Burch v. Howard

• Citation: 461 P.3d 840,57 Kan.App.2d 860
• Decision Date: 28 February 2020
• Docket Number: No. 120,704,120,704
• Parties: Timothy J. BURCH, Appellant, v. Laura HOWARD, Secretary of Kansas Department for Aging and Disability Services, Appellee.
• Court: Court of Appeals of Kansas

57 Kan.App.2d 860

461 P.3d 840

Timothy J. BURCH, Appellant,

v.Laura HOWARD, Secretary of Kansas Department for Aging and Disability Services, Appellee.

No. 120,704

Court of Appeals of Kansas.

Opinion filed February 28, 2020

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Jessica F. Conrow, senior legal counsel, of Kansas Department for Aging and Disability Services, for appellee.

Before Buser, P.J., Schroeder and Warner, JJ.

Warner, J.:

In 2002, a court committed Timothy Burch to the Sexual Predator Treatment Program at Larned State Hospital. Ten years later, he filed this K.S.A. 60-1501 petition, challenging the adequacy of the Program's treatment regimen. After hearing the testimony and evaluating the evidence submitted by both Burch and the Department for Aging and Disability Services, the district court ruled that because Burch had decided to stop participating in the Program's treatment, he could not prove his treatment was constitutionally deficient. On appeal, Burch again questions the adequacy of his treatment, focusing primarily on whether the Program fails to meet the statute's requirements because it does not directly measure the change in a person's "mental abnormality or personality disorder." After carefully assessing the arguments presented, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Burch was convicted in 1989 of three counts of aggravated criminal sodomy, five counts of indecent liberties with a child, and two counts of sexual exploitation of a child. See In re Care & Treatment of Burch , 296 Kan. 215, 218, 291 P.3d 78 (2012). In 2002, a district court ordered that he be committed to the Kansas Sexual Predator Treatment Program—established by the Kansas Sexually Violent Predator Act—at Larned State Hospital. Eighteen years later, Burch remains committed under that Program.

In 2012, Burch filed a petition for a writ of habeas corpus under K.S.A. 60-1501 against the Kansas Department for Aging and Disability Services, asserting several claims relating to the Program. As Burch's case progressed, he and the Department agreed to narrow his claims to two issues: (1) Whether, from June 2002 to March 2012, Burch's confinement was more restrictive than for inmates imprisoned through the Kansas Department of Corrections; and (2) whether, during that same period, the Program provided Burch adequate treatment (and thus, according to Burch's phrasing, offered a path for his eventual release).

The district court conducted separate hearings on these issues. The issues raised in this appeal are limited to the court's rulings on this second issue—Burch's adequacy-of-treatment claim.

At the evidentiary hearing on this claim, the parties called multiple witnesses who testified about the Program structure and metrics, as well as Burch's progress. From 2002 to 2012, the Program employed a seven-phase treatment system. Each phase addressed specific skills and built on treatment from earlier phases. During these phases, patients would attend recreational therapy and individual- and group-therapy sessions. Recreational therapy activities allowed staff to gauge whether a patient could communicate and cooperate with others. In group therapy, patients discussed sex-offense-specific treatment, while patients in individual therapy could discuss any concerns.

Phases I through IV were inpatient periods. In Phase I, patients learned about the Program and began developing skills such as participating in groups. Phase II consisted of a 12-month academic period during which patients took classes on subjects such as anger management, human sexuality, and relapse prevention. In Phase III, patients began applying Phase II concepts. And during Phase IV, patients created, presented, and refined a relapse prevention plan to manage their sexual impulses.

Phases V through VII were transitional, outpatient periods. Phase V entailed supervised community outings, during which staff gauged how patients applied their inpatient experiences to other settings. In Phase VI's transitional release, patients would move to a new location where they would find a job, pay bills, and become self-sufficient. Finally, in Phase VII's conditional release, patients would find housing and gain more independence. After five years on conditional release, the patient could petition the court for release from the Program. Movement to Phase V required institutional approval, and the transition to Phase VI required both institutional and court approval. K.S.A. 2019 Supp. 59-29a08(g).

To gauge whether a person could advance to the next treatment phase, the Program measured changes using Treatment Needs Assessment (TNA) scores. The TNA was an assessment tool designed by the Program, using concepts generally accepted in the field of sex-offender treatment. Using a 10-point scale, staff rated patients in 14 categories, including personal responsibility, relationship skills, self-awareness, transparency/secrecy, and insight. The Program required patients to achieve and maintain certain TNA scores to advance to the next treatment phase. Since staff based their scores on how patients participated in treatment, staff could not assess a patient's progress if the patient did not participate.

Each year, the Program would submit an annual report of a patient's progress to the court, as required by K.S.A. 2019 Supp. 59-29a08. Multiple staff members contributed to these reports, and the patient could participate in the process through an interview. But the ultimate recommendation as to whether a person was ready for transitional release was based on Program progress and TNA scores.

Burch entered the Program in June 2002. He entered Phase V—the first transitional stage—in November 2006 and stayed there until March 2008. During a search in January 2008, Program staff found a glass bottle of cologne and two inappropriate movies in Burch's room. Possessing the glass bottle violated Program rules, and though the Program's movie committee had approved one of the movies, staff deemed it was inappropriate for Burch. As a result, Burch was demoted to Phase IV (an inpatient commitment). He was later demoted to Phase II for not participating in treatment. The district court found that since July 2009, Burch's participation in treatment has been "virtually nonexistent."

Dr. Austin DesLauriers, the Program Director from 1996 until 2014, testified that of the 250 patients admitted to the Program during that time, only 3 had been released. He also testified the Program gauges patients' volitional control and propensity to commit sexual violence by examining treatment progress. Other Program employees testified similarly.

Burch called several witnesses who stated he had never acted out sexually. He also called an expert, Dr. Robert Barnett, who analyzed Burch four times between 1999 through 2012 and has conducted dozens of evaluations for other Program patients. Dr. Barnett testified he does not use risk assessments; instead, he relies on his clinical experience to make recommendations. Based on his experience and evaluations of Burch, Dr. Barnett testified Burch has no mental abnormality and can control his behavior. Dr. Barnett gave his opinions that Burch's treatment in the Program was so minimal as to be nonexistent and that the Program's progression requirements were so vague that Burch lacked a path to ever being released.

After the evidentiary hearing on Burch's adequacy-of-treatment claim, the district court issued a memorandum decision denying Burch's petition. The court noted that although Burch made significant progress early in his treatment, he later "encountered problems, broke rules, lost phase levels, and ultimately stopped participating in treatment." The court ruled that since Burch had decided to disengage from treatment, Program staff could not evaluate whether he could safely be released. Thus, Burch had not carried his burden of proof to show shocking or intolerable conduct or a continuing constitutional violation under K.S.A. 60-1501. Burch appeals.

DISCUSSION

Burch has presented claims regarding various aspects of the Kansas Sexual Predator Treatment Program to this court and others on several previous occasions. See Burch v. Kansas Department of Aging and Disability Services , No. 121,511, 2019 WL 6795825 (Kan. App. 2019) (unpublished opinion), petition for rev. filed December 26, 2019; Burch v. Keck , 56 Kan. App. 2d 1162, 444 P.3d 1000 (2019) ; In re Care & Treatment of Burch , No. 116,600, 2017 WL 3947430 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 987 (2018); In re Care & Treatment of Burch , No. 116,370, 2017 WL 2403389 (Kan. App. 2017) (unpublished opinion); Burch v. Ash , No. 116,599, 2017 WL 2021067 (Kan. App. 2017) (unpublished opinion); Burch v. Bruffett , No. 116,150, 2017 WL 754250 (Kan. App. 2017) (unpublished opinion); Burch v. Bruffett , No. 113,607, 2015 WL 7693761 (Kan. App. 2015) (unpublished opinion); Burch v. Sullivan , No. 109,175, 2013 WL 6389201 (Kan. App. 2013) (unpublished opinion), rev. denied 301 Kan. 1045 (2015); Merryfield v. Sullivan , No. 109,039, 2013 WL 4730565 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1270 (2014); Burch v. Lynch , No. 108,798, 2013 WL 2972822 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1201 (2013); Merryfield v. Jordan , No. 106,574, 2012 WL 3171872 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1246 (2013); Burch v. Lynch , No. 106,612, 2012 WL 718991 (Kan. App. 2012) (unpublished opinion); In re Care & Treatment of Burch , No. 102,468, 2010 WL 3324271 (Kan. App. 2010) (unpublished opinion), aff'd 296 Kan. 215, 291 P.3d 78 (2012) ; see also Burch v. Jordan , No. 07-3236-JAR, 2007 WL 4163637 (D. Kan. 2007) (unpublished opinion), refiled Burch v. Jordan , No. 07-3236, 2010 WL 5391569 (D. Kan. 2010) (unpublished opinion), aff'd sub nom. Burch v. Jordan , 444 Fed. Appx. 236 (10th Cir. 2011) (unpublished opinion).

Burch initiated ...