Opinion
A19-1249
12-23-2019
In the Matter of the Civil Commitment of: Eric Woods Halvorson.
Keith Ellison, Attorney General, R. J. Detrick, Assistant Attorney General, St. Paul, Minnesota (for appellant commissioner of human services) Jennifer Thon, Steven D. Winkler, Warren J. Maas, Jones Law Office, Mankato, Minnesota (for respondent Eric Woods Halvorson)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed
Cleary, Chief Judge Commitment Appeal Panel
File No. AP17-9130 Keith Ellison, Attorney General, R. J. Detrick, Assistant Attorney General, St. Paul, Minnesota (for appellant commissioner of human services) Jennifer Thon, Steven D. Winkler, Warren J. Maas, Jones Law Office, Mankato, Minnesota (for respondent Eric Woods Halvorson) Considered and decided by Cleary, Chief Judge; Worke, Judge; and Bratvold, Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
The Minnesota Commissioner of Human Services challenges the Commitment Appeal Panel's grant of respondent's petition for transfer to Community Preparation Services (CPS). We affirm.
FACTS
In 2008, the district court committed respondent Eric Woods Halvorson to the Minnesota Sex Offender Program (MSOP) as a sexually-dangerous person. He is currently 68 years old and in the second phase of MSOP's three-phase treatment regimen. This appeal concerns his transfer from the secure facility at St. Peter to CPS, a lower-security environment.
Respondent suffers from sexual-sadism and antisocial-personality disorders. He has a history of disturbing sexual behavior. When he was 16, he made aggressive sexual advances on a nine-year-old girl, including threats of injury, but the girl was able to escape. In 1974, he accosted two women. He shot one woman with a pistol, drove her to the hospital, and then drove the other woman into the country and forced her to perform oral sex. He was convicted and imprisoned. In 1974, he also raped an adult female. He self-reported this crime.
Respondent completed sex-offender programming and was paroled in 1979. In 1988, he coerced an acquaintance into taking nude pictures. Four years later, he sexually assaulted a 19-year-old acquaintance, tied her up, and pierced her breast with a large syringe. He was convicted of criminal sexual conduct and kidnapping and received a lengthy sentence. In 2008, he was indefinitely committed to MSOP.
In 2017, respondent petitioned the special-review board (SRB) for transfer, provisional discharge, or discharge. He underwent a risk assessment, which concluded that he did not meet the requirements for a custody reduction. The assessment noted that he was actively engaged in therapy, had good behavior, and continued to make progress, but there was concern over his "unmanaged dynamic risk."
According to the report, dynamic risk factors "are psychological vulnerabilities that, in conjunction with situational triggers, can culminate in sexually abusive actions." --------
An SRB treatment report was also completed. Like the risk assessment, the report noted that respondent was actively engaged in therapy, had good behavior, and continued to make progress. The report concluded, however, that a transfer was not appropriate because respondent required "prompting and confrontation to identify his risks," and clients at CPS "are expected to have a relatively accurate and complete understanding of their offending and risks."
The SRB recommended denying respondent's petition. Respondent petitioned the Commitment Appeal Panel (CAP) for reconsideration, but withdrew his request for full discharge. Dr. Robert Riedel, the court-appointed examiner, testified at an initial hearing that respondent met the criteria for transfer to CPS. He noted respondent's "significant progress" in treatment over the preceding years. He did not believe that respondent needed to be housed at a secure facility.
The CAP dismissed the provisional-discharge request, but set the transfer request on for a second hearing. Dr. Linda Marshall replaced Dr. Riedel. She prepared a report, which concluded that a transfer was appropriate. She found that respondent was "making significant progress in treatment, [was] cooperative with staff and peers[,] and [had] not had any concerning behavioral incidents." She noted that, if a transfer were granted, respondent would still be "monitored closely," he would "earn privileges gradually," and he would "continue to engage in ongoing treatment."
In March 2019, an update to the SRB report was prepared. It indicated that respondent had shifted between active and passive engagement in treatment. The update concluded that respondent did not have the "insight, skill, or practice in self-monitoring and intervening to effectively meet" the treatment expectations at CPS.
Dr. Rachel Mack completed an update to the risk assessment. She concluded that respondent was best suited to treatment within the secure perimeter, which would ensure public safety. Dr. David Thornton, the commissioner's expert, prepared a report recommending against a transfer. He concluded that the level of security provided by CPS was sufficient, but respondent's treatment needs would be better met in the secure facility.
At the second hearing, the CPS operations manager testified that CPS is designed "to begin the process of deinstitutionalization." It is set up "more like a dormitory," clients have more autonomy, the doors are unlocked, and the units are not surrounded by razor wire. However, there are security cameras, and clients are required to wear a global-positioning system (GPS) tag, which actively monitors them. As clients progress at CPS, they are afforded additional opportunities to reintegrate, but they cannot begin to enter the community until they have reached phase three of treatment.
MSOP's clinical courts services director testified that MSOP's clinical leadership opposed a transfer. He stated that respondent was generally compliant with the rules, but felt that respondent's treatment would be hindered by increased independence.
Dr. Thornton opposed a transfer. He testified that respondent still struggled to come to grips with the reality of his sexual disorder and past offenses, and if respondent moved to CPS it would "make it significantly harder for him to address the issues that he needs to address to be essentially returned to the community." Dr. Mack also opposed a transfer and testified, generally, that respondent had a static, or unchanging, risk of reoffending, and persisting dynamic risks for reoffending, such as a hostility towards women, and a lack of awareness of that hostility.
Dr. Marshall acknowledged that respondent still needs treatment, but she supported a transfer. She testified that she was familiar with both CPS and treatment within the secure facility. Based on her interview with respondent and review of his records, she believed that he was "making more than satisfactory progress."
The CAP granted respondent's petition for transfer to CPS. The commissioner appeals.
DECISION
The commissioner argues that the record, as a whole, does not support the CAP's transfer findings. Before granting a petition for transfer to a less restrictive setting, the CAP must find by a preponderance of the evidence that transfer is appropriate in light of five factors: the committed person's clinical progress and treatment needs; the need for security to complete the person's continuing treatment; the need for institutionalization; the best facility for the person's needs; and whether a reasonable degree of public safety can be maintained. Minn. Stat. § 253D.28, subd. 2(e), .29, subd. 1 (2018).
We review the CAP's transfer decision for clear error, determining whether the record as a whole supports its findings. In re Civil Commitment of Edwards, 933 N.W.2d 796, 803 (Minn. App. 2019), review denied (Minn. Oct. 15, 2019). We do not reweigh the evidence. Id. We generally defer to the CAP's evaluation of expert testimony. See In re Commitment of Fugelseth, 907 N.W.2d 248, 256 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018). In this case, the CAP found Dr. Marshall's testimony more credible than that of Dr. Thornton and Dr. Mack.
A. Clinical Progress and Treatment Needs
In granting the transfer, the CAP made findings on each of the five factors. In finding that transfer was appropriate in light of respondent's clinical progress and treatment needs, the CAP found that respondent had "made significant progress in treatment since his civil commitment," that he regularly and actively engaged in programming, that he still needed additional treatment, but that he could accomplish that treatment at CPS. The record supports these findings.
MSOP's clinical courts services director opposed a transfer but acknowledged that respondent had made "significant progress." The initial SRB report and risk assessment also indicated progress. Although respondent's participation level varied, he regularly attended his programming. The initial SRB treatment report noted active participation, as did the initial risk assessment. Dr. Marshall testified that respondent's participation had "waxed and waned," but stated that this was typical and that respondent had a "willingness to actively participate." The CAP's finding that respondent regularly and actively engaged in programming is supported by the evidence.
The CAP's finding that respondent's treatment could be accomplished at CPS is also supported. MSOP's clinical courts services director testified that respondent could receive the same treatment at CPS. Dr. Marshall testified that respondent's treatment could be accomplished at CPS, and the CAP found that testimony to be credible. Dr. Marshall also felt that CPS could have a positive effect on respondent's treatment.
B. Need for Security
The CAP found that a secure facility is not required for respondent's ongoing treatment. The record supports this finding. Respondent's good behavior and adherence to rules is well documented. Dr. Marshall testified that there is sufficient security at CPS to accomplish respondent's remaining treatment needs. Dr. Thornton's report and testimony also indicated that the level of security provided by CPS is sufficient.
C. Need for Continued Institutionalization
The CAP found that "CPS will provide a sufficient level of institutionalization." The record supports this finding. Dr. Marshall testified expressly that CPS would provide "sufficient institutionalization." Additional evidence, previously discussed, supported the conclusion that respondent no longer required a secure treatment environment.
D. Best Facility for Respondent's Needs
The CAP found that CPS was the best facility because it offered the same treatment program, and because respondent's "need for deinstitutionalization and reintegration are high" and CPS will "very slowly aid in that process." The CAP also found that respondent possessed attributes "that will assist him with being successful at CPS, including being assertive and persistent, behaviorally regulated, and respectful of peers."
As previously discussed, the record supports the CAP's finding that CPS provides the same treatment programming as the secure facility. As for the CAP's finding on respondent's need for deinstitutionalization, Dr. Marshall testified that acquisition of reintegration skills was necessary because respondent had "been away from society for a long time." Regarding the CAP's finding that respondent possesses attributes that will aid him in a successful transfer, Dr. Marshall testified that respondent was "more knowledgeable than most" in regard to his treatment goals and dynamic-risk factors, and he openly acknowledged his struggles with that treatment. She testified that he had a "willingness to actively participate." The CAP's findings are supported by the evidence.
E. Public Safety
Lastly, in finding that transfer could be accomplished with a reasonable degree of safety for the public, the CAP found that respondent has "not been a safety or behavioral concern," and "CPS provides a number of safety measures." The record supports these findings. Evidence indicated that respondent consistently followed all rules and policies. The CAP received testimony on CPS's safety measures, such as GPS monitoring, and Dr. Thornton and Dr. Marshall both testified that the security at CPS is sufficient.
The commissioner argues that the majority of experts opposed transfer. But the issue is not whether the record supports contrary findings, the issue is whether the CAP clearly erred in its findings. Fugelseth, 907 N.W.2d at 256. As previously discussed, the CAP's findings are supported by the evidence, particularly in light of the CAP's credibility determinations.
The commissioner argues that the CAP misconstrued Dr. Mack's testimony. The CAP found that Dr. Mack's concerns were largely based on "high static risk, a risk based on historical factors and not taking into account [respondent's] progress in treatment or the security measures available at CPS." The commissioner argues that Dr. Mack did consider respondent's treatment progress and the security at CPS.
The commissioner is correct that Dr. Mack considered respondent's treatment progress and the CPS treatment environment. But rather than misconstruing Dr. Mack's testimony, the CAP simply did not find Dr. Mack's analysis persuasive as it related to the risks posed by respondent at CPS. Additionally, there was considerable evidence that respondent would not pose a safety risk at CPS. Dr. Thornton, the commissioner's own expert, testified as much. Respondent's records showed good behavior and adherence to rules, and the record indicates that respondent will not begin reintegration into the community until he reaches the final stage of treatment.
Affirmed.