In the Matter of the Civil Commitment of: Donald Dean Christiansen

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2044

In the Matter of the Civil Commitment
of: Donald Dean Christiansen

Filed May 30, 2017
Affirmed
Johnson, Judge

Judicial Appeal Panel
File No. AP15-9102
St. Louis County File No. 69DU-PR-06-451

Jennifer L. Thon, Ryan B. Magnus, Jones & Magnus, Mankato, Minnesota (for appellant
Christiansen)

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

Mark S. Rubin, St. Louis County Attorney, Patricia I. Shaffer, Assistant County Attorney,
Duluth, Minnesota (for respondent St. Louis County)

Considered and decided by Johnson, Presiding Judge; Stauber, Judge; and
Toussaint, Judge.*
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Donald Dean Christiansen petitioned the special review board for provisional
discharge from his civil commitment to the Minnesota Sex Offender Program. The special

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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review board granted his petition. The commissioner of human services and St. Louis
County appealed to the judicial appeal panel, which denied Christiansen’s petition. We
conclude that the judicial appeal panel’s findings are not clearly erroneous and, therefore,
affirm.
FACTS
In January 2007, Christiansen was committed as a sexually dangerous person and a
sexual psychopathic personality to the Minnesota Sex Offender Program (MSOP) for an
indeterminate period of time. See In re Civil Commitment of Christiansen, No. A07-1290,
2007 WL 4305465 (Minn. App. Dec. 11, 2007). Before his commitment, he was convicted
of three criminal offenses for sexually assaulting minor females while he was under the
influence of alcohol or controlled substances. See id. at *1. Christiansen has been in phase
III of sex-offender treatment (which focuses on re -integration into the community) since
October 2010. In April 2013, the special review board granted Christiansen’s petition to
transfer to Community Preparation Services (CPS) because he had demonstrated sufficient
skills to understand his offending behavior and to manage his mental health and behavioral
issues.
In November 2014, Christiansen petitioned the board for provisional discharge. At
that time, his mental-health diagnoses included paranoid anti-social personality disorder
and severe chemical -use disorders. His treatment reports indicated that, despite his
extensive history of paranoia, Christiansen had developed skills to effectively manage his
emotions and rela te his behaviors to his offending cycle. In February 2015, however,
Christiansen quit taking Zoloft, a psychotropic medication that helped him manage his
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mental-health issues, because of potential adverse reactions with a medication he takes for
a life-threatening physical condition. Christiansen’s mental -health and behavioral issues
regressed after he quit taking Zoloft, he disengaged with his treatment team and peers, and
he failed to apply treatment techniques to manage his behavioral issues.
In June 2 015, the board held a hearing on Christiansen’s petition for provisional
discharge. The board recommended that the petition be granted. The board found that
Christiansen has physical- and mental-health issues that affect his ability to fully participate
in sex-offender treatment. The board found that Christiansen had suc cessfully controlled
his mental-health and behavioral issues while taking Zoloft but that his behavioral issues
had regressed since quitting Zoloft in February 2015. The board found that Christiansen
had become “increasingly suspicious and difficult to interact with” and that his “treatment
goal areas decreased.” The board nonetheless found that Christiansen had made
“substantial progress” in treatment and that his mental -health issues c ould be more
effectively treated in the community at an out -patient facility in the city of Virginia. The
board found that Christiansen could be discharged to out -patient treatment “with a
reasonable degree of protection to the public.”
The county petitioned for rehearing and reconsideration by the judicial appeal panel,
and the commissioner of human services joined in the petition. The panel conducted a two-
phase hearing on May 20, 2016, and July 22, 2016. See Minn. Stat. § 253D.28, subd. 2(d)
(2016); Coker v. Jesson , 831 N.W.2d 483, 485 -86 (Minn. 2013). The panel received 6
exhibits from Christiansen and 24 exhibits from the commissioner and the county. At the
first-phase hearing, the panel heard testimony from four witnesses: Thomas Alberg, a
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court-appointed examiner; Christos Petsoulis, the director of the out -patient treatment
facility in Virginia; Angela van der Walt, a risk assessor retained by the department of
human services (DHS); and Christiansen. At the second-phase hearing, the panel heard
testimony from four witnesses: Melissa Preteau, the board coordinator for DHS; Anne
Pascucci, a psychologist and forensic evaluator for MSOP; Brenda Todd-Bense, associate
clinical director of MSOP; and Christiansen.
The evidence presented by the th ree parties did not diverge significantly. The
professionals agreed that, based on an actuarial analysis of static and dynamic risk factors,
Christiansen has a moderate ly high risk of recidivism. Alberg and Pascucci agreed on
Christiansen’s diagnosis of paranoid personality disorder. They agreed that significant risk
factors for Christiansen relate to his management of his paranoia and that his paranoia and
suspicion of others could cause him to withdraw from treatment . The y agreed that
Christiansen had made progress in treatment and that he continued to make progress even
after a period of regression. It was undisputed that there has been a high turnover rate in
therapists at CPS and that Christiansen has seen 13 different therapists in a 24 -month
period.
Petsoulis testified that he is familiar with Christiansen’s treatment needs and that
his out-patient facility in Virginia could provide appropriate treatment. He testified that
there was a bed available for Christiansen at the facility. He testified that the facility offers
sex-offender programming and that its therapists know each client. He testified that there
is no 24-hour staff to supervise residents but that he is willing to implement any supervisory
measures required by DHS.
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Pascucci, V an der Walt, Todd -Bense, and a former clinical director for MSOP
recommended against provisional discharge. But Alberg testified that the high turnover
rate among therapists at CPS may be impacting Christiansen’s progress in treatment,
especially because he does not trust others. Alberg testified that Christiansen’s mental -
health issues could be and should be treated in an out-patient setting.
In November 2016, the judicial appeal panel issued an order denying Christiansen’s
petition for provisional discharge. The panel concluded as follows:
1. Petitioner’s course of treatment and present
mental status indicate that there is a need for treatment and
supervision in his current treatment setting.
2. The conditions of Petitioner’s provisional
discharge plan will not adequately provide a reasonable degree
of protection to the public or allow him to adjust successfully
to the community at this time.
3. The parties opposing provisional discharge have
established by clear and convincing evidence that the
provisional discharge should be denied.
Christiansen appeals.
D E C I S I O N
I. Adequacy of Findings
Christiansen first argues that the judicial appeal panel’s findings are inadequate such
that appellate review is not possible . Christiansen asks this court to remand the matter to
the board for additional findings.
Christiansen relies primarily on this court’s opinion in In re Civil Commitment of
Spicer, 853 N.W.2d 803 (Minn. App. 2014), in which we concluded that the district court’s
6
findings that Spicer met the sta tutory criteria for commitment were insufficient in three
ways. Id. at 8 10-12. First, we reasoned that “the vast majority of the district court’s
findings [were] not truly findings of fact” because the district court merely recited the
testimony of the witnesses. Id. at 810. Second, we reasoned that the district court’s true
findings were conclusory in nature. Id. at 810-11. Third, we reasoned that the district
court’s true findings were not meaningfully tied to the district court’s ultimate conclusions
of law. Id. at 811. Accordingly, we remanded the matter to the district court for additional
findings of fact. Id. at 812.
The commissioner contends that Christiansen’s case is distinguishable from Spicer
and that the panel’s findings are adequate. We agree with the commissioner. The panel’s
order is based primarily on true findings, even though there are some findings that merely
recite the evidence. The findings on which the order is based generally are not conclusory
in nature. And those findings are tied to the statutory requirements for provisional
discharge. See Minn. Stat. § 253D.30, subd. 1(b) (2016). In short, the panel’s order is
unlike the order in Spicer.
Thus, the panel’s findings are sufficient to allow meaningful appellate review.
II. Evidence Supporting Denial of Petition
Christiansen also argues that the judicial appeal panel erred by denying his petition
on the merits. He contends that the evidence does not support the panel’s conclusion that
he does not qualify for provisional discharge.
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Provisional discharge is appropriate if a committed person is “capable of making an
acceptable adjustment to open society.” Id., subd. 1(a). In determining whether a
committed person is eligible for provisional discharge, the panel must consider two factors:
(1) whether the committed person’s course of
treatment and present mental status indicate there is no longer
a need for treatment and supervision in the committed person’s
current treatment setting; and

(2) whether the conditions of the provisional
discharge plan will provide a reasonable degree of protection
to the public and will enable the committed person to adjust
successfully to the community.

Id., subd. 1(b). The party requesting provisional discharge bears the burden of production
in the first phase of the hearing. Minn. Stat. § 253D.28, subd. 2(d) (2016); Coker, 831
N.W.2d at 485 -86. In the second phase of the hearing, the party opposing provisional
discharge bears the burden of persuasion , which requires “proof by clear and convincing
evidence that the discharge or provisional discharge should be denied.” Minn. Stat.
§ 253D.28, subd. 2(d); Coker, 831 N.W.2d at 486. Clear and convincing evidence is
“evidence that is more than a preponderance of the evidence but less than proof beyond a
reasonable doubt.” State v. Jones, 753 N.W.2d 677, 696 (Minn. 2008) (quotation omitted).
This court applies a clear-error stan dard of review to the panel ’s decision,
“examin[ing] the record to determine whether the evidence as a whole sustains the appeal
panels’ findings.” Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014) (alteration
in original) (quotation omitted). We do not “weigh the evidence as if trying the matter de
novo.” Jarvis v. Levine , 364 N.W.2d 473, 474 (Minn. App. 1985). If the evidence as a
whole sustains the panel’s findings, it is immaterial that the record might also support
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inferences and findings to the contrary. See, e.g., Rydberg v. Goodno , 689 N.W.2d 310,
314 (Minn. App. 2004); Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review
denied (Minn. Nov. 17, 1992).
A.
With respect to the first factor, Christiansen contends that the panel clearly erred
because the evidence shows that he does not receive adequate treatment in his current
placement in CPS and that there is no further need for treatment in that placement. He
relies on the undisputed evidence that he has regress ed in treatment since he quit taking
Zoloft and that he cannot establish a long-term relationship with a therapist at CPS.
The panel found that Christiansen had regressed while in stage 2 of phase III of sex-
offender treatment and that his regression stems from his paranoia and his suspicio n of
others, including treatment staff. These findings are supported by the evidence. Pascucci
and Van der Walt testified that Christiansen had regressed significantly since tr ansferring
to CPS in 201 4 and since quitting Zoloft in 201 5 . Todd -Bense testified about
Christiansen’s inability to use learned treatment techniques to manage his mental -health
issues when activated by conflict situations. Todd-Bense provided an example in which a
conflict in January 2016 put Christiansen in an emotionally heightened state for weeks,
caused him to disengage from treatment staff, and required him to be placed under
observation because of his threats to engage in self -harm. Todd -Bense tes tified that
Christiansen’s community outings were presently suspended as of January 2016 because
of the incident. Todd-Bense further testified that Christiansen was denied advancement to
stage 3 of phase III of sex-offender treatment because of his emotional dysregulation.
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Christiansen’s argument is based primarily on those parts of the evidentiary record
that support his petition for provisional discharge. For example, Christiansen, Alberg, and
Van der Walt testified, and Alberg’s report shows, that CPS has experienced a high rate of
turnover with its therapists and that Christiansen has had 13 primary therapists in a 24 -
month period. Todd -Bense testified that the longest period of time that a therapist has
worked with Christiansen is approximately six months. The panel agreed with Alberg’s
testimony that Christiansen’s inability to form a long-term relationship with a therapist has
been detrimental to his progress in treatment. The panel also credited Petsoulis’s testimony
that the mental-health issues causing Christiansen’s regression could be treated at the out-
patient facility in Virginia. This evidence is of limited value on appeal, however, because
it is “immaterial” that the record may contain evidence to support findings that are contrary
to the panel’s findings. See, e.g., Rydberg, 689 N.W.2d at 314.
Christiansen also contends that the out-patient facility in Virginia is a superior
placement option to CPS and that “[t]here was absolutely no evidence that Christiansen’s
treatment needs can only be met at MSOP.” For support, he cites Alberg’s testimony that
CPS is “not even probably the most optimal place” for the treatment of Christiansen’s
paranoia issues and Petsoulis’s testimony that his staff could provide the required
treatment. But the governing statute requires the panel to consider “whether the committed
person’s course of treatment and present mental status indicate there is no longer a need
for treatment and supervision in the committed person’s current treatment setting.” Minn.
Stat. § 253D.30, subd. 1(b) (emphasis added). Alternative out-patient facilit ies are
10
irrelevant in light of the panel’s finding that Christiansen still needs treatment in his current
setting in CPS.
Thus, the panel did not clearly err in its findings w ith respect to the first statutory
factor.
B.
With respect to the second statutory factor, Christiansen contends that the judicial
appeal panel clearly erred because the panel did not make clear findings on his present
level of risk and because evidence shows that he has been sufficiently rehabilitated in sex-
offender treatment such that he no longer is a danger to the public.
The panel resolved this issue by stating as follows : “Until [Christiansen] can
demonstrate sufficient coping skills to manage his mi strust for a sustained period of time
at CPS, the Panel cannot find that [Christiansen] would successfully adjust to the
community or that the provisional discharge plan would adequately provide for public
safety.” This finding is supported by the evidenc e. Pascucci and Van der Walt testified
that Christiansen is in the moderately high category for recidivism compared to other male
sex offenders. Pascucci and Van der Walt reported that Christiansen’s dynamic risk factors
relate to his paranoia and his inability to implement learned treatment skills to manage his
paranoia. Alberg testified that Christiansen’s most significant risk factor is his paranoia,
which may cause him to disengage with treatment staff. Pascucci and Van der Walt
determined that Chri stiansen’s dynamic risk factors had doubled since he transferred to
CPS in 201 4, and the panel found this increase “concerning” because it coincided with
Christiansen’s gaining greater liberties. The panel also found that completion of sex -
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offender treatment would reduce Christiansen’s risk to the public, and Todd-Bense testified
that Christiansen had not yet completed sex-offender treatment because he was in stage 2
of phase III.
Christiansen’s contention is based on an asserted lack of findings specifically
relating to his risk to the public . Christiansen asserts that he was behaviorally compliant
in sex-offender treatment until shortly before the hearing before the panel. He asserts that
Pascucci’s use of a certain actuarial tool in her risk assessment accounted for dynamic risks
such as his paranoia and that his provisional discharge plan adequately accounts for the
risks posed by his paranoia. Christiansen did not present any evidence that credibly calls
into question the p anel’s findings on his risk level. But again, as previously noted, it is
“immaterial” that the record contains a basis for inferences contrary to the panel’s findings.
See, e.g., Rydberg, 689 N.W.2d at 314.
Thus, the panel did not clearly err in its findings with respect to the second statutory
factor.
In sum, the “evidence as a whole” supports the judicial appeal panel’s denial of
Christiansen’s petition for provisional discharge.
Affirmed.