In the Matter of the Civil Commitment of: Dezeray Marie Roblero-Barrios.

This opinion will be unpublished and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
A18-0556

In the Matter of the Civil Commitment of: Dezeray Marie Roblero-Barrios.

Filed September 4, 2018
Affirmed
Reilly, Judge

Judicial Appeal Panel
File No. AP17-9022

David A. Jaehne, West St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Ali P. Afsharjavan, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Mark A. Ostrem, Olmsted County Attorney , Rochester, Minnesota (for respondent
Olmsted County)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and
Klaphake, Judge.
*
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Dezeray Marie Roblero-Barrios is civilly committ ed as a sexually
dangerous person. She petitioned for a transfer to Community Preparation Services (CPS),
provisional discharge, or discharge. The j udicial appeal panel granted the commissioner

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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of human services’ motion to dismiss her pe tition. On appeal, appellant challenges the
denial of her petition only with respect to transfer to CPS. We affirm.
FACTS
In June 2001, the Olmsted County District Court granted a petition to civilly commit
appellant as a sexually dangerous person (SDP) for an indeterminate period of time. In
2016, appellant petitioned for a transfer to a non-secure CPS facility, provisional discharge,
or discharge. The special review board conducted a hearing in February 2017 and
recommended denial of the petition.
Appellant petitioned for rehearing and reconsideration by the judicial appeal panel,
which held a hearing in December 2017. Aided by counsel, appellant called two witnesses,
Thomas Alberg, Ph.D., a licensed psychologist and court-appointed examiner, and herself.
After appellant rested her case, the commi ssioner moved to dismiss the petition under
Minn. R. Civ. P. 41.02(b), and Olmsted County joined in the motion. The judicial appeal
panel granted the motion.
D E C I S I O N
I. Appellant’s argument is forfeited.

Appellant challenges the judicial app eal panel’s dismissal of her petition for
transfer. But appellant’s argument is unsu pported by legal authority or analysis. An
argument “based on mere assertion and not supported by any argument or authorities in
appellant’s brief is waived and will not be considered on appeal unless prejudicial error is
obvious on mere inspection.” State v. Modern Recycling, Inc. , 558 N.W.2d 770, 772
(Minn. App. 1997). We discer n no error in the judicial a ppeal panel’s ruling on mere

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inspection. Although appellant’s argument is not properly before us, we nevertheless elect
to briefly address its merits.
II. The judicial appeal panel did not cl early err in dismissing appellant’s
petition for transfer.

A person who is committed as an SDP may be transferred out of a secure treatment
facility only if “the transfer is appropriate.” Minn. Stat. § 253D.29, subd. 1(a) (2016). The
determination whether a transfer is appropriate must be based on five factors:
(1) the person’s clinical progress and present
treatment needs;

(2) the need for security to accomplish continuing
treatment;

(3) the need for continued institutionalization;

(4) which facility can best meet the person’s needs;
and

(5) whether transfer can be accomplished with a
reasonable degree of safety for the public.

Id., subd. 1(b) (2016).
A person who is committed as an SDP ma y petition the special review board for a
transfer. Minn. Stat. § 253D.27, subd. 2 (2016). If the special review board recommends
denial of the petition, the committed person may petition the judicial appeal panel for “a
rehearing and reconsideration” of the recommendation. Minn. Stat. § 253D.28, subd. 1(a)
(2016). On rehearing, the party seeking transfer “must establish by a preponderance of the
evidence that the transfer is appropriate.” Id., subd. 2(e) (2016). “A party aggrieved by an
order of the [judicial] appeal panel may appeal that order” to this court. Id., subd. 4 (2016).

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“[U]nlike a discharge petition, a petition for transfer imposes the burdens of
production and persuasion on the petitioner at the he aring before the Judicial Appeal
Panel.” Foster v. Jesson, 857 N.W.2d 545, 548 (Minn. App. 2014) (citing Minn. Stat.
§ 253D.28, subd. 2(e) (Supp. 2013)). We appl y a clear-error standard of review to the
panel’s findings concerning a petition for transfer. Id. Generally, we determine “from an
examination of the record if the evidence as a whole sustains [a judicial] appeal panel’s
findings.” Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992) (quotation omitted),
review denied (Minn. Nov. 17, 1992). “If it does so, it is immaterial that the record might
also provide a reasonable basis for inferences and findings to the contrary.” Id.
The judicial appeal panel considered and applied each of the five statutory factors.
With respect to the first facto r, the panel found that appellant ’s participation in treatment
has fluctuated and her lack of participation and motivation hinders her progression. On the
second factor, the panel found that appellant has difficulty remaining rule compliant and
participating in treatment, and that the number of behavioral expectation reports over the
past few years is concerning. Regarding the third factor, the panel found that appellant
continues to have unmanaged dynamic risk factors and behavioral issues indicating a need
for institutionalization. On the fourth factor, the panel found that appellant’s needs are best
met within the secure perimeter because it affords therapeutic support, safety, and structure.
With respect to the fifth factor, the panel found that appellant presents with a high degree
of psychopathy coupled with sexual deviance, which suggests an increased risk for sexual
violence. The panel found that a transfer to CPS could not be made with a reasonable
degree of safety to the public.

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These findings are supported by the record, particularly by Dr. Alberg’s report and
testimony, which the panel expressly found cred ible and persuasive. Dr. Alberg testified
that appellant’s lack of engage ment in treatment hindered her progress. He also testified
that appellant’s inability to be rule compliant and to demonstrate appropriate behaviors in
a very restrictive environment made it highly unlikely that she could be successful in a less
restrictive environment, which al so implicated safety concerns . Dr. Alberg testified that
appellant underwent a sexual-violence risk a ssessment and scored in the high moderate
group. He opined that appellant’s dynamic ri sk factors remained a problem and required
“a fair amount of work.” Dr. Alberg furthe r opined that institutionalization in a secure
setting is necessary for appellant’s continued treatment.
Our review of the record leads us to conclude that the judicial appeal panel did not
clearly err by granting the commi ssioner’s motion to dismiss. The evidence, taken as a
whole, supports the judicial appeal panel’s conclusion that appellant failed to show by
preponderance of the evidence that she was entitled to transfer. Thus, dismissal was proper.
Affirmed.