In the Matter of the Civil Commitment of: Dale Allen Lindsey.

This opinion will be unpublished and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
A17-1056

In the Matter of the Civil Commitment of:
Dale Allen Lindsey.

Filed November 13, 2017
Affirmed
Cleary, Chief Judge

Judicial Appeal Panel
File No. AP15-9132
Hennepin County File No. 27-MH-PR-05-1149

Jennifer L. Thon, Steven D. Winkler, Jones Law Office, Mankato, Minnesota (for appellant
Lindsey)

Lori Swanson, Attorney Gene ral, Kathleen M. Ghreichi, Assistant Attorn ey General,
St. Paul, Minnesota (for respondent Commissioner of Human Services)

Michael O. Freeman, Hennepin County Attorney, Elizabeth S. Beltaos, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County)

Considered and decided by Cleary, Chie f Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Dale Allen Lindsey is civilly committed as a sexually dangerous person
(SDP). He petitioned for a tran sfer to the department of human services’ Community
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Preparation Services (CPS) in St . Peter. The judicial appeal panel (the panel) denied his
petition. He appeals the panel’ s decision. We conclude that the evidence supports the
panel’s findings of fact and affirm.
FACTS
Lindsey was civilly committed as a SDP in 2006. He is curren tly in the second
phase of the three phase Minnesota Sex Offe nder Program (MSOP) at the secure MSOP
facility at Moose Lake. In November of 201 5, he petitioned for di scharge, provisional
discharge, or transfer to the less restrictiv e CPS. The Special Re view Board conducted a
hearing and recommended his petition be denied. In December of 2015, Lindsey petitioned
for rehearing and reconsideration before the pa nel. The panel conducted the first of the
two-phase hearing process in September of 2016. At the Phase I hearing, Lindsey
withdrew his requests for discharge and proceeded on his transfer request. The panel heard
testimony from Dr. Amanda Powers, the court- appointed examiner. She testified that
Lindsey met the criteria to be transferred to CPS and that CPS had an adequate level of
security and could meet Lindsey’s ongoing treatment needs. At the end of the hearing, the
commissioner and the county agreed that a Phase II hearing was appropriate.
During the period of time between the Phase I and Phase II hearings, Lindsey had a
series of outbursts that resulted in behavi oral citations for threatening and assaultive
behavior towards MSOP staff. Lindsey also pa rticipated in an additional sexual violence
risk assessment administered by Dr. Cassa ndra Lind. The results of the assessment
indicated that Lindsey was in the high-risk , high-need category and that he was not
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currently managing his dynamic-risk factors. Based on the results of the exam, Dr. Lind
opined that transfer would not be appropriate. Prior to the Phase II hearing, Dr. Powers
submitted an addendum to he r initial report. Dr. Powers withdrew her recommendation
for transfer after reviewing updated treatmen t records for Lindsey. She opined that
Lindsey’s outbursts were precursors to assaultiv e behavior and he required the structured
environment of the Moose Lake facility to regain control of his behavior.
The Phase II hearing was spread over two days in December 2016 and April of 2017.
The panel heard testimony from Lindsey, Dr. Powers, MSOP clinical director Peter Puffer,
Dr. Lind, and CPS operations manager Michelle Sexe. Lindsey testified on his own behalf.
Dr. Powers, Dr. Lind, and Puffe r opined that transfer to CP S was not appropriate given
Lindsey’s current treatment needs. The panel issued a written order on May 10, 2017. The
panel determined that Lindsey failed to es tablish by a preponderance of evidence that
transfer was appropriate and the panel denied his request to transfer. Lindsey appeals.
D E C I S I O N
Lindsey argues that the panel failed to ma ke sufficient findings to permit appellate
review and erred in denying his petition for transfer to CPS.
I. Sufficiency of Findings
Lindsey argues that the findings made by the panel are insufficient to permit
appellate review. Lindsey relie s on this court’s opinion in In re Civil Commitment of
Spicer, 853 N.W.2d 803 (Minn. App. 2014) where we concluded that the district court’s
findings with respect to Spicer’s civil commitment proceedings were insufficient in three
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ways. Id. at 809-11. The court held that the dist rict court’s findings were “not truly
findings of fact” because the district court mere ly recited the testimon y of the witnesses.
Id. at 810. In addition, the court found that the district court’s findings were conclusory in
nature, id., and that the district court’s true fi ndings were not meaningfully tied to the
ultimate conclusions of law. Id. at 811.
Lindsey argues that here, as in Spicer, the panel failed to state which evidence was
more or less persuasive, which facts were more or less important, and which statutory
factors were most significant. This case is distinguishable from Spicer. In Spicer, while
the district court provided an extensive a nd exhaustive order, this court was unable to
determine how the district court reached its conclusion based on the inconsistencies therein.
Id. at 810-11. Here, the panel’s findings clearl y indicate how Lindsey failed to meet the
burden of proving by clear and convincing evidence that transfer was appropriate. Lindsey
failed to present any competent evidence in favor of transfer and the forensic examiner’s
opinion that transfer was inappropriate at th is time was persuasive. The panel concluded
that Lindsey’s own self-servi ng testimony in favor of tr ansfer could not constitute
competent evidence absent some neutral, corroborating evidence. Dr. Powers withdrew
her support for transfer based on Lindsey’s regression between the first and second phase
hearings and no neutral evidence was presented in favor of transfer.
The panel made six explicit fi ndings of fact that bore di rect relation to the five
statutory factors and tied those facts to th e conclusions of law through the memorandum
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that accompanied the order. 1 The memorandum provides context to the findings of fact
and explains which evidence was credited by the panel and which was not. The panel
recited the evidence offered by both sides, made credibility determinations, and made
particularized findings of fact that supported its conclusion of law. The panel’s findings
are sufficiently particularized to allow for meaningful appellate review.
II. Statutory Criteria for Transfer
Lindsey argues that the panel committed clear error in failing to analyze the statute
in a manner that gave meaning to each provision and that its findings are not supported by
the evidence.
We review a judicial appeal panel’s deci sion for clear error to “determine whether
the evidence as a whole sustains the panel’s findings.” In re Civil Commitment of Kropp,
895 N.W.2d 647, 650 (Minn. App. 2017), review denied (Minn. June 20, 2017). This court
does not reweigh the evidence and if the record sustains the findings of the panel, we will
not reverse. Id. If the record sustains the panel’s fi ndings, it is immaterial that it might
also support contrary findings. Id. A judicial appeal panel clearly errs if it ignores the
“vast weight of the evidence.” Piotter v. Steffen, 490 N.W.2d 915, 919-920 (Minn. App.

1 Although Minn. R. Civ. P. 52.01 requires that “the court shall find the facts specially and
state separately its conclusions of law,” the objec t of the rule is to en sure “that sufficient,
ultimate facts be stated to legally supp ort the conclusions of law reached.” Graphic Arts
Educ. Found., Inc. v. State , 240 Minn. 143, 145, 59 N.W.2d 841, 844 (1953) (discussing
Minn. Stat. § 546.27 (2016)). Further, “[t]he rule prescribes no specific format, and
expressly allows a written opinion or memorandum of decision to stand as findings of fact
and conclusions of law.” Transit Team, Inc. v. Metro. Council , 679 N.W.2d 390, 398
(Minn. App. 2004) (discussing rule 52).
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1992), review denied (Minn. Nov. 17, 1992). This co urt reviews de novo questions of
statutory construction and the application of statutory criteria to the facts found. Kropp,
895 N.W.2d at 650.
Transfer is governed by Minn. Stat. § 253D.29 (2016). A person who is committed
as a SDP may be transferred only if “the transfer is appropriate.” Id., subd. 1. The panel
is required to address any applicable stat utory factors when making its decision. Piotter,
490 N.W.2d at 919. Those f actors include: the person’s “clinical progress and present
treatment needs;” “the need for security to accomplish continuing treatment;” “the need for
continued institutionalization;” which facilit y can best meet the person’s needs; and
whether transfer can be accomp lished with a reasonable degree of safety for the public.
Minn. Stat. § 253D.29, subd. 1(b) (2016).
1. Lindsey’s clinical progre ss and present treatment needs
The panel found that Lindsey’s ongoing treatment needs cannot be accomplished at
CPS. Lindsey contends that this finding is not supported by the record because of the
evidence presented about his pr ogress in the program. The panel heard testimony from
Dr. Powers and Dr. Lind that Lindsey made significant progress in the course of his
treatment. However, both testified that Li ndsey had regressed significantly during the
period of time between the Phase I and Phas e II hearings. Lindsey’s regression was well
documented through psychiatric reports and behavioral citati ons from MSOP staff. The
mental health professionals opined that Lindsey’s regression and continued struggles with
anger management would be best addressed at the secure facility at Moose Lake. The panel
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concluded that while Lindsey had made signif icant progress in his overall treatment, he
continues to have significant difficulty controlling his anger. The panel also found
Dr. Lind’s testimony persuasive regarding Lindsey’s lack of progress on his dynamic-risk
factors. Lindsey failed to present any co mpetent evidence regarding his progress and
present treatment needs. The record support s the panel’s finding that Lindsey’s ongoing
treatment needs could not be accomplished at CPS.
2. The need for security to accomplish continuing treatment
Lindsey argues that the panel committed clea r error in failing to give each provision
of the transfer statute meaning. Lindsey cont ends that the statute mu st be analyzed with
respect to the security of the treatment staff. Security is defined as “the measures necessary
to achieve the management and accountability of patients of the facility, staff, and visitors,
as well as property of the facility.” Minn. Stat. § 253D.02, subd. 14 (2016). The object of
the “security” in this subdivision is the security of Lindsey and other MSOP clients, visitors
to the facility, as well as the treatment staff.
The panel found that the secu rity provided at CPS was insufficient for Lindsey to
complete his treatment. The panel heard testimony about the security measures in place at
CPS and found that the measures in place in clude cameras in the interior common areas,
individually tailored GPS monitoring, and secu rity staff on the premis es at all times.
Lindsey presented no competen t evidence that CPS had the pr oper level of security to
provide for his treatment needs. Multiple mental health pr ofessionals testified as to
incidents of Lindsey’s threaten ing and hostile behavior. Dr. Lind testified that Lindsey
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requires the security measures provided at the Moose Lake facility based on the results of
two actuarial psychological tests he was given that indicated he was a moderate to high
risk for recidivism and continues to possess high treatment needs. She also explained that
his anger and attitude toward her made her fear for her safety after her most recent interview
with him.
The record supports the panel’s finding that the security measures at CPS were not
sufficient to provide adequate security for Li ndsey and other MSOP c lients, visitors, and
staff.
3. The need for contin ued institutionalization
Lindsey contends that this factor concerns the security of the patient and that the
panel failed to analyze this factor accordingly. Institutionalization is not defined in chapter
253D. Much of the testimony surrounding the need for institutionalization centered on the
types of external controls at each facility, the level of physical security, and the treatment
structure that each institutional setting provided. The panel found that CPS did not provide
the necessary structure, security, or institutional setting that Lindsey needs to complete his
treatment.
Both Moose Lake and CP S are institutional settings. Lindsey presented no
competent evidence that the level of institutionalizati on at CPS met his current needs.
Dr. Powers opined that Lindsey required the structure and security that his current
treatment team provided at Moose Lake. D r. Lind identified three protective factors
necessary to prevent further regression: professional care; living circumstances; and
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external control. After balancing these factors, she stated that Lindsey would benefit from
remaining at Moose Lake as he has access to a number of mental health professionals
around the clock and that Moose Lake is a highly-secured environment with a number of
external controls. She further testified that, while CPS would provide a similar amount of
access to mental health professionals, it had fewer external controls and did not have the
level of structure that Lindsey required. The panel concluded that Lindsey’s anger
management issues and recent disruptive behavi or would be best addressed in the more
structured environment at Moose Lake. The record supports the panel’s finding that CPS
lacked the institutional setting that Lindsey requires.
4. Which facility can best meet the person’s needs
The panel found that the Moose Lake facility met Lindsey’s current treatment needs
and that those needs could not be properly addressed at CPS. Lindsey argues that the
treatment programs are the same at both facilities and his treatment needs could not be met
at Moose Lake because of an alleged conspira cy to impede his treatment by the staff at
Moose Lake. Lindsey testified at length ab out his belief that the Moose Lake staff
discriminated against him in the past and provoked him to break regulations to ensure that
he did not obtain a transfer. Lindsey offered evidence of a prior incident with members of
the Moose Lake staff involving an effort to target him with reprimands and impede his
progress. The incident was acknowledged by MSOP clinical director Puffer, who stated
that the issue was being monitored. Despite these allegations, the panel concluded that
there was substantial evidence that Lindsey made significant progress with his treatment
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team at Moose Lake prior to the Phase I hearing. Lindsey testified that he currently had a
positive relationship with members of his treatment team.
The panel weighed the evidence and concluded that the more open, less structured
CPS environment would not help Lindsey with his current anger management issues and
that those issues would be best addressed in the more structured environment at Moose
Lake. The record supports the panel’s findi ng that the Moose Lake facility best meets
Lindsey’s current treatment needs.
5. Whether the transfer can be acco mplished with a reasonable degree of
safety for the public

The panel found that transfer could not be accomplished wi th a reasonable degree of
safety for the public. Lindsey contends that the witnesses for the commissioner failed to
demonstrate that his transfer posed a risk to the public. Lindsey ha d the burden of proof
and persuasion and failed to present any competent evidence that his transfer could be done
with a reasonable degree of safety to the public. Moreover, the commissioner presented
evidence that Lindsey’s recent behavioral incidents were precursors to physically
assaultive behavior and demonstrated that he did not have his dynamic-risk factors under
control. The panel’s finding that transfer could not be accomplished with a reasonable
degree of safety to the public is supported by the record.
The panel made sufficiently particularized findings to permit appellate review. The
panel correctly analyzed the Minn. Stat. § 253D.29 factors and the panel’s findings are
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supported by the record. The panel did not err in denying Lindsey’s petition to transfer to
CPS.
Affirmed.