In the Matter of the Civil Commitment of: Isaiah Swedeen.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1227

In the Matter of the Civil Commitment of: Isaiah Swedeen.

Filed December 9, 2019
Affirmed
Connolly, Judge

Commitment Appeal Panel
File No. AP18-9128

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota (for appellant Commissioner of Human Services)

Cheri Templeman, Jill Avery, Templeman Law PLLC, Minneapolis, Minnesota (for
respondent Isaiah Swedeen)

Reese Frederickson, Pine County Attorney, Pine City, Minnesota (for respondent Pine
County)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant commissioner challenges the decision of the commitment appeal panel
(CAP) to grant respondent’s petition for a discharge from his commitment as a sexually
dangerous person (SDP), argui ng that the record does not support the CAP’s findings of
fact regarding the discharge factors set out in Minn. Stat. § 253D.31 (2018) and Call v.

2
Gomez, 535 N.W.2d 312 (Minn. 1995). Because the evidence as a whole support s the
CAP’s findings, we affirm.
D E C I S I O N
Respondent Isaiah Swedeen, born in 1986, has two younger sis ters, born in 1987
and 1989. In 2001 or 2002, respondent admitted to a therapist that, when he was between
the ages of six and fifteen, he had repeatedly sexually abused his s isters. Based on this
admission, respondent was indeterminately committed as an SDP in 2007, and t hat
commitment was affirmed by this court. In Re Civil Commitment of Swedeen , No. A07-
0805, 2007 WL 2770440 (Minn. App. Sept. 25, 2007).
In 2018, respondent filed a petition for reduction in custody . Following a hearing,
a special review board recommended denial of his petition under Minn. Stat. § 253D.27,
subd. 4 (2018). Respondent then filed a petition for rehearing and reconsideration by the
CAP, as provided by Minn. Stat. § 253D.28 (2018).1
A CAP proceeding has two phases. At the phase I hearing, respondent presented
his case for provisional discharge and discharge from civil commitment. “The petitioning
party seeking discharge or provisional discha rge 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 enti tled to the requested relief.” Minn. Stat. § 253D.28, subd. 2(d).
Respondent met this burden.

1 The entity now known as CAP was formerly known as a Judicial Appeal Panel and is
referred to in the statute by that term.

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At the phase II hearing, appellant Commissioner of Human Services presented its
case opposing the discharge. “[T]he party opposing discharge or provisional discharge
bears the burden by clear and convincing evidence that the discharge or provisional
discharge should be denied.” Minn. Stat. § 253D.28, subd. 2(d). The CAP concluded that
appellant did not meet this burden.
The CAP issued an order granting respondent’s petition for discharge from civil
commitment after concluding that:
2. Respondent is capable of making an acceptable ad justment
to open society. Minn. Stat. § 253D.31.
3. Respondent is no longer dangerous to the public and is no
longer in need of inpatient treatment and supervision. Id.
4. Respondent’s continued confinement no longer bears a
reasonable relationship to the original reason for his
commitment. See Call v. Gomez, 535 N.W.2d 312, 319 (Minn.
1995).

Appellant argues that the CAP clearly erred in concluding that respondent no longer
needs treatment and supervision for his sexual disorder and no longer poses a danger to the
public because the evidence does not support the CAP’s findings underlying these
conclusions.2 “We review a [CAP’s] decision for clear error and examine the record to
determine whether the evidence as a whole sustains the [CAP’s] findings. We do not
reweigh the evidence.” In re Civil Commitment of Duvall , 916 N.W.2d 887, 892 (Minn.
App. 2018), review denied (Minn. Sept. 18, 2018) (quotation and citation omitted). “[I]t

2 Appellant does not challenge the CAP’s conclusions that “[r]espondent is capable of
making an acceptable adjustment to open society” and that “[r]espondent’s continued
confinement no longer bears a reasonable relationship to the original reason fo r his
commitment.”

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is immaterial that the record might also provide a reasonable basis for inferences and
findings to the contrary.” Id. at 894 (quotation omitted).
1. Whether Respondent Needs Treatment and Supervision for a Sexual Disorder
The CAP concluded that respondent no longer needs treatment and supervision for
his sexual disorder. This conclusion is based chiefly on the testimony and reports of two
doctors, A.P. and J.T.
After interviewing respondent in December 2018, Dr. A.P. diagnosed him as having
“Posttraumatic Stress Disorder [PTSD], with dissociative symptoms of derealization.” She
noted that:
[respondent] does not meet criteria for any sexual disorder. He
does not experience any symptoms of sexual deviance. His
sexual behavior with his s isters as a very young child was a
result of a trauma-specific reenactment of having been sexually
abused and being forced to be sexual with them. The behavior
simply continued through out the years. . . . As [he] matured
and experienced sexual contact wit h peers in adolescence, he
began to have some sense that what he was doing [to his sisters]
was wrong. Thus, he disclosed the behavior to a therapist at
age 15. It took him about a year (age 16) to fully realize the
wrongfulness of his behavior and the effects on his sisters.

Dr. J.T. interviewed respondent in July 2018. S he diagnosed him with PTSD and
other specified personality disorder with borderline features. She also reported:
[Respondent’s] case is atypical. [Respondent] offended
against his two younger sisters, after years of chronic sexual
abuse by his biological parents and multiple other adults. [He]
was forced to engage in sexual activity with his sisters from a
young age (i.e., toddl er years), and continued to engage in
sexually abusive behaviors against them for approximately ten
years. He is absent a history of sexually abusive conduct
toward other children or adults. While in treatment as an
adolescent, he was provided an objectiv e measure of sexual

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interest, which did not indicate deviant sexual interest.
Additionally, at that time, he participated in a full disclosure
polygraph which did not indicate the presence of deception.
Given this, as well as his relationship to the vict ims and
developmental course of the abuse, it does not appear
[respondent] requires sex offender specific therapy. . . . He
does not meet criteria for pedophilia, a paraphilia, or other
sexual disorder which would require treatment in an intensive
sex offe nder program. His present treatment needs pertain
primarily to his mental health and reintegration needs, of which
there are many.

The CAP heard the two doctors testify concerning their reports and “found [them]
persuasive and credible as to [responde nt’s] current functioning and current treatment
needs.” The CAP also “found [ A.P.] most credible in her diagnostic formulation and
ultimate opinion for full discharge from the civil commitment.” Based on this, the CAP
found that “[respondent] does not have a sexual disorder or a personality disorder related
to his sexual offending. He is not a sex offender and he does not need sex offender specific
treatment and supervision.” These findings of the CAP are supported by the two doctors’
reports, on which they testified.
A third doctor, D.T., was retained by appellant; respondent declined to be
interviewed by him. D.T. diagnosed respondent with antisocial personality disorder and
other personality disorder with borderline traits, and also noted , “It does seem likely that
[respondent] did have PTSD as a child.” However, D.T. did not diagnose respondent as
having conditions that would result in his being committed as SDP or a sexual psychopathic
personality (SPP). D.T. concluded:
[T]he problematic perso nality traits that are here
diagnosed as Antisocial Personality D isorder and Borderline
Traits, combined with his other characteristics, . . . dispose[d]

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him to continue offending against his sisters. They would
similarly predispose him to sexual reoffend ing. As a
consequence, [respondent ] continues to need the level of
supervision required by his current setting [i.e., civil
commitment in MSOP].

The CAP did not ignore D.T.’s evidence: it rather addressed that evidence, saying it “did
not find [D.T.’s] opinion credible as to [respondent’s] diagnoses [and] current functioning
. . . .”
Thus, th e evidence as a whole supports the view that respondent does not need
treatment and supervision for a sexual disorder. See Duvall, 916 N.W.2d at 892-93.
2. Whether Respondent Is a Danger to the Public
The same three doctors reported on and testified as to the degree to which
respondent should be perceived as a danger to the public. A.P. and J.T. noted in their
reports that respondent is a juvenile-only sex offender, i.e., that all his sexual offenses were
committed between 1992 and 2002, when he was six to fifteen ; that the degree of
recidivism for juvenile-only offenders is probably low; and that therefore respondent has a
low risk of any further criminal sexual conduct. A.P. said in her report:
Available stu dies investigating juvenile sexual recidivism
consistently show juvenile [offenders] sexually reoffend at a
rate of 4-5 %. Thus, according to the majority of studies, 95%
- 96% of juvenile sexual offenders do not sexually reoffend.
. . . [A]dult sex offender treatment was never warranted
to treat any adult paraphilic behavior [in respondent] . . . .
Treatment targeting prosocial outcomes and maturity has
created internal change in [respondent], and, likely mitigated
his low level of risk in the lower direction.

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J.T. similarly reported:

[R]esearch suggests that juvenile offenders are at a low risk to
reoffend, with recent research showing the reci divism rate to
be 2.75%. . . . S pecifically, the research has found the effects
of long term treatment on recidivism are greatest for high risk
offenders, and can be less helpful or even detrimental for low
risk offenders. [Respondent’s] risk for sexual dangerousness,
based on these findings, is statistically low, and would not
warrant the amount of trea tment and security prescribed at
MSOP.

D.T. did not address respondent’s risk of recidivism in his report, but he was
questioned on it during the hearing. He agreed with A.P. and J.T. that studies of recidivism
for juvenile-only sexual offenders “have generally been interpreted as indicating a fairly
low base rate of sexual recidivism for this group. . . . [M]y starting assumption is that I’m
unlikely to think that they meet the level of risk required for commitment.” When asked ,
“And what do you mean by ‘low’?” he replied, “[S]omething like a three percent sexual
recidivism rate for live samples of juvenile history of sex offending . . . .” When asked if
he considered it appropriate to accept the three percent rate for respondent or to consider
other factors, D.T. replied that, i n a period “relatively close to when [juvenile-only
offenders] committed the original offense, they may be more likely to re -offend; but . . .
[in] a period . . . many years later —so after they had been out in the community for many
years . . . then that risk is rather low.”
D.T. explained further that , when doing adult follow -up of juvenile -only sex
offenders, “the individuals have matured by the time that they are being followed up, and
that it’s . . . less sexually preoccupied, less aggressive, and so on by that time, and that a

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lower rate of re-offending would reflect that.” Thus, D.T. agreed generally with A.P. and
J.T. that juvenile-only sex offenders have a low rate of recidivism as adults.
But D.T. did not say a low rate of recidivism would necessarily apply to respondent.
[O]ver the last few years, he’s still sexually preoccupied, he’s
still impulsive and depressive, shows poor regulation of his
emotions. . . . Behaviorally he’s very, very similar to a juvenile
with behavioral and emotional problems. . . . He doesn’t seem
to have shown the kind of maturation which would have been
typical in those samples. . . . .
On the other hand, he is in fact somewhat older and his
offenses were in fact some years [now 17 or 18 years] ago, so
my conclusion is, frankly, we don’t know. . . . .
. . . [T]he applicable base rate [of recidivism] might be
around twelve percent or something, and so somebody who
was high-risk relative to that would have a substantial risk of
re-offending. . . . [But] the applicable base rate might be as low
as three percent, in which case somebody . . . would have a
much lower risk. And I don’t think we are . . . in a position to
tell which of those things apply [to respondent.]

(Emphasis added.) The o pinions of two doctors that respondent, a juvenile -only sex
offender, was likely to have a very low rate of recidivism, about three percent , and the
statement of a third doctor that he did not really know, but that it might be as high as 12%,
do not amount to clear and convincing evidence that respondent poses a danger of
reoffending, given the low risk of recidivism. See Minn. Stat. § 253D.28, subd. 2(d)
(“[T]he party opposing discharge or provision al discharge bears the burden of proof by
clear and convi ncing evidence that the discharge or provisional discharge should be
denied.”)
The CAP said it “did not find [D.T.’s] opinion credible as to [respondent’s
diagnoses, current functioning, and potential risk of re -offense.” The CAP also noted that

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D.T.’s statement that he did not really know whether the low recidivism rate for juvenile -
only offenders would apply to respondent
does not even support a finding of significant risk by a
preponderance of the evidence. The Commissioner has the
burden to provide clear and convincing evidence that the
discharge should be denied, and [D.T.’s] analysis was not clear
and convincing, especially concerning whether . . . the low base
rates associated with recidivism risk for juvenile -only
offenders properly app lies to [ respondent.] The [CAP] was
persuaded by [A.P.’s] and [J.T.’s] risk analysis and
explanations of [respondent’s] current treatment needs as well
as the applicability of the juvenile -only base rates to
[respondent’s] situation.

Thus, the evidence as a whole supports the CAP’s findings that respondent “is no
longer dangerous to the public and is no longer in need of inpa tient treatment and
supervision,” and we agree with the CAP’s conclusion that appellant “failed to show by
clear and convincing evidence th at [respondent’s] petition for a full discharge should be
denied.”
Affirmed.