In the Matter of the Civil Commitment of: Richard Russell Fageroos.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1078

In the Matter of the Civil Commitment of:
Richard Russell Fageroos.

Filed March 8, 2021
Affirmed
Gaïtas, Judge

Commitment Appeal Panel
File No. AP19-9073

John P. Chitwood, Ch itwood Law, PLLC, St. Paul, Minnesota (for appellant Richard
Russell Fageroos)

Keith Ellison, Attorney General, Aaron Wint er, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Commissioner of Human Services)

Donald F. Ryan, Crow Wing County A ttorney, Rockwell Wells , Assistant County
Attorney, Brainerd, Minnesota (for respondent Crow Wing County)

Considered and decided by Gaïtas, Pres iding Judge; Connolly, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Richard Fageroos challenges the denial of his petition for transfer,
provisional discharge, or full discharge from indeterminate civil commitment to the
Minnesota Sex Offender Program (MSOP) as a sexually dangerous person. We affirm.

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FACTS
In August 2006, appellant was committed to the MSOP as a sexually dangerous
person (SDP) for an indeterminate period of time. Appellant’s civil commitment stemmed
from his criminal history and uncharged allegations of domestic assault and criminal sexual
conduct.1 His criminal history includes a 1991 conviction for kidnapping—which notably
was part of a plea deal that led to the dismissal of a third- degree criminal sexual conduct
charge—and two convictions from 1992 for first-degree burglary and first-degree criminal
sexual conduct. Following his commitment, appellant refused to participate in MSOP
treatment and was eventually transferred to th e Department of Corrections. He remained
in prison for about five years before being transferred back to MSOP in 2011.
In May 2018, appellant pe titioned the civil commitment Special Review Board for
a transfer to community prepar ation services (CPS), or in th e alternative, for either a
provisional discharge or full discharge from his civil commitment. The Special Review
Board held a hearing and subsequently issued findings of fact and a recommendation that
appellant’s petition be denied in its entirety. Appellant then timely filed a petition for
rehearing and reconsideration of the Special Review Board’s findings and
recommendation.
The Commitment Appeal Panel (CAP) to ok review and held a hearing on
appellant’s petition in March 2020. During the hearing, appellant called the court-
appointed psychologist to testif y as a witness and offered one exhibit, a 28-page report

1 Appellant’s ex-spouse testified to the uncharged allegations in a hearing leading up to the
district court’s order for civil commitment.

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written by the psychologist. The psychologist had diagnosed appellant with (a) “Other
Specified Paraphilic Disorder, Non-Consenting Females, In a Cont rolled Environment”;2
(b) “Other Specified Personality Disorder, with Antisocial Features”; and (c) “Alcohol Use
Disorder, Moderate to Severe, In Remission, In a Controlled Environment.” Her report
stated that appellant “actively rejects his current diagnoses” and “remains an untreated sex
offender despite his continuous placement in highly structured and secure environments
(i.e., prison, MSOP) for the past 27 years.” The psychologist testified that the “two primary
drivers” for appellant’s past sexual misconduct, sexual deviance, and antisocial tendencies,
have not been addressed during appellant’s civil commitment because appellant has refused
to participate in MSOP sex-offender treatme nt. She opined that appellant would not
succeed if transferred to CPS and noted her opposition to a provisional or full discharge.
Appellant also testified at the hearing. He testified th at he has changed over the
years, insisting that he is more empathetic, less combative, and that he avoids “drama.” He
emphasized that he has remained sober for the last 29 years, and if released into the
community, he would continue to abstain a nd would be open to attending Alcoholics
Anonymous. Appellant stated that he take s responsibility for the sexual offenses he
committed in the past. He denied any notion th at he currently poses a danger to society.
Appellant testified that he could succeed in the community because he has a good support
system and would find employment. Accordin g to appellant, he does not need inpatient
treatment. And he characterized the treatment available at MSOP as “ineffective.”

2 According to the psychologist, paraphilic disord ers refer to “sexual interests, urges, or
behaviors that an individual experiences that are considered outside of the norm.”

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Both the commissioner of human services and an assistant county attorney appeared
on behalf of the state. The commissioner of fered various MSOP reports and assessments
into evidence, fifteen e xhibits in total, for the CAP to consider in reviewing appellant’s
transfer request. At the close of the eviden tiary phase of the hearing, the commissioner,
joined by the county , moved to summarily dismiss a ppellant’s petition under Minnesota
Rule of Civil Procedure 41.02(b)3 for failing to support the requested transfer, provisional
discharge, or full discharge. The CAP later issued its written order granting the motion to
dismiss appellant’s petition in its entirety.
This appeal follows.
DECISION
Appellant’s brief to this court seemingly raises two issues. First, as a threshold
consideration, appellant seems to argue that the procedures for challenging continued civil
commitment, which are set fo rth by Minnesota Statutes, ar e unconstitutional. Second,
appellant makes a general challenge to the CAP’s rejection and summary dismissal of his
petition.
I. We decline to address appellant’s constitutional challenge to Minnesota’s SDP
statutes because appellant failed to adequately brief the issue.

By statute, a person
seeking discharge or provisional discharge [from commitment
as SDP] bears the burden of going forward with the evidence,

3 As we discuss in more detail below, when a petitioner moves for discharge from MSOP,
the petitioner must first satisfy a threshold burden of production dur ing a “first-phase
hearing.” At the close of the first-phase hearing, the commissioner may move to dismiss
the petition under rule 41.02(b). See Coker v. Jesson , 831 N.W.2d 483, 485-86 (Minn.
2013).

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which means presenting a prima facie case with competent
evidence to show that the person is entitle d to the requested
relief. If the petitioning party ha s met this burden, the party
opposing discharge or provision al discharge bears the burden
of proof by clear and convincing evidence that the discharge or
provisional discharge should be denied.

Minn. Stat. § 253D.28, subd. 2( d) (2018). Appellant assert s that the statute violates
“[b]asic notions of fair play and liberty interests” by placing an initial burden of production
on a petitioner seeking discha rge because it “fosters a statutory presumption for
commitment and confinement and [is] against our nation’s long-held belief that the default
state of people is liberty.” We interpret appellant’s position as a challenge to the
constitutionality of the proc edures outlined under the civil-commitment statutes,
specifically the statutes regarding petitions for discharge or provisional discharge from
commitment as SDP.
Generally, appellate courts reject challe nges to the constitutionality of statutes,
including commitment statutes, “unless the challenging party demonstrates that [a statute]
is unconstitutional beyond a reasonable doubt.” In re Poole, 921 N.W.2d 62, 69-70 (Minn.
App. 2018) (quotation omitted). And appellate courts may decline to consider inadequately
briefed questions. State Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d
480, 480 (Minn. 1997); see In re Civil Commitment of Kropp, 895 N.W.2d 647, 654 (Minn.
App. 2017) (applying Wintz in a civil-commitment matter), review denied (Minn. June 20,
2017). Here, appellant provides nothing more than the generalized claims of
unconstitutionality mentioned above . Appellant does not support his assertions with an

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actual argument. Absent adequate briefing of the constitutional issue here, we decline to
address it.
II. The CAP did not err in summarily dism issing appellant’s petition for
discharge.

Next, appellant argues that “[t]he [CAP] erred when it found that [he] had not
established a prima facie case for discharge as a matter of law be cause [he] produced
competent evidence that his provisional discharg e should be granted to begin to integrate
him back into the community.” The CAP dismissed appellant’s petition under Minnesota
Rule of Civil Procedure 41.02(b), concluding that appellant failed to establish a prima facie
case for relief. “[W]hen a [CAP] dismisses a petition under Minn. R. Civ. P. 41.02(b), the
appropriate standard of appellate review is de novo.” Larson v. Jesson, 847 N.W.2d 531,
534 (Minn. App. 2014).
Appellant petitioned for provisional or full discharge. A provisional discharge is
essentially a reduction in custody during which the individual must abide by the terms and
conditions of a provisional di scharge plan, which is devel oped and monitored by MSOP
and any other designated agency. See Minn. Stat. § 253D.30. A full discharge effectively
terminates an individual fro m civil commitment wh en they are no long er in need of
treatment and supervision or the period set by the original civil commitment order has run
its course. See Minn. Stat. § 253D.31.
When a petition for full or provisional discharge comes before the CAP, the
committed person “bears the bur den of going forward with the evidence, which means
presenting a prima facie case with competent ev idence to show that the person is entitled

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to the requested relief.” Minn. Stat. § 253D.28, subd. 2(d); Coker, 831 N.W.2d at 485-86.
The petitioner must satisfy this threshold bu rden by producing “su fficient, competent
evidence that, if proven, would entitle the petitioner to relief.” Coker, 831 N.W.2d at 486
(quotation omitted). This occurs during a “first-phase hearing.” Id. If satisfied, the CAP
then proceeds to a “second-phase hearing” wherein the respondent “bears the burden of
proof by clear and convincing evidence that the discharge or provisional discharge should
be denied.” Id. at 486 (quotation omitted).
If, however, the respondent moves for a rule 41.02(b) dismissal of the petition at the
close of the first-phase hearing—as the commissioner did here—the CAP may dispense
with the need for a phase-two hearing if th e CAP concludes that the petitioner failed to
make a prima facie case for the relief sought. See id. at 491. When considering a motion
to dismiss a discharge petition, the CAP must view the evidence in the light most favorable
to the petitioner and should refrain from we ighing the evidence or making credibility
determinations. Id.
We first consider the CAP’s denial of appellant’s request for provisional discharge,
given that “the criteria for a provisional discha rge are more lenient th an the criteria for a
[full] discharge.” Larson, 847 N.W.2d at 535. A petitioner who is civilly committed as a
SDP “shall not be provisionally discharged unless the committed person is capable of
making an acceptable adjustment to open society.” Minn. Stat. § 253D.30, subd. 1(a). This
determination is made by considering two fa ctors: “(1) whether the committed person’s
course of treatment and present mental stat us indicate there is no longer a need for
treatment and supervision in the committed person’s current treatment setting” and

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“(2) whether the conditions of the provisiona l 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); Call v. Gomez , 535 N.W.2d 312, 319
(Minn. 1995) (noting that “a slight change or improvement in the person’s condition is not
sufficient to justify discharge”). A petitioner’s own self-serving testimony, without more,
is insufficient to satisfy the threshold burden of production. See Poole, 921 N.W.2d at 68
(explaining that acceptance of uncorroborated assertions of a petitioner would cause the
first-phase hearing to “devolve into committed persons reciting conclusory and formulaic
testimony” in order to obtain a second-pha se hearing, essentially by “uttering magic
words”).
After thorough review, we conclude that the CAP properly viewed the evidence in
the light most favorable to appellant and di d not weigh the evidence or make credibility
determinations when considering appellant’s request for provisional discharge. The CAP
ruled that appellant’s submissi ons showed that appellant presents a risk of recidivism
because he remains untreated and is still “en trenched in antisocial and criminal thinking
patterns [that] will preven t him from adjusting to the community.” And the CAP
appropriately declined to accept appellant’s own testimony as the only support for his
petition. Accordingly, the CAP determined that “[n]o competent evidence has been
presented to establish that [appellant] no longer needs supervision in his current treatment
setting” and that appellant “ha[d] not made a prima facie showing that he has a provisional
discharge plan that [would] provide a reasona ble degree of protection to the public and
enable him to adjust successfully to the community.” The CAP’s determinations are amply

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supported by the record and appellant has put forth no argument to otherwise persuade us.
Thus, the dismissal of appellant ’s petition for provisional discharge for failure to make a
prima facie case for that relief was not erroneous.
Further, because appellant failed to satisfy his burden of produc tion at the phase-
one hearing as to provisional discharge, th e summary dismissal of his request for full
discharge, under a more demanding standard, logically follows. See Larson, 847 N.W.2d
at 535-36. We therefore need not separately address the issue of full discharge.
III. The CAP did not err in rejecting appellant’s transfer request.

Finally, although appellant’s brief does not explicitly challenge the CAP’s rejection
of his transfer request, we briefly review the issue in the interests of justice because the
CAP issued detailed findings regarding the transfer request, and respondent’s brief to this
court addresses the issue. See Minn. R. Civ. App. P. 103.04; MacDonald v. Brodkorb, 939
N.W.2d 468, 474 (Minn. App. 2020) (“[W]e may review forfeited issues as the interests of
justice require.”).
Appellant petitioned for a transfer from a se cure treatment facility to CPS, which is
a nonsecure environment. To prevail on a transfer petition brought before the CAP, a
petitioner “must establish by a preponderance of the evidence that transfer is appropriate.”
Minn. Stat. § 253D.28, subd. 2(e). The appr opriateness of a given transfer request turns
on an evaluation of certain statutory 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

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

Minn. Stat. § 253D.29, subd. 1(b). At the end of the hearing, any party opposing the
petition for transfer may move to dismiss the petition under Minn. R. Civ. P. 41.02(b) “on
the ground that upon the facts and the law, th e [petitioner] has shown no right to relief.”
See Foster v. Jesson, 857 N.W.2d 545, 548 (Minn. App. 2014). “But, unlike a discharge
petition, a petition for transfer imposes the bur dens of production and persuasion on the
petitioner at the hearing before the judicial appeal panel.” Id. (citing Minn. Stat.
§ 253D.28, subd. 2(e)).
Here, although the CAP’s order ultimat ely dismissed appellant’s petition “in its
entirety” under rule 41.02, the CAP also made thorough, detailed findings of fact based on
the evidence received during the hearing on appellant’s petition, a nd it concluded that
appellant did not meet the statutory criteria for transfer. This suggests that the CAP acted
as the trier of fact regarding appellant’s transfer request and determined that appellant had
not satisfied his burden. “[W]e will not reverse a CAP’s decision on a petition for a
reduction in custody so long as the underlying findings are supported by the evidence as a
whole.” In re Civil Commitment of Edwards , 933 N.W.2d 796, 803 (Minn. App. 2019),
review denied (Oct. 15, 2019); see Foster, 857 N.W.2d at 548 (c larifying that when the
appeal panel sits as trier of fact and renders judgment in written findings, we review those
findings for clear error). In particular, th e CAP’s findings are largely based on the
psychologist’s testimony, clinical diagnoses, and her ultimate opinion that appellant would
not be successful if granted a reduction in custody. Cf. In re Civil Commitment of Crosby,

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824 N.W.2d 351, 356 (Minn. Ap p. 2013) (noting that when fi ndings of fact “rest almost
entirely on expert testimony” the evaluation of credibility is particularly significant),
review denied (Minn. March 27, 2013). Appellant has not shown that the CAP’s findings
of fact are clearly erroneous. See Loth v. Loth, 35 N.W.2d 542, 544 (Minn. 1949) (holding
that “error is never presumed” on appeal). Moreover, the CAP’s findings of fact are indeed
supported by the record. See Wilson v. Moline, 47 N.W.2d 865, 870 (Minn. 1951) (stating
that the function of an appellate court “does not require [it] to discuss and review in detail
the evidence for the purpose of demonstrating that it supports the trial court’s findings”
and that the court’s “duty is performed when [it] consider[s] all the evidence . . . and
determine[s] that it reasonably supports the findings”); Cook v. Arimitsu, 907 N.W.2d 233,
240 n.3 (Minn. App. 2018) (applying this aspect of Wilson).
But even if we interpret the CAP’s order as dismissing the transfer request as a
matter of law under rule 41.02(b)—despite the CAP’s extensive factual findings—our
decision remains the same. We review a su mmary dismissal of a transfer petition under
rule 41.02(b) de novo. See Edwards, 933 N.W.2d at 802-03. Here, where appellant offered
no evidence supporting his transfer request beyond his own self-serving testimony, the
facts and the law established no right to relief. Poole, 921 N.W.2d at 68 (“Generally, courts
have ruled that mere conclusory assertions ar e insufficient to avoid an adverse ruling.”).
Thus, appellant’s transfer request was legally deficient, justifying dismissal under rule
41.02(b).
Affirmed.