m

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON cc

en c IN THE MATTER OF THE DETENTION OF: BRADLEY WARD, Respondent,

v. STATE OF WASHINGTON, Appellant. No. 75679-6-1 Consolidated w/No. 75697-4-1

DIVISION ONE

UNPUBLISHED OPINION FILED: December 12. 2016 

### Spearman, J. —BradleyWard has been housed in facilities onMcNeil 

### Island operated bytheDepartmentofSocial andHealth Services (DSHS) since 

### hestipulated tocommitmentundertheSexuallyViolent PredatorAct (SVPA) in 1991. Thiscase is the latest appeal arising from ongoing litigation concerning Ward's conditional release to a less restrictive alternative (LRA) and his 

### confinementin DSHSfacilities. In the present action, the State and DSHS appeal the trial court's orders transferring Ward to a privatefacility at DSHS's expense 

### and denying theState's motion to revokeWard's LRA. We concludethatthe trial court erred because it did notfollow the statutory procedure in ordering Ward 

### transferred orin ruling on the State's motion torevoke. Wereverse andremand.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 WL4232058 (2015) (WardJi);]n_re_Det of Bradley Ward, 195 Wn. App. 1049, 2016 WL4443697 (Ward III). We set out 

### many ofthebackgroundfacts inWard II, 188Wn. App. 1048, 2015 WL4232058. Butbecause the facts are central to this ongoing dispute, we summarize them again here. Ward demonstrated deviant sexual behaviorfrom a young age. When he 

### was sixteen, he suffered atraumatic brain injury that decreased hisability to control hisbehavior. Ward stipulated to commitment as a sexuallyviolent 

## predator(SVP) in 1991. From 1991 to 2007, hewas housed atthe Special CommitmentCenter (SCC), atotal confinementfacility on McNeil Island operated 

## by DSHS. Ward's condition improved and in 2007, the parties agreedto his conditional release to the Secure Community Transition Facility (SCTF). 

### TheSCTF, which is alsolocated onMcNeil Island, is a lowersecurity 

## facilitythanthe SCC. Persons conditionally released tothe SCTFexperience greaterfreedom and are expectedto be more independentthan persons confined at the SCC. The orderapproving Ward's release to the SCTF is 

## conditioned upon his participation in sexoffendertreatment; demonstrable 

## progress intreatment; and compliancewithfacility rules, staffinstructions, and state laws. Theconditional release orderstates that the SCTF has agreed to acceptWard.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, staffmembers believed thatWard might transition to an off island 

### facility. But in 2012,Ward began experiencing psychotic symptoms and his behavior deteriorated. Histreatment providers attributed Ward's mental decline to the stress ofpotentially leaving McNeilIsland. 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 pointthatliving at the SCTF was not safe forhim orfor other residents. Ward's treatment provider expressed concern thatthe environment at the SCC exacerbated Ward's mental illness. DSHS maintained 

### that itwas 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 October2012. In 

### 2012-13, the SCCfrequently placed Ward in solitary confinement. During one period in 2012-13, Ward spent 276 out of413 days in solitary. In 2014, the Statefiled a motion torevokeWard's LRA pursuant toRCW 71.09.098. Ward II. 2015 WL4232058 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 betransported to theSCTFwithin 45 days. Separately, thetrial court also ordered an unconditional release trial pursuant to RCW 71.09.090. WardIII, 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 ofthe motion. The trial court ruled that, if itfound that continued commitment at the SCC violated Ward's constitutional or statutory rights, ithad authority to orderWard's unconditional release. This court granted 

### discretionary review on the question ofwhetherthe 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 offendertreatment (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 ofcommitting another sexually violent 

### offense but increased his risk ofengaging ingeneral violence. InWhitehill's 

### opinion, Ward needed intensiveclinical psychiatriccare not available at the SCC. Whitehill suggested that Western State Hospital would be a more appropriate placementfor 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" inVenice, Italy. CP at 1263. Psychiatrist Mark McClung conducted Ward's annual review in March 

### 2015. McClung concluded thatWard's behavior posed a safety risk to himself and others. He also concluded that Ward's efforts to elude staffmembers indicated that an LRAwould not adequately protectthe community. McClung assessed Ward as a high risk to reoffend. 

### In July 2015, this court issued itsopinion 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. Inparticular, the Ward II court 

### noted that the trial court "thoughtfully analyzed" each factor required by the 

### statute. ]± at *5. The stay on Ward's transferto the SCTF was lifted on September4, 2015. DSHS did nottransferWard. 

### In September2015, afemale staffmemberat the SCCreported thatWard assaulted her. The staff member, Brandie Young, often helped Ward shower. 

### According toYoung, on this occasionWard began to showerwith his pants on. When she told him to take his pants off, Ward grabbed her armwith 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 hershirt. Young stated thatWard continued to hold her shirt and "claw at" herwith his other handNo. 75679-6-1/6 Consolidated w/No. 75697-4-1 until help arrived. CP at 878. McClung spoke withWard 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 inWard's best interest and did not adequately protectthe 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. Inaddition, 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 ofhis release, the State submitted incident reports documenting Ward's behaviorthroughout 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 staffmembers' badges and wrists, 

### hitting staffmembers, and threatening staffmembers. Evidence of the allegedNo. 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 contemptfor failing to transferWard 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 otherfacility but could not divest the SCC of its authority to consent to residence at the SCTF. The trial courtfound the SCC incontempt forwillfully 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 forMr. Ward to be housed atWestern State Hospital" but 

### expressed doubt as to whether it could order Ward transferred to a mental

1Ward conducted the depositions and submittedthemwith hisopposition to the State's motion. Thedeposition testimony is consistentwith the incident reportssubmitted bythe State.No. 75679-6-1/8 Consolidated w/No. 75697-4-1 

### hospital. Verbatim Report of Proceedings (6/20/2016) at 15. The courtdirected Ward's counsel to identify remedies forcontempt and suggested that an alternative residence could be appropriate. The trial court set a remedies hearing 

### for July 11 and setthe State's motion to revoke for the same day. 

### On July6, the SCCfiled a memorandum arguing that the law allowed the trial court to impose, at most, remedial sanctions designed to coerce the SCC to 

### placeWard at the SCTF. The SCCsubmitted severalattachments with its memorandum, including the reportfrom the SCC's 2015independentreview and

a declaration from the SCC's current superintendent. 

### The 2015 review states that the SCC has made significant improvement in 

### responding appropriatelytodisruptive behavior. In particular, thereport 

### congratulatestheSCCfor reducing its useofseclusion and physical restraintto alevel within professional standards. Butthereport also notes thattheSCC does not have sufficientpsychiatric services tomeetthe needs ofits residents. In his declaration, the SCC's superintendent states that the SCC has contracted additional staffsince the annual review and is continuing to make further 

## improvements. He declares thatWard is nowunderthe care ofastaff psychiatristand hasrecommenced participation in sexoffendertreatment. On July7, Wardfiled his response to the State's motion torevoke his LRA. Wardasserted that he had notwillfully violated the conditions of hisLRA 

## and that any noncompliantbehaviorwasthe resultofhis inadequatelytreated mental illness. With his response,Ward submitted a reportfrom hisexpert, 

## psychiatristAlanA. Abrams. Abrams statesthatWard has complexmedical and

8No. 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. InAbrams' 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 inWard'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 contemptfindings. 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 fromAacres, 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 notidentify 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 contemptfinding. The courtfirst heard 

### argument on the State's motion to revokeWard's LRA. The State asserted that the court should not considerWard's filing regarding Aacres because itwas 

### untimelyfiled and because itwas notfiled as part ofWard's response to theNo. 75679-6-1/10 Consolidated w/No. 75697-4-I State's motion to revoke but as part ofthe contempt action between Ward and the SCC. The trial court responded, "Well, itmay 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 ithad presented evidence that Ward had violated the conditions of his conditional release and thatWard 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 

### thatWard was not receiving adequate care at the SCC and thatAacres was a
more appropriate placementfor 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 incongruouswith the SCC's authority 

### to revoke permission to reside at the SCTF. The SCC also asserted that counsel 

### had notyet had an opportunityto discuss the Aacres'proposal with the SCC and that the proposal was notsufficiently specificbecause 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 effectivetreatment at the SCC. Itstated that it could not adequately evaluate the alleged assault on the female staffmember because the State did not call her as a witness. The court

10No. 75679-6-1/11 Consolidated w/No. 75697-4-I stated: "[i]n addressing the contempt issue, Iwill specifically direct that Mr.Ward be placed inthe 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 ofthe LRA." VRP (7/11/16) at 40. The State asked for clarification as to whether the court found that Ward

was in violation ofthe 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 thatWard's lack ofhousing was not a violation because itwas a voluntary 

### decision bythe SCC. As to Ward's behavior, the court stated that itwas "not 

### going to address" whether the behavioralissues were violations of Ward's LRA. The State asked for clarification as to whether the court had determined 

### thatWard needed more care, monitoring, supervision, and treatmentthan he 

### could get under hisconditional 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 superintendentwould not allow him to live there. The State 

### asked ifthe trial court was modifying Ward's LRA rather than revoking it. The trial

court stated: 

### I'm modifying it and directing his placementwith the facility managed by Aacres. 

### It is an alternative placement given that the SCTF is no longer available to Mr. Ward. So Ithink absent revocation ofthe LRA, then it's incumbent on the Court orthe State to find some otherfacility. I 

### think, frankly, the respondent's relieved the State of the duty tofind 

### such a facility by searching out and finding an appropriatefacility on their own. VRP (7/11/16) at 43.

11No. 75679-6-1/12 Consolidated w/No. 75697-4-I
On July 27, Ward notified the State ofthe 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 underwhich he would be released from the SCC on September 1 and DSHS would pay all expenses described inthe Aacres proposal. The State argued that the proposed release date did not provide time for a DOC investigation ofthe site or 30 day notice ofWard'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 ithad 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 placementfor Mr. Ward on his continued LRA." CP at 186. The order requires DSHS to pay all expenses estimated inthe 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.

12No. 75679-6-1/13 Consolidated w/No. 75697-4-I 

### On August 19, an investigatorfromthe 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 streetfrom the Aacres address. The property is in a residential neighborhood within a mile ofthree schools and two youth centers. 

### On August 22, the State and the SCC bothfiled notices ofappeal and moved this court for an emergency stay on the trial court's August 17 order. That
same day, this courtfiled its opinion in Ward III. 2016 WL 4443697. In that case, we considered whetherthe trial court properly determined that it had authority to 

### unconditionally release Wardfrom confinement as an SVPifitdetermined that the conditions of his confinement violated his constitutional rights. |g\ at *2. We 

### concluded that, underthe SVPA, the trial court may only order unconditional release ifthe 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 ifWard were to establish in a separate proceeding that the conditions of his confinement were 

### unconstitutional, the remedywould be an injunction or an award ofdamages, not release. ]d. at *2. 

### On September 6, thetrial court issued an orderdenying reconsideration and a letterexplaining itsorder. In the letter, thetrial courtstates that Ward's placementat Aacres represents a modification of hisLRA. Thecourt also states 

### thatits ordertransferring Ward to Aacres was intended, in part, as a remedyfor 

### the State'scontinuing violation ofthe2014 courtorder. Theletterstates thatthe

13No. 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 contemptfinding againstthe SCC. Atthe hearing, Ward's counsel explained that she had realized 

### that the trialcourt's August 17 orderwas flawed. She stated that ifthe 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 modifyWard's LRAand asked the court to set a 

### trialdate in the eventthat a petition and trialare necessary forthe court to order

new housing for Ward. The trial court stated that it would vacate the finding and sanction for 

### contempt ifauthorized by this court under RAP 7.2. The court granted Ward's 

### petition for an LRA modification trial and set thattrial concurrentlywith 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 

### SCCin contempt and in fashioning its sanction. The State and the SCCassert thatthe trial court's ordertransferring Ward to Aacres at DSHS's expense was based on contempt.

2The SCC is a division of DSHS. In this action, the terms are used interchangeably. The appellantrefers to itselfas SCC for purposes of this appeal.

14No. 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 contemnorto avoid contempt by complying withthe 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 ofthe 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 ofWard's LRA. Modification The State argues that the trial court's ordertransferring Ward to Aacres is

not valid as a modification ofWard's LRA because the trial court did not follow statutory procedures. The SCC contends that the trial court only had personal jurisdiction over it inthe contempt action and that, independent ofthat action, the trial court had no authority to orderthe SCC to pay for the Aacres placement. The parties agree thatthis court reviews a trial court's decision to revoke or modify an LRA for abuse ofdiscretion. 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

15No. 75679-6-1/16 Consolidated w/No. 75697-4-I 

### an incorrect legal standard is an abuse ofdiscretion. In re Marriage ofLittlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997) (citing State v. Rundguist. 79 Wn. App. 

### 786, 905 P.2d 922 (1995)). Ina proceeding underthe SVPA, chapter71.09 RCW, the trial court's authority is limited to thatfound inthe statute. In re 

### Detention ofSkinner. 122 Wn. App. 620, 632, 94 P.3d 981 (2004) (citingState 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 disorderthat makes him or herlikely to engage in predatory acts of sexual violence if not confined. RCW 71.09.020(18). Commitment underthe 

### SVPA is indefinite and lasts so long as the person continues to meetthe definition ofan SVP. In re Detention of Rushton. 190 Wn. App. 358, 368, 359 P.3d 935 (2015). 

### A personcivilly committed as an SVP maypetition for conditional release to an LRAthrough the show cause process set outin RCW71.09.090. In re Detention of Campbell. 130 Wn. App. 850, 855, 124 P.3d 670 (2005). This same 

### process governs when acommitted person who has beengranted conditional release to the SCTF seeks release to a less restrictive facility. RCW71.09.280. 

### Under the show cause process, the petitioner mustfirst show probable cause 

### that hiscondition has so changed thatconditional release isappropriate. RCW 

### 71.09.090(2)(a). Thepetitionermust also presentthecourtwith a specific LRA 

### proposal. In reDetention ofJones, 149Wn. App. 16, 26, 201 P.3d 1066 (2009).

16No. 75679-6-1/17 Consolidated w/No. 75697-4-I Ifthe 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 mustfindthat the proposed LRAsatisfies 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 ofthe 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 ratherthan revoking the LRA. There was no petition to modify before
the trial court. 

### The parties dispute whetherthe 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 followany ofthe procedures required under that statute. Ward does not argue that the trial courtfollowed 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

17No. 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 forthe person . . . ." Resp. Br. at 40. RCW 71.09.098 sets out procedures relevantto 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 courtfor an immediate hearing for the purpose ofrevoking or modifying the terms ofthe person's conditional release to a less restrictive alternative . . . ." RCW 71.09.098(1). A petition under RCW 71.09.098 is proper ifthe petitioner believes the released person: "(a) violated or is in violation ofthe terms and conditions of the court's conditional release order; or (b) is in need of additional care, monitoring, supervision, ortreatment. . . ." RCW 71.09.098(1 )(a). In a motion to modify, the State has the burden to prove one ofthese allegations by a preponderance ofthe 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. Onlythe State, the SCC, a treatment provider,
or a corrections officer may petition under RCW 71.09.098. The trialcourt'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

18No. 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 LRAand 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 thatthe show cause process only applies ifthe 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 inthe conditional release order, not the facility. Id. Ward contends that, otherthan 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 ofthe LRA. In addition, the stated purpose ofthe 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 ittransfers 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 allother placements. RCW 71.09.280.

19No. 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 forWard 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 followthat process. The trial court's order modifying Ward's LRAwas not 

### authorized by RCW 71.09.098. Ward presents no argumentthatthe orderwas 

### authorized by some otherprovision ofthe SVPA. We conclude that the trial court 

### erred inmodifying Ward's LRA and ordering him transferred to Aacres. In a 

### proceeding under the SVPA, the trial court's failure tofollow 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 ofWard's LRA, we do not reach the SCC's 

### argument that the trial court lacked personaljurisdiction and statutoryauthorityto order it to bearthe expense ofthat transfer. Motion to revoke The State next contends that the trial court erred in denying its motion to revoke Ward's LRA. Acourt may only grant an LRA if itmeets statutory 

### requirements. Skinner, 122Wn. App. at 627.An LRA mustidentify a specific residence and include the housing provider's writtenagreement accepting the

20No. 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 twopart 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 ofthe terms and conditions ofthe court's conditional release order; or (b) is in need ofadditional care, monitoring, supervision, or treatment. . . ." RCW 71.09.098(1 )(a). Ifthe trial court determines that the State has met its initial burden, itmust proceed to the second step, which involves considering five statutory factors to determine ifcontinuing conditional release is inthe person's best interest and adequate to protect the community. RCW 71.09.098(6)(a). These factors include the nature ofthe 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 initialburden of proving that Ward violated the terms of his LRA. Alternatively, the State appears to argue thatthe trial court 

### erred in determining that Ward did not violate the terms of his LRA. The State contends that itpresented overwhelming evidence thatWard violated the terms of his conditional release order by failing to comply with the SCC's rules, failing to 

### comply with instructions of SCC staffmembers, and not participating in 

### treatment. Although Ward disputed the account of the alleged assault on the SCC staffmember, the State notes thatWard provided no evidence supporting

21No. 75679-6-1/22 Consolidated w/No. 75697-4-1
an alternate theory. The State also asserts that itwas undisputed thatWard 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 neitherWard'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 ofWard's LRAbecause it "was a voluntary decision made by the superintendent." CP at 185. The order also states thatWard'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 staffmember may be an exception, butthe trial court could not adequately evaluate itbecause the State did not call the staffmember as a witness. The trial court's analysis ofthe issues presented by the State's revocation motion was flawed. The court appears to have conflated the issues ofwhether the violations occurred and ifso, the nature and willfulness of the violations. It determined thatWard's behaviors were not violations because they resulted from his mental illness. This finding is inconsistent withthe procedure set out in RCW 71.09.098. Underthat 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 forclarification as to whetherthe court had found that Ward was in violation of his conditions, the court stated that itwas not "going to address that." VRP (7/11/16) at 42.

22No. 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 considerfive statutory factors: (1) the nature of the violation, considered in the context ofthe person's criminal history and underlying mental condition; (2) the degree to which the violation was intentional; 

### (3) the abilityand willingness of the released person to comply withthe terms of the LRA; (4) the degree ofprogress made at the LRA facility; and (5) the risk to the public of maintaining the person inless than total confinement. These factors

are relevantto whether continuing the LRA is inthe person's best interest and adequate to protectthe community. Ward asserts thatthe 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 thatthe trialcourt considered the first

or the second factors, the nature ofthe violation and its willfulness. The record 

### gives no evidence related to the otherfactors. 

### 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 withthe housing condition of his LRA, and was inneed of more care and supervision than he could receive at 

### the SCTF. Ward's counsel argued inresponse that, at the court's suggestion,

23No. 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 ofthe statutory factors. The only questions posed by the trial court concerned new housing for Ward. In its bench ruling, the trial court indicated that itwas denying the State's motion because conditions at the SCC were inadequate and because the SCC was in contempt ofthe prior order. The trial court's written order makes no mention ofthe statutory factors. The orderfinds that the State has failed to adequately treatWard's underlying mental illness. Itconcludes that Aacres, rather than the SCC, is an appropriate placement forWard. The trial court's letter explaining its denial ofthe State's motion for reconsideration does not address the State's motion to revoke and makes no mention ofthe statutory factors. 

### The procedure followed by the trial court in this case is incontrastto 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 statutoryfactors, |g\ at *5. In that case, the State made no claim ofprocedural irregularity. kL at *6. 

### In this case, on the other hand, the record indicates that the trial court did not considerthe 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 fordenying the State's motion to revoke do not reflect those factors, we conclude that the trialcourtfailed to follow the statutory procedure.

24No. 75679-6-1/25 

### The trial court abused its discretion indenying the State's motion to 

### revoke because its decision is based on a flawed legal analysis. We remand for a determination of (1) whetherthe State proved by a preponderance ofthe 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 inWard's best interest and adequate to protect the community. RCW 71.09.098. Costs ofappeal The State requests costs ofappeal under RAP 14.2. Under RAP 14.2, this court has discretion in determining ifcosts 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: 

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