Opinion
A19-1444
02-03-2020
In the Matter of the Civil Commitment of: Cormell Williamson.
Keith Ellison, Attorney General, Michael N. Leonard, Assistant Attorney General, St. Paul, Minnesota (for appellant commissioner of human services) Jill Avery, Templeman Law, PLLC, Minneapolis, Minnesota (for respondent Cormell Williamson)
This opinion will be unpublished and may not be cited except as provided by Minn .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. AP18-9078 Keith Ellison, Attorney General, Michael N. Leonard, Assistant Attorney General, St. Paul, Minnesota (for appellant commissioner of human services) Jill Avery, Templeman Law, PLLC, Minneapolis, Minnesota (for respondent Cormell Williamson) Considered and decided by Cleary, Chief Judge; Hooten, Judge; and Smith, Tracy M., Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
Appellant commissioner of human services appeals the Commitment Appeal Panel's (CAP) grant of respondent's petition for transfer to Community Preparation Services (CPS). We affirm.
FACTS
Respondent Cormell Williamson is a 42-year-old male who has been civilly committed to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person and sexual psychopathic personality since February 2009. Respondent's sexual-offense history includes sexually assaulting a four-year-old female when he was 13 years old, an eight-month-old female when he was 14 years old, an eight- or ten-year-old female when he was 22 years old, and a seven-year-old male when he was 22 years old. He participated in various forms of sex-offender treatment prior to his commitment to MSOP. Respondent is currently in Phase II of MSOP's three-phase treatment program.
In April 2017, respondent petitioned the Special Review Board (SRB) for transfer to CPS, provisional discharge, and discharge. After a hearing, the SRB issued its findings and recommended denying respondent's petition. Respondent filed a petition for rehearing and reconsideration before the CAP. In February 2019, the CAP held a hearing at which respondent withdrew his petition for discharge and provisional discharge, and the matter proceeded only on respondent's petition for transfer to CPS.
The CAP heard testimony from Christopher Schiffer, on behalf of MSOP's clinical leadership, and the department of human services's forensic evaluator, Dr. Mallory Obermire, both of whom did not support transfer. The court-appointed examiner, Dr. George Komaridis, testified in support of respondent's transfer petition. The CAP also heard testimony from the CPS operations manager, Michelle Sexe, regarding security and policies at CPS. Respondent also testified.
In July 2019, the CAP granted respondent's petition for transfer to CPS, finding that respondent met the statutory factors for transfer under Minn. Stat. § 253D.29, subd. 1(b) (2018). The commissioner appeals.
DECISION
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: 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(b)(1)-(5) (2018). The commissioner argues that the record does not support the CAP's findings on the statutory factors.
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. And we defer to the CAP's evaluation of expert testimony. See In re Civil Commitment of Fugelseth, 907 N.W.2d 248, 256 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018). The CAP found that transfer to CPS was appropriate under the statutory factors. Each factor is addressed in turn.
A. Clinical Progress and Treatment Needs
The CAP found that respondent "has begun to make significant clinical progress" in treatment. It found that respondent's current treatment needs include work in the areas of sexuality, healthy lifestyle, and pro-social problem solving. It concluded that respondent could continue to work on these areas at CPS and would also have the benefit of additional opportunities that CPS offers.
The commissioner contends that the record as a whole does not support the panel's findings on this factor. The commissioner points to evidence in the record indicating that respondent has not developed internal controls and therefore will not be successful in the less-secure setting at CPS.
Dr. Komaridis testified that, despite respondent's previous negative attitude toward treatment, he noted "a very positive turn" in respondent's behavior. Respondent became highly engaged and transparent and has made a strong effort to try to break through his issues with trust and divulgence. Dr. Komaridis's report indicates that, over the course of 2018, respondent demonstrated "significantly increased" engagement with MSOP treatment. His treatment team indicated that his motivation has improved. According to respondent's treatment progress reports, his matrix scores have increased in 2018. The quarterly treatment reports from October 2018 and January 2019 indicate that respondent attended nearly all core-group therapy sessions and psychoeducational modules. Moreover, the April 2019 SRB treatment-report update indicates that, since the SRB hearing, respondent has demonstrated an increased level of engagement in treatment, he has been attentive in groups, receives feedback well, and has been a positive peer. Schiffer also testified that, as of recently, respondent has made progress, has participated more consistently in treatment, and is learning to accept challenging feedback. Additionally, Schiffer testified that respondent was selected to serve as an individual with whom other clients can consult to resolve conflict.
A metric that MSOP uses to evaluate progress.
One issue of concern from MSOP was respondent's unwillingness to discuss the problematic results of his penile-plethysmograph (PPG), which indicated equal arousal to children and adults. But the record indicates that respondent has been addressing the results of his PPG in his core therapy group.
The commissioner argues that respondent has not progressed sufficiently in treatment to warrant transfer because he "has substantial remaining Phase II treatment goals." But this assertion is without merit because Sexe testified that over half of the clients at CPS are in Phase II of treatment. And Dr. Komaridis testified that respondent can continue his current treatment at CPS. The evidence in the record reasonably supports the CAP's findings on this factor.
B. Need for Security
The CAP found that the level of security at CPS is sufficient because respondent has demonstrated active engagement in treatment. It found that respondent had shown transparency and that he was no longer adhering to a "criminal code."
The commissioner argues that CPS lacks the security necessary to ensure that respondent remains rule compliant. The commissioner argues that respondent tends to follow rules only when he is being observed and to admit rule breaking only when caught.
The commissioner raises concern over Behavioral Expectation Reports (BERs) that respondent received in December 2018 and January 2019. Of the most significance is the "bathroom incident," during which respondent went into the bathroom with two other clients for seven or eight minutes. The two clients admitted to engaging in sexual activity, and there was speculation that respondent took money in exchange for not reporting this conduct. Respondent reported that he went into the bathroom to clean while working building maintenance when two clients were engaging in sexual behavior. He told the peers to stop but indicated that he was not going to report their behavior. He denied engaging in any sexual activity or taking money from the clients.
The commissioner argues that "[t]he record supports the conclusion that [r]espondent at least considered taking money in connection with this incident." But the question on appeal is not whether the record supports the commissioner's position; the question is whether the record reasonably supports the CAP's findings. Fugelseth, 907 N.W.2d at 256. Dr. Komaridis testified that respondent's version of events was plausible. The CAP credited respondent's version of events and found that respondent has since processed the incident in treatment.
Respondent also had two other BERs for braiding another client's hair and for transferring a deck of cards to another client. Dr. Komaridis acknowledged these BERs but testified that they were technical violations of a zero-tolerance system at MSOP. He opined that these BERs were not reflective of respondent's antisocial personality, nor that they would hinder his chance of success at CPS.
The commissioner argues that Dr. Komaridis's report erroneously states that respondent had no BERs in 2018. But during his testimony, Dr. Komaridis acknowledged the error and testified regarding the BERs. --------
In early 2018, respondent stated that he would not "snitch" on peers or hold other peers accountable for negative behavior. The commissioner contends that this shows that respondent continues to adhere to a "criminal code," that he will not hold peers accountable, and that he therefore will not succeed in the less-structured setting at CPS.
Evidence in the record indicates that respondent has transitioned away from his adherence to a "criminal code." Dr. Komaridis testified that respondent has shown more transparency and openness to reevaluating his behaviors. The latest treatment report indicates that respondent has been open to discussing how he has engaged in criminal thinking in the past, particularly in relation to the bathroom incident. This report also notes that the number of BERs respondent has received has "significantly decreased" over the last year. Moreover, when respondent received a BER in the past, he would disengage from treatment and isolate himself; this time, however, he remained active in treatment and has explored the incident on multiple occasions. Dr. Obermire's April 2019 report also acknowledges that respondent is open to discussing his criminal thinking.
Dr. Komaridis testified that CPS has an appropriate level of security. He testified that respondent's whereabouts will have to be accounted for on a daily basis because he is required to wear a GPS monitoring system at CPS. Schiffer also testified that there was nothing in respondent's individual treatment plan that could not be completed in the less-restrictive setting at CPS. The record supports the CAP's findings on this factor.
The commissioner contends that the panel should disregard Dr. Komaridis's testimony because he stated that he was "not specifically familiar" with the security at CPS. But this is an attack on Dr. Komaridis's credibility. We defer to the CAP's credibility determinations. Edwards, 933 N.W.2d at 805. Moreover, the commissioner points to testimony by Dr. Obermire and Schiffer indicating that respondent would benefit from continuing his treatment within the secure perimeter at MSOP. But under the clear-error standard, that evidence in the record might support a different conclusion is not enough to warrant reversal. See Fugelseth, 907 N.W.2d at 256.
C. Need for Continued Institutionalization
The CAP found that CPS will provide a sufficient level of institutionalization for respondent's needs.
Similar to the above factor, the commissioner argues that the panel erred in relying on Dr. Komaridis's testimony regarding the supervision and security at CPS and points to respondent's adherence to the "criminal code." The commissioner argues that respondent requires a more institutionalized setting with his current progress in treatment.
Dr. Komaridis testified that respondent must transfer out of institutionalization in a gradual way, and that CPS is the next step in that transition. And the record indicates that respondent has become more motivated in treatment, has taken steps in addressing his previous criminal thinking, and is willing to explore rule-breaking incidents. Again, the record shows that nothing in respondent's treatment plan requires the more-institutionalized setting at MSOP. The record supports the CAP's finding on this factor.
D. Best Facility for Respondent's Needs
The CAP found that CPS would better fit respondent's needs because he would benefit from the more prosocial environment at CPS. The CAP found that the environment at CPS would allow petitioner to more effectively work on developing empathy, challenging his antisocial personality disorder, and addressing his sexual deviance.
The commissioner argues that Dr. Komaridis's testimony revealed uncertainty about which facility would best suit respondent's needs. The commissioner points to Schiffer's and Dr. Obermire's opinions that the secure perimeter at MSOP is best suited to meet respondent's treatment needs.
Dr. Komaridis testified that he did not know which facility was best, but that he believed respondent's chance for success at CPS is "good enough . . . that [he] would recommend the transfer." Moreover, Dr. Komaridis testified that respondent has utilized the treatment resources available to him at MSOP and would benefit from the additional resources available to him at CPS. Dr. Komaridis testified that CPS would allow him to continue his treatment efforts but would also give him the benefit of having additional challenges of working on issues such as self-control. He explained that CPS would allow respondent to move forward in a more expanded way than if he were to continue at MSOP's secure facility.
Moreover, Schiffer testified that there is programming at CPS that would allow respondent to address his pedophilia diagnosis and issues relating to hypersexuality. CPS would permit him to continue his current treatment and continue to attend core groups. The record supports the CAP's findings that CPS is the best facility for respondent's needs because it shows that he can continue with his current treatment but also benefit from the additional resources available at CPS.
E. Public Safety
The CAP found that this factor also supports transfer because CPS provides safety measures and because respondent will not be given community privileges until he progresses from Phase II to Phase III in treatment.
The commissioner did not appear to specifically challenge this factor on appeal. Nonetheless, the record supports the CAP's findings on this factor. Dr. Komaridis testified that respondent would not be a risk to the public if he was transferred to CPS. He explained that respondent's whereabouts will be accounted for on a daily basis because he will be required to wear a GPS-monitoring system at CPS.
Moreover, Sexe's testimony supports the CAP's finding that CPS will provide sufficient safety measures. She explained that the GPS-monitoring system immediately notifies staff if a client is in an area where he is not supposed to be. She further testified that a client in Phase II of treatment would remain on the CPS campus and would not have opportunities for community engagement. She explained that clients in Phase II of treatment are not permitted to wander the CPS campus on their own. This testimony supports the CAP's findings that CPS has sufficient security measures to maintain a reasonable degree of public safety.
Affirmed.