This opinion will be unpublished and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

A06-456

 

In the Matter of the Civil Commitment of:
Mohammad-Tawfik Sader.

 

Filed August 22, 2006

Affirmed

Peterson, Judge

 

Anoka County District Court

File No. P2-02-71950

 

Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for appellant)

 

Warren John Maas, 7964 Brooklyn Boulevard, #107, Brooklyn Park, MN 55445 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            This appeal is from an order denying a petition to indeterminately commit respondent Mohammad-Tawfik Sader as a person who is mentally ill and dangerous to the public.  Because the record as a whole provides substantial support for the district court’s findings and the findings support the district court’s conclusion that Sader does not meet the statutory criteria for commitment as a person who is mentally ill and dangerous to the public, we affirm.

FACTS

            In 2002, a petition was filed to commit Sader as a person who is mentally ill and dangerous to the public based on a series of traffic accidents and other incidents.  On August 14, 2001, Sader was driving a car at a high rate of speed when he rear-ended another car, and the driver of the other car was killed.  Sader was charged with criminal vehicular homicide.  Psychological evaluations conducted as part of the criminal prosecution indicate that at the time of the incident, Sader did not fully appreciate the consequences or wrongfulness of his actions, supporting a mental-illness defense.

            On April 10, 2001, Sader went to a hospital seeking treatment for weight loss and sleeplessness; he was given some prescription medication and released.  A few hours later, on April 11, 2001, Sader drove his vehicle into a mailbox and was hospitalized; he claimed that the FBI was involved in the accident and the hospitalization.  On June 9, 2001, Sader was hospitalized after he was found running naked in the street covered in blood resulting from self-inflicted stab wounds.  Also in June 2001, Sader crashed his car in Duluth and was found walking on the highway.  Sader stated that he had driven to Duluth after leaving his home in Blaine to go out for “a cup of coffee.”  On July 13, 2001, police received a report that Sader answered his door wearing no clothes.

            The district court appointed a psychiatrist, John Kluznik, M.D., to examine Sader.  Sader failed to appear at initial hearings on the petition, and in October and November 2002, the district court issued apprehension and hold orders.  Sader had also failed to appear in court on the criminal-vehicular-homicide charges, and a bench warrant was issued for his arrest.  It was later learned that Sader had sold his belongings and left the state, driving to Colorado and California.  In 2004, Sader was arrested in Minnesota on the warrant, and the commitment proceeding continued.  Kluznik examined Sader and reported to the district court in December 2004 that in his opinion, Sader was mentally ill and dangerous.  On Sader’s request, the district court appointed a second examiner, psychologist Paul Reitman, Ph.D. 

            On February 15, 2005, a commitment hearing was held under Minn. Stat. § 253B.18, subd. 1(a) (2004).  The parties stipulated to admitting into evidence the criminal complaint, the psychological evaluations prepared for the criminal proceeding, a prepetition screening report by social worker Beth Greffin, Kluznik’s report, and Reitman’s report.  No testimony was offered, and Sader stipulated that the record as submitted was sufficient to support the conclusion that he was mentally ill and dangerous.  In a February 24, 2005 order, the district court determined that Sader was mentally ill and dangerous and committed him to the Minnesota Security Hospital.

            On October 18, 2005, a review hearing was held to determine whether Sader should be committed indeterminately.  Psychologist John Fabian and psychiatrist Karen Bruggemeyer, M.D., testified.  Fabian had provided the district court with the 60-day written treatment report required under Minn. Stat. § 253B.18, subd. 2(a) (2004), which recommended that Sader be indeterminately committed as mentally ill and dangerous and placed at the Minnesota Security Hospital.  At Sader’s request, the district court had appointed Bruggemeyer as a second examiner.

            Bruggemeyer, who had previously worked as a senior staff forensic psychiatrist at the Minnesota Security Hospital, testified that based on her evaluation of Sader on August 21, 2005, it was her opinion that he was currently psychotic.  Bruggemeyer based this opinion on statements by Sader that he had a device implanted into his brain by either the FBI or the group Hamas, that he was under surveillance, and that the FBI wanted him to fight the war on drugs.  Sader told her that the device was a force he could not control and had to follow even though he knew it was not right.  Bruggemeyer testified that she asked Sader several times to clarify whether he was referring to the past or the present, and he indicated it was “a continuum” since August 2001 and sometimes it was better and sometimes it was not.

            Bruggemeyer diagnosed Sader with schizo-affective disorder.  Bruggemeyer explained that an individual with this illness suffers from a thought disorder as well as a mood disturbance, such as mania or depression, or both, and that the thought disorder persists even when the mood disorder is in remission.  Bruggemeyer testified that during her evaluation of Sader, she did not see evidence of the mood disorder, but did see evidence of the thought disorder.  Bruggemeyer also testified that Sader was not receiving any medication for either disorder, that there was a risk that he would flee again if released, and that there was a continuing and ongoing risk of serious physically harmful behavior if he were released without treatment.  Finally, Bruggemeyer testified that there was no less-restrictive alternative than commitment to the Minnesota Security Hospital as mentally ill and dangerous, and that commitment as simply mentally ill was not an appropriate disposition because Sader would not cooperate with treatment and was a danger to the public. 

            On cross-examination, Bruggemeyer acknowledged that the hospital staff did not consider Sader psychotic, was not treating him with psychotropic medications, and had moved him to a low-control unit within a month of his admission.  Bruggemeyer also acknowledged that since the known incidents in 2001, there was no indication that Sader had engaged in any harmful behavior.  Bruggemeyer also stated that it was possible that certain medications prescribed to Sader when he went to the hospital on April 10, 2001, could have caused some of his symptoms. 

            Fabian, who holds a doctorate in clinical psychology and a law degree, testified that he met with Sader three or four times and that he still considered Sader to be mentally ill and dangerous.  Fabian testified that he diagnosed Sader as having “bipolar one disorder, single manic episode with psychotic features.”  Fabian explained the difference between his opinion and Bruggemeyer’s opinion, stating that he believes Sader’s psychosis was always accompanied by mania, whereas with schizo-affective disorder, there would be periods when Sader would be psychotic but not manic.  Fabian testified that in his opinion, Sader was in remission, and not currently psychotic.  Fabian also stated that he questioned Sader regarding the comments to Bruggemeyer about the device in his brain, and Sader said that he was commenting about the past, not the present.

            Fabian testified that there was an ongoing risk that Sader might cause further harm to others, citing one treatise that indicates a 90% chance and one treatise that indicates a 40% to 50% chance of a repeat manic episode.  Fabian further testified that he had consulted with the hospital staff, and they all agreed that there had not yet been enough observation to fully understand Sader’s condition, the exact diagnosis, the chance of future episodes, or how to treat him.  Fabian testified that commitment to the secure facility was the best option because commitment as mentally ill to an open hospital could result in Sader being released too soon. 

            Fabian summarized his position, stating that

when we have an individual, who is mentally ill, who does not think he is, who continues to lack a grasp of that, even I believe in a significant piece of that today, and who is not medication compliant due to that lack of insight, I believe there is . . . a heightened risk of future manic phases and subsequent violence and placing others at risk of harm as well as himself.  I understand the later is not pursuant to the statute of mentally ill and dangerous.  Although, he was suicidal.  And I think that when someone is psychotic, suicidal, and manic all of these issues place him at a heightened risk of future violence towards others.

 

            On cross-examination, Fabian acknowledged that Sader is in remission, which means that he has not experienced a mood disorder or psychosis within two months of the last time he was manic.  Fabian also acknowledged that his opinion that Sader is not medication-compliant is based on events in 2001, and that Sader is currently taking his prescribed medications, which are for blood pressure and cholesterol.

            Fabian stated that commitment would be for purposes of containment observation and continued assessment, since at this point there is no way to know whether Sader will ever exhibit harmful behavior again.  Fabian opined that it is “more likely than not” that Sader will have future episodes, but admitted that the longer the time since the last episode, the less likely it is to recur.  Fabian disagreed with the idea that commitment as mentally ill will suffice, and expressed concern that if Sader is only committed for six months as mentally ill, it is uncertain whether he will be committed again at the end of that term.  Fabian testified that Sader is mentally ill under the statute, that there continues to be a substantial likelihood that he will engage in acts capable of inflicting serious physical harm on another if not committed, and that because of the substantial risk of harm to others, there is no less-restrictive option than commitment to a secure hospital.

            Sader presented no witnesses and did not testify.  The district court determined that appellant failed to prove by clear and convincing evidence that Sader continues to be mentally ill and dangerous and issued an order denying the petition for indeterminate commitment.  Appellant filed a motion to stay the order, which was granted, and a motion for a new trial or for amended findings.  The district court denied the motion for a new trial, amended its findings, and denied the petition for indeterminate commitment.  This appeal followed.

D E C I S I O N

            Appellant argues that the district court (1) erred in denying the petition for indeterminate commitment; (2) exceeded the scope of review at the indeterminate-commitment hearing; and (3) erred in determining that there is a less-restrictive alternative to indeterminate commitment in a secure hospital.

I.

            On appeal, this court is limited to an examination of the [district] court’s compliance with the [civil commitment] statute, and the [decision] must be justified by findings based upon evidence at the hearing.  The record is viewed in the light most favorable to the [district] court’s decision.  Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witness.  Where the findings of fact rest almost entirely on expert testimony, the [district] court’s evaluation of credibility is of particular significance.

 

In re Knops, 536 N.W.2d 616, 620 (Minn. 1995) (citations omitted). 

            In reviewing civil commitment cases, this court does not weigh evidence, but determines if the record as a whole provides substantial support for the district court’s findings.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997).  Whether the evidence is sufficient to satisfy the statutory criteria for commitment is a legal question, which we review de novo.  See Knops, 536 N.W.2d at 620 (holding that whether facts constitute overt act under statute is reviewed de novo); In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988) (reversing commitment based on conclusion that proposed patient’s actions did not cause serious physical harm as required by statute). 

            To commit a proposed patient as a person who is mentally ill and dangerous to the public, the district court must find by clear and convincing evidence that the proposed patient is a person who is mentally ill and dangerous to the public.  Minn. Stat. § 253B.18, subd. 1(a) (2004).  The clear and convincing evidence required to support the district court’s decision is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.  State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997).

                                    A “person who is mentally ill and dangerous to the public” is a person (a) who is mentally ill; and (b) who as a result of that mental illness presents a clear danger to the safety of others as demonstrated by the facts that (i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) 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 (2004).  Although expert testimony is required to assist the district court in its determination, it is the district court and not the medical expert that determines whether a person is mentally ill and dangerous to the public under the statute.  See In re Moll, 347 N.W.2d 67, 70 (Minn. App. 1984) (addressing commitment as mentally ill).    

            After an initial commitment as mentally ill and dangerous, the district court is required to hold a review hearing to determine whether the person continues to be mentally ill and dangerous and therefore must be committed indeterminately.  Minn. Stat. § 253B.18, subds. 2-3 (2004).  The burden is on the petitioner to establish by clear and convincing evidence that the requirements for commitment as mentally ill and dangerous continue to be met.  Minn. R. Civ. Commitment 23(3); In re Verhelst, 350 N.W.2d 494, 495 (Minn. App. 1984).

            The district court “shall consider all competent evidence relevant to the [person’s] present need for continued commitment.”  Minn. R. Civ. Commitment 23(e).  The district court may consider the person’s “entire history, including his actions both prior and subsequent to” the act in question when determining whether “he remains a clear danger to others.”  In re Welfare of Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989).  “[G]ood behavior in the artificial environment of a hospital is not conclusive on the question of dangerousness to the public, when experts testify that the proposed patient remains mentally ill and dangerous.”  Id.; see In re Malm, 375 N.W.2d 888, 891 (Minn. App. 1985) (affirming district court’s determination that symptom-free patient continued to be mentally ill and dangerous based on precommitment behavior indicating that he is dangerous and that, if released, he would stop taking medication and symptoms would recur). 

            The district court is not compelled to make an initial commitment as mentally ill and dangerous indeterminate.  In re Colbert, 454 N.W.2d 614, 615-16 (Minn. 1990) (reversing court of appeals and reinstating decision of district court because evidence justified determination that patient was no longer dangerous and did not compel district court to make commitment indeterminate).  Rather, on review, the district court may make the commitment indeterminate, commit the patient as mentally ill only, or discharge the commitment entirely.  Minn. R. Civ. Commitment 23(b); see Verhelst, 350 N.W.2d at 496 (reversing district court’s indeterminate commitment of patient determined to be no longer mentally ill and dangerous). 

            Appellant argues that the district court erred in finding that Sader is no longer mentally ill and dangerous when the expert witnesses agreed that Sader continues to be mentally ill and dangerous and that there is a substantial likelihood of future harm.  Appellant contends that in determining that Sader is no longer mentally ill or dangerous, the district court improperly relied on the absence of medication, symptoms, and recent dangerous behavior and ignored the impact of Sader’s group treatment and the possibility that his symptoms were not noticeable to hospital staff.

            Bruggemeyer and Fabian testified that Sader continues to be mentally ill and dangerous and that there is a substantial likelihood that he will cause future harm to others.  Citing this court’s recent decision in In re Civil Commitment of Stone, 711 N.W.2d 831 (Minn. App. 2006), review denied (Minn. June 20, 2006), appellant contends that the district court was not free to disagree with this uncontradicted expert testimony.  But the role of the expert witnesses is to guide the district court in its decision; it is not their role to decide whether a person is mentally ill and dangerous.  See Moll, 347 N.W.2d at 70 (addressing commitment as mentally ill).  And unlike Stone, Bruggemeyer’s and Fabian’s direct testimony was undercut by their testimony on cross-examination, and the district court was not compelled to conclude as a matter of law that Sader continues to be mentally ill and dangerous.  See Stone, 711 N.W.2d. at 839-40 (stating that district court credited uncontradicted expert testimony and was incorrect in legal conclusion that facts did not establish course of harmful sexual conduct under statute). 

            Based on Sader’s entire history, the district court was required to determine whether Sader continues to meet the statutory criteria for commitment as mentally ill and dangerous to the public.  Appellant argues that the district court erroneously relied on the definition of a “person who is mentally ill” under Minn. Stat. § 253B.02, subd. 13 (2004), to conclude that Sader is not mentally ill because he has not failed to obtain necessary food, clothing, shelter, or medical care and has not recently attempted or threatened to harm himself or others.  Citing Hofmaster, appellant contends that Sader’s overt act that caused a death in 2001 is sufficient to support his commitment as mentally ill and dangerous.  But in Hofmaster, this court determined that a stabbing incident that occurred 11 years before the commitment proceeding could be used to support the district court’s finding that the proposed patient was presently dangerous to others; this court did not determine that the incident could be used to support a determination that the proposed patient was currently mentally ill.  434 N.W.2d at 280-81.[1]

            To determine whether a proposed patient is a “person who is mentally ill and dangerous to the public” under Minn. Stat. § 253B.02, subd. 17, the district court must determine both (a) whether the proposed patient is mentally ill; and (b) whether as a result of mental illness, the proposed patient presents a clear danger to the safety of others.  In Malm, this court specifically applied the definition of “mentally ill person” in Minn. Stat. § 253B.02, subd. 13 (1984),[2] when analyzing whether the district court properly concluded that the proposed patient continued to be mentally ill and dangerous at the time of the review hearing.  375 N.W.2d at 891.  But this court also noted in Malm that because a patient may become symptom-free during hospitalization, it is appropriate for the district court to consider precommitment behavior when determining at the review hearing whether a proposed patient continues to be mentally ill and dangerous.  Id.  This court explicitly rejected the contention that a proposed patient who is symptom-free at the reviewing hearing must be discharged.  Id.

            The district court did not simply conclude that Sader is not mentally ill because he has not failed to obtain necessary food, clothing, shelter, or medical care and has not recently attempted or threatened to harm himself or others.  The district court also cited evidence that (1) Sader’s mental illness is in remission and he is no longer psychotic; (2) the experts disagree about Sader’s diagnosis; (3) Sader has not been treated for mental illness while in the security hospital; (4) despite having observed Sader for months, the security-hospital staff have not witnessed any episodes of thought or mood disorder; and (5) only Bruggemeyer is of the opinion that Sader is currently psychotic, and without evidence of the behavioral elements of the statutory definition of mentally ill, Bruggemeyer’s opinion was insufficient to conclude thatSader is currently mentally ill. All of this evidence supports the district court’s finding that Sader does not continue to be a mentally ill person under the statutory definition.

            While both experts testified that Sader presented a substantial likelihood of future harm, the district court determined that the state failed to prove by clear and convincing evidence that Sader presents a clear danger to the safety of others because (1) there is no evidence that he has engaged in any dangerous behavior since August 2001; (2) Sader has exhibited appropriate behavior at all times at the security hospital and while in custody elsewhere; (3) Sader’s behavior while in custody has not been attributable to medications or treatment because he has not been taking any medications or receiving treatment for mental illness; (4) Sader had been in custody for one year at the time of the review hearing, and he had not had a psychotic episode; (5) the likelihood of recurrence decreases with the passage of time without symptoms; and (6) the widely varying statistics about the likelihood of a recurrence were not sufficiently persuasive to support a conclusion that a recurrence is so probable that Sader should be committed indefinitely.

            The district court’s findings demonstrate that the district court did not disregard uncontradicted expert testimony, as appellant suggests.  The district court heard the expert testimony and chose to weigh more heavily the evidence that Sader is no longer psychotic and may never exhibit harmful behavior again.  Arguably, the evidence could support continuing Sader’s commitment, but the district court’s decision turned on its weighing of the evidence, and this court does not weigh the evidence on review.  Because the record as a whole provides substantial support for the district court’s findings and the findings support the district court’s conclusion that Sader does not meet the statutory criteria for commitment as a person who is mentally ill and dangerous to the public, we cannot conclude that the district court erred in denying the petition for commitment. 

II.

            Appellant argues that at the review hearing, the district court failed to limit the scope of review to a determination of whether there had been a change in Sader’s condition from the time of the initial commitment that rendered continued commitment inappropriate.  See In re Linehan, 557 N.W.2d 167, 170 (Minn. 1996) (providing that one purpose of review hearing is to allow district court to determine if changes in patient’s condition render further commitment inappropriate), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997).  Appellant contends that the issue before the district court at the review hearing was not whether Sader’s condition had improved since 2001, the issue was whether his condition had improved since the initial commitment.  But the initial commitment order does not have res judicata status, and at the review hearing, the district court may consider “(1) the statutorily required treatment report; (2) evidence of changes in the patient’s condition since the initial commitment hearing; and (3) such other evidence as in the district court’s discretion enhances its assessment of whether the patient continues to meet statutory criteria for commitment.”  Id. at 171 (affirming district court’s decision to limit consideration of evidence).

            The district court did not exceed the proper scope of review.  The district court properly considered all new and helpful evidence and placed it in the context of Sader’s entire history to determine whether Sader continued to meet the criteria for commitment as a person who is mentally ill and dangerous to the public.  The initial commitment order was the product of a stipulation, while the review hearing was contested and occurred eight months after the initial commitment.  At the review hearing, the district court heard evidence that was not available to the district court that ordered the initial commitment, including evidence that Sader had not been treated or medicated for any psychosis while hospitalized, had not engaged in any harmful behavior, had been moved to a less-restrictive ward of the hospital within a month after his commitment, remained symptom-free without the aid of psychotropic drugs, was in remission, and that despite months of observation, the experts did not agree about a diagnosis or a course of treatment.

           

III.

            Appellant argues that because Sader did not establish by clear and convincing evidence that a less-restrictive treatment program is available that is consistent with his treatment needs and the requirements of public safety, the district court erred in concluding that there is a less-restrictive alternative to indeterminate commitment and in failing to commit Sader to a secure facility.  Under the commitment statute, if the district court finds by clear and convincing evidence that a proposed patient is a person who is mentally ill and dangerous to the public, the district court “shall commit the person to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.”  Minn. Stat. § 253B.18, subd. 1(a).  But because the district court concluded that there is not clear and convincing evidence that Sader is a person who is mentally ill and dangerous to the public, the district court was not required to commit Sader to a secure treatment facility, and Sader did not need to establish that a less-restrictive treatment program is available.   

            Affirmed.