This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-273

In the Matter of: Dawn Arbutus Lenvik.

Filed June 11, 1996

Dismissed

Huspeni, Judge

Hennepin County District Court

File No. P29560079

William L.H. Lubov, 2445 Park Avenue South, Minneapolis, MN 55404 (for Appellant Lenvik)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for Respondent Hennepin County)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

On October 19, 1995, the trial court committed Dawn Lenvik for an indeterminate period as mentally ill and dangerous. Lenvik moved for amended findings. On December 4, 1995, the trial court issued an order upholding its October 19, 1995, decision. On February 5, 1996, Lenvik filed a notice of appeal from the trial court order of December 4, 1995. This court questioned jurisdiction and the parties submitted memoranda. We conclude the appeal was taken from a nonappealable order and dismiss.

FACTS

On January 4, 1995, Lenvik attempted to drown her two young sons in the bathtub. Lenvik's mother intervened to save the boys and then called 911. The officers who arrived on the scene arrested Lenvik. After she tried to commit suicide at the jail, she was taken to the Hennepin County Medical Center.

Lenvik was charged with attempted murder in the second degree. A psychologist concluded that Lenvik had experienced a psychotic disorder at the time of the offense, and the trial court found her not guilty by reason of mental illness.

A hearing was subsequently held to determine whether Lenvik should be committed as mentally ill and dangerous. The parties stipulated that Lenvik was mentally ill and that she had committed an overt act when she attempted to drown her two sons. At issue was whether there was a substantial likelihood she would engage in acts capable of inflicting serious physical harm on another. After considering conflicting expert testimony, the trial court determined Lenvik was mentally ill and dangerous and committed her to the Anoka Metro Regional Treatment Center. She appealed the initial commitment, and this court affirmed. In re Lenvik, No. C0-95-1296 (Minn. App. Sept. 12, 1995).

At the review hearing, Dr. Robert Baumer, Lenvik's treating psychiatrist and the medical director of Anoka Metro Regional Treatment Center, and Dr. Thomas Folsum, a psychiatrist and respondent's witness, testified. Dr. Baumer diagnosed Lenvik with schizoaffective disorder, depressed subtype, with psychotic features currently in remission. Dr. Folsum offered a similar diagnosis of schizoaffective disorder, but could not rule out bipolar affective disorder.

Again, at the review hearing, the only issue was as to the likelihood Lenvik would engage in future dangerous behavior. The psychiatrists arrived at different conclusions. Dr. Baumer believed there was a very low likelihood, while Dr. Folsum offered the opinion that Lenvik was at great risk to cause harm in the future. On October 19, 1995, the court made indeterminate Lenvik's commitment to the Anoka Metro Regional Treatment Center as mentally ill and dangerous.

Lenvik moved to amend the findings. On December 4, 1995, the court rejected Lenvik's arguments and upheld its earlier indeterminate commitment. On February 5, 1995, Lenvik filed a notice of appeal from the December 4, 1995, order.

D E C I S I O N

1. A commitment order or judgment may be appealed within 60 days after the order or entry of judgment. Minn. Stat. ' 253B.23, subd. 7 (1994). The order and judgment making Lenvik's commitment indeterminate was entered on October 19, 1995. The February 5, 1996, notice of appeal (filed more than 60 days after entry of the order and judgment) cannot be construed as a timely appeal. Id. This court does not have authority to extend the time to file a notice of appeal. See Minn. R. Civ. App. P. 126.02 (appellate court may not extend time for filing notice of appeal); Township of Honner v. Redwood County, 518 N.W.2d 639, 641 (Minn. App. 1994) (supreme court has not extended authority to this court to accept jurisdiction over untimely appeal), review denied (Minn. Sept. 16, 1994).

In the December 4, 1995, order from which Lenvik attempts to appeal, the court denied her motion for amended findings. An order denying amended findings is not an appealable order. Welch v. Commissioner of Pub. Safety, ___ N.W.2d ___ (Minn. App. Apr. 9, 1996). The motion for amended findings did not extend the time to appeal from the underlying judgment. See id.

Although we conclude that we must dismiss this appeal, we note that the supreme court has sometimes extended review to commitment appeals, despite the presence of jurisdictional challenges or defects. We examine those cases in order to determine whether we might comment on the merits of this matter.

In In re Jost, 437 N.W.2d 89, 90 (Minn. App. 1989), review granted (Minn. June 9, 1989), the patient brought an appeal from an order denying a motion for amended findings or a new trial after the time to appeal from the judgment had expired. This court concluded that a commitment proceeding is a "special proceeding" and that the commitment act did not authorize an appeal from a post-decisional order and dismissed the appeal as being taken from a nonappealable order. Id. at 91. The supreme court reversed, holding that under the commitment act, a post-decisional motion for a new trial is authorized as in other civil cases and that a timely appeal may be taken from the order denying a new trial. In re Jost, 449 N.W.2d 719, 721 (Minn. 1990). In noting that Jost's failure to appeal was caused in part by delay in consideration of his request for counsel, the supreme court stated:

That factor, coupled with the compelling nature of these proceedings, i.e., that an individual is deprived of liberty by virtue of the trial court's action, should have prompted the court of appeals, even if it concluded that the order was not appealable, to consider Jost's appeal in the interest of justice, rather than dismiss on a technical procedural ground.

Id.

In Clements v. Gomez, No. C1-95-1663 (Minn. App. Nov. 21, 1995), rev'd and remanded (Minn. Jan. 12, 1996), this court held that the appeal was untimely. The judicial appeal panel had rejected the patient's request for reconsideration of the denial of his petition for discharge from commitment and the clerk of appellate courts failed to serve notice of filing until after the appeal time had expired. Clements, unpub. op at 2-3. This court noted the supreme court's ruling that the supreme court could accept jurisdiction over an untimely appeal in the interests of justice. Id. at 5 (citing State v. M.A.P., 281 N.W.2d 334, 336-37 (Minn. 1979)). This court, citing Honner, 518 N.W.2d at 641, noted further, however, that the court of appeals did not have authority to exercise jurisdiction over an untimely appeal in the interests of justice. Id. The supreme court reversed and remanded to this court for consideration of the merits in the interests of justice, citing M.A.P., 281 N.W.2d at 336-37. Clements v. Gomez, No. C1-95-1663 (Minn. Jan. 12, 1996).

This case does not fit neatly into the rationale of either Jost or Clements. As in Jost, 449 N.W.2d at 721, Lenvik's liberty interests are involved here. Unlike the patient in Jost, 449 N.W.2d at 721, however, Lenvik brought no motion for a new trial. In the absence of such a motion, we conclude that we cannot consider the merits of this appeal.

Unlike the patient in Clements, Lenvik's appeal was taken within 60 days of the order. Unlike Clements, however, this case involves no delay attributable to the courts. Further, although the supreme court ultimately remanded Clements to this court for consideration "in the interests of justice," the supreme court did not find that this court erred by not undertaking such consideration initially; nor did the supreme court indicate that this court did, in fact, have the authority in the first instance to consider matters "in the interests of justice."

Because we can find no basis in either Jost or Clements to support consideration by this court of the merits of Lenvik's appeal, we reluctantly conclude that we must dismiss the appeal as being taken from a nonappealable order.

2. We are hesitant, however, to prolong this matter or to contribute to additional expense for the parties. The procedural history of Jost and Clements suggests that, upon a petition for review, the supreme court may extend review in the interests of justice and remand this case to us for consideration on the merits. We, therefore, address the merits briefly.

After an initial commitment, if the court finds the person continues to be mentally ill and dangerous, the commitment shall be made indeterminate. Minn. Stat. ' 253B.18, subd. 3 (1994). The burden lies with the state to establish by clear and convincing evidence that the statutory requirements for commitment continue to be met and no appropriate less restrictive alternative is available. Minn. R. Civ. Commitment 12.06; In re Verhelst, 350 N.W.2d 494, 495 (Minn. App. 1984).

A determination that a patient continues to be mentally ill and dangerous requires in relevant part clear and convincing evidence that "there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another." Minn. Stat. ' 253B.02, subd. 17(b)(ii) (1994). "Dangerousness may be demonstrated by past conduct together with a determination the person is likely to engage in future violent conduct." In re Lufsky, 388 N.W.2d 763, 766 (Minn. App. 1986).

The supreme court has held that when the record as to dangerousness is such that the trial court was arguably free to continue the commitment, but was not compelled to do so, this court should not reverse the trial court's decision as clearly erroneous. See In re Colbert, 454 N.W.2d 614, 615 (Minn. 1990). The trial court's determination of credibility is of particular significance when the finding rests almost entirely on expert witness testimony. In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).

Lenvik challenges only the determination that there is a substantial likelihood she will cause serious physical harm. While she also argues that commitment as mentally ill would be the least restrictive alternative, she did not phrase her argument this way in the motion for amended findings. We believe the more appropriate focus is whether the court had clear and convincing evidence as to her dangerousness.

Lenvik's argument would require this court to credit Dr. Baumer's opinion over Dr. Folsum's view. The supreme court has cautioned that on a record such as this, it is within the trial court's province to decide whether to continue the commitment. Colbert, 454 N.W.2d at 615. While both experts provided extensive, thoughtful testimony as to the basis for their opinions, the trial court decided to credit Dr. Folsum's opinion. We believe the trial court's decision to make Lenvik's commitment indeterminate would not be clearly erroneous.

Dismissed.