Ted S. Zimba, Appellant, vs. Kevin Goodno, Commissioner of Human Services, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-897

 

 

Ted S. Zimba,

Appellant,

 

vs.

 

Kevin Goodno,

Commissioner of Human Services,

Respondent.

 

 

Filed October 19, 2004

Affirmed

Toussaint, Chief Judge

 

Judicial Appeal Panel

SCAP No. 227A

    David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)

 

Kerri Stahlecker Hermann, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

John L. Kirwin, Adult Services Section, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant, who was indeterminately committed as mentally ill and dangerous, challenges the judicial appeal panel decision denying his petition for a provisional discharge from the Minnesota Security Hospital to the Ah-Gwah-Ching Nursing Home.  Because there is support in the record for the Judicial Appeal Panel's decision determining that appellant is in need of continued treatment and supervision at the Minnesota Security Hospital and conditions of his provisional discharge plan do not provide reasonable protection to the public and will not enable him to adjust successfully to the community, we affirm.

FACTS

Appellant Ted Steven Zimba's psychiatric history began at age 18. When he was first committed as mentally ill, he was diagnosed with chronic alcohol abuse and schizophrenia, "a substantial psychiatric disorder of thought, mood, perception, orientation and memory, which grossly impairs his judgment, and behavior."  At that time, the allegation of dangerousness was dismissed, but just a few months after his commitment, he was in the Minnesota Security Hospital (MSH) for assaulting other patients and destroying property.  Zimba's history includes threats and assaults at various facilities in the 1980s and 1990s. 

Zimba has been the subject of fourteen commitment petitions and has been at most of the state hospitals and several nursing homes in Minnesota.  Zimba has consistently presented himself in an elevated or irritable mood, displayed disorganized and delusional thinking, and engaged in assaultive and violent behavior.   He has never had a successful adult adjustment and appears never to have been employed or lived independently in the community.  He also has never shown insight into his mental illness, and consistently denies that he is mentally ill or that he requires treatment.

The more recent facts impacting the current petition begin with Zimba, a white male, striking a nursing home patient, thinking she had called him a "n-gger."  In an October 10, 1997 order, he was committed as mentally ill, but was provisionally discharged to Colonial Place by October 24.  In a January 1998 report to the district court, his social worker stated, "He is still quite delusional, believing he is an African-American female, despite verified Caucasian status."  Despite his delusions, he received a discharge in March 1999 because he was managing himself better, in part due to the appointment of Elisabeth Flanders as his conservator.

In 2000, a series of events led to another petition for judicial commitment.  Zimba had again punched an elderly female patient at Colonial Place.  He had also punched a male nurse in the face twice.  After hospitalization and provisional discharge to Revere Home in June, he was readmitted to the hospital after verbally and physically abusing residents and staff.  In September, he again attacked a female patient, and it took three staff members to pull him off of her. 

Triggered by the September 2000 assault, Zimba was indeterminately committed as mentally ill and dangerous (MI&D) on September 28, 2001.  After his commitment, Dr. Farnsworth petitioned the Special Review Board for Zimba's provisional discharge to Ah-Gwah-Ching Nursing Home.  In January 2002, Dr. Jennifer Service, the MSH Clinical Director at St. Peter, noted that the treatment team fully supported a provisional discharge to Ah-Gwah-Ching and Dr. Gail Michaletz, a licensed psychologist at the MSH in St. Peter, also recommended that the provisional discharge be granted.  The Special Review Board recommended that the provisional discharge be granted conditioned on Zimba residing in the locked, all-male unit at Ah-Gwah-Ching Nursing Home. 

Just before Zimba was to be provisionally discharged, Hennepin County appealed the board decision to a three-judge panel.  While the appeal was pending, in May 2002, Zimba was not approved for transfer to the Forensic Transition Services Program, but the director of the program suggested that Ah-Gwah-Ching might work.  In an August 2002 assessment and psychological evaluation, Dr. Paul Reitman "opined that there is absolutely no sound clinical reason to transfer Mr. Zimba to a less structured facility."  But also in August 2002, licensed social worker at the MSH, Doreen Grimmius, stated that, at that time, Zimba had no barriers that would interfere with a provisional discharge to Ah-Gwah-Ching.  In September 2002, Dr. Michaletz reaffirmed her January report in which she recommended provisional discharge.  On October 24, 2002, the commissioner vacated the order granting provisional discharge, and the county agreed to withdraw the appeal because placement had not occurred within six months.

In January, June, and August 2003, Dr. Service assessed Zimba as doing well, medication compliant, and nonagressive.  In August, Zimba again petitioned for provisional discharge.  Zimba's treatment team did not change its recommendation for provisional discharge when, in January 2004, Zimba responded aggressively after a patient kicked him. 

On February 13, 2004, the three-judge panel conducted a hearing on the petition for provisional discharge initiated by Zimba's attorney.  Zimba took the stand and exhibited delusional behavior.  He told the panel that he was a Mormon, had at least three wives, and named some of his children.  He also stated that he has a neurotransmitter on his head to communicate with them.  He did not think he had a mental illness, did not recall hitting anyone, but remembered being arrested. 

The admissions director of Ah-Gwah-Ching testified that Zimba was appropriate for admission there, but they had no bed immediately available.  Frances Bly, Chief Operating Officer for the Department of Human Services, stated that the legislature intended to close Ah-Gwah-Ching and that the residents would be transitioned into community services no later than January 1, 2006.  She did not think that Zimba would be able to succeed with community services within two years and that an appropriate facility for MI&D patients, like Zimba, would be made available at the MSH in St. Peter.  She stated the department's position that a provisional discharge to Ah-Gwah-Ching "would be an unnecessary move for this client." 

Dr. Service testified that Zimba's aggression had been tied to noncompliance with his medications and that he had been nonaggressive at the MSH.  She understood that Ah-Gwah-Ching would likely close in two years, but thought that the higher quality of living would still justify the move.  She was not concerned that he would have any significant problems in his adjustment to the new facility and thought the provisional discharge plan provided a reasonable degree of protection to the public.  Psychologist Dr. Roger Sweet examined Zimba in January 2004 and concurred with Dr. Service that due to Zimba's period of stability, he should be able to transfer to the less secure and more pleasant surroundings of Ah-Gwah-Ching. 

None of the witnesses thought Zimba was presently ready for a transition to independent living.  Many opined that he would never live independently due to his low functioning and vulnerability.  The MSH transition team noted that he would not be accepted into their program because he is unable to manage his diet and money and to walk a block or so alone. 

Zimba's conservator since 1998, Elisabeth Flanders, testified that she thought MSH had done a very good job with Zimba in his two years there, but she was also aware of successes for some clients at Ah-Gwah-Ching.  But she did not think changes were good for Zimba.  Flanders stated that he "goes back a year or so every time something happens."  She worried about the closing of Ah-Gwah-Ching and the impact the move back to St. Peter would have. 

Dr. David Smith, Senior Psychiatric Social Worker in the MI&D unit of Hennepin County Adult Protection Services, was not as comfortable with Ah-Gwah-Ching as Dr. Sweet.  He noted some monitoring and reporting problems with other patients there.  He also stated that Zimba has had sexual-contact incidents in the past 24 months, indicating some vulnerability and predatory issues.  Dr. Smith had more personal experience with Ah-Gwah-Ching than other witnesses and did not recommend it for Zimba. 

The three-judge panel affirmed the commissioner's order denying the provisional discharge.  Zimba appealed. 

D E C I S I O N

In reviewing a decision by a judicial appeal panel, an appellate court must determine whether the evidence as a whole sustains the findings, but it will not reweigh the evidence.  Enebak v. Noot, 353 N.W.2d 544, 548 (Minn. 1984).  If the evidence sustains the findings, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.  Id. 

Zimba argues that he met his burden of proof for provisional discharge, and the commissioner's decision was not based on clear and convincing evidence. 

 A mentally ill and dangerous patient "shall not be provisionally discharged unless it appears to the satisfaction of the commissioner, after a hearing and a favorable recommendation by a majority of the special review board, that the patient is capable of making an acceptable adjustment to open society."  Minn. Stat. § 253B.18, subd. 7 (2002).  In determining whether a provisional discharge is appropriate, the commissioner should consider whether (a) the patient's "course of hospitalization and present mental status indicate there is no longer a need for treatment and supervision in the patient's current treatment setting" and (b) the provisional discharge conditions will provide a "reasonable degree of protection to the public and will enable the patient to adjust successfully to the community."  Id.  The party petitioning for discharge has the burden of going forward with the evidence, and the party opposing discharge has the burden of proving the need for commitment by clear and convincing evidence.  Minn. Stat. § 253B.19, subd. 2 (2002).

Zimba Continues to Need Treatment and Supervision at MSH.

The panel found and the evidence shows that Zimba has been hospitalized 17 times and that he remains mentally ill and delusional.  He does not think he is mentally ill or needs medication.  Awareness of mental illness and the need for medication are typical thresholds demonstrating progress in treatment.  Although the record shows that Zimba has had only one assault, which was provoked, in two years, his nonaggression is primarily due to medication compliance and the structured environment of MSH.  Dr. Mark Willenbring noted that "[c]ontinued compliance with medication is of the highest priority, . . . since even minimal noncompliance can lead to swift decompensation and violent behavior."  

Although concerns existed regarding the adequacy of the treatment setting at Ah-Gwah-Ching, the evidence showed no doubt that MSH was providing for him very well.  With those doubts about Ah-Gwah-Ching and testimony that it would be closed by January 1, 2006, the evidence as a whole supported the court's conclusion that Zimba continued to require what MSH offered himstability, appropriate medical and mental health care, a work program, and structure for his behavioral issues.

Reasonable Degree of Protection to Public and Patient Will Adjust to Community.

Zimba's conservator testified that she had seen him struggle in the past with his adjustment skills and was very concerned about the two adjustments involved in this proposed provisional discharge, one to Ah-Gwah-Ching and one back to MSH, in what would now be a temporary stay of about one year.  In addition, Ah-Gwah-Ching is also several hours from the metropolitan area which would involve a new treatment team. 

Also concerned about Zimba's ability to adjust was Dr. Willenbring, who emphasized that the transfer would be "a stressful process," requiring close monitoring and rapid intervention if decompensation occurred.  He also stated that the "threshold for revocation of the [provisional discharge] to Ah-Gwah-Ching should be low."  Frances Bly testified that the Department of Human Services "would not intentionally take a client through several moves like this when we knew that we were going to be closing the program at Ah-Gwah-Ching."

There were also doubts expressed that Ah-Gwah-Ching, a less-structured facility, could offer protection for the public.  Dr. Smith, opined that the patient population at Ah-Gwah-Ching fit the "victim profile" of Zimba's past assaults. He thought that without appropriate supervision, Zimba would "either engage in physically assaulting or sexually inappropriate behavior because both of those have been documented in the record from the hospital."

Although Zimba has not physically attacked a patient or staff member at MSH in two years, he had one incident of aggression and several inappropriate sexual contacts with other patients.  The record reflects that MSH's structure is critical to Zimba's improved behavior.  Despite the improvement, Dr. Reitman opined that Zimba "still possesses significant ‘red flags' for aggressive recidivism and has not made the appropriate strides" typical for such a transfer.  See In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (showing that even where there is no current aggression, continuing dangerousness may be shown by a patient's history of assaultive behavior, mental instability, chemical abuse, failed treatment, and lack of insight into mental illness). 

The three-judge appeal panel found that Zimba continues to demonstrate severe mental illness, including active delusions, requiring medication and close monitoring, and also continues to have no insight into his illness or need for treatment.  Despite his lack of violence while at the MSH, the panel found Zimba's temporary provisional discharge to Ah-Gwah-Ching would present an unreasonable risk of danger to vulnerable patients there.  The evidence supports the panel's findings.

Affirmed.