This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-491

 

Dirk David Kemper,

Appellant,

 

vs.

 

Kevin Goodno,

Commissioner of Human Services,

Respondent.

 

Filed July 18, 2006

Affirmed

Worke, Judge

 

Judicial Appeal Panel

File No. AP059011

 

James S. Dahlquist, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN  55415 (for appellant)

 

Mike Hatch, Attorney General, Barry R. Greller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

John J. Muhar, Itasca County Attorney, Mary J. Evenhouse, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN  55744 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the judicial appeal panel’s decision to dismiss his petition for reconsideration of the commissioner’s denial of his request for transfer to an open hospital, or for a provisional or full discharge from his civil commitment as mentally ill and dangerous, appellant argues that (1) the state should have the burden of proving that he is in need of commitment and it failed to meet that burden, and (2) he could be treated more effectively in a less-restrictive setting.  Because the evidence as a whole supports the appeal panel’s findings, we affirm.

D E C I S I O N

            An appellate court will reverse a judicial appeal panel decision 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 appeal panel, the appellate 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). 

            In 1990, appellant Dirk David Kemper was indeterminately committed as a mentally ill and dangerous person.  Following a long history of psychiatric hospitalizations, appellant was admitted to the Minnesota Security Hospital in October 2002, as an emergency transfer from another facility.  In May 2005, the Commissioner of Human Services denied appellant’s request for a full or provisional discharge from his commitment or transfer to an open hospital.  In January 2006, appellant appealed the commissioner’s decision to the judicial appeal panel, which granted the state’s motion for summary judgment.  Appellant now argues that the appeal panel erred in holding that appellant failed to demonstrate any change in his condition that would warrant a change in his commitment status.  Appellant contends that this holding erroneously requires appellant to prove that a full or provisional discharge or transfer to an open hospital would be appropriate. 

            When considering a request for discharge from commitment, the appeal panel’s findings must address the statutory criteria for discharge of a patient committed as mentally ill and dangerous as set forth in Minn. Stat. § 253B.18, subd. 15 (2004). 

A patient who is mentally ill and dangerous shall not be 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, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.

 

Minn. Stat. § 253B.18, subd. 15.  The elements of a petition for transfer to an open hospital are set forth in Minn. Stat. § 253B.18, subd. 6 (2004).  “A patient who is mentally ill and dangerous shall not be transferred out of a secure treatment facility unless it appears to the satisfaction of the commissioner . . . that the transfer is appropriate.”  Minn. Stat. § 253B.18, subd. 6.  The factors to be considered when determining whether a transfer is appropriate are:

(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.

 

Id.  If the commissioner denies a request for discharge or transfer to an open hospital, the petitioner may petition for a rehearing and reconsideration by the judicial appeal panel.  Minn.Stat. § 253B.19, subd. 2 (2004).  “The petitioning party bears the burden of going forward with the evidence.  The party opposing discharge bears the burden of proof by clear and convincing evidence that the respondent is in need of commitment.”  Id. 

            Here, the appeal panel concluded that appellant failed to sustain his burden of presenting evidence to establish a prima facie case for a full discharge because he is not capable of making an acceptable adjustment to open society, he continues to be dangerous to the public, and he continues to need inpatient treatment.  The appeal panel also concluded that appellant failed to sustain his burden of presenting evidence to establish a prima facie case for transfer to an open hospital because

(a) he has failed to make clinical progress to warrant a transfer and his present treatment needs cannot be met in an open hospital; (b) he continues to need treatment in a secure setting; (c) his need for institutionalization cannot be met in an open hospital; (d) MSH is the facility best suited to meet his current treatment needs; and (e) transfer to an open hospital cannot be accomplished with a reasonable degree of safety to the public.

 

            Significant evidence exists to support the appeal panel’s conclusions.  First, appellant experienced a behavioral decline beginning in the spring of 2004.  He was moved to a more secure unit as a result of threats to “take out” a security counselor.  Appellant was also placed in protective isolation in May 2004, after he and two other patients pounded on office windows and picked up furniture, attempting to break the windows.  The facility was required to call in the local police to gain control of the situation.  Appellant was also hostile and orally aggressive towards hospital staff, and made several threats to harm staff in the summer and fall of 2005.  A threat of force was required on several occasions to encourage appellant to take his medication.  Additionally, appellant had not been participating in treatment and refused to address his chemical-dependency issue.  Finally, although appellant stated that if he were discharged, he would take his medication, he claimed that he really did not see the need to do so.  The court’s independent examiner testified that appellant has no motivation to participate in any form of treatment, continues to believe that he is not mentally ill, denies a need for psychotropic medication, minimizes his past aggressive behavior, and denies that he has been dangerous to others.  The appeal panel appropriately applied the statute that states that appellant bears the initial burden of establishing a prima facie case for discharge or transfer to an open hospital, which he failed to do.  The appeal panel’s findings sufficiently address the statutory criteria for a discharge or transfer to an open hospital and are clearly supported by the evidence. 

            Finally, the appeal panel did not err in affirming the commissioner’s denial of appellant’s petition for a provisional discharge because the evidence shows that appellant failed to present a provisional discharge plan to the special review board as required by Minn. Stat. § 253B.18, subd. 7 (2004).

            Affirmed.