No. 2-09-1052 F iled: 11-8-10

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ I n re D ETENTI ON OF ) Appea l from the Circuit Court FRED L ENCZ YCKI ) of Du Pag e County

. ) ) No. 06--MR–486 ) (The People of the State of I llinois , ) Honora ble Petitioner-Appellant, v. F red L enczy cki, ) Bonnie M. Wheaton, Respondent-Appe llee). ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE SC HOSTOK de livered the opinion of the court: On Marc h 19, 2008, the responde nt, Fr ed L enczy cki, who had previously been convicted of the ag g ravated criminal sexual abuse of three minors and had serve d a term of incar cer ation for those convictions, was adjudicate d a sexually violent person under the Sex ually Violent Persons Commi tment Act (Ac t) (725 I L CS 207/1 et s eq . (W es t 2 006)). There afte r, the trial court held a dispositi onal hear ing to deter mine whether the responde nt should be confine d in a secur e instit ution

or could be conditionally rele ased, and it ruled that the latter place ment alternative was appropr iate. The State a

ppeals. We af

firm. BA CKGROUND The responde nt is a Roman Catholic priest. I n J anuar y 2004, he pled g uilty to thr ee counts of ag g ravated criminal sexual abuse (720 I L CS 5/12--16(c )(1) (West 2002)) in connec tion with his abuse of three boy s betwee n the ag es of 10 and 12 while he was a priest in H insdale betwee n 1980 and 1984. I n eac h case , the responde nt asked the boy to disrobe and try on a "c ostume" consistingNo. 2--09- -1052

of a small sash that the responde nt wra pped around the boy ' s waist and throug h his leg s. I n the proce ss, the responde nt touched and fondled th e boy ' s g enitals and buttocks. Wit h one of the victims, the responde nt repe ated these activities 20 to 30 times over a two-y ear p er i o d. After the responde n t en t ere d his g uilty plea, the State nol-prossed two other counts. The responde nt was sentenc ed to three five-y ear sentenc es of imprisonment, to be serve d concur rently

. The responde nt did not appea l, seek to withdraw his g uilty plea, or otherwise challeng e his convictions or sentenc es. On April 7, 2006, shortly befor e the responde nt was to be rele ased from prison an d b egi n serving his term of mandatory supervised rele ase, the State petitio n ed to have him adjudicate d a sexually violent person (SVP) pursuant to the Act. The responde nt stipulated that there was probable

cause to commit him as an SVP pending trial on the matter. The SVP adjudication was tried befor e

a jury on two day s i n M ar ch 2008. Two expert witnesses, Dr. Amy Phenix and Dr. Ray Quac kenbush, testified on behalf of the State. The responde nt also prese nted two expert witnesses, Dr

. Steven Gaske ll and Dr. Ore st Wasy liw. All of the doctors interviewe d the respon d en t an d revie wed the rec ords of his offe nses of conviction and also rec ords rela ting to additional victims whom the responde nt admitted abusing

. The responde nt admitted to having sexual contac t with approximately 30 boy s betwee n the ag es of 9 and 17, starting in 1972 and not cea sing until his arr est in 2002. His p re fe re n ce was for 12- or 13-y ear -olds. Gene rally , he used the "c ostume" ruse descr ibed above. Howeve r, he also told some boy s that they wer e par t i ci p ati ng in a "me dical experiment" involving placing or washing with a war m or wet cloth on sever al parts of their bodies; g ave some boy s "que stionnaires" about their sexual prac tices; and took pictures of some of the boy s

wea ring the "c ostume" and posing. I n g ener al, the incidents in v o l v ed the boy s disrobing and the

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responde nt touching or fondling t h e b o y s ' g enitals; none of the incidents involved the responde nt disrobing or

any penetr ation. Dr. Phenix testified that the responde nt had attended thera py off and on from 1983 throug h 1990, althoug h much of it was not specific ally oriented toward sexual offe nders. At one point in the mid-1980s, the respondent lived in the House of Affir mation, a treatment cente r i n California, for 101⁄2 months. The responde nt continued to abuse boy s throug hout the time that he was in thera py . The re spondent did not rece ive any trea tment for sex offende rs while he w as in prison. All of the doctors who testified at trial administered actua rial tests desig ned to pr edict how likely the respondent was to be rearr ested for a sex ual offense: t he S tatic-99, t h e S t ati c-2002, and the Minnesota Sex Offe nder Scree nin g T o o l - Revised (MnSOST-R). All testified that the responde nt score d a 3 on the Static-99, placing him in the modera te-low cate g ory for risk of rea rre st, and that his score on the MnSOST-R indicated that he was at low risk of being rea rre sted for a sexual offe nse within six y ear s. Dr. Phenix testi fi ed t h at the tests undere stimated the likelihood of

re o ff en d i n g , howeve r, beca

use they wer e desig ned to measure the chanc e of another arr est or conviction for a sexual offe nse, not the chanc e that someone would commit another sexual offe nse. Dr. Phenix admini stered the Har e P sy chopathy Checklist - Revised to the re spondent, who scor ed in the low rang e. Dr. Gaske ll administered the Minnesota Multiphasic P er s o n al i t y I nventory (MMPI ) and conclude d that the responde nt's score indicated a highe r ri s k of rec idivism

. Dr. W as y liw administered various other tests, including the Abel-B ecke r Cognitive Scale and t h e Multiphasic Sex I

nventory , both of which mea sure be liefs and thinking common to se x offe nders, and the responde nt score d very low, indicating that he share d almost none of the usual thinking and beliefs of sex offender s.

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To establish that the responde nt was a sexually violent p er s o n , the State was require d to prove that he had been convicted of a sex ually violent offen s e (t h is was uncontested), and that he suffe red from a ment al disorder that made it substantially likely that he would eng ag e in acts of sexual violence in the future. 7 2 5 I L C S 2 0 7 /5 (West 2006). All of the doctors ag ree d that the responde nt has a mental disorder, pedophilia (in his case , a sexual attrac tion to boy s), that compels him to commit se x ual offe nses. The doctors ag ree d that pedophilia is a lifelong disorder that does not spontaneously cea se. I n addition, Dr. Phenix and Dr. Quac kenbush believed that the responde nt suffe red from para

philia not otherwise specifie d, nonconsensua l, in that he was sexually arouse d by fanta sies or sexual behavior involving sex with persons who did not or wer e unable to consent to sex. Finally , Dr. Quac kenbush stated that he believed that the responde nt exhibi ted sig n s o f s e x ual sadism and fe tishism

. As to the likelihood that the responde nt would eng ag e in acts of sexual violence in the future, Dr. Phenix and Dr. Quac kenbush believed that such reof fense was likely , while Dr. Gaske ll and Dr. Wasy liw disa g ree d. Dr. Ga skell stated that, althoug h the responde nt's score s on the actua rial tests sug g ested a low risk of rec idivism , he considere d sever al other fac tors associate d with a highe r risk of reof fending , including the responde nt's sexual interest in children, his high s ca l e s core on the MMPI , the fac t that he did not penetr ate his victims , his tendenc y to view himself as a child "e x perimenting " rathe r than as an adult abuser , his attit u d es t o l er ant of sexual offe nding, and his belief that he was not likely to reof fend. Neve rtheless, Dr. Gaske ll believed that the responde nt was not substantially likely to eng ag e in sexual offe nses in the future, primarily beca use of his ag e, which reduc ed the likelihood of re curr ence . (The responde nt w as approximately 64 y ear s old at the time of trial.) I n rende ring his opinion, Dr. Ga s k el l noted that he was employ ed by the Depa rtment of

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Human Service s and that, al t h o u gh h e had perf ormed many evaluations of sexual offe nders and t est ified for the State at many SVP deter minations, the responde nt was the first sexual offe n d er whom he evaluated as not posing a substantial risk for reof fense

. Dr. Wasy liw also testified that the responde nt was not likely to reof fend, bas ed on his ag e, his low score s on the actua rial and other tests, and the lack of acute risk fac tors such as a mood disorder, problems with ang er or hostili ty , or alcohol abuse. Dr. Wasy liw f ound it sig nificant that, upon rele ase, the responde nt w ould not have "pr iestly power s" that he could use to "e ntice or manipulate children the way he did" in committing his previous offe nses. On Marc h 19, 2008, the jury appar ently adopted the view that the responde nt's pedophilia made him substantially likely to eng ag e in acts of sexual violence in the future, as it held that the re spondent was a sexually violent person. The case then p ro ce eded to the next step, deter mining the appropr iate dispositi on for the responde nt a

nd enter ing an initial commitment or der ref lecting that dispositi on. The dispositi onal hear ing w as held on F ebrua ry 27, J uly 8, and Jul y

9, 2009. The evidence included the following

. I f the trial court deter

mined that secur e confine ment was the most appropr iate dispositi o n , the

re s p o n dent would continue to be confine d at the Treatment and Detention Fa cility (whe re h e h ad been residing following his rele ase from the Depa rtment of Correc tions), and would rec eive 15 hours per wee k of ther ap y i n an intensive trea tment prog ram. I f the responde nt wer e conditionally rele ased, he would likely be subject to the following restric tions and conditions: 3 hours of trea tment per wee k (half in individual thera py and half in g roup thera py ); house arr est for the first 30 day s and GPS monitoring thereaf

ter; a prohibition on going any wher e that children ga

ther, being any

wher e that alcohol or drug s are used, and having acc ess to a computer or pornog raphy ; and sexual response testing ever

y 6 months. He would be subject to unannounce d home visits, drug testing, and

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monitoring of any job or volunteer work. T h e conditions could be rela x ed over time if the responde nt wer e compliant. The responde nt's sister testified that the responde nt could live with her if he wer e rele ased, and there was testimony that the responde nt would rec eive a churc h pension and social sec urity

sufficie nt to provide for his living e x penses. Reg arding the responde nt's mental state and the l i k el i h ood that he would reof fend in the future, Dr. Phenix testified for the State, and Dr. Wasy liw and Dr. Gaske ll testified for the responde nt. I n g ener al, these expe rt wi t n es ses testified consistently with their trial testimony

. Howeve r, at the dispositional hear ing, Dr. Phenix testified that, afte r her deposition but before the trial, she had adjusted the responde nt's score on the Static-99 and the Static-2002 actua rial tests. She had initially score d him as a 3 on the Static-99, and had testified to that eff ect at the deposition. At trial she was not permitted to testify differ ently from her deposition testimony reg ar d i n g the responde nt's score . Howeve r, afte r the deposition she had resc ored the responde nt a s a 4 based on

new information, g iving him an additional point for a "stra ng er victim" in connec tion with his repor t of sexual encounte rs with three adult male stranger s . He h ad made this repor t on the Abel Assessment of Sex ual Intere st (one of the tests Dr. Wasy liw g ave the responde nt). This score place d the responde nt in the medium-hig h risk cate g ory rathe r than the medium-low cate g ory . Dr. Phenix also resc ored the responde nt as a 4 on the Static-2002 test, but on this test that score place d him in the low-moder ate r ang e of risk. As she had previously testified at trial, he score d in the low rang e on the MnSOST-R. Dr. Phenix was cross-e x amined reg arding her cha n g e s to th e score s on the two actua rial tests. Dr. P henix conce ded that her notes s u gges t ed that she i nitially believed the "stra ng er victim" was Br ian, one of the responde nt's ear lier victims, and that this was incorre ct. The responde nt's attorney

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sug g ested that the repor

ted sexual encounte rs wi th three adult male strang ers could ref er to the responde nt's trip to a ma le strip club (a t the sug g estion of counselors at the House of A ffirma tion) wher e he touched some of the perf ormers but repor

ted that he di d not become arouse d by the experience and instead was "sc are d." Dr. Phenix ag ree d that the repor ted sexual enc o u n t ers with adult males co u l d h av e b ee n a refer ence to this strip club vi sit, but she di scounted thi s possibili ty beca use there was no indi cation that the t ouching at the strip club wa s sexual. R ather , Dr. Phenix believed that the repor

t of sexual c ontact with adult male strang ers was untruthful, and that it most likely ref err ed to contac t with a boy strang er, beca use t hroug hout the re s p ondent' s leng thy history it appea red that his sole sexual attrac tion wa s t o boy s. Howeve r, Dr. Phenix admitted that if the responde nt's repor

ts of consensua l sexual contac t with adult males was truthful, it would not war rant the addition of the extra point to the actua rial tests, beca

use that point was to be adde d o n l y for

nonconsensua l sex ual contac t. At the close of

the hea ring on J uly

9, the trial cour

t ruled, stating as follows: "I want t o s t art out by saying what this hear ing is and what it is not. We have all hear d the nature and the extent of Mr. L enczy cki' s offe nses. Howeve r, this is not a criminal dispositi on. Mr. L enczy cki has been convicted a nd has serve d the time that w as mandated by the co u rt , and he is no longe r under the jurisdiction of the Depa rtment of Correc tions. This is not a criminal proce eding

. This is a civil proce eding under the Sex ually Violent Persons Commi tment Act. The United States Supreme Court has addre ssed a simil ar *** statute *** and deter mined that it is not unconstitutional beca use it is not a criminal proce eding

. I t is a civil proce eding aimed

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at trea tment of a mental disorder, an d t h e fo cu s of this proce eding is trea tment. I t is not punishment. The offe nses that Mr. L enczy cki committed wer e terrible offe nses. There is no one in this courthouse, probably no one in the country , who would deny that these offe nses wer e terrible and that they had a g rea t eff ect on the victims, but that is only one of the things that this Court can consider

. * * * *** I am require d to look at all of the fac tors that are a part of this statute. I believe that I rea d t h em i n t o t he rec ord befor e, and they are contained in the Sex ually Violent Persons Commi tment Act in Section 40, since this is the initial hear ing. This is not a y ear ly petition. This is the initial disposi tional hear ing. I t is very clea

r and had been deter

mined by the jury that Mr. L enczy cki suffe rs from

a mental disorder, namely pedophili a. T h is is a mental disorder, and the judge s in this courthouse routinely hear case s involving other ty pes of mental disorders. The standard that must be applied in this case is the same as those c ases. I n order to restric t someone' s liberty for the protec tion of that person and for society , the re striction has to be the lea st restrictive a lternative. I have p aid car eful attention to the testimony of the witnesses. I ' ve revie wed the t est imony of Dr. Phenix from when she was here in Fe bruar y . And I have wei gh ed t h ei r

cre dibilit y . I ' ve we ighe d their bias or pr ejudice, a s well as their te stimony

. I think it is very telling in this case that Dr. Gaske ll is under contra ct--or his employ er is under contra ct to the State of I llinois and that he in the course of his employ ment rende red

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an o p i n ion that the least restric tive environment for Mr. L enczy cki should be conditional rele ase. I think that Dr. Phenix , as was pointed out by [t he responde n t 's at torney ], rathe r arbitra rily and without foundation in the rec ord, i n cr ea sed a score so that her opinion chang ed over

time as to the likelihood of Mr. L enczy cki re offe nding. I t h i n k that the evidenc e is clea r that under the things that I have to look at i n t h e statute, the lea st restrictive e nvironment for Mr . L enczy cki is conditional relea se." The trial court went on to state that the Act provided for multipl e restric tions that could be imposed

on his rele ase, that if the responde nt's movements wer e not restric ted enoug h by the trea tment team they would cer

tainly be restric ted even more by the court, and that "Mr

. L enczy cki' s movements, his activities, his life, ever

y aspec t of his behavior , will be regulated to the full extent that they possibly

can while he is on conditional rele ase." The trial co u rt t hen enter ed an order finding that the responde nt could be conditionally rele ased upon the adoption of an appropr iate trea tment plan, and that h e was to rema in in the detention fac ility until then. On September 24, 2009, the trial court approve d the conditional rele ase plan. I n addition, the trial court require d that the State be provided with the repor

ts rela ting to the responde nt's outpatient car e on a wee kly basis. T h e S t at e fi led a timely notice of appea l reg arding the responde nt's conditional rele ase. The State also filed motions in the trial court and in this court to stay the responde nt's rele ase pending appea l. Both of those motions were de nied. ANAL YSI S Be fore we turn to the merits of the appea l, we pause to addre ss the responde nt's argument that the State forf

eited its arguments on appea l beca use it did not file a posttrial motion. Under Supreme

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Court Rule 366(b)( 2)(iii) (155 I ll. 2d R. 366(b)( 2)(iii)), when a party appea ls in a civil case that was hear d by a jury , all points that it wishes to raise on appea l must be raised befor e the trial court in a pos t t ri al motion. Howeve r, no posttrial motion is nece ssary when the judgme nt or order being appea led stems from a nonjury proce eding

. 1 5 5 I l l

. 2 d R. 366(b)( 3)(ii). Her e, the appea l rela tes solely to the dispositi onal hear ing, a nonjury proce eding , and thus n o posttrial motion was nece ssary . The sole support cited by the responde nt for his forf eiture argument is distinguishable beca use that

case involved an appea l from a jury ' s deter mination that the responde nt there was a sexually violent person. In re Detention of L ieber man, 379 I ll. App. 3d 585, 603 (2007). T h u s , under Rule 366(b)( 2)(iii) a posttrial motion was require d, an d the failure to file such a motion resulted in the forf eiture of any assig nment of err or. L ieber man, 379 I ll. App. 3d at 604. Her e, howeve r, the trial court judge was the finder of fac t in the dispositi onal hear ing t h at i s t h e sole proce eding being challeng ed on appe al. Acc ording ly , no posttrial motion was require d. At oral arg

ument, the responde nt sug g ested that a dispositi onal proce eding under the Act should be viewed as being simil ar to the sentenc ing phase of a criminal proce eding --pa rt of the same

case as the trial at which g uilt was deter mined, and there fore g overne d by the same require ment of

a posttrial motion in order to prese rve claims of err or. The responde nt cited no support for adopting such an approa ch in a proce eding under the Act, and we are awa re of none. "A lthough individuals subject to the Act are aff

orded cer tain proce dural safe g uards simil ar to those aff orded in criminal prosec utions, proce eding s under the Act are civil, not criminal." I n re Detention of Har din, 391 I ll. App. 3d 211, 216 (20 0 9 ), af f'd , 238 I ll. 2d 33 (2010). I n aff irming our decision in Har din, the supreme c ourt stated that " the statutes and supreme court rule s g ener ally applicable in civil cases" g overne d the State' s appea l of the trial court' s finding of no probable cause under the Act. Har din,

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238 I ll. 2d at 43; see also 725 I L CS 207/20 (West 2006). The rules rela tin g t o ci v i l appeals, including Rule 366(b)( 3)(ii), apply equally here

. We there fore decline to find that the State' s failure to file a posttrial motion resulted in the for feiture of its appea l. We tur n to the substance of the appe al. The State raises two arguments: that the trial court disreg arde d the manifest weig ht of the evidenc e in f inding that Dr. Phenix "a

rbitrar ily and without foundation in the rec ord " re s cored two of the responde nt's actua rial tests, and there fore err ed in discounting her cre dibilit y ; and that the trial court' s overa ll deter mination that the responde nt should be conditionally

rele ased was an abuse of discretion. B oth of these a rg uments amount to no more than a reque st that we rew eig h the evidenc e to arr ive at a differ ent conclusion, howeve r, and this we will not do. As we stated in a similar ca se: "I t is not our function, in revie wing a challeng e to the sufficie ncy of the evidenc e, to retry the defe ndant. [C itations.] I nstead, it is the province of t h e trier of fac t to evaluate witness

cre dibilit y , resolve conflicts in the evidenc e, and draw rea sonable infere nces there from." I n re D etention of Welsh, 393 I ll. App. 3d 431, 455 (2009). The trial court' s comment that Dr. Phenix ' s resc oring of the actua rial tests was "w ithout foundation in the record" is supported by Dr. P henix's testimony

. Dr. P henix admitted that s h e did not know for sure what the responde nt's repor t of three adult male sexual encounte rs ref err ed to, and that her addition of one point to the score s was based upon her disbelief of the responde nt's self-r eport and her assumption that the repor t instead ref

err ed to a sexual encounte r with a boy strang er. Whil e Dr. Phenix may have had a basis for her disbelief of the responde nt in l i g ht of his admitted

o v erw helming pref

ere nce for boy s as the objects of his sexual activities, her assumption that his repor t reg ar d i n g sexual contac ts with adults "r eally " refe rre d to an encounter with a boy strang ers

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was not simil arly supported and was instead mere ly an assumption. Thus, this opinion was literally "w ithout foundation in the rec ord," and the trial court' s char acte rization of it as such was not ag ainst the manife st weig ht of the evide nce. The State also argues that the trial court demonstrated err or in other statements reg arding Dr. Phenix ' s resc oring , specific ally in its statement that Dr. Phenix "inc rea sed a score so that her opinion chang ed o v er t i m e as to the likelihood of Mr. L enczy cki reof fending ." We ag ree that the rec ord ref lects that Dr. Phenix ' s opinion reg arding the likelihood that the responde nt would reof fend did not chang e o v er t i me. Rather, in all of the testimony and repor ts that she provided, Dr. Phenix consistently opined that he was likely to reof fend. Neve rtheless, we believe t hat the trial court' s statement, while phrased i n ap tly , acc urate ly ref lected its belief that Dr. Phenix disreg arde d the orig inal results of the two actua rial tests and chang ed their score s in order to provide support for her opinion. This assessment is supported by the rec ord, including a statement by Dr. Phenix that even if the actua

rial tests rema ined at their orig inal levels of 3, she would still believe that the responde nt

was likely to reof

fend. Thus, the trial court' s implied finding that Dr. Phenix had ignor ed or manipulated the orig inal test score s in or der to provide support for her opinion was not c ontrary to the manife st weig ht of the evide nce. As for the trial court' s overa ll conclusion that conditional rele ase was appropr iate in this case , we do not find that the trial court abused its discretion. Section 40(b)( 2) provides that a person adjudicate d as a sexually violent person may be either (a) confine d to rec eive instit utional car e in a

secur e fac ility or (b) rele ased from confine ment subject to various conditions (conditional rele ase)

. I n making this de termination the trial court is to consider: (1) "the nature and circ umstances of the behavior that was the basis of the alleg ation[s] " in the petition for adjudication as a sexually violent

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person; (2) "the per son' s mental hi story and present m ental condition"; (3) "whe re the person will live"; (4) "how the person will support himself or herse lf" ; and (5) "w hat arr ang ements are available to ensure that the person has acc ess to and will participat e i n n ec essary trea tment." 725 I L CS 207/40(b)(2) (West 2006). Her e, the trial court stated that it considere d all of these fac tors, and we

see nothing to sug g est that it did not. I ts comments demonstrate that it was well awa re of the g ravity of i ts deter

mination and took g reat car e in rea ching its decision. Ind ee d , the S tate' s arguments on appea l d o n o t ad dress these fac tors, but simply asser t that the respondent poses t oo g reat a risk of reof fending to be safe ly rele ased into the community no matter how ma

ny conditions he is subjec t to. Our revie w of the rec ord reve als ample support for the trial court' s deter mination. Both Dr

. Gaske ll and Dr. Wasy liw believed that t h e re s p o n d ent was unlikely to reof fend for a varie ty of

rea sons, and all of the actua rial tests administered by the various doctors (including the tests resc ored by Dr. Phenix ) ref

lected a low or, at most, modera te risk of rea rre st for simil ar offe nses. The State makes much of Dr. Phenix ' s opinion that the responde nt's ag e was not a mitigating fac tor in this case , but her opinion conflicte d with those of Dr. G askell and D r. Wasy liw. A s we have noted, it is the function of the trial court to resolve such conflicts in the evidenc e. The State also points t o t h e responde nt's leng thy history of abuse and "his numerous failed attempts at comm unity -base d trea tment" as supporting the need for confine ment. Howeve r, the responde nt acc epted responsibility for his actions, vol untarily admitted to previously unknown offenses, and has been motivated and cooper ative d u ri n g h i s trea tment in the s ecur e detention fac ility

. Moreove r, Dr. Phenix conce ded that the trea tment the responde nt rec eived in the past probably would not meet the require ments for

s ex o ff en d er thera

py today , wher eas the thera py he was rec eiving now would be more eff ective. Finally , the restric tions and conditions imposed on the responde nt during his rele ase are extensive.

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Thus, "w e find no va lid r eason to substitute our judgme nt f or that of the trier of fac t." L ieber man, 379 I ll. App. 3d at 603. W e n o t e that, althoug h we find no abuse of discretion in its ultimate conclusions, we ar e troubled by cer

tain statements the trial court made in announcing its decision, spec i fi cally its statement that it was require d to selec t the least restric tive alternative for the responde nt. Unlike the Mental Hea lth and Deve lopmental Disabilities Code (405 I L CS 5/3--800 (West 2006)), to which the trial court alluded in its statements reg arding "c ases involving other ty pes of mental disorders," the lang uag e of the Act plac es no " least re strictive alter native" require ment on the trial cour t. Rather, the Act states that an o rder of commitment for a sexually violent person must specify "e ither instit utional car e in a secur e fac ility *** or conditional rele ase," and that the court must consider the five fac tors discussed above in d et er m ining which of these dispositi ons is most appropr iate. Howeve r, it does not express a pref ere n ce for either alternative. 725 I L CS 207/40(b)(2) (West 2006). Onc e a c ourt has made its determination, the statute then mandates that the Department of Human Service s "sha ll arr ang e for the control, car e and trea tment of the person in the least restric tive

manner consistent with the requi rements of the person and in acc ordanc e with the court' s commitment order ." 725 I L CS 207/40(b)(2) (West 2006). Thus, the Act imposes a " least restric tive" limit ation not on the court in making its determination, but on the Depa rtment in car

ry ing out that deter mination. I llinois case law also sug g ests t h at s el ec t ing the "le ast restric tive alternative" is a require ment under cer

tain statutes, but it is not a constitutional require ment of due proce ss. See Be rnstein v. Depa rt m en t of Human Service s, 392 I ll. App. 3d 875, 888-93 (2009) (discussing at leng th and reje cting the argument t h at d u e proce ss require s the selec tion of the least restric tive alternative in trea ting mental disorders)

. We do not explore this point further , howeve r, beca use the

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State has for feited a

ny assig nment of er

ror on this point by failing to raise it in its appea l. 210 I ll. 2d R. 341(h)(7) (points not arg ued ar e for feited)

. For all of the fo re go i n g re asons, the judgme nt of the circ uit court of Du Pag e County is aff irmed. Affir med. Z ENOF F, P.J ., and B URKE, J ., concur .

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