In the Matter of the Civil Commitment of: Steven Loren Edwards.
A19-0194, A19-0239
STATE OF MINNESOTA IN COURT OF APPEALS
Filed July 22, 2019
Larkin, Judge
Reversed. Commitment Appeal Panel, File No. AP18-9025.
James Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant Attorney Attorney, Hastings, Minnesota (for appellant Dakota County)
Jennifer L. Thon, Steven D. Winkler, Warren J. Maas, Jones Law Office, Mankato, Minnesota (for respondent Steven Edwards)
Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold, Judge.
S Y L L A B U S
This court does not apply de novo review to a commitment appeal panel‘s decision on the merits of a petition for a reduction in custody under
LARKIN, Judge
Appellants challenge an order of a commitment appeal panel (CAP)1 granting, in part, respondent‘s petition for a reduction in custody under
FACTS
Respondent Steven Loren Edwards is a 47-year-old man with a history of alleged and proven criminal sexual conduct. In December 2000, a woman reported that respondent tried to rape her in a gas-station restroom. Respondent denied the allegation, and the state did not file charges. In July 2001, a woman reported that respondent masturbated in front of her and touched her breasts. Respondent admitted that conduct, but the state did not file charges. Also in July 2001, respondent physically and sexually assaulted a 15-year-old girl. He was later convicted of second-degree criminal sexual conduct for that offense. In September 2001, respondent held a pair of scissors to the neck of a 16-year-old girl, forced her to perform oral sex on him, and penetrated her vaginally and anally. He was convicted of kidnapping and first-degree criminal sexual conduct for that offense.
In June 2017, respondent petitioned the special review board (SRB) for transfer to community preparation services (CPS), provisional discharge, or full discharge. See
In September 2018, the CAP heard the matter. At the beginning of the hearing, respondent withdrew his request for full discharge, leaving the transfer and provisional discharge issues before the CAP. Respondent presented testimony from CPS Operations Manager Michelle Sexe and Forensic Evaluator Jennifer Tippett, Psy.D., in support of his request for a reduction in custody. See
After respondent presented his case, the commissioner moved to dismiss respondent‘s petition under
ISSUES
- Does this court apply de novo review to a CAP‘s decision on the merits of a petition for a reduction in custody under
Minn. Stat. § 253D.27 ? - Did the CAP err by granting respondent‘s petition for transfer to CPS?
ANALYSIS
I.
Appellants argue that this court should reverse because the CAP erred in concluding that respondent met his burden to show that transfer to CPS should be granted. Appellants alternatively argue that this court should remand because the CAP did not provide sufficient factual findings to enable this court to effectively review the CAP‘s application of the relevant statutory criteria de novo.
We begin by addressing the standard that applies to our review of a CAP‘s decision on the merits of a petition for a reduction in custody under
The parties’ suggestion that this court should review the CAP‘s ultimate decision on the merits of respondent‘s petition de novo is inconsistent with language in this court‘s published opinions indicating that we do not apply de novo review. But we recognize that language in some of those opinions mentions de novo review. We therefore take this opportunity to clarify our standard of review.5
The final issue we address is whether the [CAP‘s] findings in either 81-460 or 81-696 were clearly erroneous. The function of this court is not to weigh the evidence as if trying the matter de novo, but to determine from an examination of the record if the evidence as a whole sustains the [CAPs‘] findings. If it does so, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.
Johnson, 323 N.W.2d at 728 (emphasis added).
Later, in Jarvis v. Levine, this court applied the standard of review from Johnson when reviewing a CAP‘s order denying a request for transfer from a person committed as mentally ill and dangerous. 364 N.W.2d 473, 473-74 (Minn. App. 1985); see
The [CAP] will be reversed only if [its] decision was clearly erroneous. This court will not weigh the evidence as if trying the matter de novo, but must examine the record to determine
whether “the evidence as a whole sustains the [CAPs‘] findings.”
Jarvis, 364 N.W.2d at 474 (emphasis added) (quoting Johnson, 323 N.W.2d at 728).
Then, in Larson v. Jesson, this court indicated that the standard of review from Jarvis applies when this court reviews a CAP‘s order denying a petition for full or provisional discharge by a person committed as an SDP. 847 N.W.2d 531, 534 (Minn. App. 2014). In Larson, the CAP dismissed the petition for discharge under
Larson challenges the [CAP‘s] dismissal of his request for a discharge or a provisional discharge from MSOP. As a threshold matter, we must determine the appropriate standard for our review. Generally, this court reviews decisions by a [CAP] for clear error, “examining the record to determine whether the evidence as a whole sustains the [CAPs‘] findings” and not “weighing the evidence as if trying the matter de novo.” Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985) (quotation omitted). But we hold that when a [CAP] dismisses a petition under
Minn. R. Civ. P. 41.02(b) , the appropriate standard of appellate review is de novo.
Id. at 534 (emphasis added) (citation omitted); see
Although this court stated, in Larson, that it generally will not apply de novo review to a CAP‘s decision on a petition for a reduction in custody, this court subsequently used language that might suggest otherwise in Kropp. In that case, we reviewed a CAP‘s order
This court reviews a [CAP‘s] decision for clear error, examining the record to determine whether the evidence as a whole sustains the [CAP‘s] findings. In this review, we do not reweigh the evidence as if trying the matter de novo. If the evidence as a whole sustains the [CAP‘s] findings, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.
Kropp, 895 N.W.2d at 649-50 (emphasis added) (citations omitted). But we also included the following language, which raises the possibility of de novo review: “However, this court reviews de novo questions of statutory construction and the application of statutory criteria to the facts found.” Id. This court‘s reference to de novo review of questions of statutory construction is unremarkable. See In re Welfare of Children of J.L.G., 924 N.W.2d 9, 14 (Minn. App. 2018) (“This court reviews questions of statutory interpretation de novo.“). But this court‘s reference to de novo review of the application of statutory criteria to facts found could be read to suggest—for the first time—that we apply de novo review to a CAP‘s decision on the merits of a petition for a reduction in custody. For the three reasons that follow, our statement in Kropp should not be read to endorse de novo review.
First, such a reading would be inconsistent with our statement in Larson, as well as the supreme court‘s decision in Johnson on which it was based, that we generally do not weigh the evidence as if trying the matter de novo when reviewing a CAP‘s decision on a petition for a reduction in custody. This court honored that principle when reviewing the CAP‘s decision in Kropp by deferring to the CAP‘s reliance on certain testimony in support
Second, although this court has cited the standard of review set forth in Kropp when reviewing CAP decisions on the merits of petitions for a reduction in custody, its opinions do not reflect de novo review. For example, in In re Civil Commitment of Fugelseth, this court reviewed a CAP‘s order for full discharge of a person committed as an SDP and an SPP. 907 N.W.2d 248, 250 (Minn. App. 2018), review denied (Minn. Apr. 17, 2018). This court cited Kropp for the standard of review, stating:
This court applies a clear-error standard of review to a [CAP‘s] findings of fact by examining the record to determine whether the evidence as a whole sustains the [CAP‘s] findings. In doing so, we do not reweigh the evidence, and it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary. In addition, we apply a de novo standard of review to issues of statutory interpretation and to a [CAP‘s] application of the law to the facts of a particular case.
Id. at 253 (emphasis added) (quotations omitted).
Consistent with that statement, this court applied de novo review to an issue of statutory construction. Id. at 253-55. But when reviewing the CAP‘s decision on the merits of the petition for a reduction in custody, we deferred to the CAP‘s assessment of the evidence, stating:
The commissioner further contends that, in light of the [CAP‘s] erroneous understanding of the factual record, she did prove by clear and convincing evidence that Fugelseth still is
dangerous to the public. This contention is contrary to the principles that we do not reweigh the evidence and that it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary. The question is not whether the record could support a finding that Fugelseth still is dangerous to the public; the question is whether the [CAP] clearly erred by finding that Fugelseth no longer is dangerous to the public. The [CAP] considered conflicting evidence and determined that Herbert‘s testimony was entitled to more weight than Kunkel‘s testimony. This court generally will defer to a district court‘s evaluation of expert testimony.
Id. at 256 (first emphasis added) (quotations and citation omitted).
And in In re Civil Commitment of Duvall, another case involving review of a CAP‘s decision on a petition for a reduction in custody in the SDP/SPP context, we stated, “On appeal, we review a [CAP‘s] order granting provisional discharge for clear error.” 916 N.W.2d 887, 889-90 (Minn. App. 2018), review denied (Minn. Sept. 18, 2018). Although we cited Kropp for the principle that our review of the application of statutory criteria to facts found is de novo, we also said, “We review a [CAP‘s] decision for clear error and examine the record to determine whether the evidence as a whole sustains the [CAP‘s] findings. We do not reweigh the evidence.” Id. at 892-93 (emphasis added) (quotation omitted). We then rejected arguments that the CAP should have given more weight to certain testimony and less weight to other testimony, as well as arguments that it failed to consider certain evidence, reasoning, “In reviewing the [CAP‘s] order, we will not reweigh the evidence, and it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.” Id. at 894 (quotation omitted).
This court‘s refusal to reweigh the evidence before the CAPs in Fugelseth and Duvall, as well as its statements that it was immaterial that the records might have provided
Third, although an appellate court generally reviews the application of statutory criteria to facts found de novo, that principle is not applied to every application of statutory criteria. For example, we do not apply de novo review to a district court‘s child-custody determination, which is based on an application of statutory criteria. See
Moreover, in Kropp, this court relied on State v. Bunde, 556 N.W.2d 917, 918 (Minn. App. 1996), for the principle that the application of statutory criteria to facts found is reviewed de novo. 895 N.W.2d at 650. Bunde is a case in which this court relied on a statutory standard governing police conduct to determine whether an officer acted
For all of these reasons, we do not read Kropp to mean that this court applies de novo review to a CAP‘s decision on the merits of a petition for a reduction in custody, unless the CAP has ordered dismissal under
II.
We now turn to appellants’ argument that the CAP erred in concluding that respondent met his burden to show that transfer to CPS should be granted.
- the person‘s clinical progress and present treatment needs;
- the need for security to accomplish continuing treatment;
- the need for continued institutionalization;
- which facility can best meet the person‘s needs; and
- whether transfer can be accomplished with a reasonable degree of safety for the public.
In granting respondent‘s request for transfer, the CAP explained,
The [CAP] has considered all the evidence presented in this case. Dr. Tippett‘s opinion is well-supported and the [CAP] finds that CPS is the best facility to meet [respondent‘s] treatment needs. The need for security to accomplish [respondent‘s] continuing treatment is not needed at the same level of his current facility and CPS will provide adequate security. Although [respondent] requires continued institutionalization, he will progress in treatment with the deinstitutionalization opportunities offered at CPS. Additionally the [CAP] finds that a transfer can be made with a reasonable degree of safety for the public.7
According to Dr. Tippett,
[Respondent] made the decision to disengage from treatment and . . . remained heavily engaged in the therapeutic community and becoming a CREST guide, which is a conflict resolution program. He also worked on a large-scale craft project collaboratively with a number of other clients.
He was noted to speak up in community meetings to counsel others to practice emotional regulation and other . . . prosocial management tools.
However, Dr. Tippett also recognized that “[h]istorically [respondent] had great difficulty following rules and policies and maintaining what we call behavioral control. As he has progressed in treatment he has demonstrated an increased ability to follow those
The CAP obviously found Dr. Tippett‘s opinion persuasive, and this court “generally [defers] to a district court‘s evaluation of expert testimony.” Fugelseth, 907 N.W.2d at 256 (quotation omitted). But we also examine the record to determine whether the evidence as a whole sustains the CAP‘s findings. We therefore cannot ignore evidence from Dr. Tippett that speaks against transfer. For example, Dr. Tippett gave respondent a score of six on the Static-2002R, which places him in the above-average risk category. Dr. Tippett gave respondent a score of five on the Static-99R, which indicates an above-average risk for sexual reoffense when compared to a typical offender. Dr. Tippett agreed that respondent‘s treatment participation in the past few years has been “on and off.” Moreover, Dr. Tippett reported, “When looking at a transfer, of concern is [respondent‘s] propensity to break rules. The degree to which he has engaged in rule breaking behavior has decreased over the years, although he is still given to difficulty in this area.” Dr. Tippett testified that “there continue to be difficulties with intimacy and other things which we‘ve
Other witnesses echoed the concerns raised by Dr. Tippett. For example, MSOP Clinical Director Peter Puffer testified that the MSOP clinical leadership does not support respondent‘s request for transfer because he has issues with “mistrust,” “sexuality,” and “developing healthy appropriate relationships with other people,” and because he does not demonstrate insight about “the dynamics that underlie the actual sexual abuse of other people.” According to Puffer, respondent “is a Phase II client who has not demonstrated actively that he has an understanding of why he committed the offenses that he committed.”
After interviewing respondent and reviewing his records, court-appointed examiner Dr. Kenning did not support the petition for transfer. Dr. Kenning was involved in respondent‘s initial commitment proceeding and has “known him for a long time.” Dr. Kenning explained that respondent still needs the external controls, security, and structure provided at his current treatment facility. Like Dr. Tippett, Dr. Kenning gave respondent a score of six on the Static-2002R, which places him in the above-average risk category. Dr. Kenning testified that respondent‘s risk for recidivism is “pretty high,” noting that he falls between “above average [and] well above average.”
As to Dr. Tippett‘s acknowledgment that respondent‘s participation in treatment has been “on and off,” the record indicates that he participated in treatment from 2011 to 2014, and then stopped attending. Dr. Kenning reported that respondent “returned to groups in April 2016 and by the second half of the year he was participating consistently. However,
As to Dr. Tippett‘s concern regarding respondent‘s history of violating program rules, Dr. Kenning testified that he “continues to exhibit antisocial behavior,” “has a very strong problem with rules and regulations,” and has a “history of dysfunctional coping.” Dr. Kenning also noted concerns with respondent‘s “grievance based thinking.” She testified that he “has quite a collection of poor-me stories.” When asked to elaborate, she explained, “Well, I think they‘re the things that cause his wrangles with staff. He tends to see himself as the person who‘s poorly treated in those interactions and doesn‘t seem to have much insight into his contributions to those things.”
The record documents respondent‘s issues with staff and peers. In February 2016, respondent punched a peer for allegedly grabbing one of his compact discs. In October 2016, respondent reportedly swore at staff. In April 2017, respondent verbally assaulted one of his therapists. Respondent was upset because there was an error regarding one of his offenses in a mental-health report. After he experienced difficulty trying to change the report, respondent yelled homophobic slurs at the therapist who made the error.
When CPS Operations Manager Michelle Sexe was asked about the characteristics of a patient who is successful at CPS, she responded,
[D]efinitely being a voice of the therapeutic community meeting; having developed internal controls to follow the rules; being able to confront their peers when they are not following the rules, and if that does not work it would require that they let staff know that another client is struggling; working collaboratively with the—all treatment staff at CPS.
Sexe voiced concern regarding the transfer to CPS of any individual who has a history of verbal aggression toward staff.
In sum, although the record supports the CAP‘s finding that, in theory, respondent will have deinstitutionalization opportunities at CPS,9 it also shows that respondent‘s participation in treatment has been inconsistent, that he continues to have treatment needs related to the antisocial personality disorder that accounts for his sexual offenses, that he has had difficulty complying with the rules and expectations of his current treatment program, and that he has engaged in physically and verbally aggressive behavior. This record does not support the CAP‘s findings that CPS is the best facility to meet respondent‘s needs, that less security is necessary to accomplish respondent‘s continuing treatment, that CPS will provide adequate security, that respondent will progress in
Again, this court generally defers to the CAP‘s evaluation of expert testimony such as Dr. Tippett‘s. Fugelseth, 907 N.W.2d at 256. But, as the supreme court noted in Johnson, a reviewing court must “determine from an examination of the record if the evidence as a whole sustains the [CAP‘s] findings.” 323 N.W.2d at 728. And unlike other cases in which this court has affirmed the CAP‘s grant of a petition for a reduction in custody, in this case, the evidence as a whole does not support the CAP‘s findings. See Duvall, 916 N.W.2d at 894 (noting that petitioner “achieved the privileges of his current treatment plan, maintained a community-based support system, acted in a leadership role in the therapeutic community, and prepared for his transition into the community“); Fugelseth, 907 N.W.2d at 256 (noting that the petitioner “has a low risk of recidivism, has had privileges in the community on a regular basis without incident, has a strong support network, and has completed all recommended treatment programming“).
D E C I S I O N
Because the evidence as a whole does not support the CAP‘s findings, the CAP erred by granting respondent‘s request for transfer. We therefore reverse.
Reversed.