Ward to be housed at Western State Hospital" but
expressed doubt as to whether it could order Ward transferred to a mental
1 Ward conducted the depositions and submitted them with his opposition to the State's motion. The deposition testimony is consistent with the incident reports submitted by the State. No. 75679-6-1/8 Consolidated w/No. 75697-4-1
hospital. Verbatim Report of Proceedings (6/20/2016) at 15. The court directed
Ward's counsel to identify remedies for contempt and suggested that an
alternative residence could be appropriate. The trial court set a remedies hearing
for July 11 and set the State's motion to revoke for the same day.
On July 6, the SCC filed a memorandum arguing that the law allowed the
trial court to impose, at most, remedial sanctions designed to coerce the SCC to
place Ward at the SCTF. The SCC submitted several attachments with its memorandum, including the report from the SCC's 2015 independent review and
a declaration from the SCC's current superintendent.
The 2015 review states that the SCC has made significant improvement in
responding appropriately to disruptive behavior. In particular, the report congratulates the SCC for reducing its use of seclusion and physical restraint to a level within professional standards. But the report also notes that the SCC does not have sufficient psychiatric services to meet the needs of its residents. In his declaration, the SCC's superintendent states that the SCC has contracted
additional staff since the annual review and is continuing to make further
improvements. He declares that Ward is now under the care of a staff psychiatrist and has recommenced participation in sex offender treatment. On July 7, Ward filed his response to the State's motion to revoke his LRA. Ward asserted that he had not willfully violated the conditions of his LRA
and that any noncompliant behavior was the result of his inadequately treated mental illness. With his response, Ward submitted a report from his expert, psychiatrist Alan A. Abrams. Abrams states that Ward has complex medical and
8 No. 75679-6-1/9 Consolidated w/No. 75697-4-1
psychological problems. While Abrams notes that the SCC's use of punitive
isolation and seclusion has nearly ceased, he states that the SCC is not
providing Ward with adequate treatment to address his severe mental illness.
According to Abrams, Ward expressed dissatisfaction with his continued
residence at the SCC.
In Abrams' assessment, Ward would have the ability to comply with his
LRA if he received adequate treatment addressing his mental health and lack of
social skills. He opined that such holistic treatment would be in Ward's best
interest. Abrams assessed Ward as a low risk to the public.
On Friday July 8, Ward filed his response to the SCC memorandum of law
regarding contempt findings. Ward's counsel stated that, at the court's request,
she had explored alternatives to the SCTF and had secured suitable housing for
Ward. Counsel attached a proposal from Aacres, LLC, an agency that provides
supported living services. The proposal stated that Aacres agreed to accept
Ward as a resident, provide individualized treatment, and provide security.
Aacres estimated the cost forward's housing and treatment at $282,520 per
year. The information did not identify an address for a specific proposed
residence.
On Monday July 11, the trial court held a combined hearing on the State's
motion to revoke and on remedies for the contempt finding. The court first heard
argument on the State's motion to revokeWard's LRA. The State asserted that
the court should not consider Ward's filing regarding Aacres because it was
untimely filed and because it was not filed as part of Ward's response to the No. 75679-6-1/10 Consolidated w/No. 75697-4-I
State's motion to revoke but as part of the contempt action between Ward and
the SCC. The trial court responded, "Well, it may be improper, but I've already
read the materials, so it's pretty hard to unring the bell. They are late. If you need
more time to respond, we can reset today's hearing." VRP (7/11/16) at 23.
The State argued that it had presented evidence that Ward had violated
the conditions of his conditional release and that Ward required more care and
supervision than he could receive at the SCTF. The State also contended that
since Ward no longer had permission to reside at the SCTF, his conditional
release to the SCTF could not be continued. In response, Ward's counsel argued
that Ward was not receiving adequate care at the SCC and that Aacres was a
more appropriate placement for him.
The court next heard argument on the contempt issue. The SCC asserted
that the only appropriate sanction was one requiring the SCC to place Ward at
the SCTF but argued that this sanction was incongruous with the SCC's authority
to revoke permission to reside at the SCTF. The SCC also asserted that counsel
had not yet had an opportunity to discuss the Aacres' proposal with the SCC and
that the proposal was not sufficiently specific because no address had been
identified. In response, Ward reasserted that the SCC was in contempt and that
Ward needed to be "in a better place." VRP (7/11/16) at 37.
The trial court ruled from the bench that Ward's behavioral issues
evidence mental health problems and that he is not getting effective treatment at
the SCC. It stated that it could not adequately evaluate the alleged assault on the
female staff member because the State did not call her as a witness. The court
10 No. 75679-6-1/11 Consolidated w/No. 75697-4-I
stated: "[i]n addressing the contempt issue, I will specifically direct that Mr. Ward
be placed in the Aacres program in whatever facility they find to be most
appropriate for him." VRP (7/11/16) at 39. The court later described the Aacres
proposal as "an appropriate modification of the LRA." VRP (7/11/16) at 40.
The State asked for clarification as to whether the court found that Ward
was in violation of the terms of his conditional release either because he no
longer had permission to live at the SCTF or because of his behavior. The court
stated that Ward's lack of housing was not a violation because it was a voluntary
decision by the SCC. As to Ward's behavior, the court stated that it was "not
going to address" whether the behavioral issues were violations of Ward's LRA.
The State asked for clarification as to whether the court had determined
that Ward needed more care, monitoring, supervision, and treatment than he
could get under his conditional release. The trial court stated that Ward was not
receiving the treatment he needed at the SCC and could not receive it at the
SCTF because the superintendent would not allow him to live there. The State
asked if the trial court was modifying Ward's LRA rather than revoking it. The trial
court stated:
I'm modifying it and directing his placement with the facility managed by Aacres.
It is an alternative placement given that the SCTF is no longer available to Mr. Ward. So I think absent revocation of the LRA, then it's incumbent on the Court or the State to find some other facility. I think, frankly, the respondent's relieved the State of the duty to find such a facility by searching out and finding an appropriate facility on their own.
VRP (7/11/16) at 43.
11 No. 75679-6-1/12 Consolidated w/No. 75697-4-I
On July 27, Ward notified the State of the address that Aacres identified
as Ward's potential residence. That same day, the State moved for the court to
order a DOC investigation of the residence as required by RCW 71.09.096. The
State anticipated that DOC would require 60-90 days to complete the
investigation.
On August 17, the trial court held a presentation hearing. Ward presented
a proposed order under which he would be released from the SCC on September
1 and DSHS would pay all expenses described in the Aacres proposal. The State
argued that the proposed release date did not provide time for a DOC
investigation of the site or 30 day notice of Ward's change of address, both of
which the State asserted were required by statute. The SCC objected to the
provision requiring it to pay for Ward's placement at Aacres. The SCC contended
that it had not had the opportunity to negotiate terms with Aacres or enter into a
contract with the company. The trial court adopted Ward's proposed order. It
found that no further notice was necessary, no DOC investigation was
necessary, and that any difficulty the SCC experienced in negotiating payments
was a "self-inflicted injury." VRP (8/17/2016) at 56.
In the written order, the trial court describes Aacres as "an appropriate
placement for Mr. Ward on his continued LRA." CP at 186. The order requires
DSHS to pay all expenses estimated in the Aacres proposal and orders Ward
transferred to Aacres on September 1. As a sanction for contempt, the order
requires DSHS to facilitate Ward's transfer to Aacres.
12 No. 75679-6-1/13 Consolidated w/No. 75697-4-I
On August 19, an investigator from the Attorney General's office visited
the Aacres address identified as Ward's new placement. The investigator
reported that the address is a single-family home with a fenced back yard. An
established church, which holds all-ages services and a weekly youth group, is
located across the street from the Aacres address. The property is in a
residential neighborhood within a mile of three schools and two youth centers.
On August 22, the State and the SCC both filed notices of appeal and
moved this court for an emergency stay on the trial court's August 17 order. That
same day, this court filed its opinion in Ward III. 2016 WL 4443697. In that case,
we considered whether the trial court properly determined that it had authority to
unconditionally release Ward from confinement as an SVP if it determined that
the conditions of his confinement violated his constitutional rights. |g\ at *2. We
concluded that, under the SVPA, the trial court may only order unconditional
release if the State fails to prove that the respondent meets or continues to meet
the statutory definition of an SVP. jd, at *3. We observed that even if Ward were
to establish in a separate proceeding that the conditions of his confinement were
unconstitutional, the remedy would be an injunction or an award of damages, not
release. ]d. at *2.
On September 6, the trial court issued an order denying reconsideration
and a letter explaining its order. In the letter, the trial court states that Ward's placementat Aacres represents a modification of his LRA. The court also states that its ordertransferring Ward to Aacres was intended, in part, as a remedy for the State's continuing violation ofthe 2014 court order. The letter states thatthe
13 No. 75679-6-1/14 Consolidated w/No. 75697-4-I
State and the SCC may avoid placing Ward at Aacres by returning him to the
SCTF.
The following day, Ward filed a motion to vacate the contempt finding
against the SCC. At the hearing, Ward's counsel explained that she had realized
that the trial court's August 17 order was flawed. She stated that if the SCC
chose to avoid the sanction by allowing Ward to return to the SCTF, the SCC
would violate Ward's modified LRA, which orders him to reside at Aacres.
Counsel also filed a petition to modify Ward's LRA and asked the court to set a
trial date in the event that a petition and trial are necessary for the court to order
new housing for Ward.
The trial court stated that it would vacate the finding and sanction for
contempt if authorized by this court under RAP 7.2. The court granted Ward's
petition for an LRA modification trial and set that trial concurrently with Ward's
unconditional release trial. This court denied the motion to vacate the finding and
sanction for contempt and placed a stay on the trial.
DISCUSSION
Contempt
The State and the SCC2 contend that the trial court erred in finding the
SCC in contempt and in fashioning its sanction. The State and the SCC assert
that the trial court's order transferring Ward to Aacres at DSHS's expense was
based on contempt.
2 The SCC is a division of DSHS. In this action, the terms are used interchangeably. The appellant refers to itself as SCC for purposes of this appeal.
14 No. 75679-6-1/15 Consolidated w/No. 75697-4-I
The purpose of a civil contempt sanction is "to compel compliance with a
court order." Britannia Holdings Ltd. v. Greer. 127 Wn. App. 926, 932, 113 P.3d
1041 (2005) (citing RCW 7.21.010)). A sanction "must contain a purge clause"
allowing the contemnor to avoid contempt by complying with the court order. Id.
at 933 (citing In re Interests of M.B.. 101 Wn. App. 425, 439-40, 3 P.3d 780
(2000)).
Ward does not defend the finding of contempt or order of sanctions, and
thus appears to concede that they were entered in error. But Ward defends the
order transferring him to Aacres at DSHS's expense as a valid modification of his
LRA, independent of the court's sanctioning authority. We conclude that the trial
court's August 17 order was not a valid sanction for contempt and consider
whether the order is valid under the SVPA as a modification of Ward's LRA.
Modification
The State argues that the trial court's order transferring Ward to Aacres is
not valid as a modification of Ward's LRA because the trial court did not follow
statutory procedures. The SCC contends that the trial court only had personal
jurisdiction over it in the contempt action and that, independent of that action, the
trial court had no authority to order the SCC to pay for the Aacres placement.
The parties agree that this court reviews a trial court's decision to revoke
or modify an LRA for abuse of discretion. The trial court abuses its discretion
when its decision is manifestly unreasonable or based on untenable grounds.
State v. Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (citing Davis v. Globe
Mach. Mfg. Co.. 102 Wn.2d 68, 77, 684 P.2d 692 (1984)). A decision based on
15 No. 75679-6-1/16 Consolidated w/No. 75697-4-I
an incorrect legal standard is an abuse of discretion. In re Marriage of Littlefield,
133 Wn.2d 39, 47, 940 P.2d 1362 (1997) (citing State v. Rundguist. 79 Wn. App.
786, 905 P.2d 922 (1995)). In a proceeding under the SVPA, chapter 71.09
RCW, the trial court's authority is limited to that found in the statute. In re
Detention of Skinner. 122 Wn. App. 620, 632, 94 P.3d 981 (2004) (citing State v.
Phelps. 113 Wn. App. 347, 354-55, 57 P.3d 624 (2002)). Failure to follow the
statute "renders the court's action void." Id.
The SVPA defines a sexually violent predator as a person who has
committed a sexually violent crime and who suffers from a mental abnormality or
personality disorder that makes him or her likely to engage in predatory acts of
sexual violence if not confined. RCW 71.09.020(18). Commitment under the
SVPA is indefinite and lasts so long as the person continues to meet the
definition of an SVP. In re Detention of Rushton. 190 Wn. App. 358, 368, 359
P.3d 935 (2015).
A person civilly committed as an SVP may petition for conditional release
to an LRA through the show cause process set out in RCW 71.09.090. In re Detention of Campbell. 130 Wn. App. 850, 855, 124 P.3d 670 (2005). This same
process governs when a committed person who has been granted conditional release to the SCTF seeks release to a less restrictive facility. RCW 71.09.280.
Under the show cause process, the petitioner must first show probable cause
that his condition has so changed that conditional release is appropriate. RCW 71.09.090(2)(a). The petitioner must also presentthe court with a specific LRA proposal. In re Detention of Jones, 149 Wn. App. 16, 26, 201 P.3d 1066 (2009).
16 No. 75679-6-1/17 Consolidated w/No. 75697-4-I
If the petitioner meets this initial burden, the court orders a trial to
determine whether conditional release to the specific proposed alternative is in
the petitioner's best interest and adequate to protect the community. RCW
71.09.090(2)(c). Before ordering conditional release, the trial court must find that
the proposed LRA satisfies the statutory requirements. Jones, 149 Wn. App. at
28-29. See also Skinner. 122 Wn. App. at 627 (stating that a court may not order
conditional release unless the proposal meets the statutory conditions). These
requirements include a DOC investigation of the proposed placement. RCW
71.09.096(4).
A separate statute, RCW 71.09.098, establishes a procedure for revoking
or modifying an LRA. In this case, the State petitioned to revoke Ward's LRA
under RCW 71.09.098. The trial court denied the motion and stated that it was
modifying rather than revoking the LRA. There was no petition to modify before
the trial court.
The parties dispute whether the trial court had statutory authority to modify
the LRA. The State asserts that, by proposing Aacres as a placement, Ward was
seeking release from the SCTF to a less restrictive facility, a proceeding
governed by the show cause process set out in RCW 71.09.090. The State
asserts that the trial court failed to follow any of the procedures required under
that statute. Ward does not argue that the trial court followed the show cause
process. He contends that the trial court had authority to order different housing
for Ward under RCW 71.09.098. Ward relies on RCW 71.09.098(7), which states
17 No. 75679-6-1/18 Consolidated w/No. 75697-4-I
that, on a motion to modify, "[t]he court has authority to modify its conditional
release order by ... requiring new housing for the person . . . ." Resp. Br. at 40.
RCW 71.09.098 sets out procedures relevant to revoking or modifying an
existing conditional release order. Under that statute, the State, the SCC, a
service provider, or a community corrections officer "may petition the court for an
immediate hearing for the purpose of revoking or modifying the terms of the
person's conditional release to a less restrictive alternative . . . ." RCW
71.09.098(1). A petition under RCW 71.09.098 is proper if the petitioner believes
the released person: "(a) violated or is in violation of the terms and conditions of
the court's conditional release order; or (b) is in need of additional care,
monitoring, supervision, or treatment. . . ." RCW 71.09.098(1 )(a). In a motion to
modify, the State has the burden to prove one of these allegations by a
preponderance of the evidence. RCW 71.09.098(5)(c). Ifthe State meets its
burden, the court "shall modify the conditional release order by adding conditions
.... The court has authority to modify its conditional release order by substituting
a new treatment provider, requiring new housing for the person, or imposing such
additional supervision conditions as the court deems appropriate." RCW
71.09.098(7).
The statute that Ward relies on, RCW 71.09.098, does not apply to
petitions by a committed person. Only the State, the SCC, a treatment provider,
or a corrections officer may petition under RCW 71.09.098. The trial court's
authority to order different housing only applies after the State has met its burden
of proving that the existing conditional release order is no longer appropriate
18 No. 75679-6-1/19 Consolidated w/No. 75697-4-I
because the committed person has violated its conditions or needs additional
care and supervision. We conclude that the order modifying Ward's LRA and
ordering different housing was not authorized by RCW 71.09.098.
Ward does not assert an alternative statute authorizing modification of
Ward's LRA. Rather, he argues that the show cause provision in RCW 71.09.090
is inapposite. Ward argues that the show cause process only applies if the
committed person seeks release to a facility that is less restrictive than the one
identified on his LRA. He contends that Aacres is not less restrictive than the
SCTF and RCW 71.09.090 does not apply.
Ward asserts that "less restrictive" is not the same as "less secure." Resp.
Br. at 41. He argues that a placement is more or less "restrictive" based on the
conditions of supervision in the conditional release order, not the facility. Id. Ward
contends that, other than housing, the terms of his LRA remain the same and
that his placement at Aacres is thus equally restrictive as his placement at the
SCTF.3
We reject this argument. By referring to a person's "placement" at a
"facility," RCW 71.09.280 expressly invokes the show cause process when a
committed person seeks to change his housing, not other terms of the LRA. In
addition, the stated purpose of the SVPA is to protect the public from sexually
violent predators. RCW 71.09.010. In that context, the restrictiveness of a facility
3Ward also argues that if"less restrictive" as used in the statute means "less secure," it would require the SCC to follow the show cause process anytime it transfers an SVP from the SCTF on McNeil Island to the King County SCTF. But the statute distinguishes between the two SCTF's operated by DSHS and all other placements. RCW 71.09.280.
19 No. 75679-6-1/20 Consolidated w/No. 75697-4-1
logically refers to the degree to which the facility restricts the committed person
from the community. Ward makes no argument that the residence designated by
Aacres is as restricted from the community as the SCTF.
Ward also appears to argue that the trial court was authorized to order
different housing because the SCC revoked permission for Ward to reside at the
SCTF. Ward cites to no authority supporting this proposition.
Ward did not petition for release from the SCTF to a less restrictive facility
under the show cause process of RCW 71.09.090 and the trial court did not
follow that process. The trial court's order modifying Ward's LRA was not
authorized by RCW 71.09.098. Ward presents no argument that the order was
authorized by some other provision of the SVPA. We conclude that the trial court
erred in modifying Ward's LRA and ordering him transferred to Aacres. In a
proceeding under the SVPA, the trial court's failure to follow the statute "renders
the court's action void." Skinner, 122 Wn. App. at 632.
Because we conclude that the trial court's order transferring Ward to
Aacres was not a valid modification of Ward's LRA, we do not reach the SCC's
argument that the trial court lacked personal jurisdiction and statutory authority to
order it to bear the expense of that transfer.
Motion to revoke
The State next contends that the trial court erred in denying its motion to
revoke Ward's LRA. A court may only grant an LRA if it meets statutory
requirements. Skinner, 122 Wn. App. at 627. An LRA must identify a specific residence and include the housing provider's written agreement accepting the
20 No. 75679-6-1/21 Consolidated w/No. 75697-4-I
committed person. RCW 71.09.092(3). See ajso Jones. 149 Wn. App. at 27
(discussing the specificity requirement).
Once granted, the State or the SCC may petition to revoke conditional
release through RCW 71.09.098, discussed above. The statute prescribes a two-
part process for a motion to revoke. First, the State must prove by a
preponderance of the evidence that the committed person "(a) violated or is in
violation of the terms and conditions of the court's conditional release order; or
(b) is in need of additional care, monitoring, supervision, or treatment. . . ." RCW
71.09.098(1 )(a). If the trial court determines that the State has met its initial
burden, it must proceed to the second step, which involves considering five
statutory factors to determine if continuing conditional release is in the person's
best interest and adequate to protect the community. RCW 71.09.098(6)(a).
These factors include the nature of the violation and the degree to which the
violation was intentional. Id.
The State first argues that the trial court erred because it did not
determine whether the State met its initial burden of proving that Ward violated
the terms of his LRA. Alternatively, the State appears to argue that the trial court
erred in determining that Ward did not violate the terms of his LRA. The State
contends that it presented overwhelming evidence that Ward violated the terms
of his conditional release order by failing to comply with the SCC's rules, failing to
comply with instructions of SCC staff members, and not participating in
treatment. Although Ward disputed the account of the alleged assault on the
SCC staff member, the State notes that Ward provided no evidence supporting
21 No. 75679-6-1/22 Consolidated w/No. 75697-4-1
an alternate theory. The State also asserts that it was undisputed that Ward no
longer had permission to reside at the SCTF, and thus was no longer able to
comply with the housing term of his conditional release order.
The trial court did not expressly state a finding on whether the State
proved that Ward violated the terms of his LRA.4 But in its written order, the trial
court concluded as a matter of law that neither Ward's lack of housing nor his
behaviors at the SCC constituted a violation of his conditions. The order explains
that the lack of housing is not a violation of Ward's LRA because it "was a
voluntary decision made by the superintendent." CP at 185. The order also states
that Ward's "behavioral issues evidence mental health problems, more than
sexual deviancy related acting out." CP at 184. The order states that the assault
on the female staff member may be an exception, but the trial court could not
adequately evaluate it because the State did not call the staff member as a
witness.
The trial court's analysis of the issues presented by the State's revocation
motion was flawed. The court appears to have conflated the issues of whether
the violations occurred and if so, the nature and willfulness of the violations. It
determined that Ward's behaviors were not violations because they resulted from
his mental illness. This finding is inconsistent with the procedure set out in RCW
71.09.098. Under that statute, the trial court must first determine that a violation
4At hearing, the trial court stated it was denying the State's motion to revoke because it found that conditions at the SCC were inadequate and Ward's behavioral issues gave evidence of mental health problems. When the State asked for clarification as to whether the court had found that Ward was in violation of his conditions, the court stated that it was not "going to address that." VRP (7/11/16) at 42.
22 No. 75679-6-1/23 Consolidated w/No. 75697-4-1
occurred and only then consider the nature and willfulness of the violation. RCW
71.09.098(6)(a). We conclude that the trial court abused its discretion because it
utilized the wrong standard to resolve this issue. Littlefield, 133 Wn.2d at 47.
Next, the State asserts that the trial court failed to consider the factors
required by RCW 71.09.098(6)(a). Ifthe State is seeking revocation and meets
its initial burden, the court must consider five statutory factors: (1) the nature of
the violation, considered in the context of the person's criminal history and
underlying mental condition; (2) the degree to which the violation was intentional;
(3) the ability and willingness of the released person to comply with the terms of
the LRA; (4) the degree of progress made at the LRA facility; and (5) the risk to
the public of maintaining the person in less than total confinement. These factors
are relevant to whether continuing the LRA is in the person's best interest and
adequate to protect the community.
Ward asserts that the trial court properly weighed each statutory factor,
just as the 2014 trial court did. He provides no citation supporting this assertion.
The record gives evidence to the contrary. The conclusion that Ward's behaviors
reflect his mental illness may be evidence that the trial court considered the first
or the second factors, the nature of the violation and its willfulness. The record
gives no evidence related to the other factors.
At the hearing on the State's motion to revoke, the State argued that Ward
had violated the terms of his LRA, could not comply with the housing condition of
his LRA, and was in need of more care and supervision than he could receive at
the SCTF. Ward's counsel argued in response that, at the court's suggestion,
23 No. 75679-6-1/24 Consolidated w/No. 75697-4-1
she had found alternative housing for Ward. Ward did not address the motion to
revoke or any of the statutory factors. The only questions posed by the trial court
concerned new housing for Ward. In its bench ruling, the trial court indicated that
it was denying the State's motion because conditions at the SCC were
inadequate and because the SCC was in contempt of the prior order.
The trial court's written order makes no mention of the statutory factors.
The order finds that the State has failed to adequately treat Ward's underlying
mental illness. It concludes that Aacres, rather than the SCC, is an appropriate
placement for Ward. The trial court's letter explaining its denial of the State's
motion for reconsideration does not address the State's motion to revoke and
makes no mention of the statutory factors.
The procedure followed by the trial court in this case is in contrast to that
followed by the court that heard the State's 2014 motion to dismiss. In Ward II,
this court held that the 2014 trial court did not abuse its discretion in denying the
State's motion to revoke Ward's LRA. Ward II, WL 4232058 at *7. We noted that
the trial court "thoughtfully analyzed" each of the statutory factors, |g\ at *5. In
that case, the State made no claim of procedural irregularity. kL at *6.
In this case, on the other hand, the record indicates that the trial court did
not consider the State's motion to revoke as required by RCW 71.09.098.
Because there is no evidence that the trial court considered the required factors,
and because the reasons the trial court gave for denying the State's motion to
revoke do not reflect those factors, we conclude that the trial court failed to follow
the statutory procedure.
24 No. 75679-6-1/25
The trial court abused its discretion in denying the State's motion to
revoke because its decision is based on a flawed legal analysis. We remand for a
determination of (1) whether the State proved by a preponderance of the
evidence that Ward violated the terms of his conditional release order or was in
need of more care and supervision than the SCTF could provide; and (2)
whether, in light of the statutory factors, continuing on his LRA is in Ward's best
interest and adequate to protect the community. RCW 71.09.098.
Costs of appeal
The State requests costs of appeal under RAP 14.2. Under RAP 14.2, this
court has discretion in determining if costs should be allowed to the substantially
prevailing party. State v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000). Ward is
statutorily indigent because he has been involuntarily committed. RCW
10.101.010(3)(b). He was committed as an SVP when he was nineteen years old
and has spent more than twenty-five years housed on McNeil Island. We deny
the State's request for costs.
Reversed and remanded.
WE CONCUR: * ecf/sf\CAS\!
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