Keno C. Larson, Appellant, vs. Kevin Goodno, Commissioner of Human Services, Respondent.

Keno C. Larson, Appellant, vs. Kevin Goodno, Commissioner of Human Services, Respondent. A05-1846, Court of Appeals Unpublished, February 7, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1846

 

Keno C. Larson,

Appellant,

 

vs.

 

Kevin Goodno,

Commissioner of Human Services,

Respondent.

 

Filed February 7, 2006

Affirmed

Kalitowski, Judge

 

Judicial Appeal Panel

File No. AP059004

 

Ron Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN 55346 (for appellant)

 

Mike Hatch, Attorney General, Barbara Berg Windels, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2109; and

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

In this civil commitment case, appellant Keno C. Larson challenges the order of a judicial appeal panel denying his petition for transfer to a nonsecure setting.  We affirm.  

D E C I S I O N

 

In January 1997, appellant Keno C. Larson was found incompetent to stand trial on charges of first-degree burglary of an occupied dwelling, assault in the second degree, assault in the third degree, and assault in the fourth degree.  On August 27, 1997, the district court civilly committed appellant as mentally ill and dangerous to the Minnesota Security Hospital (MSH) for an indeterminate period. 

Appellant petitioned respondent Commissioner of Human Services for transfer to a nonsecure setting or discharge pursuant to Minn. Stat. § 253B.18, subds. 6, 15 (2004).  The Commissioner referred the matter to a special review board and, on its recommendation, denied appellant's petition.  Appellant then filed a petition for rehearing and reconsideration of the Commissioner's decision under Minn. Stat. § 253B.19, subd. 2 (2004).  A three-member judicial appeal panel heard the matter de novo, and appellant stated that he was only seeking transfer to an open hospital, not discharge.  The panel dismissed the appeal under Minn. R. Civ. P. 41.02(b), finding that appellant failed to establish a prima facie case that he is entitled to transfer.

An appellate court may reverse findings by a judicial appeal panel only if the decision is clearly erroneous.  Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985).   In reviewing a decision of the panel, 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 appeal panel's findings."  Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992) (quotation omitted).  "[I]t is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary."  Id. (quotation omitted).  The appeal panel's assessment of the credibility of experts has particular significance.  Id. 

When determining whether a transfer is appropriate,

[t]he following factors must be considered . . . :

(i)  the person's clinical progress and present treatment needs;

(ii) the need for security to accomplish continuing treatment;

                        (iii) the need for continued institutionalization;

(iv) which facility can best meet the person's needs;  and

(v) whether transfer can be accomplished with a reasonable degree of safety for the public.

 

Minn. Stat. § 253B.18, subd. 6.  The petitioner has the burden of showing by a preponderance of the evidence that transfer is appropriate under the statute.  Piotter, 490 N.W.2d at 919.

            Here, the judicial appeal panel concluded that appellant had not met his burden of establishing a prima facie case to show that a transfer was appropriate because appellant continues to need treatment in a secure setting to provide a reasonable degree of safety for the public and because MSH is the best facility at this time to meet appellant's treatment needs.

Appellant challenges the panel's denial of his petition, arguing that the decision is not supported by the evidence and that public safety does not require that he remain at MSH.  We disagree. 

1.         Secure treatment is needed to provide a reasonable degree of safety for the public

 

The judicial appeal panel found that appellant continues to need treatment in a secure setting to provide a reasonable degree of safety for the public. This finding directly addresses the factor listed in Minn. Stat. § 253B.18, subd. 6(v).  Further, this finding is supported by a report submitted to the panel by Dr. Alsdurf, a licensed psychologist familiar with appellant's case.  Dr. Alsdurf's report explained that appellant "continues to undulate in his clinical progress," "is not clearly stable," and "has not sufficiently addressed the range of treatment concerns that have been articulated."  Thus, Dr. Alsdurf concluded that appellant could not make an acceptable adjustment to open society yet, noting that appellant "needs to shift his focus from getting out to getting well" and that "his level of stability is not at the point that he assesses it to be at this time."

            The appeal panel acknowledged that appellant had made progress with his treatment, but noted that members of his treatment team did not believe his treatment had progressed sufficiently to support his transfer.  In recommending that appellant not be transferred from MSH, his evaluators cited appellant's psychiatric and behavioral instability, his failure to completely accept his mental illness, his history of decompensation and detrimental behavior after suffering disappointment, and his inconsistent statements about his intent to continue with his medication.  The reports of Dr. Alsdurf and members of appellant's treatment team provided sufficient evidence to support the finding that appellant continues to need secure treatment to provide a reasonable degree of safety for the public.  

Appellant argues that the evidence does not support the panel's conclusion that he remains so dangerous to the public that only MSH can treat him.  He cites Lidberg v. Steffen, 514 N.W.2d 779 (Minn. 1994), as support for his argument that he should be transferred to an open hospital because gradual integration into society could help him adjust to a less restrictive setting while continuing to protect the public.  But appellant's reliance on Lidberg is misplaced.  In Lidberg, the Minnesota Supreme Court upheld application of the discharge procedures in Minn. Stat. § 253B.18, subd. 15 (1992), to a provisionally discharged patient seeking full discharge.  514 N.W.2d at 783-84.  The Lidberg opinion does not support transferring a patient to a less secure setting when he has failed to establish a prima facie case for transfer.  Rather, the court's language supporting a patient's gradual integration into society referred to a patient who, unlike appellant, had already been determined to no longer require institutionalization.  Id.  

2.         MSH is the best facility to meet appellant's needs

 

The appeal panel found that MSH is the best facility to meet appellant's treatment needs at the time of its order.  This finding directly addresses the factor listed in Minn. Stat. § 253B.18, subd. 6(iv), and is supported by Dr. Alsdurf's statement that appellant's need for security continues "within a setting such as the security hospital and such a setting appears to be the most appropriate to address his treatment needs." 

Appellant contends that he should not be required to "run the bureaucratic maze of privilege and security levels needed to gain hospital staff support for a transfer" because "that is not what the law requires."  But members of appellant's treatment team may consider his commitment to his treatment and render their transfer recommendations accordingly.  And the appeal panel may in turn consider those recommendations.  See Minn. Stat. § 253B.19, subd. 2 (stating that the judicial appeal panel "shall hear and receive all relevant testimony and evidence"). 

Because the evidence supports the appeal panel's findings that appellant continues to need treatment in a secure setting to provide a reasonable degree of safety to the public and that MSH is the best facility to meet appellant's needs at this time, the judicial appeal panel did not clearly err by determining that appellant failed to make a prima facie showing that he should be transferred to an open hospital.        

            Affirmed.