In re Care and Treatment of Girard ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,687
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Care and Treatment of
DOUGLAS RAY GIRARD.
MEMORANDUM OPINION
Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed August 5, 2022. Affirmed.
Chris Biggs, of Knopp & Biggs, P.A., of Manhattan, for appellant.
Kurtis K. Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., HURST, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: Douglas Girard, who is civilly committed in Kansas' Sexual
Predator Treatment Program (the Program), appeals the district court's decision denying
his request for an independent examiner at his annual review hearing. He asserts an
examiner was warranted because although he has complied with the treatment
requirements, he has not progressed past the lowest tier of the Program. But while Girard
did show strong participation, tests showed that he remained a risk to the public. Thus,
while we acknowledge Girard's efforts and his treatment participation, we find the district
court did not abuse its discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Girard was convicted of endangering a child in 1995 (the result of a plea after he
allegedly sexually abused a young girl), aggravated indecent solicitation of a child in
1996, and two counts of aggravated indecent liberties with a child in 2005. In 2009, when
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he completed his indecent-liberties sentence, Girard was involuntarily committed to the
Program at Larned State Hospital. The Kansas Supreme Court later affirmed the decision
to place Girard in the Program. In re Care & Treatment of Girard, 296 Kan. 372, 294
P.3d 236 (2013).
Kansas law requires participants in the Program to be "committed to the custody
of the secretary for aging and disability services for control, care and treatment 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. 2021 Supp. 59-29a07(a). To ascertain whether this
standard has been met, committed persons undergo annual examinations of their mental
condition. K.S.A. 2021 Supp. 59-29a08(a).
In August 2021, Girard underwent his annual review of his mental condition. The
review included examining Girard's history and past evaluations, interviewing him, and
conducting actuarial risk assessments. The resulting report noted diagnoses of pedophilic
disorder, major depressive disorder, cannabis use disorder, methamphetamine use
disorder, and a personality disorder with antisocial and borderline features.
The report of Girard's annual review also discussed his participation in treatment.
During the evaluation period, Girard consistently participated in therapy groups and
available classes, though the COVID-19 pandemic limited what was available. He
completed fantasy logs and rational-self-analysis exercises consistently, and he attended
100% of his individual therapy sessions. Girard also completed polygraph testing without
issue. He attended 55% of his elective leisure sessions and no open leisure sessions, but
the review noted that the pandemic limited these sessions and skewed their statistics. And
Girard completed a nutrition class, attending 9 of 10 sessions—the lone absence was
excused—and obtaining a passing grade.
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Girard was not working at the time of his evaluation and had one rule violation for
"trading"—borrowing an item from a person in the Program without authorization—but
he planned to start working again once he finished a restrictive period for the violation.
Despite these efforts, however, Girard remained on Tier 1 of the Program—the lowest
tier, with the greatest restrictions—as he had since his initial commitment. The annual-
review report mentioned that one of Girard's upcoming goals was to complete a relapse
prevention plan, which he had not yet done to the Program's satisfaction.
Girard also underwent several actuarial risk-assessment tests as part of his annual
review. His ACUTE-2007 test categorized him as low risk for sexual violence and
recidivism. But the Static-99R-2003 assessment—which is used "to estimate the
probability that [he] will reoffend against a child or a non-consenting adult"—placed him
in the "'Above Average Risk'" category. The STABLE-2007 test—which assesses a
person's "capacity for relationship stability, impulsivity, and deviant sexual interest"—
placed him in the "'Moderate Treatment Needs'" category. The combined results from his
Static-99R-2003 and STABLE-2007 assessments suggested an "'Average'" risk profile.
The report also indicated that in his interview, Girard "admitted to some recent sexual
thoughts involving children."
Based on the information from the annual review, the report concluded that Girard
should remain at Larned State Hospital and was not ready for transitional release. Put
another way, the report found that Girard's mental abnormality or personality disorder
had not changed enough to render placement in transitional release safe.
Girard petitioned the district court for an annual-review hearing. As part of his
petition, Girard incorporated by reference a motion he had filed before in his 2020 annual
review proceedings. Girard asked the district court to grant a transitional-release hearing,
appoint an independent examiner to evaluate him, and order him moved to Tier 2 of the
Program.
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The district court held the annual-review hearing in November 2021. It heard
arguments from Girard's attorney and the State, and Girard testified remotely. Girard
expressed frustration at not having progressed after 12 years of participating in the
Program. During this time, he had never had an independent evaluation. While in the
Program, he had worked with about 26 therapists, including 3 in the past year. He
testified that he used a rational-thinking analysis whenever he had inappropriate thoughts,
and that because of health issues—broken bones and nerve problems in his lower back
and morbid obesity—he could not achieve an erection and had no sex drive.
According to Girard, nobody involved with his treatment had explained why he
was still on the lowest Program tier, but people had told him during the last six years that
his relapse prevention plan was inadequate. He stated that different therapists wanted
different things in this plan and, with these changing standards and high turnover, he has
struggled to keep up. Most recently, Girard stated that his therapist wanted him to add
and address his risk factors in his relapse plan, but Girard had trouble doing so because of
poor vision, making it difficult to use the computer.
After hearing this testimony and reviewing the report, the district court denied
Girard's requests. The court found, based on the results from Girard's actuarial tests, that
there was not probable cause to believe transitional release would be safe. And the court
explained that, despite Girard's progress, he had not shown good cause to appoint an
independent examiner and his "participation and lack of compliance with institutional
requirements did not show progress that justifies the cost of an examination."
Girard now appeals the district court's denial of his request for an independent
examiner. He does not challenge the district court's decisions regarding his movement to
Tier 2 or transitional release.
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DISCUSSION
Kansas law allows a person committed under the Sexually Violent Predator Act to
retain an independent examiner to evaluate the person's mental condition for an annual-
review hearing. If the person cannot afford an independent examiner, he or she can ask
the court to appoint one. K.S.A. 2021 Supp. 59-29a08(c).
When faced with a request for an independent examiner, the district court must
"determine whether the services are necessary" and what they will reasonably cost.
K.S.A. 2021 Supp. 59-29a08(c). In doing so, the court considers several factors,
including "the person's compliance with institutional requirements and the person's
participation in treatment" in order "to determine whether the person's progress justifies
the costs of an examination." K.S.A. 2021 Supp. 59-29a08(c).
The district court has considerable discretion to determine whether to appoint an
independent examiner. K.S.A. 2021 Supp. 59-29a08(c) ("The appointment of an
examiner is discretionary."). Appellate courts review such decisions for an abuse of
discretion. In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 310, 263 P.3d 199(2011). A court abuses its discretion if its decision is unreasonable—that is, no
reasonable person would agree with it—or if the decision is based on a legal or factual
error. State v. Wilson, 301 Kan. 403, Syl. ¶ 2, 343 P.3d 102 (2015).
In his brief, Girard attacks the general statutory framework of the Sexually Violent
Predator Act and the independent-examiner provisions, focusing less on the specifics of
why the court erred in not appointing an examiner here. He claims that he is stuck in a
loop where he can never meaningfully seek transitional release because, without an
independent examination, Program staff will approve annual reports regardless of his
progress. Girard asserts that an independent examination is a necessary check on the
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Program and is the only way he can show probable cause to warrant a transitional-release
hearing.
But courts do not work in broad generalities; we are instead charged with
considering the facts surrounding this annual review and the district court's evaluation of
Girard's current request. And while we may sympathize with Girard's claims regarding
the turnover of his therapists and his other struggles, appellate courts may not substitute
our judgment for that of the district court judge, who is present to hear testimony and
weigh the evidence presented and who is vested with discretion to grant or deny a request
for an independent examination. See Twilleger, 46 Kan. App. 2d at 310. After carefully
reviewing the record and the parties' arguments, we conclude the district court did not
abuse its discretion when it denied Girard's request.
Like the district court, we acknowledge Girard's efforts in treatment during this
year. Other than his "trading" violation, Girard participated well in therapy and in other
Program requirements; his annual review noted few issues in this regard. But while
participation is important and laudable, it is not the sole factor the district court considers
when a person requests an independent examiner. See K.S.A. 2021 Supp. 59-29a08(c).
The district court emphasized at the annual-review hearing that despite Girard's
efforts, it remained concerned by the fact that multiple assessments continued to show
that Girard was in average or above-average risk categories for sexual deviation and
recidivism. As the court noted in its ruling, Girard's test results show he is improving in
these areas. Yet despite this improvement, his 2021 results show he remains a safety
risk—a factor that supports the district court's decision not to appoint an independent
examiner. Other aspects of the annual review also showed he remained a risk; in one part
of his interview, he claimed to have no remaining sex drive, but in another, he admitted
to recent sexual thoughts about children. And Girard had not completed a relapse
treatment plan to the Program's satisfaction. The court considered all this evidence—
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along with his institutional compliance and participation in treatment—when determining
whether Girard's progress justified the costs of an independent examination. And in light
of this evidence, the court's denial of Girard's request was reasonable and within its broad
discretion.
Girard has not demonstrated that the district court abused its discretion when it
denied his request for an independent examiner.
Affirmed.
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