This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1620

 

 

Joseph D. Thornblad,

Appellant,

 

vs.

 

Kevin Goodno, Commissioner of Human Services,

Respondent.

 

 

Filed January 30, 2007

Affirmed; motion denied

Toussaint, Chief Judge

 

Judicial Appeal Panel

File No. PX-96-267 (SCAP AP-05-9026)

 

 

Marilyn B. Knudsen, 546 Holly Avenue, St. Paul, MN 55102 (for appellant)

 

Lori Swanson, Attorney General, Daniel S. Goldberg, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Joseph D. Thornblad, who is committed for an indeterminate period as mentally ill and dangerous, challenges the decision of the judicial appeal panel dismissing his petition for discharge or for transfer to a non-secure facility.  He also moved to strike the appendix of respondent Kevin Goodno, Commissioner of Human Services, as containing items not part of the record below.  Because the panel correctly applied the law and concluded that appellant had not met his burden of going forward, we affirm.  Because appellant did not support his motion with any legal analysis, facts, or citations, we deny the motion. 

D E C I S I O N

The patient’s petition for discharge or transfer defines the request before the commissioner, the judicial appeal panel, and this court.  The panel “may not consider petitions for relief other than those considered by the commissioner from which the appeal is taken.”  Minn. Stat. § 253B.19, subd. 3 (2004).  The panel also “may not grant a transfer or provisional discharge on terms or conditions that were not presented to the commissioner or the special review board.”  Id.  This court’s standard of review, in turn, is limited to determining “if the evidence as a whole sustains the appeal panel’s findings.”   Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992) (quotation omitted), review denied (Minn. Nov. 17, 1992).

Appellant petitioned for full discharge or transfer to a non-secure facility. The commissioner denied the petition, and the panel heard, considered, and affirmed denial of the petition for “a transfer from [the] Minnesota Security Hospital [MSH] to a non-secure treatment program or discharge from his civil commitment as mentally ill and dangerous [MI&D].”  Appellant argues in his brief that a “transfer [from the MSH secured unit] to Bartlett [Hall] as progression to Johnson [Hall] would best meet appellant’s needs,” which is supported by the report of the court-appointed examiner, Dr. Peter E. Meyers.  Bartlett Hall, however, is not a “non-secure” treatment facility as requested in the petition.  As defined by appellant’s petition and the proceedings below, the issue before this court is whether appellant was wrongfully denied full discharge or transfer to a non-secure facility, not Bartlett Hall. 

The petitioning party “bears the burden of going forward with the evidence.”  Minn. Stat. § 253B.19, subd. 2 (2004).  The petition alone does not constitute a prima facie case; the petitioner must provide “sworn competent testimony that would enable a fact-finder to determine the patient is ready to be discharged.”   Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  A prima facie showing is the initial showing of evidence that would be sufficient to avoid a directed verdict, would allow the trier of fact to make a factual determination, or would constitute conclusive evidence.[1] Id. at 757.

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 (2004). 

Appellant’s proffered evidence does not show that he is a candidate for discharge.  Dr. Meyers’s report does not support any of the three criteria.  He recommended that Bartlett Hall would be the next appropriate step for appellant; he did not recommend that appellant be discharged to “open society.”  Because appellant clearly meets the criteria for psychopathy and his score on the Hare Psychological Checklist Revised II (PCLR-II) reflects a condition noted to be at a higher risk for re-offense, he remains three to four times more likely to violently re-offend following release and thus remains dangerous to the public.  The evidence showed that appellant remains in need of in-patient supervision and treatment.  Because appellant is dependent on medications but sees little utility in taking them, he is at a higher risk of stopping the regimen and suffering a dramatic increase in the risk of offending.  Moreover, appellant testified that his medication requires close monitoring by the staff.  These facts support the panel’s conclusion that appellant did not establish a prima facie case of the three elements required for discharge.  

A transfer to a non-secure facility is governed by Minn. Stat. § 253B.18, subd. 6 (2004).  Five statutory factors must be considered before a patient will be transferred out of a secure setting:  (1) clinical progress and treatment needs; (2) need for security to accomplish treatment; (3) need for continued institutionalization; (4) which facility is best for the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.  Id.  Dr. Meyers’s report does not support transfer to a non-secure facility.  In particular, the report indicates that appellant still has substantial treatment needs and his clinical progress supports only transfer to another secure facility at the MSH.  Appellant’s testimony also suggested that his medication needs were best addressed in an inpatient setting.  None of the evidence indicated that appellant was no longer in need of institutionalization. 

Appellant seems to argue that two facts are enough evidence to proceed with the petition: that he has not physically assaulted while at MSH and that he used the Heimlich Maneuver to help two fellow patients who were choking.  These facts were considered by Dr. Meyers but were not deemed significant enough to support discharge or transfer to a half-way house.  Appellant’s positive conduct was limited to the hospital setting and did not show that his conduct in an open public setting would change.  See In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985) (stating that good behavior in artificial environment is not determinative of dangerousness to public).  The positive conduct supports only a transfer within the secured part of the hospital, which Dr. Meyers recommended, but appellant did not request in his petition.     

Appellant did not raise any constitutional issues before the appeal panel but now argues that the state cannot constitutionally confine an individual in an environment more restrictive than necessary to limit any actual dangerousness.  The transcript is silent regarding a constitutional challenge.  Therefore, the arguments are deemed waived on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  In any event, the constitutional argument would fail because appellant did not ask for a transfer to Bartlett Hall.  Although there is no support for the less-restrictive alternatives that appellant sought through the petition, he could have sought the less-restrictive alternative of a transfer to Bartlett Hall.

Appellant moved to strike respondent’s appendix as containing items not part of the record below.  The request was accompanied by no supporting legal analysis, facts, or citations.  Therefore, we do not reach the issue.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).

Affirmed; motion denied.