please the court counsel my name escaped levine i am from the chicago kent college of law and i represent mr titus souter in this case there is no dispute between the parties that mr souter has a significant offending history mr souter himself does not dispute this and that's the reason why when he went to the treatment and detention facility under the sexually violent persons commit an act he consented to treatment within mere days of getting there and he also stipulated to being a sexually violent person he has recognized the need for treatment and rehabilitation and that's really the concern in this appeal today where is the best place that mr souter can get this needed treatment and rehabilitation of the trial court issued a ruling in a memorandum order which i've attached to appellant's brief in the appendix and in that order the trial court ordered that mr souter should be in secure care at the treatment and detention facility this ruling was an abuse of discretion the only reasonable does decision based on the record before us was conditional release and this abuse of discretion is evident in two areas one findings that the trial court made in its order and two evidence that the trial court did not adequately consider with respect to the second issue in our brief the failure to recall evidence i will stand on the brief unless any of your honors have questions on that issue i'll turn now to the findings contained in the trial court's memorandum order there are a number of findings made in this order and the findings to which i will be referring are in the on page three there the court's own rationale for sending mr souter back to the t f should have led to a complete opposite conclusion and said that he was appropriate for conditional release so first i'd like to lay out for you the findings that i'd like to discuss and then explain the flaw in the rationale first and foremost the trial court made a finding that a combination of individual and group therapy would be best for mr souter the trial court went on to say that mr souter was deriving maximum benefit from group therapy the trial court also indicated that individual treatment is only available out in the community on conditional release it is not available at the treatment and detention facility which i may refer to as the t v at the trial court also found that there was an overriding need for public safety that prevailed given the current state of mr souter's progress in treatment the court went on to say that mr souter was performing very well in treatment and finally that any disruption in his treatment could have a negative impact on his progress so i'll turn to those first couple findings that i mentioned the  indicates that the best and most effective treatment is outside in the community it's this combination of individual and group treatment we do not have a combination of individual and group treatment at the t v ad therefore the treatment at the t ad is less effective than the treatment that is outside in the community and this is supported by the record it's supported by testimony of dr abbott and dr fogle both of whom mr souter called as witnesses at his dispositional hearing it's supported by sunny's that they cited indicating that sexual recidivism decreases when an individual goes through a combination of individual and group therapy the trial court also found that mr souter was performing very well in treatment and this again was supported by the record it was supporting not only by mr souter's doctors but also by the state doctor dr travis let me ask the question activity and engage me by your question i believe all of the doctors testify to recent records recent rights and if we look at the period of time receptive and acknowledging coming to a greater realization of what needs to be done your honor do you mean in the totality of mr souter involvement with the iraqi military ok i understand your  question so there is evidence and the record that mr souter's earlier treatment while he was in the illinois department of corrections was not completely successful you are at the at the very beginning there was testimony from dr travis that treatment providers really didn't know what they were doing when they first started providing this type of treatment to sex offenders as time went on mr souter was engaged in treatment both a program correctional center and the taylor behl correctional center and it was when he was at the taylor  correctional center before he went to the t f that that was where he really started to make this progress in terms of understanding his offending cycle and there was a change any him which dr abbott testif where the pedophile that disorder from which he was suffering essentially change from a type where it was distressing to him excuse me i think i spoke of her it was initially it was not distressing to him the pedophile disorder was consistent with his personality but as he went through treatments and as he had what dr abbott called a religious conversion he began to see the pedophile disorder as being harmful to his victims and t other children and dr abbott really began to see this progress being made when mr souter was at taylor behl and of course that has continued on an even greater fashion while mr souter has been at the treatment and detention  reasonable there was also testimony that there was a i may not be stating this that there were five stages that not only needs to be may but there was hope that progress could be made within this institutional setting i thought that's what the testimony was and if we look at history then recent will you judge has over the last several years you judge it over the last year or the the more recent reports suggest that this is i don't necessarily want to equate it to an addict but that's great but you still have to worry about relapses that's great but the further you get in the treatment process whatever it is because there could be maybe there are disagreements about whether he's getting what he needs now but the further you get in that the less risk there is of a relapse or the less risk there is that there is harm to the public so the point you're making is reasonable but the trial court is entitled to balance that with the potential for future progress in present setting coupled with the high risk of the high risk to the public because of this track ister just like we were reading the racing form for a horse this is how this horse performs and until there's a change it's probably going to continue for me i don't know if i've stated that very artfully or you understand the point turn you made but i believe i do understand your point your honor and i will try to respond to the several points that you made you're correct that there are five stages at the treatment and detention facility but there is no case law no statute that says a respondent must get to phase four or phase five or they will be allowed to leave the treatment a detention facility and be released to conditional release in the community and in fact we had testimony from dr abbott who said that he believes that his progress in treatment at this point was such that he could be safely managed in the community despite the fact that he had made it shut associated with that number are not representative of his risk at this point for one thing that number and the risk estimates associated with that do not take any treatment into account so mr souter could go all the way through the five stages at that c d f and that number would say exactly the same moreover there would be no significant decrease until he turns sixty years old so right now he's fifty three were i submit that some psychologists believe that it's the most it's the best way that we have at this time to measure someone's risk but there are obviously limitations to that instrument it's it's only an instrument and no one can know with complete certainty whether someone is going to re a fan one may exit a secure facility and go out into the community but what we have here is a very unique situation because we have someone like mr souter who has significant financial resources unlike most people at the t v s that could be utilized in order to structure a program for him that guarantees that he would be  very good treatment and a lot of it that he would be supported by individuals in the community and that he could be further subject to varying degrees or varying additional additional safeguards i should say that would all of these things would serve to protect the community so the issue here is that mr souter could be in the community receiving individual and group treatment as would any other conditional elisi but because of these resources he could receive additional individual treatment so it would not be as if he was only receiving a few hours of treatment he could have as much treatment as his providers felt that he needed more all the way she was growing yes that was the testimony certainly he could change his mind your honor but that's where we come to what happens when the trial court orders someone to conditional release it's not as if as soon as the trial court orders it mr souter is free to leave the building and go do as he pleases unconditional release what happens is the department of human services begins developing a program that includes all of the services that mr suitor would need so for instance he would need counseling he would need community support he would need to know where he was going to live things of that nature the department of human services has sixty days to complete this report and to respond and the department of human services had agreed to even more time beyond that so let me run get back to your question here ben network that reports are that plan rather has to come back to the courts the court has to sign off on it mr souter also has to say that he agrees with all of the conditions and that he will abide by them if he does not abide by them that's reason for him potentially to be violated on his conditional release and to be returned to the treatment and detention now this plan would continue would contain numerous conditions dr travis the state's doctor in this testimony said that conditional release can be in many ways far more restrictive than being at the treatment  detention facility he said there were a crazy amount of rules and multiple layers of supervision that's what conditional release is designed for it's designed to acclimate someone to the community while also keeping the community safe so we have here twenty eight conditions that are in the s v p statute itself and then you also have the one hundred eleven page liberty health care conditional release client manual which contains fifty additional conditions and the court has the ability to order any additional conditions that it sees fit so for example this additional individual treatment or participation in the circles of support and accountability program which is also known as kosa and that's how it's referred to it brief but the issue one of the other issues here is that the trial court has made this finding that a disruption in treatment could have a negative impact on mr souter at this juncture but there's simply no testimony to support that conclusion as i mentioned he would with the permission of the court go out into the community to receive more and better treatment in the form of individual treatment group treatment and also participation in the circles of support and accountability it's not as if he would have cosa by itself and not have any of the conditions or programs that regular conditional release sees have you would have a twelve and beyond and the idea behind this act is that people need treatment to get better treatment it's not a one size fits all type of thing it has to be individually tailored to the person who needs it even dr travis testified to such at the dispositional hearing and here we have an opportunity to get really good treatment for m moreover at the trial court indicated that there was this overwhelming need or overriding need rather for public safety that would prohibit his release and i believe based on what we've just talked about that really becomes moot because you have all of these conditions they are available in other states currently there is no cosa program in illinois but that in and of itself is not an impediment to releasing mr souter on conditional release and here's why when the trial court order mr souter to conditional release it could have also included in its order that mr souter began meeting with the individuals who were going to be the volunteers that would make up the circles of support and accountability they could begin developing this relationship of support and accountability they would begin learning about mr souter they would begin to know what his offense cycle is like and what kind of triggers he has so that all of these risks could be minimised while he was out unconditional release who would be responsible for setting that up it would be a combination of the department of human services and experts who have been involved in this case who are familiar with putting a circle together additionally mr sooner would have been but there would be and the court would have input as to what could be expected of him and the circle members as we referred to in our brief there would have to be sort of this mas operating agreement called the covenant woods which would sat out all the rules and the roles of all the parties who would be a ball and moreover simply because a plan does not exist at this point does not mean that mr souter should not be released on conditional release he could stay at the t f until the plan was ready or he could be on conditional release excuse me he could remain at the t v after the plan was being developed so again it's not as if he's just running out in the community doing whatever he pleases so i see that my time is almost up so for these reasons that we've discussed today and all of those in our brief but asking let's order mr souter to conditional and your honor may please the court for the assistant attorney general daniel green for the people before the circuit court made its dispositional decision it carefully considered and weighed the evidence in the case and applied it to the appropriate statutory factors under section forty two in light of respondents offense history the circuit courts conclusion that respondent is not yet ready for a conditional release was not an abuse of discretion we've therefore let me ask your question did you find in the cut in in the way to court analyzed it and decide the case that the trout court itself would be open a conditional release in the future i mean if dick did seem as if the court thought this fellow is making progress i believe so your honor one indication we have that is that the court says the circles of supporting accountability are cosa program quote may eventually aid respondent i i was also dr travis is testimony that at some point because of respondents progress he may be eligible for a conditional release i think the circuit court's decision is that was fine and it's not ready for conditional release at this point and that decision was not an abuse of discretion and do you agree with counsel that it poses circle of support could be created in illinois or is your familiarity with it that it's sort of a perhaps you know just spoke was it pro or counsel it is a program that has been created in various states by people other than the offenders themselves that the program does exist and under and in other jurisdictions i believe it's in minnesota and i know it's in canada and using it minister by a private mental health service is it created by totally by volunteers is it to i believe the record the record shows that it will depend on the jurisdiction and some some jurisdictions will have it be part of their p system i believe in canada it's a voluntary arrangement people sex offenders are often released in canada without any penal supervision and so communities will set up circles of support and accountability but the undisputed testimony here is that it doesn't exist in illinois yet and based on the nature of the program where there has to be screening of both the inner and the outer circle which is laypeople and professionals respectively it cannot exist for at least six months which which the circuit court took into account and incorporated into its reasonable conclusion that respondent isn't ready for a conditional cease and i do want to focus for a moment on the abuse of discretion standard which we all acknowledge is applies in this case and means that this war will only reverse if it finds that the circuit court's decision was on reasonable arbitrary fanciful or that no reasonable person could reach the same conclusion as the circuit court did so coun characterize the question in this case as whether where is the best place for responding to receive treatment and respectfully i think the question is better stated as whether the circuit court's answer to that question was so wrong has to have been unreasonable or arbitrary and we don't think that respondent can can make out that proposition on appeal especially in light of if you look at the cases cited by both parties neither party has cited a single case where a circuit court's dispositional decision was reversed as an abuse of discretion so that gives a sense of what a high bar that is and so the circuit court did consider cosa program they'd consider response all of respondents arguments but ultimately concluded that he wasn't ready for a conditional release at this time so the circuit cour started as was appropriate under the statutory factors of forty two with respondents offense history taking into account and i don't need to lay it out in full detail here respondent has acknowledged committing sex offenses against twenty five different children for forty unique offenses of particular note to the circuit court as points out of page two of the appendix was that many of these offenses were committed while he was under community supervision so there were already some sorts of either formal judicial restrictions  on him or informal restrictions like when when he had a voluntary arrangement with the er bana state's attorney to not prosecute a case if he agreed to receive treatment each time he was released from custody or each time he is he has a case dismissed or deferred judgement he is returned to refinance so all three impure call data here speaks to respond in offending while he's under community supervision even if he has a parole agent even if he has  moved to colorado to be under his grandmother supervision each time he is re offending and in escalating ways his offenses get worse and worse so that's so the circuit court appropriately consider that under section forty t the next factor as respondents present and past mental health history that was undisputed in this case all the experts agree that respondent suffers from pedophilia disorder they also agree that had a feeling disorder is a lifelong or chronic condition so he is always going to have a sexual attraction to creepy besson minors and it's a question of how he's able to deal with with those sexual urges which meant that the meat of the analysis was really going to be this third factor about the availability of treatment in different places and the circuit court ultimately came to a reasonable conclusion in light of the evidence that respondent was not ready for conditional release and that the best way to balance his need for treatment and the interest in the strong to acquire services or services far different and perhaps more extensive and then arguably better than are presently available know the court should not wait to it because the weight given to that was appropriate i thought yeah i didn't mean it that right quite that way i meant how it should be cool if consider that the way the court took that into account so for instance we all acknowledge that the cosa program doesn't exist in illinois so that would be something that was fun it can have set out specifically for himself because of his financial resources at the south would be in the future your point was that we have the future oriented because point do you take into account the resources of the offender in creating that which might not be available somebody yells at sort of like socialize or mary efforts directed towards you you can receive those services loans that i think is an appropriate consideration in into the factors here and the circuit court did take that into account so by discussing the cosa program and explaining why the court didn't think that was fun it was ready to be sent on conditional release because it doesn't exist here yet because it takes time to set up by considering that that program which is unique to the respondent in this case and unique to the fact that he has resources to set up the circuit court was considering his resources and ultimately the way the court weighed that  we think was ultimately correct but certainly was not so one reasonable as to have been abusive discretion the other things that the court considered i i think responds to the facts that responded has resources the court  noted three factors why it was credited dr traverses the first is that as your honor noted responding is only in stage two of the five stage treatment dr travis explained what the five stages are the first stage is basically the entry to treatment examinations or just the assessment to get him and that's all he's completed so far the second stage is the disclosure the disclosure phase where he where he acknowledges his past offenses and so he's currently undergoing that process he is the testimony is that he's been very open about it but he hasn't yet completed that second stage that's what he's working on right now at the t f the third or fourth and fifth it's stages where the meat of of learning to apply that to yourself and get a relapse prevention plan happens stage three is the self application stage sage force the incorporation stage and stage five this transitions of bats where respondent is going to be developing and really learning how to use the tools to prevent himself from relapsing on conditional release and he hasn't gotten there yet and so while counsel is correct that there is no hard and fast legal rule that you have to be in stage three to be conditionally released there is testimony from dr travis that it will make it extremely difficult for him to manage himself on conditional release especially considering that responding is fifty three years old and he spent about four or five years of his adult life outside of custody so he's going to be bombarded with stimuli if he sent unconditional release and he doesn't have to rouse a management training he doesn't have a relapse prevention plan at present his his main way of trying to cope with have developing sexual fantasies about children is to interact with other  committees at the t v after he's going to be placed on house arrest for the first thirty days of his conditional release and he's not going to have back tool available to him he needs to put more tools in his tool belt and learn how to use them before he sent out on conditional release the circuit testimony says is developing the relationships with the inner circle prescreening of people who will go into the inner circle theoretically that that could begin while he's in the t f i believe is the testimony this case but all but ultimately that long to lay before before close is going to be able to be established and the fact that there's lots of testimony from dr travis that the circuit court credited that there's a significant risk  sent out an conditional release before he develops the full compliment of tools that he needs to deal with the bombardment of stimuli on the outside if it's alternately not going to be beneficial to him to be sent out on conditional release before he's ready what other question i guess about disclosure transparency i thought that i understood from the record that there was there were contradictions or inconsisten over a period of time about the disclosures that he was willing to make in terms of numbers of their own it's the incidence so for now we've gotten to a point where played i guess i'm asking how how do we know that he's what was the testimony about how forthcoming he is now not about just acknowledg perhaps acknowledging the magnitude in terms of the accuracy of the disclosures we have as your honor notes we can't be certain about the accuracy of his disclosures it's the testimony of even dr travis that he appears to be  forthcoming so he didn't game the penal plan as mcgrath test so that there's some indication that what he's disclosing now is closer to the truth than it has been ok so so he's been relatively forthcoming but something we know is that he hasn't completed the disclosure phase of the t v s treatment program and so he's not done with the disclosure process that now is it may be that the numbers are accurate or may be low but but we know that he's not done with the disclosure process so ultimately the circuit court's conclusion that it's not ready for conditional release is not an abuse of discretion and as as we've noted when you compare this case to the case law we think ultimately that supports the circuit court's conclusion it supports affirming in this case obviously neither case is and neither side has cited a case where the circuit court's dispositional decision was reversed as an abuse of discretion and we think in the cases we've cited irv lieberman and ehrlich all indicate that even when there among the experts even as to the quality of treatment inside the t v aphorisms outside as it applies individually to respond in this case that resolving that disagreement is committed to the supreme court's discretion weighing that weighing that testimony deciding who is more credible and ultimately determining what to do with that evidence is committed to the sound discretion of the circuit court and it's not going to be reversed if the court is considering the appeal yours and wayne and that's what happened here so for instance we the circuit court i think to its credit acknowledged dr focused testimony that a combined regimen of individual and group therapy is a better form of treatment no but that doesn't support reversing as an abuse of discretion that means that the circuit court considered all of the defense evidence carefully and understood the weight of the task before it but ultimately concluded that the overriding interest in public safety obviously and it goes without saying he's at a much greater risk of re offense when he is out on conditional release than when he is in the treatment in detention facility surrounded by cart concrete and barbed wire whatever he can set up for himself and a lot of a lot of the restrictions on him under the liberty health care manual and under the statutory restrictions of section forty five rely on himself reporting so obviously their heavy self reporting requirements yes to give daily logs but ultimately they are self reporting  requirements and and the system relies on him truthfully saying that he's not having people over to his house or truthfully saying that he's not said going out into the public so also mentally he's at a much greater risk of reoffense when he's on conditional release than when he's in the t f in the circuit courts conclusion that in light of that greater risk and in light of the fact that there's a chance for backsliding because he can't have interaction he can have interaction with other adults while he's on house arrest in light of the fact that he doesn't have all the tools for relapse prevention you think the circuit courts conclusion was not an abuse of discretion if i believe i will join counsel on standing  the second issue about failure to recall with the exception with one brief note that counsel has stated that they believe we've waived our response by not citing case law and i'll note that our section on the failure to recall we understand that when the standard of review is abuse of discretion certain deference must be made to the trial court's ruling findings but i submit that an abuse of discretion standard is not simply a rubber stamp for this  to say that the trial court did not abuse their discretion this is a very unique case and we have developed a record that indicate such the trial court found and accepted that the best treatment for mr souter would be in the community it was a reasonable to order him to treatment after treatment and detention facility when the best treatment for him exists elsewhere out in the community now counsel has indicated that neither party has cited to a case where an abusive or excuse me a trial court's ruling was reversed for an abuse of discretion by an equally valid inference is that there's been a limited number of appeals on this topic as the s v p law is relatively new we're at about twenty years now but in terms of law that's that's pretty new so i can cite however respondent who is very similar to the respondent that we have in this case we had a respondent there who was motivated and cooperated cooperative in treatment someone who was voluntarily admitting pas indiscretions and if fences and who had support in the community and was just really trying to get better when you look at the other cases that have been cited you have respondents who are of the exact opposite of mr souter and mr  that it's not an abuse of discretion to order someone to conditional release even though they have not completed the treatment program at the treatment and detention facility was being we could agree with that right so if  case simply do not match up with its ultimate conclusion though the evidence in this case supports conditional release and i understand that there are cases where one side's expert says one thing in another size expert says another that in and of itself is not enough to show that there was an abuse of discretion on the basis of the trial court but here we have experts who are testifying that having the pedophile at disorder having this allegedly lifelong condition is not an impediment to going out on conditional release and it's not just self report by the respondent saying that he won't go out and if and again we have dr abbott testifying to different instruments that were used to test mr super which indicated that yes he still has this interest but his arousal is incredibly low and we also have this train this change in his the type or the way he views himself as someone who has had a field disorder which we talked about earlier this transition from someone who did not find a pedophile it disorder to be distressing to him to someone who found that these acts that he had committed were very harmful to the people that he had committed them against when he was younger so we don't have the same mr souter today as we did when he was in the illinois department of corrections we have a mr souter who is very much willing to get his life back on track and the best place for him to do that the place that the record supports is the best place for him to do that is out in the community on conditional release and if your honour's do not have any additional questions i don't see any