In re Care and Treatment of Burch

NOT DESIGNATED FOR PUBLICATION

No. 124,554

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Care and Treatment of
TIMOTHY JAMES BURCH.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; CONSTANCE M. ALVEY, judge. Opinion filed August 19,
2022. Affirmed.

Timothy J. Burch, appellant pro se.

Shannon Grammel, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HURST, P.J., BRUNS and GARDNER, JJ.

PER CURIAM: Timothy J. Burch appeals the denial of his petition for transitional
release under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et
seq. He raises two claims: He was denied due process because his probable cause
hearing was held in absentia and that the district court erred by refusing his request to
retain an independent examiner at his own cost. Finding no error, we affirm.

Factual and Procedural Background

In 1989, Burch pleaded guilty to several sex crimes involving teenage boys,
including aggravated criminal sodomy, indecent liberties with a child, and sexual
exploitation of a child. In re Care & Treatment of Burch, 296 Kan. 215, 291 P.3d 78
(2012). After Burch served his prison sentence, the State petitioned to civilly commit

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Burch to the Sexual Predator Treatment Program at Larned State Hospital. Burch
stipulated that he met the statutory definition of a "sexually violent predator" (SVP)
based on his criminal convictions and his diagnosis of pedophilia, so the district court
civilly committed him. See K.S.A. 2021 Supp. 59-29a02(a) (defining "sexually violent
predator" as "any person who has been convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality or personality disorder which makes
the person likely to engage in repeat acts of sexual violence"). Burch has remained
involuntarily committed at Larned since June 2002.

Every year of his commitment, Burch has received annual examinations of his
condition as required by law. Over the years, the district court has denied his many
petitions for release. See In re Burch, 296 Kan. 215; In re Care and Treatment of Burch,
No. 116,600, 2017 WL 3947430 (Kan. App. 2017) (unpublished opinion); In re Care and
Treatment of Burch, No. 116,370, 2017 WL 2403389 (Kan. App. 2017) (unpublished
opinion); In re Care and Treatment of Burch, No. 102,468, 2010 WL 3324271 (Kan.
App. 2010) (unpublished opinion). Burch has appealed other adverse rulings as well in
state and federal court. See Burch v. Howard, 57 Kan. App. 2d 860, 461 P.3d 840 (2020);
Burch v. Keck, 56 Kan. App. 2d 1162, 444 P.3d 1000 (2019); Burch v. Kansas Dept. for
Aging and Disability Services, No. 121,511, 2019 WL 6795825 (Kan. App. 2019)
(unpublished opinion); Burch v. Ash, No. 116,599, 2017 WL 2021067 (Kan. App. 2017)
(unpublished opinion); Burch v. Bruffett, No. 116,150, 2017 WL 754250 (Kan. App.
2017) (unpublished opinion); Burch v. Bruffett, No. 113,607, 2015 WL 7693761 (Kan.
App. 2015) (unpublished opinion); Burch v. Sullivan, No. 109,175, 2013 WL 6389201
(Kan. App. 2013) (unpublished opinion); Merryfield v. Sullivan, No. 109,039, 2013 WL
4730565 (Kan. App. 2013) (unpublished opinion); Burch v. Lynch, No. 108,798, 2013
WL 2972822 (Kan. App. 2013) (unpublished opinion); Merryfield v. Jordan, No.
106,574, 2012 WL 3171872 (Kan. App. 2012) (unpublished opinion); Burch v. Lynch,
No. 106,612, 2012 WL 718991 (Kan. App. 2012) (unpublished opinion); Burch v.
Jordan, No. 07-3236-JAR, 2007 WL 4163637 (D. Kan. 2007) (unpublished opinion),

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refiled Burch v. Jordan, No. 07-3236, 2010 WL 5391569 (D. Kan. 2010) (unpublished
opinion), aff'd Burch v. Jordan, 444 Fed. Appx. 236 (10th Cir. 2011) (unpublished
opinion).

In 2013, Burch successfully showed probable cause that his condition had changed
so he received a jury trial on his petition for transitional release. But the jury found that
Burch's mental abnormality or personality disorder had not so changed that he was safe to
be placed in transitional release and, if he were transitionally released, he was likely to
engage in acts of sexual violence. This court affirmed. In re Burch, 2017 WL 3947430.

Burch's appeal relates to his 2021 annual review filed by the Kansas Department
for Aging and Disability Services (KDADS) Secretary. That annual review concludes
that Burch's mental abnormality or personality disorder had not significantly changed;
thus, it would not be safe to place him in transitional release. Burch received notice of his
annual report and an acknowledgment and waiver form which he refused to sign.

Acting pro se, Burch asked for a review of the annual report and asked the court
to order an independent examination. His petition asked the court to allow him to visit
with an independent examiner whom he had personally retained and to allow him to be
"physically present at the Annual Review Hearing so that he may be fully informed of the
evidence, the arguments made, the evidence presented and possibly offer testimony."
Soon after, Burch's counsel also petitioned for an annual review hearing.

On the day of the hearing, Burch did not appear in person, but his counsel asked
for a continuance to allow time for an independent examination. The district court denied
a continuance because of Burch's "lack of progress," stating that it saw no need for an
independent evaluation. The district court then acknowledged that Burch "does some
good things" and "a lot of what he should do." But based on Burch's hostility toward

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others and his moderate to high-risk need category, the court denied his request for
transitional release.

Burch timely appeals.

Did the District Court Deny Burch Due Process?

Under K.S.A. 2021 Supp. 59-29a08(a), an individual committed as an SVP must
have an annual examination of his or her mental condition and an annual report made and
forwarded "to the court that committed the person under the [KSVPA]." Based on this
annual report, the committed individual may request an annual review hearing and
petition for transitional release. K.S.A. 2021 Supp. 59-29a08(b). The annual review
hearing is not an evidentiary hearing for transitional release. The SVP is entitled to
attorney representation at the annual hearing but has no right to be present. See K.S.A.
2021 Supp. 59-29a08(e); In re Burch, 296 Kan. at 225-27.

At the annual review hearing, the SVP has the burden to show probable cause
"sufficient to cause a person of ordinary prudence and action to conscientiously entertain
a reasonable belief that [the committed individual's] mental abnormality or personality
disorder had so changed that he [or she] was safe to be placed in transitional release." 296
Kan. at 226. See K.S.A. 2021 Supp. 59-29a08(d).

Burch argues that the district court violated his rights by (1) holding the annual
hearing in absentia, which denied him the adversarial process and the same rights as his
criminal counterparts; (2) failing to meet the statutory requirements for commitment; and
(3) denying Burch's counsel the opportunity to properly represent him. We address each
claim below.

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Holding the Annual Review Hearing in Absentia

We first address Burch's argument that he had a right to be present at his annual
hearing. He contends that his absence allowed the State to escape the adversarial process,
prejudicing him and making the hearing "one-sided." Burch adds that his attorney "knew
nothing. . . because he does not live in the facility" and that even though Burch had the
burden of proof, he was not allowed to present his own evidence.

The State responds that Burch's argument is not properly preserved. We agree that
at the hearing, although Burch did not personally appear, he appeared through his
attorney, who did not object to Burch's absence. Because there was no objection to his
absence in district court, Burch's claim is being asserted for the first time on appeal and is
subject to the general rule that alleged constitutional violations cannot be raised for the
first time on appeal. See In re Care and Treatment of Snyder, 308 Kan. 626, 640, 422
P.3d 85 (2018).

But it is within the appellate court's discretion to review a newly raised claim if the
appellant explains why a recognized exception to the general rule applies. State v. Harris,
311 Kan. 371, 375, 461 P.3d 48 (2020). See Kansas Supreme Court Rule 6.02(a)(5)
(2022 Kan. S. Ct. R. at 35). Burch does not invoke any recognized exception. Still, he
argues that "[c]riminals have the right to be present at all stages of the criminal
proceeding, for their fundamental liberty interest of freedom is at stake" and the
criminals' rights set the "floor" for the process due him. We liberally read these
statements as Burch's way to invoke the exception to prevent the denial of his
fundamental rights. See 311 Kan. at 375. And we choose to reach the merits of this issue.
State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).

In reviewing a procedural due process claim, we must first decide whether a
protected liberty or property interest is involved. If it is, we then determine the nature and

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extent of the process due. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d
1274 (2002).

The Kansas Supreme Court has held that "civil commitment . . . constitutes a
significant deprivation of liberty that requires the protection of due process of law." In re
Care and Treatment of Sykes, 303 Kan. 820, 824, 367 P.3d 1244 (2016). Burch thus
easily meets the first part of the due process test.

We thus focus on the second part of the due process test. We agree with Burch that
"'[t]he fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.'" State v. Juarez, 312 Kan. 22, 24, 470 P.3d
1271 (2020) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed.
2d 18 [1976]). But a claimant can prove a due process violation only by showing denial
of a specific procedural protection to which they were entitled. The procedural protection
that a particular property right or liberty interest deprivation is due is resolved by a
balancing test, weighing (1) the individual interest at stake; (2) the risk of erroneous
deprivation of the interest through the procedures used and the probable value, if any, of
additional or substitute procedural safeguards; and (3) the State's interest in the
procedures used, including the fiscal and administrative burdens that the additional or
substitute procedures would entail. Mathews, 424 U.S. at 335. This court reviews whether
a person received due process under specific circumstances de novo as it is a question of
law subject to unlimited review. In re Care and Treatment of Quillen, 312 Kan. 841, 849,
481 P.3d 791 (2021).

That said, this court need not engage in the due process balancing test because the
Kansas Supreme Court has already determined that the protections of the KSVPA statute
satisfy the requirements of procedural due process. In re Care & Treatment of Hay, 263
Kan. 822, 831-32, 953 P.2d 666 (1998).

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 "These requirements are clearly satisfied by [the KSVPA], which provides for all
necessary basic protections, including appointed counsel, a probable cause hearing,
appointment of qualified experts for examinations, a jury trial requiring a unanimous
decision, appeals, annual examinations, discharge petitions, hearings, and the strictest
possible burden of proof on the State." 263 Kan. at 831.

Then, as now, the SVP had "a right to have an attorney represent the person at the hearing
but the person is not entitled to be present at the hearing." K.S.A. 1995 Supp. 59-29a08;
see K.S.A. 2021 Supp. 59-29a08(e) ("The person shall have a right to have an attorney
represent the person at the annual review hearing to determine probable cause, but the
person is not entitled to be present at the hearing."). And despite that fact, the KSVPA
meets due process requirements. 263 Kan. at 831.

Despite this dispositive Kansas caselaw, Burch points to two Ninth Circuit Court
of Appeals cases to support his position that as an SVP he should have the same rights as
a pretrial detainee, Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004), or a prisoner,
Hydrick v. Hunter, 449 F.3d 978, 993 (9th Cir. 2006). But besides being from other
jurisdictions, those cases are factually distinguishable because they concern conditions of
confinement rather than annual review hearings to determine probable cause.

This court has more recently reviewed the KSVPA and "emphasized that the
[K]SVPA is facially constitutional but that district courts must follow the statutory
mandates or risk violating due process rights in individual cases." Griffin v. Bruffett, 53
Kan. App. 2d 589, 596, 389 P.3d 992 (2017). Here, the district court followed the
statutory requirements of the KSVPA, which Kansas courts have found protect a SVP's
due process rights. Burch received an annual examination of his mental condition on May
28, 2021, which he refused to participate in. K.S.A. 2020 Supp. 59-29a08(a). The
Secretary served Burch notice of the exam and included a waiver and acknowledgment
form that Burch refused to sign. K.S.A. 2020 Supp. 59-29a08(a). Burch timely
responded, petitioning the district court for a probable cause hearing. K.S.A. 2021 Supp.
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59-29a08(b). Burch requested, but the district court denied, an independent examiner.
K.S.A. 2021 Supp. 59-29a08(c). The district court reviewed Burch's annual exam and
admitted it as evidence. K.S.A. 2021 Supp. 59-29a08(d).

The State articulates several reasons supporting the Legislature's determination
that an SVP has no right to be present at a probable cause annual review hearing,
including financial, temporal, and security concerns in transporting an SVP to the district
court for the hearing. And although Burch had no right to be present at the hearing, he
had an attorney appointed to represent him. K.S.A. 2021 Supp. 59-29a08(e) ("[T]he
[committed] person is not entitled to be present at the hearing."). Through that attorney,
Burch's right as a party to be heard was upheld. Burch points to no evidence that he
wanted to admit that his attorney could not have admitted in his absence. Because the
Kansas Supreme Court has held that the statutory scheme of the KSVPA is constitutional
if followed, and because the district court followed it in Burch's case, Burch was not
deprived of due process.

As a final note, Burch also argues his due process rights were violated because he
did not get a probable cause hearing. He contends that because the district court must
consider the evidence in the light most favorable to him, it should not have considered the
State's annual report or other evidence against him. True, because Burch bears the burden
of proof, this court must consider the evidence in the light most favorable to him and
resolve all conflicting evidence in his favor. In re Burch, 296 Kan. at 225. But that
standard in no way limits the State's ability to present admissible evidence—it dictates
only how the district court draws inferences from all the evidence it admits. See K.S.A.
2021 Supp. 59-29a08(d) (stating the annual report is "admissible into evidence in the
annual review hearing"). Because the KDADS's annual report is admissible and the
district court properly used it in Burch's probable cause hearing, Burch's argument fails.

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Statutory Requirements for Commitment

Burch next argues that the KDADS's annual report, which the district court relied
on to deny Burch an evidentiary hearing for transitional release, fails to meet the statutory
requirements. Burch contends that the annual report does not reflect his current mental
status or progress and is "nothing more than a report card of what [he did] in the program
over the last year." In support, Burch cites a footnote in Holder v. State, 123 So. 3d 136,
140 n.3 (Fla. Dist. Ct. App. 2013), which states: "The standard is not whether the
offender has completed treatment; rather, it is whether his condition has changed such
that it is safe for him to be at large." Burch asks this court to reject our statutory
requirements and adopt this standard instead.

We are unpersuaded. Burch is correct that the annual report does discuss his
progress in the program throughout the year. But the report is more thorough and more
telling than that. The report detailed:

• the tier and privilege level Burch had achieved;
• his medical diagnoses, including pedophilic disorder, antisocial disorder, and
narcissistic personality disorder;
• his current treatment plan;
• his participation levels in his treatment plan;
• his medications;
• his disciplinary actions;
• his actuarial results; and
• his future plan.

The report concludes with the recommendation that Burch not be placed in transitional
release.

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 If the annual report is insufficiently thorough, that is due in significant part to
Burch's choice not to participate in the interview process, year after year. On April 30,
2021, the examiner tried to interview Burch, but he declined, as he has for at least the last
five years. And because Burch declined the interview process, no psychological testing
could be completed.

Burch's annual report is admissible in the annual review hearing and is used "in
the same manner and with the same force and effect as if the qualified expert had testified
in person." K.S.A. 2021 Supp. 59-29a08(d). Thus, the district court had evidence
establishing that Burch's mental conditions—pedophilic disorder, antisocial disorder, and
narcissistic personality disorder—had not changed so much that he was safe for
transitional relief. Based on the evidence in the annual report, the district court did not err
by finding no probable cause of a change making it safe to place Burch in transitional
release.

Effective Assistance of Counsel

Burch also vaguely mentions that the district court denied his counsel the
opportunity to properly represent him. But he does not develop this argument or provide
us with support for it in the record. Because Burch did not adequately brief this issue, he
waived or abandoned it. See In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d
1033 (2018).

Did the District Court Abuse Its Discretion by Not Appointing an Independent Examiner?

Burch next argues that the district court abused its discretion by denying him a
continuance and by denying his request to retain an independent examiner at his own
expense. He argues that the district court delayed in granting his motion and then relied

10
on that delay as reason to deny his motion. Burch also argues that he was entitled to an
examiner because he was not asking the court to pay for the examiner.

Under the KSVPA, the appointment of an independent examiner is discretionary.
K.S.A. 2021 Supp. 59-29a08(c). Thus, we review the district court's decision on whether
to appoint an independent examiner for an abuse of discretion. In re Care and Treatment
of Twilleger, 46 Kan. App. 2d 302, 310, 263 P.3d 199 (2011). Judicial discretion is
abused if the judicial decision (1) is unreasonable; (2) is based on an error of law; or (3)
is based on an error of fact. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
The party asserting an abuse of discretion bears the burden to show abuse. 307 Kan. at
739. Burch does not claim that the district court made an error of law or fact, thus he
argues solely that no reasonable person would take the same position as the district court.

We disagree. K.S.A. 2021 Supp. 59-29a08(c) provides that a "person may retain,
or if the person is indigent and so requests the court may appoint, an examiner pursuant
to K.S.A. 60-235." And K.S.A. 2021 Supp. 60-235(a)(2)(A) states that an order "[m]ay
be made only on motion for good cause and on notice to all parties and the person to be
examined." Thus the district court has discretion whether to appoint, or permit an SVP to
retain, an independent examiner for the annual review probable cause hearing. Not until a
transitional release hearing does an SVP "have the right to have experts evaluate the
person on the person's behalf." K.S.A. 2021 Supp. 59-29a08(g). So Burch's offer to retain
an examiner provides him no relief—he must still show good cause and the decision still
rests in the district court's discretion.

Burch claims that the district court improperly denied his motion because of its
concern that the case would be delayed. True, the independent examiner would need time
to examine and issue a report, but Burch argues that if the district court were concerned
about delay, it would not have waited 71 days after he filed the motion to rule on it.

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 Burch cites this court's decision in Griffin as support. In Griffin, the SVP
complained that the district court took no action to review his confinement or to
recommit him in four of the six years he was involuntarily confined. This court found that
"the district court was shockingly indifferent to its statutory and constitutional
obligations." 53 Kan. App. 2d at 596. It held that "[a]dequate case management tools
need to be in place" and "the court and KDADS should not be able to shirk their
responsibilities" for risk of mandamus actions or other redress. 53 Kan. App. 2d at 608.
But "[w]hen the delay in hearing is caused by the district court's failure to act, a more
appropriate remedy may be under a writ of mandamus to compel the court to take
immediate action." 53 Kan. App. 2d at 607-08. Thus, Burch is correct that this court has
instructed district courts to timely process KSVPA cases and fulfill their statutory duties.

Still, the district court did not deny Burch's motion for an examiner based on the
time it would take to get an examination and report. The district court discussed the need
for the examiner's report to be timely but only in saying that if it granted the motion, it
would limit the time for its receipt of the report. But the district court's stated reason for
denying the motion was Burch's emotional issues, his lack of progress, and his hostility
toward others, not its concern over potential untimeliness of the report.

Nor did the district court fail to act or cause a delay in the hearing. As the district
court acknowledged, the annual report was filed on June 2, 2021, Burch requested an
annual review, pro se, on June 24, 2021, and his counsel petitioned for a hearing on July
10, 2021. The district court then explained that based on its availability and "some
medical issues" the court's first available hearing date was September 2, 2021. We find
nothing unreasonable in that.

We note that Burch has filed a Rule 6.09 letter of additional authority (2022 Kan.
S. Ct. R. at 40), noting a California appellate court's holding that the preclusion of a
defense expert witness in an SVP trial was reversible error. See People v. Jackson, 75

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Cal. App. 5th 1, 27, 290 Cal. Rptr. 3d 301 (2022). But Burch fails to convince us this
noncontrolling case is persuasive. First, Burch does not establish that the California laws
on SVPs are equivalent to Kansas' laws. Second, even assuming the laws are similar, our
facts are distinguishable from those in Jackson because the California court examined a
commitment trial not an annual review hearing. And third, the California court made
clear that its holding was case specific and reversible error would not always be found. 75
Cal. App. 5th at 27.

In conclusion, the district court reasonably determined that Burch failed to show
good cause for an independent examiner. See, e.g., In re Care and Treatment of Sells, No.
123,020, 2021 WL 1231156 (Kan. App. 2021) (unpublished opinion) (finding that the
district court reasonably denied petitioner's request for an independent examination when
he regressed in treatment). Burch wanted his own licensed psychologist to do an
independent examination to contest the annual report, yet he refused to be interviewed by
the psychologist chosen by the Secretary of KDADS. He contended that "[t]he report
from a qualified independent expert to perform an examination of Respondent is crucial
to his ability to present his case regarding his current mental condition during this Annual
Review." But rather than give the district court the full picture that both examinations
would have presented, Burch tried to limit the evidence to solely that which he hoped
would favor him. Under these circumstances, we find no abuse of discretion in the district
court's denial of Burch's request for an independent examiner, no matter who was paying
for it.

Affirmed.

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