Opinion
A22-0717
10-31-2022
In the Matter of the Civil Commitment of: Russell John Hatton.
Keith Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul, Minnesota (for appellant commissioner of human services) David Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent county) Michael Biglow, Biglow Law Office, Minneapolis, Minnesota (for respondent Russell Hatton)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Commitment Appeal Panel File No. AP20-9071
Keith Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul, Minnesota (for appellant commissioner of human services)
David Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent county) Michael Biglow, Biglow Law Office, Minneapolis, Minnesota (for respondent Russell Hatton)
Considered and decided by Segal, Chief Judge; Reilly, Judge; and Reyes, Judge.
SEGAL, Chief Judge
Appellant Minnesota Commissioner of Human Services challenges the decision of the Commitment Appeal Panel to grant the petition of respondent, who was committed to the Minnesota Sex Offender Program as a sexually dangerous person, for a transfer to Community Preparation Services. The commissioner argues that the panel committed various evidentiary errors and that the record does not support the decision to grant the transfer. We reverse.
FACTS
Respondent Russell John Hatton was indeterminately committed to the Minnesota Sex Offender Program (MSOP) in 2008 as a sexually dangerous person (SDP). His diagnoses include other specified paraphilic disorder and other specified personality disorder, with antisocial features. Hatton's civil commitment was based on a history of sexual misconduct and abuse against minor females, which we briefly summarize here.
The first instance occurred when Hatton was 16 years old and started a sexual relationship with D.N., who was 12 years old at the time. D.N. eventually became pregnant and gave birth to the first of her and Hatton's four children when she was 14 years old. Social services referred the matter to law enforcement for possible criminal charges, but D.N. was unwilling to move forward with a criminal case. D.N. later obtained a temporary harassment restraining order (HRO) against Hatton based on her allegations that Hatton threatened to kidnap their daughter and that she feared for her and family members' safety because Hatton had a violent temper. Hatton was arrested for violating the temporary HRO, but D.N. bailed him out of jail and he moved in with her family. The district court later dismissed the temporary HRO because D.N. did not appear for a hearing on the HRO.
In 2004, Hatton, then aged 23, sexually assaulted J.R., D.N.'s 15-year-old niece. J.R. was spending the night with D.N.'s family and fell asleep on a couch in the living room. When she woke up in the middle of the night, Hatton was sitting on the couch, rubbing J.R.'s buttocks. She pretended to be asleep and moved several times, and each time Hatton briefly stopped touching her before resuming. Hatton had J.R.'s pants partially undone, lifted up J.R.'s shirt, attempted to touch her breasts, and tried to pull her pants off.
He ultimately reached inside of J.R.'s underwear and digitally penetrated her vagina for approximately 20 minutes. Hatton stopped sexually assaulting J.R. and left the living room when J.R.'s grandmother started getting ready for work. After her grandmother left for work, J.R. ran to a neighbor's house and reported the sexual assault to the neighbor. She later provided both a handwritten and taped statement to the police.
The neighbor reported the abuse to J.R.'s grandmother the day it occurred. The neighbor also informed the grandmother that D.N.'s younger sister, C.N., had disclosed that Hatton had been sexually abusing C.N. for several years. The neighbor estimated that C.N. told her of at least ten instances of sexual abuse. The police took statements from C.N. She reported that the sexual abuse occurred when she was between the ages of 11 and 16 and that it had occurred most recently one week prior to making the report in July 2004. C.N. stated that the sexual assaults would generally start with Hatton touching her inappropriately and progress to sexual intercourse and that, when she tried to resist, Hatton would hold her down and hit and choke her. She also reported that Hatton threatened to harm her if she reported the sexual abuse, made holes in her bedroom door and window so that he could watch her, and wrote "sl-t" on her wall when she refused his sexual advances. C.N. said that she put a padlock on the inside of her bedroom door to try to keep Hatton out.
Hatton was charged with two counts of first-degree criminal sexual conduct against C.N. and one count each of first-degree and third-degree criminal sexual conduct against J.R. Pursuant to a plea agreement, Hatton pleaded guilty to third-degree criminal sexual conduct and the state dismissed all three first-degree criminal-sexual-conduct charges. In February 2005, the district court sentenced Hatton to 18 months in prison for third-degree criminal sexual conduct, stayed execution of the sentence, and placed Hatton on probation for 15 years. Hatton was required to complete sex-offender treatment as a condition of his probation, but he failed to do so. The district court revoked Hatton's probation and executed his sentence in October 2006.
The commissioner initiated the commitment proceedings while Hatton was still incarcerated. Hatton has been indeterminately committed at MSOP since 2008. Hatton participated in sex-offender treatment at MSOP until September 2013, when he withdrew his consent. He has been a non-participant since that time and has never progressed past phase one of MSOP's three-phase treatment program.
In January 2017, Hatton petitioned the Special Review Board (SRB) for a transfer, provisional discharge, or full discharge. The SRB issued a recommendation that all three requests be denied, and Hatton petitioned for rehearing and reconsideration by a commitment appeal panel (CAP). Following a hearing, the CAP denied the petition in its entirety and granted the commissioner's motion to dismiss.
At that time the CAP was known as the Supreme Court Appeal Panel.
In May 2019, Hatton again filed a petition for reduction in custody with the SRB. The petition form lists the different requests that a petitioner may ask the SRB to consider, including "Reduction in custody: transfer to Community Preparation Services (CPS), provisional discharge, and discharge from civil commitment." Hatton selected this option but circled "discharge from civil commitment" and crossed out the rest of the sentence. In March 2020, Rachel Mack, Psy.D., L.P., interviewed Hatton and prepared a sexual-violence risk assessment (SVRA). During the interview, Hatton told Dr. Mack that "as far as [he was] concerned CPS and provisional discharge are off the table." Dr. Mack nonetheless evaluated the criteria for all three types of relief, and opined that Hatton "does not meet the requirements for a transfer, a provisional discharge, or a full discharge from his civil commitment."
In April 2020, the SRB held a hearing on the petition. At the hearing, the SRB indicated that it would be considering a transfer to CPS or provisional discharge as available forms of relief in addition to Hatton's request for a full discharge. Following the hearing, the SRB recommended that Hatton be granted a transfer to CPS but denied a provisional or full discharge. The SRB's recommendation acknowledged that "although at one time [Hatton] expressed disinterest in CPS, he stated at the SRB hearing that he would engage in that program." The commissioner petitioned for rehearing and reconsideration of the recommendation to grant a transfer; Hatton petitioned for rehearing and reconsideration of the recommendations to deny a provisional or full discharge.
The CAP held a three-day hearing on the requests for rehearing and reconsideration of the SRB's recommendations. Hatton was the first witness to testify at the hearing. He testified that he started participating in sex-offender treatment following his final commitment in February 2008, but stopped participating in September 2013 due to changes in the program and the unavailability of chemical-dependency programming within MSOP. He further explained that he disagreed with the MSOP treatment plan's focus on past sexual conduct. Additionally, he testified that he believes that his diagnoses are "illegitimate."
After Hatton stopped participating in sex-offender treatment he began a study of "self-directed neuroplasticity." He explained that as part of that study he looked "back on [his] childhood experiences and the trauma [he] experienced" to get "a good understanding of all the contributing factors to the unhealthy habits" he formed and the risk factors "that contributed to [him] thinking that the behaviors and actions [he] was exhibiting were perceived as normal." He testified that he studies cognitive neuroscience and "look[s] at healthy behaviors and habits that are go[ing to] help [him] promote the quality of life and develop the interpersonal skills, problem-solving skills, all the skills that are necessary for [him] to be a healthy individual," both in MSOP and once he is released into the community. He further testified that his program incorporated cultural aspects specific to him as a member of the Roseau River Anishinaabe First Nation.
Hatton testified that he had been working with Lyle Wildes, whom Hatton described as a "brain coach." Hatton testified that, to his knowledge, Wildes does not hold any professional licensures and has not been educated in any mental-health field, but had created his own workbook that Hatton had been working on for the past year and a half. Hatton testified that he completed worksheets that he would then send to Wildes, who would provide feedback to Hatton. Hatton testified that he also worked with an organization affiliated with Wildes. Hatton acknowledged that he had received a behavioral expectations report for improperly soliciting financial donations from a vulnerable MSOP client for that organization. Hatton did not submit the workbook, worksheets, or feedback into the record, and Wildes did not testify at the hearing.
Finally, Hatton testified about his interest in transferring to CPS. He testified that he was interested in enhancing the skills he had developed at MSOP and the opportunity to work with "reintegration specialists [to go] through the step-down process to mak[e the] adjustment from an institute and into a community setting." He also believed that transfer to CPS "would give [him] that opportunity to step out of . . . [the] impoverished environment up here [at MSOP] compared to what [he] would determine as an enriched environment [at CPS]" and that he would "have more challenges" at CPS as compared to the repetitive environment at MSOP. Hatton acknowledged that he had previously withdrawn his consent to participate in group therapy and had not been participating for seven years. He nevertheless stated that he was interested in participating in sex-offender group therapy if he were transferred to CPS.
Tyler Dority, Ph.D., L.P., the court-appointed examiner, testified that he believed that CPS would be an appropriate environment for Hatton and recommended that the transfer be granted. He acknowledged that "there are aspects of the factors outlined in the statute for transfer that [Hatton] doesn't necessarily meet," but he did not "think that means that [Hatton] would absolutely fail in CPS." Dr. Dority also acknowledged that Hatton had made inconsistent statements regarding his willingness to participate in group therapy at CPS and that there was some evidence of "opportunism" in Hatton's shifting answers. Dr. Dority testified that he would "certainly agree" that there was evidence that it was unclear what Hatton might actually do if transferred to CPS. He opined that "[a] large part depends on whether [Hatton was] sincere about reengaging in treatment and engaging in the group modality" and that "it's not highly scientific, but . . . [he] was willing to give [Hatton] the benefit of the doubt."
Dr. Mack testified for the commissioner. She testified that Hatton "continues to present an undue safety risk" based on "his assessed level of risk on the actuarial assessments, as well as his lack of cooperation." She opined that his current environment "within the secure perimeter" at MSOP was "the most appropriate" to meet his needs and that he needed to "progress a little bit further in treatment" before being granted a reduction in custody. Dr. Mack was also concerned with Hatton's rule-violating behavior. Hatton received several behavioral expectation reports for behavior such as shouting "[y]ou have blood on your hands" at new MSOP employees, refusing to leave the yard to return to his living unit, and possessing contraband. Dr. Mack testified that Hatton's rule-violating behavior was evidence of "negative emotionality" and Hatton's unwillingness to cooperate with supervision, and this behavior would be exacerbated in the environment at CPS because it was less secure and structured. She ultimately recommended against transfer to CPS.
The CAP stated in its decision that it was not according any weight to Hatton's engagement in protest-type activity. We defer to the CAP's decision on the weight this evidence should be given.
Michelle Sexe, the CPS operations manager, testified about the differences between MSOP and CPS. She described the CPS campus as "an unlocked residential setting" that, unlike MSOP, was not surrounded by a razor wire fence. Sexe testified that CPS relies "on the therapeutic community to be [the] fence of CPS" and that "all clients are expected to contribute to the overall community culture." When asked to describe the types of clients who struggle at CPS, Sexe testified that they include individuals who are "not engaged in their therapeutic community," who "lack the ability to follow . . . rules and supervision" and who are "not able to give their peers feedback or hear feedback from their peers." Sexe testified that those who succeed include clients who are "engaged in their community," "have a lot of motivation for change," and "follow the rules."
Finally, Christopher Schiffer, the clinical courts service director, testified on behalf of the clinical leadership at MSOP. He described the three-phase treatment program at MSOP, and explained that the goal of phase one was "to help clients engage in treatment, to reduce any behaviors that might otherwise interfere with treatment, and to help an individual find reason to be in treatment." He explained that phase one was "intended to be relatively brief" and that the time it took to progress to phase two varied, but that it should not take years. Schiffer testified that Hatton is not addressing his treatment needs because he refuses to participate in treatment and that "he is primarily aligned with individuals who are in opposition to treatment and who do not collaborate or work with treatment and the treatment program." He further testified that clinical leadership at MSOP believed that Hatton's "behavior has been extremely disruptive to the healthy therapeutic community." He recommended against granting the transfer because he did not believe that CPS was best able to meet Hatton's treatment needs.
In March 2022, the CAP issued its decision granting Hatton's petition for a transfer to CPS and denying his requests for a provisional or full discharge. The CAP determined that "[a] preponderance of the evidence supports transfer at this time" and observed that "[t]ransfer might be the thing that finally propels Mr. Hatton to engage in treatment and directly address his sexuality and past sexual offending." One judge dissented from the decision to grant the transfer to CPS. The dissenting judge opined that "CPS is not the best location for Mr. Hatton given his lack of participation in treatment and lack of clinical progress thus far." The commissioner appealed the CAP's decision to grant a transfer to CPS. Hatton did not file a related appeal.
DECISION
We review the CAP's transfer decision for clear error. In re Civ. Commitment of Edwards, 933 N.W.2d 796, 803 (Minn.App. 2019), rev. denied (Minn. Oct. 15, 2019). Under the clear-error standard of review, it is not proper for this court to reweigh the evidence; rather the court's role is to review "the record to confirm that evidence exists to support the decision." In re Civ. Commitment of Kenney, 963 N.W.2d 214, 222 (Minn. 2021). In doing so, this court defers to the CAP's evaluation of expert testimony. In re Civ. Commitment of Fugelseth, 907 N.W.2d 248, 256 (Minn.App. 2018), rev. denied (Minn. Apr. 17, 2018).
Before granting a petition for transfer to CPS, the CAP must find by a preponderance of the evidence that transfer is appropriate in light of five factors: "(1) the person's clinical progress and present treatment needs; (2) the need for security to accomplish continuing treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person's needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public." Minn. Stat. § 253D.29, subd. 1(b)(1)-(5) (2020); see also Minn. Stat. § 253D.28, subd. 2(e) (2020) (stating that the "party seeking transfer . . . must establish by a preponderance of the evidence that the transfer is appropriate").
The CAP determined that "[t]here is ample evidence to support factors (2), (3), and (5) by a preponderance of the evidence" and observed that "[t]he main question is whether factors (1) and (4) can be satisfied by an individual who is a non-participant in treatment, given his clinical progress and present treatment needs, with the stated intention that he would participate in group treatment at CPS." The CAP therefore focused its analysis on whether transfer was appropriate in light of Hatton's clinical progress and present treatment needs, and which facility could best meet those needs. The CAP ultimately determined that, despite Hatton's history of non-participation, his treatment needs would be best met at CPS and granted the transfer. The commissioner argues that the CAP's decision is clearly erroneous.
We begin our analysis by observing that many of the underlying facts are undisputed. Hatton has not participated in MSOP's group therapy since 2013, and never progressed past phase one of the three-phase program. He remains an untreated sex offender in need of treatment, and his present treatment need is to reengage with the group-therapy program. As the CAP found, "CPS offers the same treatment program as within the secure perimeter . . . [and] has the same treatment expectation of group participation." CPS offers additional opportunities such as community outings, but Hatton would not be immediately eligible for those upon transfer. Rather, his specific treatment need is the group-therapy program that is offered at both the secure facility and CPS.
In determining that transfer was appropriate, the CAP found Dr. Dority's opinion to be more persuasive than Dr. Mack's opinion. And while "this court generally defers to the CAP's evaluation of expert testimony," we must nonetheless "determine from an examination of the record if the evidence as a whole sustains the CAP's findings." Edwards, 933 N.W.2d at 807.
Here, even though we defer to the CAP's determination that Dr. Dority's testimony was more persuasive, the evidence does not sustain the CAP's findings in at least one significant regard-whether Hatton has satisfied the statutory criteria set out in Minn. Stat. § 253D.29, subd. 1(b)(1), that he has made clinical progress. On that question, the CAP made the finding that Dr. Dority had opined that Hatton "satisfies the statutory criteria for transfer to CPS" and "shows overall clinical progress and insight, sufficient to support transfer to a less secure setting." But this finding mischaracterizes Dr. Dority's testimony.
Dr. Dority in fact testified that "there are aspects of the factors outlined in the statute for transfer that [Hatton] doesn't necessarily meet." He testified that "the obvious one is the clinical progress or continuing treatment needs. We can't say that he's made clinical progress within the structure of the MSOP treatment program . . . we've talked about that at length." Dr. Dority's opinion was that Hatton had achieved progress and overall personal growth, but not clinical progress. In addition, Dr. Dority observed in his report that Hatton's "progress is largely unmeasurable by any commonly accepted clinical or empirical means." He also acknowledged at the hearing that his recommendation was "not highly scientific" and was based on giving Hatton "the benefit of the doubt" that he would reengage in treatment if granted a transfer. The CAP's findings regarding Dr. Dority's opinion are therefore not supported by the record and are clearly erroneous.
Consideration of "clinical progress" is required in assessing whether a transfer is appropriate under the statute. Id. And the record here is devoid of any evidence of clinical progress. The CAP therefore clearly erred in determining that Hatton satisfied the criteria for transfer based on Dr. Dority's opinion. While we are sympathetic to the goal of allowing the transfer to CPS on the hope that Hatton will reengage in sex-offender treatment if he is placed there, that hope is not sufficient to satisfy the statutory requirements. With no evidence in the record to support that Hatton has made any clinical progress, we must reverse the CAP's decision to grant Hatton's petition for a transfer to CPS as erroneously granted.
Reversed.