                                                                     FILED
                                                         .1 30010. OPATTEALS•DIV
                                                            STATE OF WASHINGTON

                                                          2016 JUN I 8 fAM 9: 47



  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

In the Matter of the Detention of         )      No. 75469-6-1
                                          )
                                          )
                                          )
ROBERT HEGWALD,                           )      UNPUBLISHED OPINION
                                          )
                      Appellant.          )      FILED: June 18, 2018
                                          )

       VERELLEN, J. — Robert Hegwald was civilly committed as a sexually violent
predator(SVP)in 1999. He now seeks a full evidentiary hearing to determine

whether he still meets the criteria for SVP commitment.

       Under the SVP act, a detainee is entitled to a full evidentiary hearing if he

presents prima facie evidence that his condition has "so changed" through positive

response to continuing participation in treatment that release is appropriate.1

Hegwald presented an evaluation report and supplemental declaration in which a

licensed psychologist opined that he was "so changed" due to treatment. Because

the psychologist's opinion is not merely conclusory, we conclude Hegwald is

entitled to a full evidentiary hearing.

       Therefore, we reverse and remand for a full evidentiary hearing.




       1 Former RCW 71.09.090(4)(2012).
No. 75469-6-1/2


                                        FACTS

       Hegwald is currently detained at the Special Commitment Center(SCC)as

an SVP. In March 2016, Hegwald petitioned the court for an unconditional release

trial. To support his petition, Hegwald offered a psychological evaluation

performed by Dr. Natalie Novick Brown. The court held a show cause hearing on

April 15, 2016. On June 21, 2016, the court denied Hegwald's motion and ordered

that he remain committed.

       Hegwald appeals.

                                       ANALYSIS

       Hegwald contends the trial court erred in finding that he failed to present

prima facie evidence to establish probable cause to proceed to a full evidentiary

hearing.

       The panel reviews a trial court's probable cause determination de novo.2

"Once an individual has been committed, he is entitled to a written annual review

by a qualified professional to ensure that he continues to meet the criteria for

confinement."3 Separately, individuals subject to civil commitment under the SVP

act can petition for unconditional release or release to a less restrictive




       2 State   v. McCuistion, 174 Wn.2d 369, 382, 275 P.3d 1092(2012).
       3 Id. at 379 (citing   RCW 71.09.070).



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No. 75469-6-1/3


alternative.4 After receiving a petition, the trial court holds a show cause hearing

to determine if probable cause exists to proceed to a full evidentiary proceeding.5

      "At the show cause hearing, the State bears the burden to present prima

facie evidence that the individual continues to meet the definition of an SVP."6

Probable cause exists if either the State fails to meet its burden or the detainee

presents prima facie evidence that his or her condition has "so changed" that

release is appropriate.7 Under former RCW 71.09.090(4)(b)(i), (ii), an individual

has "so changed" if "[a]n identified physiological change to the person . . . renders

the committed person unable to commit a sexually violent act and this change is

permanent;" or "[a] change in the person's mental condition brought about through

positive response to continuing participation in treatment which indicates. .. that

the person would be safe to be at large if unconditionally released from

commitment."

       At a show cause hearing, "[a] court may not weigh the evidence in

determining whether probable cause exists; rather, it must merely decide whether

the facts, if believed, establish that the person is no longer an SVP or may




      4 In re Pers. Restraint of Meirhofer, 182 Wn.2d 632, 637, 343 P.3d 731
(2015)(citing former RCW 71.09.090(2)(a)).
      5 Id. at 637-38 (citing McCuistion, 174 Wn.2d at 380).

       6McCuistion, 174 Wn.2d at 380 (citing former RCW 71.09.090(2)(b)).
      7 Meirhofer, 182 Wn.2d at 638 (citing former RCW 71.09.090(2)(c)(ii);
McCuistion, 174 Wn.2d at 382).



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No. 75469-6-1/4



otherwise be conditionally released."8 "Mere conclusory statements are

insufficient to establish probable cause."8

       Hegwald claims Dr. Novick Brown's report presented prima facie evidence

that his condition has "so changed." In her evaluation, Dr. Novick Brown opined,

"Mr. Hegwald's condition has so changed that he no longer meets the definition of

a sexually violent predator."1° Following the show cause hearing, Hegwald

submitted a supplemental declaration from Dr. Novick Brown in which she

clarified, "Mt is my opinion to a reasonable degree of psychological certainty that

Mr. Hegwald has substantially changed via his efforts in treatment such that he no

longer meets the definition of sexually violent predator?" Dr. Novick Brown

declared her opinion was based on the information contained in her initial

evaluation report.

       The trial court rejected Dr. Novick Brown's opinion because her "initial

evaluation cites no facts that would support a finding that any change in Mr.

Hegwald's condition has been brought about as the result of positive responses to

continuing treatment."12 The trial court also found that Dr. Novick Brown's

supplemental declaration "relies on the same data and facts as her evaluation, but




       8 In re Det. of Elmore, 162 Wn. 2d 27, 37, 168 P.3d 1285 (2007).
       9 In re Det. of Jacobson, 120 Wn. App. 770, 780, 86 P.3d 1202 (2004).

       10 Clerk's Papers(CP)at 35.
      "CP at 8(emphasis added).
       12   CP at 3.



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No. 75469-6-1/5



she provides no factual basis for her conclusion that his change in condition is a

result of his efforts in treatment."13

       Prior to Hegwald's commitment at the SCC, he was convicted of first

degree child molestation. At the time of Hegwald's commitment, his diagnoses

included pedophilia and personality disorder not otherwise specified. At his 2015

annual review, Hegwald's diagnoses included pedophilic disorder, antisocial

disorder, and a mild intellectual disability.

       As evidence of Hegwald's changed condition, Dr. Novick Brown relies on

Hegwald's consensual sexual activity with other adults and Hegwald's self-report

that he last had a sexual thought involving a child in 2004.14 She opines that this

"suggests a sexual interest in adult males rather than children."15 In her

supplemental declaration, Dr. Novick Brown noted that these changes "happened

in the context of his continuing participation in treatment."16

       To support her conclusion concerning Hegwald's positive response to

treatment, Dr. Novick Brown pointed to Hegwald's involvement in sexual offender


       13   CP at 3.
       14 CP at 52-53("Records over the years show that Mr. Hegwald engaged in
consensual sexual activity with other inmates during his prison sentence and since
then has engaged in similar activity with residents at the SCC....[T]he last time
he had a sexual thought involving a child was in response to a television program
he saw in 2003/early 2004. [H]e has not been observed to be particularly
interested in television programming depicting children. No pictures or photos of
children have been found in his possession. No one has reported any behavior
connoting preoccupation with children.").
       15   CP at 52.
       16   CP at 9.



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No. 75469-6-1/6



treatment at SCC for 13 years. Dr. Novick Brown notes that Hegwald's recent

annual reviews describe him "as motivated for treatment and genuinely engaged in

the group process."17

       The State argues Dr. Novick Brown's report does not provide a factual

basis to support her opinion concerning change, especially change related to

treatment. In her report, Dr. Novick Brown opines that Hegwald's current

treatment plan is not suitable or attainable for someone with his limitations.18 She

contends the current treatment plan sets unrealistic goals that do not adequately

take into account Hegwald's cognitive impairment and measures results with an

inaccurate yardstick of staff expectations. The State contends Dr. Novick Brown's

criticism contradicts the opinion expressed in her supplemental declaration. But

the State exaggerates the precise scope of Dr. Novick Brown's critique and

challenges her credibility, which is a question for a fact finder at a full evidentiary

hearing. If believed, Dr. Novick Brown's criticism merely explains why the SCC

conclusions of no progress are not persuasive.




       17 CP   at 53.
       18CP at 53-54 ("His treatment 'progress' is measured by a yardstick that
requires he report deviant sexual fantasies based on staff expectations that all
residents at the SCC have deviant sexual fantasies. .. . Mr. Hegwald is caught in
a 'catch-22' situation:(1) he cannot make progress in treatment unless he reports
deviant sexual thoughts of children when it appears he may not have such
thoughts, and (2) he is expected to behave like a socialized adult, which is
cognitively and functionally beyond his capability. Therefore, ongoing treatment at
the SCC is clearly not in his best interests as his treatment plan contains goals he
can never attain.").



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No. 75469-6-1/7



       The State also focuses on Dr. Novick Brown's opinion that Hegwald's

"cognitive dysfunction, whatever the etiology, explains all of his behavioral history,

including his sexual offenses."19 The State reads this statement as entirely

inconsistent with her opinion that Hegwald has positively responded to treatment.

While these statements are in tension with each other, under the proximate cause

standard, the trial court should only ask whether the expert's opinion is merely

conclusory. It is not the role of the court at a show cause hearing to assess

whether every statement is credible.

       Here, Dr. Novick Brown's opinion about the nexus between Hegwald's

behavioral change and treatment is not merely conclusory. The State relies

heavily on State v. Meirhofer for the proposition that the expert must precisely

define the connection between treatment and change.2° But in that case,

Meirhofer refused to participate in any treatment.21 To the contrary, here, Dr.

Novick Brown discusses Hegwald's genuine engagement in and motivation for

treatment as the factual basis for her opinion that Hegwald's behavioral change is

linked to his treatment.




      19 CP   at 52.
      20 182 Wn.2d 632, 637, 343 P.3d 731 (2015).
      21   Id. at 646.




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No. 75469-6-1/8


       Therefore, viewed under the appropriate deferential proximate cause

standard, there is an adequate factual basis for Dr. Novick Brown's opinion that

Hegwald's progress is related to his treatment. We note that this application of the

proximate cause standard does not signal that a boilerplate recitation of the

statutory standard compels a full evidentiary hearing; we simply recognize that the

connection between treatment and progress can be established by circumstantial

evidence. The State's challenges are properly the subject of cross-examination in

a full evidentiary hearing.

       Therefore, we reverse and remand for an evidentiary hearing.




WE CONCUR:




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