In the Matter of the Civil Commitment of: Keith Roy Harding.

In the Matter of the Civil Commitment of: Keith Roy Harding. A07-802, Court of Appeals Unpublished Decision, October 9, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-802

 

In the Matter of the Civil Commitment of:
Keith Roy Harding.

 

Filed October 9, 2007

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 27-MH-PR-06-192

 

 

Roderick N. Hale, 270 Grain Exchange North Building, 301 Fourth Avenue South, Minneapolis, MN  55415 (for appellant)

 

Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, A-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent state)

 

 

            Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Appellant challenges his continued civil commitment as a developmentally disabled person, arguing that the evidence is insufficient to support the district court's determination that he is developmentally disabled and that the district court's findings were insufficient as a matter of law.  We affirm.

FACTS

 

On September 26, 2005, appellant Keith Harding was charged with two counts of soliciting a child to engage in sexual conduct, a violation of Minn. Stat. § 609.352, subd. 2 (2004).  The district court determined that there is probable cause to believe that Harding committed the offenses and ordered a competency evaluation under Minn. R. Crim. P. 20.01.  After receiving two competency evaluations that diagnosed Harding with "mild mental retardation," the district court found Harding incompetent to assist in his defense, suspended the criminal proceedings, and referred Harding for a preliminary psychological screening. 

In April 2006, the district court found that Harding meets the statutory criteria for civil commitment as a developmentally disabled person because his "recent conduct resulting from his developmental disability poses a substantial likelihood of physical harm to [him]self or others."  It also found that the least-restrictive alternative disposition was to stay the execution of his civil commitment on the condition that Harding cooperate with recommended programming, testing, and treatment directives, particularly those limiting his contact with minors.  Harding agreed to this disposition.

Contrary to the terms of the stay of execution, Harding completed only one treatment assignment and continued to have contact with minors in the community.  In July 2006, the treatment center discharged Harding and recommended placement in closely supervised sex-offender treatment.  Hennepin County Social Services moved to vacate the stay.  Granting the motion, the district court vacated the stay and ordered Harding committed to the Commissioner of Human Services with placement at the Minnesota Extended Treatment Options (METO) program.  Harding did not challenge the district court's decision to vacate the stay of commitment.

Within six months after the district court's decision to vacate the stay of commitment, psychological and social-services assessments were filed, recommending that Harding's commitment be continued.  Heidi Madsen, a METO psychologist, opined that Harding "has [a] significant sexual attraction to prepubescent male children . . . [, which] meets [the] criteria for Pedophilia."  Madsen also concluded that Harding should continue to participate in treatment and remain under direct supervision of staff at all times.  Connie O'Brien, a METO social-services evaluator, observed that Harding "actively resisted engaging in treatment for more than three months and did not cooperate with treatment recommendations, including the directive to avoid contact with minors."  O'Brien recommended that Harding continue to "participate in developing and following his treatment plan at METO."

            The district court conducted a review hearing on February 12, 2007.  Harding testified that his mother has taken care of him his entire life, including paying his rent and purchasing his clothing.  Dr. Scott TenNapel, clinical director for METO, testified that Harding has "mild mental retardation" and meets the statutory criteria for commitment as a developmentally disabled person.  Dr. TenNapel opined that Harding is not capable of meeting his own basic needs and continues to present the same danger to children's safety that he did at the time of his stayed commitment.  Dr. TenNapel concluded that Harding needs continued treatment and supervision at METO.

Dr. Thomas Alberg, an independent examiner, testified that Harding has never provided for his own basic needs and, whether or not he is soliciting sex from minors, others believe that he is, which makes Harding vulnerable to retaliation by others.  Dr. Alberg concluded that Harding continues to be developmentally disabled and needs continued treatment.  Because Harding failed to comply with the terms of the stay of commitment, he opined that METO is the only program that currently can meet Harding's needs.

            Based on its finding that Harding continues to meet the statutory criteria for involuntary commitment as a developmentally disabled person, the district court committed Harding to METO for an indeterminate period, finding that METO is the least-restrictive available placement.  This appeal followed.

D E C I S I O N

We review the district court's factual findings for clear error, deferring to the district court's credibility determinations and its resolution of conflicting evidence.  Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  We review de novo whether the evidence as a whole provides sufficient support for the district court's legal conclusion that the statutory grounds for civil commitment have been met.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).    

A civil commitment is governed by the Minnesota Commitment and Treatment Act, codified at Minn. Stat. §§ 253B.01-.23 (2006).  To civilly commit a person as developmentally disabled, the district court must find by clear and convincing evidence that a person is "developmentally disabled" within the meaning of the civil-commitment statute.  Minn. Stat. § 253B.09, subd. 1 (standard of proof in judicial commitment by clear and convincing evidence); cf. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995) (reviewing civil commitment of person who is "mentally ill").  The statute defines a developmentally disabled person as

any person:

(a) who has been diagnosed as having significantly subaverage intellectual functioning existing concurrently with demonstrated deficits in adaptive behavior and who manifests these conditions prior to the person's 22nd birthday; and

(b) whose recent conduct is a result of a developmental disability and poses a substantial likelihood of physical harm to self or others in that there has been (i) a recent attempt or threat to physically harm self or others, or (ii) a failure and inability to obtain necessary food, clothing, shelter, safety, or medical care.

 

Minn. Stat. § 253B.02, subd. 14. 

After the initial commitment period, commitment may be continued indeterminately if the district court finds by "clear and convincing evidence that (1) the person continues to be . . . developmentally disabled . . . ; (2) involuntary commitment is necessary for the protection of the patient or others; and (3) there is no alternative to involuntary commitment."  Minn. Stat. § 253B.12, subd. 4; see also Minn. Stat. § 253B.13, subd. 2 (allowing commitment of developmentally disabled person for an indeterminate period subject to periodic reviews required by section 253B.03, subdivisions 5 and 7, and the patient's right to seek judicial review of continued commitment).  A patient continues to be developmentally disabled if the patient is "likely to attempt to physically harm self or others, or to fail to provide necessary personal food, clothing, shelter, or medical care unless involuntary commitment is continued."  Minn. Stat. § 253B.12, subd. 4.  But the district court need not find that there has been a recent attempt or threat by the patient to physically harm self or others or a recent failure to provide necessary personal food, clothing, shelter, or medical care, as is required for initial commitment.  Id.  Before the review hearing, the patient has a right to an independent examination by an examiner chosen by the patient, and that examiner's report may be submitted at the hearing.  Minn. Stat. § 253B.12, subd. 3.

I.

Harding argues that the district court erred by determining that the evidence is sufficient to support the conclusion that he continues to be a developmentally disabled person.  The record establishes that the district court's determination that Harding continues to be developmentally disabled because he is likely to harm himself or others or is likely to fail to provide for his basic needs is well founded.

The district court's determination is based on the psychological and social-services assessments conducted during Harding's treatment at METO and testimony from the February 12, 2007 review hearing.  In her assessment, Madsen observed that Harding has a history of attempting to have sexual contact with children, has a significant sexual attraction to prepubescent male children, and meets the criteria for pedophilia.  O'Brien opined in her assessment that Harding actively resisted engaging in treatment and did not cooperate with the directive to avoid contact with minors.  Both evaluators recommended that Harding continue to participate in treatment at METO.

Expert testimony also supports the district court's determination.  Dr. TenNapel opined that Harding satisfies the conditions of a developmentally disabled person and that Harding is not capable of meeting his basic needs.  He opined that Harding continues to present the same danger to children's safety that he did at the time of his stayed commitment because he has made no progress in treatment that would moderate that risk.  Dr. TenNapel concluded that Harding is likely to attempt physical harm to either himself or to others if his commitment is not continued because of Harding's low general intelligence and impulsivity.  Dr. Alberg also testified that Harding continues to be developmentally disabled and in need of treatment.  He concluded that Harding has not provided for his own basic needs and places himself in situations in which he is vulnerable to others.

Contrary to Harding's assertions, the record provides substantial support for the district court's determination that Harding is likely to harm himself or others or is likely to fail to provide for his basic needs.  Accordingly, the district court's conclusion that Harding continues to be developmentally disabled is proper.  

II.

Harding also argues that the district court failed to make adequate findings regarding whether he continues to be developmentally disabled and whether less-restrictive alternatives to his continued commitment are available.  A finding that a person continues to be developmentally disabled and requires further commitment must be made on the record.  Minn. Stat. §253B.12, subd. 7.

Where continued commitment is ordered, the findings of fact and conclusions of law shall specifically state the conduct of the proposed patient which is the basis for the final determination, that the statutory criteria of commitment continue to be met, and that less restrictive alternatives have been considered and rejected by the [district] court.  Reasons for rejecting each alternative shall be stated.

 

Id.

First, Harding argues that the district court's finding that he continues to be developmentally disabled is inadequate.  The district court found that Harding's conduct resulting from his developmental disability poses a substantial likelihood of physical harm to himself or to others because "he has a history of soliciting sex from children and/or placing himself in situations where others believe [Harding] is soliciting sex from children."  Harding argues that this finding is inadequate because "plac[ing] himself in situations where others believe he is soliciting sex from children" is not evidence of harm.  But Harding fails to recognize that, by behaving in a manner that causes others to believe he is soliciting sex from minors, Harding provokes harm from others.  Dr. Alberg testified that, whether or not Harding is soliciting minors, he places himself "in situations where people believe he is, and people are going to be likely to do something to assault him[,] to retaliate against him, [or] to subdue him."  Thus, because Harding is likely to harm himself by provoking others, the district court's finding that Harding is developmentally disabled is adequate on this basis.  See In re Gonzalez, 456 N.W.2d 724, 729 (Minn. App. 1990) (holding that commitment was appropriate when person's behavior would bring about harm on himself because it "may outrage others and result in an attack on him").  Harding's argument, therefore, fails.   

Furthermore, the district court found that Harding demonstrates his continued developmental disability because he has "never provided for his own basic needs" and, without civil commitment, he will fail to obtain necessary food, clothing, shelter, or medical care.  The statutory criteria for continued commitment as a developmentally disabled person require that Harding is "likely to attempt to physically harm [him]self or others, or to fail to provide necessary personal food, clothing, shelter, or medical care."  Minn. Stat. § 253B.12, subd. 4 (emphasis added).  Here, each criterion is met.  Therefore, the district court's finding that Harding continues to be developmentally disabled is adequate. 

Harding also argues that the district court's finding regarding whether less-restrictive alternatives to indeterminate civil commitment at METO are available is inadequate.  The district court must state that less-restrictive alternatives have been considered and rejected and specify the reasons for rejecting each alternative.  Minn. Stat. § 253B.12, subd. 7.  Section 253B.09, subdivision 1, provides in pertinent part:

If the court finds by clear and convincing evidence that the proposed patient is a person who is . . . developmentally disabled . . . and after careful consideration of reasonable alternative dispositions . . . it finds that there is no suitable alternative to judicial commitment, the [district] court shall commit the patient to the least restrictive treatment program or alternative programs which can meet the patient's treatment needs . . . . In deciding on the least restrictive program, the [district] court shall consider a range of treatment alternatives including . . . the proposed patient's treatment preferences and willingness to participate voluntarily in the treatment ordered.

 

The district court found that there is "no suitable alternative disposition" and that "[t]he least restrictive, appropriate, available placement is commitment to the Commissioner of Human Services and Minnesota Extended Treatment Options."  But the district court's order also states that it "has not considered less restrictive alternatives because this matter is brought under [Minn. R. Crim. P.] 20.01, and the underlying criminal charges have not been dismissed." 

Rule 20.01, subdivision 4(2)(b), requires felony criminal proceedings to be suspended on a finding of incompetency, and the district court to "cause civil commitment proceedings to be instituted."  It further provides that the commitment "shall be subject to supervision of the [district] court as provided by Rule 20.01, subd. 5."  Rule 20.01, subdivision 5, provides in pertinent part:

[T]he prosecuting attorney shall be notified of any proposed institutional transfer, partial institutionalization status, and any proposed termination, discharge, or provisional discharge of the civil commitment.  The prosecuting attorney shall have the right to participate as a party in any proceedings concerning such proposed changes in the defendant's civil commitment or status.     

 

If a defendant is found incompetent and "is under civil commitment" under Minn. Stat. §§ 253B.01-.23, "the civil commitment shall be continued."  Minn. R. Crim. P. 20.01 cmt.  If after a competency hearing the defendant is found competent, the criminal proceedings shall resume.  Id.

Here, Harding's continued commitment did not involve a change in institutions, status, termination, or discharge.  And this proceeding was not a subsequent hearing under rule 20.01 to determine Harding's competency.  Rather, this proceeding was brought under Minn. Stat. § 253B.12, subd. 4, to determine whether Harding's civil commitment should be continued.  This determination requires the district court to find that less-restrictive alternatives have been considered and rejected and to specify the reasons for rejecting each alternative.  Minn. Stat. § 253B.12, subd. 7.  Nothing in rule 20.01 precludes the district court from fulfilling this requirement.  Therefore, the district court erred by finding that it need not consider less-restrictive alternatives if the matter involves rule 20.01 competency proceedings when the underlying charges have not been dismissed.  But because the record is clear that METO is the least-restrictive placement available for Harding, this error is harmless. See Roberson v. Roberson, 296 Minn. 476, 478, 206 N.W.2d 347, 348 (1973) (stating that when "the record is reasonably clear and the facts not seriously disputed, the judgment of the [district] court can be upheld in the absence of [district] court findings"); In re Adams, 352 N.W.2d 117, 119 (Minn. App. 1984) (holding that findings in civil-commitment case were sufficient when district court found generally that no community-based treatment program would accept appellant). 

Ordinarily, a district court relies on expert opinions to determine which commitment facility is the least-restrictive alternative.  See, e.g., In re Miner, 424 N.W.2d 810, 815 (Minn. App. 1988) (holding that commitment to security hospital for mentally ill and dangerous defendant was least-restrictive alternative available was supported by expert testimony), review denied (Minn. July 28, 1988).  Although the district court's order for Harding's continued commitment lacks the findings prescribed by Minn. Stat. § 253B.12, subd. 7, the uncontroverted evidence presented by expert psychologists establishes that METO is the least-restrictive placement available for Harding at this time.  Dr. TenNapel testified that Harding continues to require treatment and supervision at METO.  In a less-restrictive setting, he concluded, Harding would be unable to sufficiently care for himself or to refrain from activity that would put himself and others at risk.  Dr. Alberg also testified that Harding should continue his commitment at METO and that it would not be sufficient to release Harding to live with his mother.  The district court was entitled to credit the experts' testimony.  See Minn. R. Civ. P. 52.01.  And the record is devoid of any evidence that a less-restrictive alternative to METO would be in Harding's best interests.  Accordingly, the circumstances do not warrant a remand for a finding that commitment to the Commissioner of Human Services and METO is the least-restrictive placement for Harding.

            Affirmed.