In re Commitment of Fageroos, A20-1078

• Decision Date: 08 March 2021
• Docket Number: A20-1078
• Citation: In re Civil Commitment of Fageroos, A20-1078 (Minn. App. Mar 08, 2021)
• Parties: In the Matter of the Civil Commitment of: Richard Russell Fageroos.
• Court: Minnesota Court of Appeals

In the Matter of the Civil Commitment of: Richard Russell Fageroos.

A20-1078

STATE OF MINNESOTA IN COURT OF APPEALS

March 8, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Gaïtas, Judge

Commitment Appeal Panel

File No. AP19-9073

John P. Chitwood, Chitwood Law, PLLC, St. Paul, Minnesota (for appellant Richard Russell Fageroos)

Keith Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Commissioner of Human Services)

Donald F. Ryan, Crow Wing County Attorney, Rockwell Wells, Assistant County Attorney, Brainerd, Minnesota (for respondent Crow Wing County)

Considered and decided by Gaïtas, Presiding Judge; Connolly, Judge; and Reyes, Judge.

NONPRECEDENTIAL OPINION

GAÏTAS, Judge

Appellant Richard Fageroos challenges the denial of his petition for transfer, provisional discharge, or full discharge from indeterminate civil commitment to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person. We affirm.

FACTS

In August 2006, appellant was committed to the MSOP as a sexually dangerous person (SDP) for an indeterminate period of time. Appellant's civil commitment stemmed from his criminal history and uncharged allegations of domestic assault and criminal sexual conduct.¹ His criminal history includes a 1991 conviction for kidnapping—which notably was part of a plea deal that led to the dismissal of a third-degree criminal sexual conduct charge—and two convictions from 1992 for first-degree burglary and first-degree criminal sexual conduct. Following his commitment, appellant refused to participate in MSOP treatment and was eventually transferred to the Department of Corrections. He remained in prison for about five years before being transferred back to MSOP in 2011.

In May 2018, appellant petitioned the civil commitment Special Review Board for a transfer to community preparation services (CPS), or in the alternative, for either a provisional discharge or full discharge from his civil commitment. The Special Review Board held a hearing and subsequently issued findings of fact and a recommendation that appellant's petition be denied in its entirety. Appellant then timely filed a petition for rehearing and reconsideration of the Special Review Board's findings and recommendation.

The Commitment Appeal Panel (CAP) took review and held a hearing on appellant's petition in March 2020. During the hearing, appellant called the court-appointed psychologist to testify as a witness and offered one exhibit, a 28-page reportwritten by the psychologist. The psychologist had diagnosed appellant with (a) "Other Specified Paraphilic Disorder, Non-Consenting Females, In a Controlled Environment";² (b) "Other Specified Personality Disorder, with Antisocial Features"; and (c) "Alcohol Use Disorder, Moderate to Severe, In Remission, In a Controlled Environment." Her report stated that appellant "actively rejects his current diagnoses" and "remains an untreated sex offender despite his continuous placement in highly structured and secure environments (i.e., prison, MSOP) for the past 27 years." The psychologist testified that the "two primary drivers" for appellant's past sexual misconduct, sexual deviance, and antisocial tendencies, have not been addressed during appellant's civil commitment because appellant has refused to participate in MSOP sex-offender treatment. She opined that appellant would not succeed if transferred to CPS and noted her opposition to a provisional or full discharge.

Appellant also testified at the hearing. He testified that he has changed over the years, insisting that he is more empathetic, less combative, and that he avoids "drama." He emphasized that he has remained sober for the last 29 years, and if released into the community, he would continue to abstain and would be open to attending Alcoholics Anonymous. Appellant stated that he takes responsibility for the sexual offenses he committed in the past. He denied any notion that he currently poses a danger to society. Appellant testified that he could succeed in the community because he has a good support system and would find employment. According to appellant, he does not need inpatient treatment. And he characterized the treatment available at MSOP as "ineffective."

Both the commissioner of human services and an assistant county attorney appeared on behalf of the state. The commissioner offered various MSOP reports and assessments into evidence, fifteen exhibits in total, for the CAP to consider in reviewing appellant's transfer request. At the close of the evidentiary phase of the hearing, the commissioner, joined by the county, moved to summarily dismiss appellant's petition under Minnesota Rule of Civil Procedure 41.02(b)³ for failing to support the requested transfer, provisional discharge, or full discharge. The CAP later issued its written order granting the motion to dismiss appellant's petition in its entirety.

This appeal follows.

DECISION

Appellant's brief to this court seemingly raises two issues. First, as a threshold consideration, appellant seems to argue that the procedures for challenging continued civil commitment, which are set forth by Minnesota Statutes, are unconstitutional. Second, appellant makes a general challenge to the CAP's rejection and summary dismissal of his petition.

I. We decline to address appellant's constitutional challenge to Minnesota's SDP statutes because appellant failed to adequately brief the issue.

By statute, a person

seeking discharge or provisional discharge [from commitment as SDP] bears the burden of going forward with the evidence,which means presenting a prima facie case with competent evidence to show that the person is entitled to the requested relief. If the petitioning party has met this burden, the party opposing discharge or provisional discharge bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should be denied.

Minn. Stat. § 253D.28, subd. 2(d) (2018). Appellant asserts that the statute violates "[b]asic notions of fair play and liberty interests" by placing an initial burden of production on a petitioner seeking discharge because it "fosters a statutory presumption for commitment and confinement and [is] against our nation's long-held belief that the default state of people is liberty." We interpret appellant's position as a challenge to the constitutionality of the procedures outlined under the civil-commitment statutes, specifically the statutes regarding petitions for discharge or provisional discharge from commitment as SDP.

Generally, appellate courts reject challenges to the constitutionality of statutes, including commitment statutes, "unless the challenging party demonstrates that [a statute] is unconstitutional beyond a reasonable doubt." In re Poole, 921 N.W.2d 62, 69-70 (Minn. App. 2018) (quotation omitted). And appellate courts may decline to consider inadequately briefed questions. State Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997); see In re Civil Commitment of Kropp, 895 N.W.2d 647, 654 (Minn. App. 2017) (applying Wintz in a civil-commitment matter), review denied (Minn. June 20, 2017). Here, appellant provides nothing more than the generalized claims of unconstitutionality mentioned above. Appellant does not support his assertions with anactual argument. Absent adequate briefing of the constitutional issue here, we decline to address it.

II. The CAP did not err in summarily dismissing appellant's petition for discharge.

Next, appellant argues that "[t]he [CAP] erred when it found that [he] had not established a prima facie case for discharge as a matter of law because [he] produced competent evidence that his provisional discharge should be granted to begin to integrate him back into the community." The CAP dismissed appellant's petition under Minnesota Rule of Civil Procedure 41.02(b), concluding that appellant failed to establish a prima facie case for relief. "[W]hen a [CAP] dismisses a petition under Minn. R. Civ. P. 41.02(b), the appropriate standard of appellate review is de novo." Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014).

Appellant petitioned for provisional or full discharge. A provisional discharge is essentially a reduction in custody during which the individual must abide by the terms and conditions of a provisional discharge plan, which is developed and monitored by MSOP and any other designated agency. See Minn. Stat. § 253D.30. A full discharge effectively terminates an individual from civil commitment when they are no longer in need of treatment and supervision or the period set by the original civil commitment order has run its course. See Minn. Stat. § 253D.31.

When a petition for full or provisional discharge comes before the CAP, the committed person "bears the burden of going forward with the evidence, which means presenting a prima facie case with competent evidence to show that the person is entitledto the requested relief." Minn. Stat. § 253D.28, subd. 2(d); Coker, 831 N.W.2d at 485-86. The petitioner must satisfy this threshold burden by producing "sufficient, competent evidence that, if proven, would entitle the petitioner to relief." Coker, 831 N.W.2d at 486 (quotation omitted). This occurs during a "first-phase hearing." Id. If satisfied, the CAP then proceeds to a "second-phase hearing" wherein the respondent "bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should be denied." Id. at 486 (quotation omitted).

If, however, the respondent moves for a rule 41.02(b) dismissal of the petition at the close of the first-phase hearing—as the commissioner did here—the CAP may dispense with the need for a phase-two hearing if the CAP concludes that the petitioner failed to make a prima facie case for the relief sought. See id. at 491. When considering a motion to dismiss a...