dissenting.
[¶ 18] I respectfully dissent.
[¶ 19] The State has deprived J.G. of his freedom since 2002. The initial basis was the crime of indecent exposure, which occurred when he was twelve years old. Whether this act was sexually predatory conduct has to be reviewable as to the initial commitment, but at some point, the finding becomes res judicata and we have so held. Matter of J.G., 2013 ND 26, ¶ 11,' 827 N.W.2d 341.
[¶20] J.G. now challenges his continuing commitment because he asserts that the State has not established by clear and convincing evidence that he remains a sexually dangerous individual. He also challenges whether the trial court has au--thority under N.D.C.C. § 25-03.3-13 to designate a specific treatment program as long as it does not require the creation of a specific program solely for the respondent.
[¶ 21] Section 25-03.3-13, N.D.C.C., provides in part:
The executive director shall place the respondent in an appropriate facility or program at which treatment is available. The appropriate treatment facility or program must be the least restrictive available treatment facility or program necessary to achieve the purposes of this chapter. The executive director may not be required to create a less restrictive treatment facility or treatment program specifically for the respondent or committed individual.
This case focuses our attention on the tension in the statute. A committed individual is entitled to treatment in an appropriate facility or program and to the least restrictive treatment available, but the executive director does not have to create any programs for a committed individual. J.G. is continuing to be Ijeld as a sexually dangerous individual primarily because he has “failed to complete his assigned sex offender treatment program.” How does a trial court treat such an individual under the above statute when the court has evidence that the individual, after twelve years of confinement, is incapable of completing the treatment, as designed, because of the inherent disabilities of the individual? Does the court simply allow the individual to continue to be deprived of his freedom or may the Court fashion an order based upon the evidence it has received and an existing treatment center suggested by the expert as a possibility?
[¶22] In March 2014, district judge Donald L. Jorgensen, after receiving the testimony of Dr. Stacey Benson and Dr. Robert Lisota at a discharge hearing, ordered J.G. be transferred to the Community Transitional Center at the State Hospital. His conclusions were as follows:
As seen by [J.G.’s] lengthy history of treatment, assessments, and civil commitments, [J.G.] has and will continue to have significant obstacles and difficulties *114in his life. Still, the record shows substantial progress in recent years. Under North Dakota law, [J.G.] is entitled to the least restrictive treatment option available to him. Bearing in mind his progress and his need for individualized treatment that reflects his cognitive delays, this Court believes CTC will provide the appropriate level of treatment for [J.G.]. Upon consideration of [J.G.’s] treatment records, medical examinations and assess[ Jments, the briefs, and the lengthy file, this Court deems it prudent to transition [J.G.] into the CTC on the NDSH campus for a period of one year effective immediately.
[¶ 23] The State brought a motion for a new trial alleging that “ordering specific placement of the Respondent ... is outside of the authority of Section 25-03.3-13 of the North Dakota Century Code.” Effectively, the State is asserting the mandate of N.D.C.C. § 25-03.3-13 is non-reviewable. Yet, the statute says, “The executive director shall place the respondent in an appropriate facility or program at which treatment is available. The appropriate treatment facility or program must be the least restrictive available treatment facility or program necessary to achieve the purposes of this chapter.” N.D.C.C. § 25-03.3-13 (emphasis added). We have already held that some form of judicial review is available under N.D.C.C. ch. 25-03.3. Interest of P.F., 2008 ND 37, ¶24, 744 N.W.2d 724. The district court had the evidence to enter the order it did in 2014. The current proceeding is an effort to disregard the authority of the court to exercise judicial review under N.D.C.C. § 25-03.3-13.
[¶ 24] It should be noted that this record is absolutely devoid of any indication of recent dangerousness by J.G. There are no findings of sexually acting out. The entirety of findings that relate to current behavior consist of the following:
Dr. Lisota indicated [J.G.] showed an understanding of treatment principles but is unable to apply them consistently. [J.G.] has been on a behavior plan that rewards him for positive behaviors. This plan appears to be somewhat successful because the number of write-ups received by [J.G.] has decreased, although he continues to require regular behavioral reminders and still receives write-ups. Dr. Lisota found [J.G.] continues to display inappropriate contact with staff and other residents, has difficulty accepting group feedback, and has failed to progress to an actual treatment stage within the program. Dr. Lisota found [J.G.] has failed to adequately participate in intensive sex offender treatment and therefore continues to experience pedophilic and non-consent interests.
[¶ 25] The court’s reliance on Dr. Liso-ta’s “failure to progress in treatment” analysis is particularly troublesome. Dr. Lisota’s report makes it clear that Dr. Lisota believes that failure to progress in treatment, even the inability to progress in treatment, satisfies the constitutional requirement articulated in Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (holding substantive due process requires proof that the individual facing commitment has serious difficulty controlling his behavior). Dr. Li-sota’s analysis of Crane, quoted below, does not require the State to prove that J.G. currently has any difficulty controlling his behavior; rather, it puts the burden on J.G., and the court has accepted this analysis:
The fourth item (not a prong in North Dakota’s SDI law) which needs to be addressed is the “Serious Difficulty” issue raised in Kansas v. Crane and Kan*115sas v. Hendricks. At the heart of the matter is whether or not the Respondent can be distinguished from “dangerous but typical” sexual recidivist. [J.G.] is distinguished from the “dangerous but typical” recidivist by his apparent inability to progress in treatment, despite having been at NDSH for approximately 14 years. Furthermore, the Respondent continues to demonstrate “serious difficulty” by failing to engage in treatment. Numerous Supreme Court findings indicating that failure to comply with or complete treatment is grounds to support continued commitment:
• MD (1999)
• Barrera (2008)
• AW (2008)
• MD (2008)
• GRH (2008)
• TO (2009)
In summary, perhaps the most concise way to address the issue of whether or not [J.G.] remains an SDI under North Dakota statute is to review what has changed since he ■ was found by the Court to be an SDI in 2002. [J.G.] remains in a pre-treatment group, continues to struggle with behavioral issues in group and on the unit, and appears to lack motivation to succeed despite statements to the contrary. [J.G.] has done nothing of any substance to demonstrate he has reduced his risk for sexual recidivism through treatment participation as of the date of this report.
[¶ 26] There are eighteen pages of treatment notes attached to Dr. Lisota’s report, spanning the time frame from March 19, 2013, to February 18, 2014. In those eighteen pages of treatment notes, there is no suggestion that J.G. has failed to participate in a treatment session or to complete an outside assignment. However, the most often used phrases to describe the journals J.G. is required to keep are “routine and unexceptional” or “routine and un-noteworthy.” This addresses J.G.’s ability to participate in what his therapists consider a meaningful manner. Dr. Lisota considered the lack of ability a sufficient reason for continued confinement.
[¶ 27] J.G. has been evaluated by Dr. Larry Burd, Director of the ND Fetal Alcohol Syndrome Center, and the evidence in Dr. Benson’s report indicates that his conclusions were that J.G. “meets criteria for an alcohol related neurodevelop-mental disorder.” Dr. Benson, the expert testifying on behalf of J.G., filed a report with the court which contained the following relating to his limitations and J.G.’s ability to complete his current form of treatment:
When I read the progress notes in his file, and note the language used by staff to describe his behavior it is clearly obvious that the staff are frustrated by him. Furthermore, the staff do not seem to have any understanding of [J.G.’s] limitations. It is noted several times that [J.G.] “lacks insight” (He has an IQ in the 70’s), that his journal entries are poorly written (He reads and writes at the 6th grade level), that his responses “lack substance” (He has brain damage) and that he constantly wants to be the center of attention (this is not atypical of folks with lower functioning).
I see no evidence that any of his providers are aware of the above limitations, nor that any accommodations have been made to his treatment plan to account for his specific limitations following the court ordered evaluation by Dr. Burd. This is like putting an average 6th grader into a college course and then blaming him for failing.
*116[J.G.] reports he is on Stage 2 still because the other stages “go too fast” for him to “understand” the material. I do not see this as lack of motivation; this is likely a very real statement. He noted in one of the groups that the changes made to the group made it harder for him to understand, the response from staff was; “This is evidence of his tendency to gain group focus, his inclination to pilot the group into a bitch session and his preference for having things his way.”
In completing several SDI evaluations for [J.G.] over the past several years since 2007, I have become increasingly concerned with the ability of the existing treatment program to understand and accommodate for his significant cognitive deficits. [J.G.] has documented diagnoses of Borderline Intellectual Functioning, a Learning Disability and brain damage from in útero alcohol exposure. Though [J.G.] does not quite meet the diagnostic criteria for an Intellectual Disability/Mental Retardation (as his IQ score is above this cut off), let me be clear-his functioning is more similar to that population than it is to the “normal limits” functioning that is probably more in line with the majority of his peers in the NDSH Secure Services Program. In reviewing his progress notes from the past year, I find repeated references to [J.G.] “lacking insight,” having a “surface” understanding of concepts, and handwriting in journals that is “illegible.” These descriptions are exactly what can be expected of a person with [J.G.’s] cognitive capacity. They are descriptive of his level of functioning, and should not be seen as signs of his lack of motivation or lack of desire for change. Further comments indicate that his feedback “lacks substance[ ] and is basically just ‘Good Job,’ or repeating what others have said, and that he frequently wants to be the center of attention.” Again, it would be expected, that [J.G.] would not be capable of thorough evaluations of the performance of others, which is quite a high level of cognitive processing; and his desire for attention is characteristic of egocentricity common among those with lower intellectual functioning.
Furthermore, Individuals with low intellectual functioning require repetitive training (same topics and skills over and over, preferably in a small number of skills), hands on practice (role plays, etc.), frequent prompting and encouragement to follow through, and may need short term incentives to enhance motivation (i.e. use of reinforcement for cooperation and completion of homework, etc.) They are often not capable of benefit[t]ing from insight oriented strategies (due to their difficulty taking the perspective of others), and learn better by focusing on the outcomes of behavior for themselves (avoiding consequences for negative behavior or gaining rewards for positive behavior). It is noted in the records that he generally does well with role plays, and when given specific situations and asked what he would do.
In his 2002 article Dr. Jeremey Baum-bach addressed some of the problems-that arise when someone with FASD is in typical sex offender treatment programs, such as; “Many of the common behaviors reported in adolescents and adults who have sexually offended, which are generally interpreted as denial or resistance, may also result from neurological impairment. For example, is' this denial of the details of the offense, or the result of memory impairment? Is this denial of responsibility or evidence of an inability to grasp cause *117and effect? Is this denial of future risk or a sign or the person’s difficulty projecting self into the future? Is this resistance to learning the sexual offense cycle, or is it difficulty with sequencing? Is this non completion of assigned homework an indication of resistance, or does it result from deficits in executive functioning?”
I remain concerned that [J.G.], if “put back into the same treatment program, run the same way, with the same providers who have the same level of understanding about his abilities, will never be able to complete the program to the point where the NDSH will be in favor of discharge,
(Emphasis in original.)
[¶ 28] Dr. Benson’s recommendation included the following:
Should the court decide that [J.G.] remains a Sexually Dangerous Individual, and therefore not eligible for full discharge, I would suggest that we next explore if he is appropriate for a less restrictive environment. That may be the CTC home on the NDSH grounds, or an alternative placement in the community paired with GPS monitoring, outpatient treatment and the teaching of independent living skills.
[¶ 29] Based upon the evidence before the court and the lack of any other existing programs in 2014, the court fashioned an order that required J.G. to be placed in the Community Transitional Center at the State Hospital. Based on the statutory mandate of N.D.C.C. § 25-03.3-13, I would have upheld the authority of the trial court to so order. The court was attempting to fashion an order that placed J.G. in a less restrictive alternative treatment while not requiring the executive director to create a program that did not exist.
[¶ 30] I, therefore, dissent.
[¶ 31] CAROL RONNING KAPS-NER.