In re Kenney

• Decision Date: 18 August 2021
• Docket Number: A20-1007
• Citation: 963 N.W.2d 214
• Parties: In the MATTER OF the Civil COMMITMENT OF: Mitchell Lee KENNEY.
• Court: Minnesota Supreme Court

963 N.W.2d 214

In the MATTER OF the Civil COMMITMENT OF: Mitchell Lee KENNEY.

A20-1007

Supreme Court of Minnesota.

Filed: August 18, 2021

Jennifer L. Thon, Steven D. Winkler, Warren J. Maas, Jones Law Office, Mankato, Minnesota, for appellant Mitchell Kenney.

Keith Ellison, Attorney General, Brandon Boese, Assistant Attorney General, Saint Paul, Minnesota, for respondent Commissioner of the Department of Human Services.

OPINION

ANDERSON, Justice.

Appellant Mitchell Kenney was civilly committed as a sexually dangerous person in 2010. In 2018, he petitioned for a reduction in custody. After conducting a de novo review of the recommendation by the Special Review Board (SRB), the Commitment Appeal Panel (CAP) granted his petition for provisional discharge. The court of appeals reversed, concluding that the CAP "substituted its judgment for that of the experts who testified" and that the "overwhelming weight of the evidence shows that provisional discharge is premature." In re Civ. Commitment of Kenney , No. A20-1007, 2020 WL 7488999, at *4 (Minn. App. Dec. 21, 2020). We granted Kenney's petition for review to address the court of appeals’ application of the clear-error standard of review.

We conclude that a clear-error review does not permit an appellate court to reweigh the evidence. We also conclude that, as a whole, the evidence in the record reasonably supports the CAP's decision that the Commissioner for the Department of Human Services (Commissioner) failed to prove by clear and convincing evidence that provisional discharge is not appropriate for Kenney under Minn. Stat. § 253D.30 (2020). Accordingly, we reverse the decision of the court of appeals and remand to that court to address the remaining issue in this appeal.

FACTS

The central facts are not substantially disputed. From 1992 to 2004, Kenney was adjudicated delinquent of multiple sexual offenses against minors, and in 2004 he was convicted of first-degree criminal sexual conduct against a minor. He also has admitted to other sexual offenses against minors for which he was not charged.

In 2010, Kenney was indeterminately committed to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person. He later petitioned for, and was granted, a transfer to MSOP's Community Preparation Services (CPS), which is a nonsecure treatment setting in St. Peter.

MSOP is a three-phase program. Phase I focuses on a client's ability to control behavior and consistently follow the rules of the program. Phase II helps a client to understand and address the issues and motivations underlying the offense behavior that led to the civil commitment. Phase III is the transitional phase, which prepares a client to reintegrate into the community. Kenney has been in Phase II since 2011.

In 2018, Kenney petitioned for a reduction in custody, in the form of either a full or provisional discharge. The Commissioner and McLeod County opposed the petition.

After holding an evidentiary hearing, the SRB recommended that Kenney's request for full discharge be denied but that his request for provisional discharge be granted. See Minn. Stat. § 253D.27, subds. 3–4 (2020) (requiring the SRB to hold a hearing and issue a report and recommendation). The SRB found that Kenney complied with the CPS rules, made continuing gains in treatment, consistently took an active role in group therapy, demonstrated leadership abilities, exhibited high motivation, and had a number of "protective factors" that mitigate against the risk of recidivism. The SRB also found that Kenney's provisional discharge plan contained extensive conditions that would reasonably protect the public and enable Kenney to successfully adjust to the community. Accordingly, the SRB found that full discharge would be premature but that provisional discharge would be appropriate. See Minn. Stat. §§ 253D.30 –.31 (2020) (providing criteria for provisional or full discharge).

The Commissioner requested reconsideration and rehearing of the SRB's recommendation to grant provisional discharge.¹ See Minn. Stat. § 253D.28, subd. 1(a) (2020). The CAP held a 2-day hearing at which it received exhibits and heard testimony from Scott Halvorson, Kelly Meyer, Michelle Ensz, Christopher Schiffer, Jessica Scharf, Andrea Lovett, and Kenney.

Scott Halvorson, the MSOP Reintegration Director, described the structure that MSOP uses to supervise clients who reside in the community on provisional discharge. Clients graduate to less restrictive tiers of supervision based on good behavior and, conversely, can lose privileges or even have provisional discharge revoked for improper behavior. Halvorson testified that the program has a process in place to find suitable housing and treatment providers and to ensure a continuity of care for clients who are provisionally discharged.

Kelly Meyer, one of Kenney's primary clinical therapists at MSOP, testified that Kenney successfully completed a 9-month program designed to reduce deviant sexuality and increase healthy arousal. She described Kenney as one of the most "motivated," "mature," and "independently dedicated" clients that she has worked with at MSOP. Meyer testified that Kenney has "very strong" social supports, and while he is responsible for carrying out his own aftercare plan, he also serves as a guide in a support group for other MSOP clients. Meyer acknowledged that Kenney experiences anxiety related to managing his sexual interests and that he has had few opportunities to practice his management techniques outside of the CPS.

Michelle Ensz, another of Kenney's primary therapists at MSOP, testified that Kenney has perfect treatment attendance and is a "motivated client" who is "extremely active" in group therapy sessions and is appropriately vulnerable with others. She described ways in which Kenney takes ownership of his treatment and has grown in identified areas of weakness. But she also agreed that his healthy sexuality is "rigid" and "limited," he struggles with anxiety from standards he sets for himself, and he has had very little opportunity to face situations outside of the CPS context.

Christopher Schiffer, the Clinical Court Services Director, is a member of MSOP's clinical leadership. He helps design and set in motion a client's treatment at MSOP, serving as a bridge between clinical services, the courts, the SRB, and clients. The parties stipulated that Schiffer is an expert concerning MSOP's treatment program. Schiffer opined that provisional discharge would be premature for Kenney. He acknowledged that Kenney has been doing "very well" in the program and "may be ready to begin a process of reintegration" into the community but nevertheless concluded that Kenney needs the support of the CPS program because of his longtime struggle with pedophilic interests and a fear of rejection from peers and caregivers. He explained that the CPS is a better location to begin reintegration because it offers a therapeutic community and access to clinical staff and security counselors that cannot be matched by provisional discharge. He testified that MSOP clients build confidence with "progressive successes" in treatment, rather than a "dive into the deep end."

Jessica Scharf, Psy.D., L.P., conducted a sexual violence risk assessment of Kenney, which considers historical factors, current treatment status, and the statutory criteria for a reduction in custody. Dr. Scharf diagnosed Kenney with various disorders, including a pedophilic disorder and unspecified anxiety disorder. Based on actuarial assessments, she rated Kenney's static (unchangeable) risk of recidivism as above to well above average, which would be mediated as Kenney works to manage dynamic (changeable) risk factors and increase the presence of protective factors that mitigate the risk of recidivism. She also identified which dynamic risk factors and dynamic protective factors were present and determined that he had a moderate need level.

Dr. Scharf testified that Kenney has worked to address the reasons for his commitment, including in the areas of sexuality, feelings of low self-worth, self-doubt and social rejection, and interpersonal skills and relationships. She noted that Kenney's progress is exemplified by the ratings on his 2019 annual progress report. Although she acknowledged that one of Kenney's "most salient remaining needs" is reintegration, she opined that the reintegration should begin while he has the "support and supervision offered in his present therapeutic treatment community." Accordingly, she also concluded that provisional discharge is not appropriate at this time, in light of Kenney's needs and in the interests of public safety.

Andrea Lovett, Ph.D., L.P., the court-appointed independent examiner, diagnosed Kenney with various disorders, including a pedophilic disorder and personality disorder. She rated his overall risk of recidivism as "at least" or "about" average, based on a combination of actuarial scores, dynamic risk factors, and protective factors. Dr. Lovett noted that, although early on Kenney had fluctuated in his motivation and attendance in treatment at the CPS, he seemed to "hit his stride" in late 2017 or early 2018. She testified that Kenney "stands out both in terms of the rate of his progression in treatment as well as his dedication and level of effort," "has done everything that we could ask of him," and thus is "more than ready" to start transitioning to the community. She ultimately concluded, however, that the reintegration process should begin in the CPS setting. She explained that Kenney has "entrenched pedophilic interests" that require a significant amount of time and energy to manage, even in the "reasonably controlled environment" of the CPS. She opined that, as he begins reintegration, Kenney will require "a slow, gradual, and supervised progression of exposure to the community while residing within his current setting."

Dr. Lovett also emphasized the importance of the CPS community, where Kenney...