This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1710

 

 

David Aanerud,

Appellant,

 

vs.

 

Michael O’Keefe,

Commissioner of Human Services,

Respondent.

 

 

Filed February 20, 2001

Affirmed
Foley, Judge
*

 

Judicial Appeal Panel

File No. 172-A

 

 

T. Oliver Skillings, Halverson Law Office, P.O. Box 3544, Mankato, MN  56002-3544 (for appellant)

 

Mike Hatch, Attorney General, Narda M. Jones, David Rowley, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2127 (for respondent Commissioner of Human Services)

 

Donald F. Ryan, Crow Wing County Attorney, Eric S. Westphal, Assistant County Attorney, 326 Laurel Street, Brainerd, MN  56401-3564 (for respondent Crow Wing County)

 

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant, who was committed as mentally ill and dangerous, seeks review of the decision by the judicial appeal panel, which affirmed the decision by the Commissioner of Human Services denying his petition for transfer from the Minnesota Security Hospital. We affirm.

FACTS

            Appellant David Aanerud has a long history of psychiatric hospitalizations, chemical abuse, and violent behavior.  In 1994, the district court committed him to the Minnesota Security Hospital for an indeterminate period as mentally ill and dangerous.  He now seeks transfer to a less restrictive facility.

            Appellant is presently diagnosed with schizophrenic disorder in partial remission, chemical dependency, and antisocial personality disorder.  He voluntarily takes medication for his condition, and attends various treatment groups.

            The judicial appeal panel received conflicting evidence as to whether transfer to an open hospital was appropriate.  Dr. Thomas Stapleton, a psychiatrist, evaluated appellant’s condition for the hearing.  Based on appellant’s insight, compliance with medication, abstinence from chemicals, and need for treatment, Dr. Stapleton recommended transfer to the open hospital.  Appellant testified, acknowledging that he is mentally ill and needs to take medication and explaining his version of various incidents that occurred.

            Bruce Stewart, a licensed psychologist familiar with appellant’s current treatment, testified that although appellant’s participation in some aspects of treatment, including chemical dependency, was good, he needs continued treatment to address issues concerning his antisocial personality disorder.  Placement at the security hospital was still necessary, based on the more structured program and decreased access to chemicals.

            Dr. Kluznik, appellant’s former treating psychiatrist, testified that appellant’s insight into his mental illness waxes and wanes with his condition.  While recognizing that appellant has been clinically stable, Dr. Kluznik did not believe he was ready for transfer, based on his severe psychological condition, the potential for further improvement, and the risk of relapse and regression should appellant be transferred prematurely.  He also found the security hospital more appropriate based on the close observation and quick intervention available. 

            While it appeared that appellant was stable, participating in treatment, and maintaining his medications, the panel concluded that transfer would be premature and counterproductive.  Finding no open hospital was capable of meeting appellant’s needs and determining that appellant continues to represent a potential danger to the public, the appeal panel affirmed the commissioner’s order denying appellant’s petition for transfer. Aanerud appeals.

D E C I S I O N

            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). The appeal panel’s assessment of the credibility of experts has particular significance.  Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992).  The appellate court must determine whether the evidence supports the findings.  Enebak v. Noot, 353 N.W.2d 544, 548 (Minn. 1984).

            A person subject to an indeterminate commitment as mentally ill and dangerous may petition the Commissioner of Human Services for transfer only pursuant to Minn. Stat. § 253B.18, subd. 6 (1998).  If the commissioner denies the petition, the patient may then petition a judicial appeal panel for rehearing and reconsideration.  Minn. Stat. § 253B.19, subd. 2.

            In considering whether a transfer should be granted, the following five 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.  Appellant contends that the appeal panel incorrectly relied on opinion evidence by Dr. Kluznik predicting appellant’s behavioral successes or failures, rather than relying on his actual behavior as required by these factors.  He contends proper application of the factors shows transfer is appropriate.

            The district court was clearly presented with two opinions.  Dr. Kluznik and psychologist Stewart believed that appellant needed to gain more control over his antisocial personality disorder before his condition will be stable enough for transfer to an open hospital and that the more structured setting was still necessary.  Further, he must prepare for the transition to the less restricted facility.  In contrast, Dr. Stapleton opined that appellant’s condition was sufficiently stable, and that he was ready for the new challenges of the open hospital.

            While appellant contends that the appeal panel improperly relied on Dr. Kluznik’s predictions as to his future behavior, the facts show that he testified extensively as to appellant’s present condition and the reasons transfer was not yet appropriate.  The appeal panel was entitled to credit the members of the treatment team, who were more familiar with appellant’s condition, rather than the expert who evaluated appellant for the hearing.  See Piotter, 490 N.W.2d at 919-20 (recognizing that greater weight may be given to opinions of treating professionals familiar with case rather than opinion of professional who briefly examined patient).  The appeal panel applied the proper standard and was not clearly erroneous.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.