STATE OF MINNESOTA
COUNTY OF TODD
SUPREME COURT APPEAL PANEL
August 24, 2016
Appeal Panel File No. AP15-9084
County File No. 77-PR-08-1766
In the Matter of the Civil Commitment of:
Eric Terhaar,
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
ORDER & MEMORANDUM
Respondent.
The above-entitled matter came on for hearing before the undersigned Judges of the
Judicial Appeal Panel at the Dakota County Judicial Center, Hastings, Minnesota on April 11,
12, and 13, 2016, at 9:00 a.m.
The Commissioner of Human Services was represented by Aaron Winter, Assistant
Attorney General.
Eric Terhaar (herein after “Respondent”) was represented by Timothy
Churchwell, Esq.
Todd County, the county of commitment, did not participate in these
proceedings.
The Special Review Board (SRB) issued “Findings of Facts and Recommendation” dated
September 2, 2015, recommending that the petition for full discharge from Respondent’s civil
commitment as a Sexually Dangerous Person be granted. The Commissioner petitioned this
Panel for rehearing and reconsideration of the SRB’s recommendation.
Dr. Amanda Powers-Sawyer was appointed as the Court’s Independent Examiner. The
Panel received Commissioner’s Exhibits 1-24 and Respondent’s Exhibits 1-25 & 27.
Respondent’s Exhibit 26 was not received.
Based upon the proceedings, the Court now makes the following:
FINDINGS OF FACT
Background:
1. Stipulated Findings of Fact, Conclusions of Law, and Order for Indeterminate
Commitment were signed March 10, 2009. The Order indeterminately committed
Respondent as a Sexually Dangerous Person (SDP) to the Minnesota Sex Offender
Program (MSOP). Respondent was 19 years old at the time of commitment.
2. Respondent was born in 1990 in Georgia. His birth father was in prison and his birth
mother who abandoned him shortly after birth in a Las Vegas motel room. His
grandmother briefly raised him, but then abandoned him at a daycare center in 1992.
Respondent was placed in foster care and was adopted by his foster parents in 1995. His
foster parents had five other adopted children, two boys and three girls. All but one of
these children have developmental disabilities.
3. His adoptive parents divorced, and he moved with his adoptive mother to Texas.
4. Respondent had a history of behavioral problems as a child including aggression, fire
setting, animal cruelty, theft, destruction of property, and lying.
5. At the age of six, Respondent was admitted to the San Diego Center for Children for
aggressive behaviors, including attempting to stab his sister with a knife, throwing his
younger brother off a bunk bed, and breaking another sibling’s arm. Respondent also
attempted to set a bathroom on fire.
6. While at the San Diego Center for Children, Respondent reports he was sexually abused
by a 12-year old male and that he was later sexually abused by an uncle or brother-inlaw. While in residential treatment, Respondent also reports being forced to perform oral
sex on two 17-year old boys.
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7. When Respondent was 10 years old, he sexually abused his developmentally delayed
sisters, ages 7 and 10 at the time. Respondent was adjudicated delinquent for this
behavior and placed on supervised probation for a period of 24-months. Respondent then
moved to Minnesota with his brothers to live with his adoptive father.
8. Respondent also engaged in sexual contact with one of his brothers.
9. Respondent had no contact with his adoptive mother since his sex offending behavior at
age 10 until 2007. According to treatment records, she remains involved in Respondent’s
life. When Respondent’s mother found out about his behaviors, he alleges that she
physically abused him by slapping him and making him sleep in a closet on a towel for a
few days as punishment. When Respondent disclosed his brother-in-law was sexually
abusing him, his mother did not believe him.
10. Respondent has been in a secure setting since the age of 14. He was first admitted to
White Pine Academy in early 2004. He was discharged for breaking the confidentiality
of a peer. Respondent was then admitted to the McLeod Treatment program.
11. While residing at McLeod Treatment Program, two minor females reported that
Respondent touched their breasts during a game of touch football. Respondent was
charged with 5th Degree Criminal Sexual Conduct, but it does not appear from the records
that he was never adjudicated for these offenses. Respondent has always maintained that
the physical contact was accidental. Respondent was terminated from the program in
2005 and transferred to Mille Lacs Academy.
12. Respondent was discharged from Mille Lacs Academy in December 2006. At that time,
he was transferred to a foster home.
13. While in placement from age 14 to 17, Respondent continued to display behavioral
problems such as fighting, aggression, stealing, property destruction and lying.
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14. There were two instances of alleged masturbation that occurred in the foster home. First,
Respondent’s foster mother discovered him masturbating in his bedroom with the door
open. Respondent maintains that he was unaware anyone was home at the time. The
next day, the foster mother alleged that Respondent masturbated in the backseat of the car
next to her grandchild. Respondent maintains that he was adjusting himself and not
masturbating. As a result of these allegations, Respondent was placed at the PORT
Group Home from May 2, 2007, to May 15, 2007.
Based upon his behaviors,
Respondent was court-ordered to Central Minnesota Juvenile Center until a less
restrictive alternative became available. On May 22, 2007, he was court-ordered to the
ITASKIN Juvenile Center. From there, Respondent was sent to Carlson Foster Home and
eventually transferred to the West Central Regional Juvenile Center (WCRJC)
15. While at WCRJC, Respondent continued to engage in aggressive and assaultive behavior.
After completing 90 days at this placement, he was sent to KidsPeace Mesabi Academy
on October 3, 2007, where he remained until his admission to MSOP in January 2009.
16. He obtained a high school diploma at MSOP – Moose Lake in 2011.
17. Respondent has had a variety of jobs while at MSOP, including Schantz Kitchen working
9 hours per week. He has no other community employment history. His 2015 vocational
evaluations place him in “enhanced” to “proficient” in all areas and Respondent is
described as “enthusiastic attitude,” “excelled in this position,” and “often exceeds
expectations.”
18. Nonetheless, Respondent has received numerous Vocational Treatment Notices due to
behavioral infractions outside of vocational placement or for frequently calling in sick.
This has resulted in periods of time where he was not permitted to have a job because he
was not considered ready for vocational placement.
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19. Respondent has an extensive mental health history. Respondent was previously
diagnosed with ADHD, Mathematics Disorder and Disorder of Written Expression, and
Bipolar I Disorder. He was found to have a strong likelihood of Fetal Alcohol Syndrome
and Fetal Alcohol Effects. Respondent has cognitive defects that affect his executive
functioning, specifically, his capacity for self-regulation, planning, and sustaining good
directed behavior. Essentially, his capacity for managing his behavior is not keeping pace
with his physical and sexual development.
20. With the help of treatment providers, Respondent has been able to discontinue
medications at times.
21. Respondent does not have a history of substance abuse. He did admit to attempting to
make “hooch” while at MSOP and eating “ditch weed” he found on MSOP grounds.
Procedural History:
22. On May 18, 2014, a panel of four court-appointed experts related to a federal civil
lawsuit unanimously recommended Respondent be unconditionally discharged. This
recommendation was contained in a document titled, “Summary of Eric Terhaar –
Discharge Recommended.” The experts noted that there are no tools in common use that
provide long-term predictive validity in juvenile recidivism. In fact, research on juvenile
sexual offenders suggests they have low recidivism rates because juvenile offending
behaviors are driven by different issues than those that drive adults. Juveniles are also
more amenable to change than adults. The experts indicated, “There is good reason to
believe that these sexual offenses were influenced by his own history of sexual
victimization and a lack of understanding as to how to deal with his trauma. . . Overall,
there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender who
poses a significant risk to public safety.”
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23. Nancy Johnston, then Executive Director of the Minnesota Sex Offender Program,
petitioned for transfer to Community Preparation Services (CPS) on Respondent’s behalf
on June 30, 2014.
24. On July 8, 2014, the Special Review Board recommended Respondent be immediately
transferred to CPS. The SRB recommendation acknowledges that Respondent’s situation
is unique in that he acted out in an inappropriate sexual manner at the age of 10.
Respondent’s needs are in the area of developing skills so he can adapt to independent
living outside an institutional setting. The SRB indicated a desire for there to be adequate
preparation for discharge planning so he is not set up for failure and felt discharge was
premature at that time.
25. This Panel granted Respondent’s transfer to CPS by order dated October 7, 2014. 1
Respondent was transferred to CPS on October 29, 2014.
26. Nancy Johnston filed a petition for discharge on Respondent’s behalf on October 24,
2014.
27. An Amended Petition was submitted to the SRB on February 26, 2015, to include a
request for provisional discharge as well as discharge. Nancy Johnston submitted a letter
with the Amended Petition indicating that Respondent refused to develop a provisional
discharge plan and one would be submitted on his behalf for review by the SRB.
28. A hearing was held before the SRB on August 12, 2015.
29. The SRB issued its Findings of Fact and Recommendation on September 2, 2015. The
SRB recommended that the request for full discharge be granted. The SRB did not
address the request for provisional discharge.
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It should be noted the Order is dated October 7, 2013 in error.
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30. The Commissioner of Human Services petitioned this Panel for rehearing and
reconsideration of the SRB’s recommendation.
Treatment Records:
31. Respondent’s Quarterly Treatment Progress Report (QTRP) dated October 17, 2014,
indicates Respondent has good attendance in core groups and modules and participates in
community meetings and individual sessions. Respondent’s participation waxes and
wanes from being open and engaged to being disruptive and unable to sit still.
Respondent has expressed his frustration with his civil commitment and these frustrations
can interfere with his ability and willingness to engage in discussions about the
connection between treatment and his everyday life. Respondent received mostly ratings
of “satisfactory” with a few “needs attention” and “enhanced” ratings. Respondent was
removed from vocational placement due to his medical restrictions and his behavioral
concerns. Respondent was encouraged to continue to participate in Therapeutic
Recreation on a frequent basis to help him in his matrix factors of self-monitoring,
emotional regulation and interpersonal skills.
32. An Individual Treatment Plan Report (ITP) dated November 7, 2014, indicated the
following areas of concern for Respondent: healthy lifestyle, self-monitoring, cooperation
with rules and supervision, and emotional regulation. Respondent was given goals and
action plans for each of these areas.
33. In an Annual Treatment Progress Report dated January 22, 2015, it was noted
Respondent attended all of his scheduled core groups during the period, and he worked
hard to acclimate to his group and find ways to connect. Respondent regularly
participated and provided feedback to his peers. He also started attending modules and
regularly attending and participating in Therapeutic Community Meetings. Respondent
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attended 21 out of the 24 core groups available. Respondent continued to struggle with
following basic rules, but he indicated a willingness to comply. Respondent had a
positive year in vocational programming despite receiving three notices which resulted in
his removal for 90 days. Respondent participated in Therapeutic Recreation on a frequent
basis throughout the previous year and was usually appropriate with some noted
difficulty regulating emotions during competitive sports. During this period, Respondent
moved to CPS but adjusted well.
34. The QTRP from May 2015 indicates Respondent attended his core groups on a regular
basis and improved his ability to accept feedback from group members. However, his
level of engagement was variable. He refused to develop a relapse prevention plan or
maintenance plan and refused to participate in family therapy. However, Respondent
consistently expressed emotions in a pro-social and appropriate manner. The majority of
his ratings were “satisfactory” or “needs attention.” Respondent continued to do well
with Therapeutic Recreation. Respondent’s compliance with the rules increased, but he
continued to test boundaries.
35. The August 2015 QTRP notes Respondent participated in 30 of the 31 core groups
available, although his engagement continued to be variable. He regularly attended his
Therapeutic Community Meetings. Respondent was again removed from vocational
programming due to falsification of his timecard. It was noted that when Respondent is
focused, he is a good worker, but when he is distracted, he is sloppy. Respondent’s
ratings were “satisfactory” and “needs attention,” with one “deficient” and six
“enhanced” ratings.
Respondent actively participated in therapeutic recreation
programming, but he was inconsistent with reintegration outings. Respondent had
numerous behavioral issues during this quarter including rule-breaking and lying.
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36. The November 2015 QTRP indicates Respondent participated in 31 out of the 31 core
groups available during this quarter, but he continued to be inconsistent in his
engagement. Respondent attended weekly therapeutic community meetings and increased
his willingness to discuss provisional discharge planning. He continued to struggle with
following basic rules. Respondent received ratings of “satisfactory” and “needs
attention,” but he had no “deficient” ratings and six “enhanced” during this period.
Respondent’s behavioral progress improved slightly.
37. An Annual Treatment Progress Report was issued on March 22, 2016. The 2016 ATPR
adopted the diagnoses from the October 27, 2015, Psychological Assessment Update by
Dr. Nicole Elsen. Respondent attended his core groups on a regular basis, but his
engagement was inconsistent. He made some efforts toward completing a Relapse
Prevention Plan. Respondent regularly attended weekly therapeutic community meetings,
but his contribution remained minimal. Respondent completed the STEPPS module
designed to assist him in emotional regulation and self-monitoring. Group members
reported Respondent has increased in maturity and his willingness to disclose.
Respondent continued to have the following areas of concern: healthy lifestyle, selfmonitoring, cooperation with rules and supervision, and emotional regulation.
Respondent scored mostly “needs attention” and “satisfactory” with only five “enhanced”
ratings. In December 2015, Respondent gained his treatment team’s support to participate
in vocational placements. He had a difficult year in vocational programming. However,
he and his vocational counselor planned to meet weekly to work on his resume, complete
mock interviews, and work through roleplay work situations. Respondent continues to be
very active in therapeutic recreation programming. Respondent’s cooperation with rules
and supervision increased as he managed his emotions more effectively, improved his
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pro-social decision making, and worked to be more accountable for his behavior. He
developed meaningful relationships and built trust with peers. Despite this progress,
Respondent continued to push boundaries and showed a lack of concern for the rules.
However, the number of rule violations significantly decreased during the review period.
When challenged on rule violations, Respondent became more accountable for his
actions. Respondent lacks internal motivation for rule compliance and requires external
reinforcements. Respondent continued to voice his disagreement with treatment
recommendations as he continued to refuse to develop a maintenance plan or participate
in family therapy.
38. A review of therapy group participation progress notes reveals Respondent is frustrated
with the legal system and MSOP and is vocal about his frustrations. Respondent’s
treatment participation fluctuates from periods of minimal participation to periods of
reengagement and active participation.
39. A review of individual progress notes shows Respondent consistently pushes the rules
and expectations and attempts to minimize the impact of his behaviors. Respondent
acknowledges he is supposed to be focusing on re-integration and struggles with how his
rule-breaking affects reintegration. Treatment providers do not believe Respondent
understands the potential challenges he faces upon reintegration.
40. Although long suspected of engaging in sexual behaviors with peers at Moose Lake,
Respondent only recently acknowledged this.
41. Respondent has received 12 incident reports since July 1, 2015. Many of these describe
verbal altercations with staff members or peers about his frustration with the rules,
MSOP, and his commitment. Respondent often expresses a belief that staff members are
out to get him. Respondent had seven master tamper events with his GPS tag, which is
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high since typical clients average less than one a year. Respondent indicated he was not
intentionally messing with his GPS and believed it may have been from working out.
Given the number of events, the Panel does not find this testimony credible.
42. A Brief Mental Health Assessment (MHA) dated January 14, 2013, was completed by
Sarah Herrick. Respondent received the following diagnoses:
a. Sexual Abuse Of A Child (Perpetrator Focus)
b. Attention-Deficit/Hyperactive Disorder, Combined Type, In Partial Remission
c. Bipolar Disorder, Not Otherwise Specified
d. Personality Disorder, Not Otherwise Specified, with Antisocial Traits
e. Fetal Alcohol Syndrome, By History
f. Problems With Primary Support System And With Interaction With The Legal
System
43. An MHA dated January 14, 2014 provided the following updated diagnoses:
a. Encounter for Mental Health Services for Perpetrator of Nonparental Child Sexual
Abuse
b. Antisocial Personality Disorder
c. Other Specified Personality Disorder, Borderline Personality Disorder Traits
d. Unspecified Alcohol-Related Disorder – Fetal Alcohol Syndrome per History
44. Heidi Menard, Senior Clinician at MSOP, explained that the Sexual Abuse of a Child
diagnosis was changed to Encounter for Mental Health Services for Perpetrator of
Nonparental Child Sexual Abuse pursuant to the DSM-V. Personality Disorder, Not
Otherwise Specified, with Antisocial Traits, was also changed to Antisocial Personality
Disorder. According to the report, Respondent no longer meets criteria for Bipolar
Disorder or Attention-Deficit/Hyperactive Disorder.
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45. As referenced above, a Psychological Assessment Update Report was completed October
27, 2015 by Dr. Nicole Elsen. Dr. Elsen administered the Jesness Inventory-Revised (JIR), which helps identify emotional, social, and behavioral problems among juvenile and
adult offenders. Personality scale analysis found no clinically significant elevations on
the eleven conventional scales. Based upon her assessment, Dr. Elsen believed Dr. Taylor
Norgaard’s diagnoses in the SRBTR dated April 13, 2015 were appropriate. Those
diagnoses will be addressed below.
46. Based on the JI-R assessment, Dr. Elsen felt Respondent would thrive if he knew exactly
what was expected of him. She opined that he will likely need repeated reminders of a
task. She also opined that Respondent would benefit from a structured environment to
reduce his anxiety and improve his ability to focus on treatment.
47. An Individual Program Plan (IPP) was initiated July 7, 2015, due to Respondent’s
inadequate emotional management, self-monitoring, pro-social problem solving, and
cooperation with supervision. Respondent’s cooperation with supervision is inconsistent
and has disrupted his treatment. Respondent disregards recommendations for treatment
and services to assist him. The IPP included a goal that Respondent would actively
participate in treatment, demonstrate pro-social attitudes, and increase his ability to selfregulate when experiencing negative emotions. The IPP laid out the procedure
Respondent and staff would follow for Respondent to meet this goal. The plan would be
discontinued when Respondent had no unexcused absences from core groups and psychoeducation modules, demonstrated consistent cooperation with rules and supervision,
demonstrated healthy pro-social problem solving and emotion management, and
maintained or increased his privilege status for 60 consecutive days.
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48. The IPP was updated several times as follows:
a. July 30, 2015: The IPP established separate goals for Respondent in incremental
stages after 14, 21, 28, 35, 42, 49 and 60 days. With each goal met, his privileges
would increase. According to the plan, Respondent was to be responsible and
accountable for his own choices and demonstrate skills in independence by
meeting his own shopping needs instead of having others purchase items for him.
b. August 21, 2015: The IPP was updated to reflect that Respondent achieved the 14
day and 21 day privileges.
c. September 1, 2015: The IPP was updated to reflect that Respondent had achieved
the 28 and 35 day privileges.
As a result, his privilege status changed
accordingly.
d. September 11, 2015: Respondent achieved his 42 day privileges. As this point,
he was considered for vocational placement. However, it was noted that on
September 7, 2015, Respondent took food from another peer’s fridge space and
lied to staff and peers about his behavior. It was decided to discontinue
Respondent’s off-campus outing privileges that were achieved on September 1,
2015, until he had an additional 14 consecutive successful days. The team and
CPS community discussed the situation on September 11, 2015. A decision was
made to implement an update to require Respondent to have 40 consecutive
successful days following his plan and he would need an additional 28 days to
discontinue this plan. The IPP effectively started over on September 11, 2015, to
have new 14, 21, and 28 day achievement goals.
e. September 24, 2015:
Respondent was verbally abusive to others and
demonstrated a lack of cooperation with rules and supervision. Since September
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11, 2015, Respondent committed rule violations such as stealing food from a peer,
not following staff directions, unauthorized exchange of property, not properly
wearing his ID badge, making inappropriate hand gestures to another peer, and
verbal abuse towards staff. Due to his behavior, Respondent’s status was changed
to not vocational ready. His IPP outlined goals for 14, 21, 28, 35, 42, 49 and 60
successful consecutive days and the corresponding privileges.
f. September 29, 2015: The IPP was again updated to reflect new goals and
privileges for the 60 days.
g. December 8, 2015: Respondent’s IPP was discontinued.
Special Review Board Treatment Reports & Updates
49. Dr. Taylor F. Olson Norgaard completed a Special Review Board Treatment Report dated
April 15, 2015. A recommendation from Dr. Haley Fox, the Clinical Director, was also
dated April 15, 2015. Dr. Fox noted that the treatment program supported Respondent’s
petition for provisional discharge, but not his request for full discharge. At that time,
Respondent was in Phase II of the three-phase treatment program. He earned peerescorted walks on December 30, 2014, and off-campus escorted privileges on January 13,
2015.
50. Dr. Norgaard completed the SRBTR based on a review of collateral records because
Respondent refused to participate in a clinical interview, noting he did not want any
information he provided to be “used against me.”
51. Dr. Norgaard provided the following diagnoses pursuant to the DSM-V:
a. Encounter For Mental Health Services For Perpetrator Of Nonparental Child
Sexual Abuse
b. Antisocial Personality Disorder
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c. Other Specified Personality Disorder, Borderline Personality Features
d. Unspecified Trauma- And Stressor-Related Disorder
e. Other Specified Neurodevelopmental Disorder, Neurodevelopmental Disorder
Associated With Prenatal Alcohol And Drug Exposure
f. Problems Related To Other Legal Circumstances
52. Based upon Respondent’s age at the time of his offense and the age of his victims, he was
given the diagnosis of Encounter For Mental Health Services For Perpetrator Of
Nonparental Child Sexual Abuse.
53. According to Dr. Norgaard, the Antisocial Personality Disorder diagnosis is appropriate
based on Respondent’s pervasive pattern of disregard for others including failure to
conform to social norms, impulsivity, irresponsibility, deceitfulness, reckless disregard
for others, and lack of remorse. Respondent also exhibited behavioral problems from age
six, including rule violations, aggression, destruction of property, lying and theft.
54. As discussed below in greater detail, the Panel disagrees with this diagnosis and declines
to adopt it.
55. Dr. Norgaard explained that Respondent also exhibits borderline traits including
interpersonal relationship and mood instability, impulsivity, engaging in efforts to avoid
abandonment and intense and/or uncontrollable anger. However, Respondent does not
meet the full criteria for Borderline Personality Disorder.
56. As discussed below in greater detail, the Panel disagrees with this diagnosis and declines
to adopt it.
57. The Unspecified Trauma- and Stressor-related Disorder relates to Respondent’s history of
recurrent distressing dreams and avoidance of distressing memories. If additional
information is available, Dr. Norgaard opined the diagnosis may need to be modified.
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58. The diagnosis of Other Specified Neurodevelopmental Disorder, Neurodevelopmental
Disorder Associated with Prenatal Alcohol and Drug Exposure is based upon
Respondent’s birth records and other collateral records finding a strong likelihood of FAS
and FAE.
59. Dr. Norgaard also indicated that Respondent had difficulty with behavioral compliance.
Respondent still had incident reports at CPS for minor infractions such as not wearing his
identification badge, wearing hats and sunglasses within the secure perimeter, running
within the secure perimeter, not wearing a shirt in common living areas, borrowing peer’s
property, receiving property and money from peers, and failing to check in with staff
upon returning to CPS. Respondent has been described by peers as “manipulating” and
“attention seeking.” Respondent has lied to staff, been observed consuming hummingbird
nectar and shared a computer account with another peer to communicate with him against
staff directives and policy. However, Respondent is typically willing to commit to better
compliance when issues are discussed with him. He has shown improvement over time.
60. In the SRBTR Dr. Norgaard noted that Respondent has difficulty following the rules even
after prompting, but he demonstrated an ability to form a trusting alliance with treatment
providers. Respondent’s behavior seems to be impacted by negative emotionality or
stress, primarily related to his civil commitment. With the help of his treatment team, he
re-engaged with treatment and became more compliant and open to recommendations
during the period reviewed.
61. Dr. Norgaard opined that Respondent did not form a secure attachment in his early
childhood due to neglect and abandonment. As a result, Respondent learned that using
others was an acceptable way to have his needs met due to his lack of attachment.
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62. Dr. Norgaard indicated the importance of deinstitutionalization for Respondent since he
has been in a secure facility from the age of 14. He is developing a personal budget and
has been involved in a therapeutic recreational cooking class.
63. Dr. Fox opined that since his last known sexually abusive behavior occurred when he was
14 years old, he has participated successfully in off-campus reintegration activities, and
his overall willingness to abide by rules and engage in therapeutic and prosocial activities
has substantially improved, Respondent could participate in a less restrictive setting than
the CPS unit. However, given his fluctuation in willingness to abide by treatment goals
and minor rules, as well as a need to improve independent living skills, Dr. Fox opined
Respondent would benefit from and require support and monitoring when placed in a
community setting. As a result, MSOP only supported Respondent’s request for
provisional discharge.
64. A SRBTR Addendum was completed August 7, 2015, by Christopher Schiffer, then
Associate Clinical Director of the St. Peter campus. The Addendum noted that
Respondent initially expressed resistance to attending the intimacy module, but he
regularly participated and was curious about the topics. His attendance at the emotional
management module was poor but improved in July 2015. Respondent’s participation in
weekly core treatment groups increased and his insight and willingness to listen to
feedback steadily improved.
65. Respondent committed to calling his father on a weekly basis to discuss his treatment
progress.
66. Respondent participated in 14 off campus outings. He lost his privileges temporarily due
to significant rule breaking behavior as noted in the IPP.
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67. The Addendum notes that Respondent engaged in a problematic relationship with a peer.
Respondent accepted a variety of gifts from this peer despite direction from staff not to
accept them. Respondent chose to actively engage with this peer, hoping to get additional
gifts. Respondent also engaged in a scheme to sell contraband nutritional supplements
inside the secure perimeter. When confronted, Respondent was more willing to
acknowledge his role in encouraging this peer’s attentions and made a commitment to his
therapeutic community to be rule abiding. In late July 2015, Respondent acknowledged
brewing and drinking homemade alcohol and offering it to other clients. Respondent used
his increased liberty to hide the alcohol on campus.
68. In his testimony, Respondent acknowledged that this peer, G.G., expressed sexual interest
in him. Respondent also acknowledged that he received gifts from G.G. He testified that
he recently stopped all communications with G.G. in an attempt to maintain appropriate
boundaries. Respondent denied engaging in any sexual contact with G.G.
69. In the Addendum, Schiffer indicated that Respondent “continues to demonstrate a variety
of antisocial behaviors associated with immaturity with his increased liberty and personal
responsibility in CPS.” MSOP no longer supported Respondent’s petition for provisional
discharge and continued to oppose his request for a full discharge.
70. A SRBTR Update was prepared by Brenda Todd-Bense on March 7, 2016, and contained
a recommendation from Chris Schiffer, now Clinical Director at the St. Peter campus.
Todd-Bense noted Respondent continued to struggle with rule compliance. When
confronted with his rule-breaking, Respondent began to move past excusing and
defending his actions to acknowledging his behavior. As a result, he was more open to
feedback.
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71. Schiffer testified regarding Respondent’s present treatment needs. Those needs included
the following: maturity, development of prosocial skills, cooperating with rules and
supervision, development of an internal desire to change prosocially, and development of
the cognitive skills to change from an oppositional attitude to a rule compliant one. From
his perspective as a treatment provider, Schiffer testified that Respondent could benefit
from additional treatment focused on developing internal controls and motivation to
abide by basic rules and expectations. At no point did Schiffer testify about any need for
sex offender specific treatment or any treatment that needed to be accomplished in
Respondent’s current treatment setting.
72. Respondent’s treatment plan continued to focus on addressing antisocial thoughts,
attitudes, and behaviors and on developing prosocial and emotionally reciprocal
relationships. Respondent’s immaturity is evident in his rule-breaking behaviors.
73. Although the IPP was discontinued in December 2014, Respondent began exhibiting
rule-breaking behavior again. On February 10, 2016, his privileges were reduced due to
rule violations.
74. On February 17, 2016, Respondent participated in a polygraph determination.
The
polygrapher determined that Respondent deliberately manipulated the results. The report
regarding this polygraph was not submitted as evidence. Respondent testified that he was
becoming frustrated with the polygrapher about the administration of the test. As a
result, he attempted to use coping skills he learned in an anger management module to
calm himself. These skills included management of his breathing. He denied attempts to
manipulate the test. Rather, Respondent testified that he was trying to keep from losing
his temper.
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75. Routine contact with Respondent’s father has benefited him. However, Respondent
minimizes disclosure of problems to his father. Respondent’s father is supportive of his
treatment and provides prosocial influences.
76. At the time of the Update, Respondent had not completed a relapse prevention plan
(RPP) or participated in a penile plethysmograph (PPG) to explore his sexual arousal
pattern.
77. Respondent testified that he does not believe an RPP is necessary because he does not
have any diagnoses that are sexual in nature, and he does not struggle with any deviant
sexual interests. Dr. Powers-Sawyer agrees that an RPP is unnecessary. A typical RPP
discusses internal and external high risk factors relating to a sexual offense cycle.
According to her, Respondent does not have an offending cycle to intervene on that
would require such a plan. The Panel agrees with Respondent and Dr. Powers-Sawyer
that an RPP is unnecessary for Respondent.
78. At the time of the Update, MSOP did not support provisional or full discharge.
Sexual Violence Risk Assessment & Update
79. A Sexual Violence Risk Assessment (SVRA) was completed July 27, 2015 by Dr. Anne
Pascucci.
80. Respondent participated in a clinical interview lasting approximately three hours and
fifteen minutes. Dr. Pascucci also reviewed all available records and correspondence with
collateral sources.
81. Dr. Pascucci deemed the Static-99R and Stable-2007 risk assessments inappropriate
because Respondent’s criminal sexual behaviors occurred during adolescence.
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82. Dr. Pascucci provided the following diagnoses:
g. Encounter For Mental Health Services For Perpetrator Of Nonparental Child
Sexual Abuse
h. Antisocial Personality Disorder
i. Other Specified Personality Disorder With Borderline Features
j. Other Specified Trauma- And Stressor-Related Disorder
k. Neurodevelopmental Disorder Associated With Prenatal Exposure To Alcohol
And Other Drugs (i.e., Cocaine, Cannabis, Benzodiazepine, Xanax)
l. Problems Related To Other Legal Circumstances (Civil Commitment)
83. Dr. Pascucci opined that the Encounter For Mental Health Services For Perpetrator Of
Nonparental Child Sexual Abuse is appropriate because of Respondent’s history of
sexually abusive behaviors directed toward his younger siblings and peers. She also
believes the diagnosis of Antisocial Personality Disorder is appropriate because
Respondent exhibits a failure to conform to social norms, repeated lying, impulsivity,
irritability, aggression, irresponsibility, disregard for the safety of himself and/or others,
and a lack of remorse. Respondent’s diagnosis for Other Specified Personality Disorder
With Borderline Features is related to his pattern of behavior involving instability in
mood, interpersonal relationships, and self-image. Dr. Pascucci gave Respondent the
diagnosis of Other Specified Trauma- And Stressor-Related Disorder because of his
limited willingness to discuss his symptoms and get a more specific diagnosis. However,
the records are clear his early childhood includes abandonment, witnessing violence,
neglect and physical and sexual abuse.
84. The Panel declines to adopt the diagnoses provided by Dr. Pascucci.
therefor will be discussed in greater detail below.
21
The reasons
85. Dr. Pascucci noted that Respondent indicated he sexually abused his sisters as a means of
acting out the pornographic images shown to him by his abuser. This is not uncommon as
children who experience trauma often engage in play to express aspects or feelings
associated with the event.
86. Dr. Pascucci opined that Respondent continues to present with intimacy and social skill
deficits. He hasn’t had the opportunity to develop an intimate romantic relationship since
he has been institutionalized since the age of 14. Respondent lacks the skills to form
intimate and reciprocal relationships, romantic and otherwise. Respondent has a history
of using sexualized or negative behaviors as an attempt to form relationships and gain
acceptance.
87. At the time of the SVRA, Respondent had not participated in a PPG, Abel Assessment of
Sexual Interests-2 or a full disclosure polygraph examination. Since his adolescence,
there is no objective evidence of a deviant sexual preference towards nonconsensual
sexual contact based on age or mental status.
88. Dr. Pascucci noted that Respondent was assessed on the PCL-R by Dr. Linda Marshall in
February 2009.
He received a score 23, which indicates a moderate degree of
psychopathy. During her testimony, Dr. Pascucci agreed, however, that use of the PCL-R
is inappropriate. She did not rely on this score in rendering her opinion.
89. Respondent submitted to a polygraph examination on March 25, 2015. The results were
deemed “Purposeful Non-Cooperation.” Respondent acknowledged he was manipulating
the exam because of an incident where a female security counselor brushed his penis over
his pants and he became aroused.
90. Dr. Pascucci indicated that without use of actuarial measures, Respondent’s estimate of
risk unique to his needs is not possible. Dr. Pascucci opined that Respondent presents
22
with factors research identifies as concerning, as well as personal factors which indicate
he requires treatment to mediate his propensity for aggressive, possibly sexually
aggressive, and interpersonally exploitative behaviors.
91. Dr. Pascucci opined Respondent did not meet the criteria for a provisional or full
discharge from his commitment. Dr. Pascucci expressed concern about Respondent’s use
of sexualized behavior for personal gain at the peril of himself and others. Dr. Pascucci
opined that Respondent needs inpatient treatment to mediate the risk his behaviors pose
to himself and public safety.
92. The Panel disagrees that Respondent’s “use of sexualized behavior for personal gain” is a
significant concern to prevent provisional discharge or discharge. The Panel notes that
this is likely a reference to Respondent’s relationship with G.G. It was G.G.’s deviant
sexual interest in Respondent that spurred that relationship, not Respondent’s behavior
toward G.G. While it is true that Respondent encouraged the behavior, for him it was not
based upon any sexual interest. Moreover, the fact that an individual may use his or her
sexuality for personal gain does not necessarily support a determination that the
individual requires sex offender treatment. This is especially true where there has been
no evidence of a deviant sexual interest or paraphilia.
93. Dr. Pascucci completed a SVRA Update dated March 7, 2016. Respondent declined to be
interviewed for the Update.
94. Dr. Pascucci noted that there were recent allegations of sexual boundary violations that
persisted since the July 2015 SVRA. Respondent received a necklace from G.G. as a gift
in February 2016. This is the same peer Respondent admitted to manipulating for
personal gain. Respondent denied the necklace came from this peer, at first, until a
review of his banking records demonstrated that Respondent did not purchase the item
23
himself. Moreover, it is believed that Respondent was receiving money from this peer,
using a restroom inside the secure perimeter as an exchange point.
95. In an individual meeting on February 18, 2016, Respondent denied any sexual contact
with peers while at CPS. Respondent acknowledged he had engaged in sexual contact at
Moose Lake. Dr. Pascucci felt this admission was noteworthy because the behavior had
been suspected, but it is now substantiated based on his admission. Dr. Pascucci believes
that Respondent’s sexual misbehavior and manipulation has caused harm to the MSOP
community and his peers.
96. Since the July 2015 SVRA, Respondent put forth efforts to become more rule and
treatment compliant, but he continued to exhibit behavioral issues. In September 2015,
Respondent was verbally abusive and non-complaint with staff commands, prompting the
initiation of the Incident Command System (ICS). Dr. Pascucci noted the following
ongoing, concerning behaviors by Respondent: not storing medications in the medication
box, not complying with Identification Badge procedures, not complying with property
rules, having “a lot” of “very familiar” phone conversations with a former staff person,
stealing food from peers, receiving condoms from a peer to see how they functioned,
making inappropriate and possibly intimidating gestures toward a peer, and
misrepresentation of staff directives.
97. Dr. Pascucci’s review of treatment records showed Respondent more consistently
participated in treatment. However, Dr. Pascucci believed his overall behavior and
treatment approach had decompensated.
98. Dr. Pascucci made the following diagnoses in the Update:
m. Encounter For Mental Health Services For Perpetrator Of Nonparental Child
Sexual Abuse
24
n. Antisocial Personality Disorder
o. Other Specified Trauma- And Stressor-Related Disorder
p. Neurodevelopmental Disorder Associated With Prenatal Exposure To Alcohol
And Other Drugs (i.e., cocaine, cannabis, benzodiazepine; Xanax)
q. Problems Related To Other Legal Circumstances (Civil Commitment)
99. Dr. Pascucci reconsidered Respondent’s diagnosis of Other Specified Personality
Disorder with Borderline Features because his self-destructive behaviors, maladaptive
interpersonal behavior, and emotional instability are better described as impairments
associated with Antisocial Personality Disorder according to her.
100.
Dr. Pascucci testified at great length regarding the criteria for Antisocial
Personality Disorder. At the outset, Dr. Pascucci testified that Respondent meets the
initial criteria of a “persistent pattern of disregard for the rights of others” based upon his
history of rule-breaking behavior that caused harm to others.
disagreed that Respondent meets this initial criteria.
Dr. Powers-Sawyer
She testified that this criteria
typically applies to an individual with a “long rap sheet,” who continues to do something
that has serious consequences. The Panel found Dr. Powers-Sawyer’s testimony more
persuasive.
101.
Dr. Pascucci also testified about the additional criteria for Antisocial Personality
Disorder. Of seven criteria listed, an individual must meet three for this diagnosis. Dr.
Pascucci testified that Respondent met all seven criteria. The Panel accepts some, but not
all of this testimony. For example, Dr. Pascucci testified that Respondent exhibits a
reckless disregard for safety of self or others. She provided the example of Respondent
making homemade alcohol despite the consequences for himself and others involved.
The Panel disagrees that this evidences a “reckless disregard for safety.” While this
25
incident certainly evidences poor decision making, it does not rise to the level of
recklessness.
102.
Dr. Pascucci also testified that the criteria of impulsivity or failure to plan ahead
was met. When asked if impulsivity could be a product of Respondent’s ADHD, she
testified that impulsivity is “less consistent” with an adult presentation of ADHD. While
that may be true, the criteria for Antisocial Personality Disorder require a review of
Respondent’s behaviors throughout a period of time, not only his present behaviors. The
fact that Respondent may no longer exhibit symptoms of ADHD does not mean his past
impulsivity was not attributable to ADHD rather than Antisocial Personality Disorder.
103.
Dr. Pascucci testified that Respondent has demonstrated a lack of remorse for
others.
Again, Dr. Powers-Sawyer challenged this assertion.
She testified that
Respondent shows care and concern for others, which is noted in the records. For
example, the records show that Respondent showed concern for his sisters after his
offending. She also testified that he continues to show empathy and concern when
discussing his siblings today. When considering the plethora of records submitted, the
Panel agrees with Dr. Powers-Sawyer that Respondent does not demonstrate a lack of
remorse.
104.
Finally, Dr. Pascucci testified that Respondent met the criteria for deceitfulness
and conning others for personal profit or pleasure. Dr. Pascucci explained that there is
evidence that Respondent is not forthcoming with information even when confronted.
She cited Respondent’s most recent polygraph as evidence. Dr. Powers-Sawyer agreed
that there have been instances of lying, but disagrees that Respondent is a deceitful
person by nature. Dr. Powers-Sawyer explained that much of Respondent’s behavior is a
26
response to his environment. She does not believe that Respondent meets the criteria of
conning others for pleasure. This Panel agrees.
105.
Overall, Dr. Powers-Sawyer objected to any diagnosis of Antisocial Personality
Disorder as premature. According to her, this diagnosis is a “severe condition” typical of
individuals who chronically violate the laws, use others for personal gain, are parasitic,
and continue to violate social norms. Dr. Powers-Sawyer testified that it is critical to
consider the context in which Respondent’s behavior came about. Respondent does not
have a criminal mindset, and he realizes he had an abnormal childhood in which he
experienced his own sexual abuse and abandonment. Dr. Powers-Sawyer opined that it is
inappropriate to say that Respondent chronically violates social norms when he’s never
lived in society. She believes the diagnosis is premature and his behaviors are a product
of his institutionalization.
106.
The Panel finds Dr. Powers-Sawyer’s testimony regarding this diagnosis credible
and persuasive. Respondent has not yet had the opportunity to learn social norms and
fully reintegrate into society.
Most of his life has occurred within an artificial,
institutional setting with other individuals who exhibit antisocial behaviors.
107.
The Panel specifically finds that Respondent does not meet the criteria for
Antisocial Personality Disorder based upon the extensive testimony and documentary
evidence reviewed in this case.
108.
Dr. Pascucci utilized the SAPROF assessment tool as a guide for her risk
assessment but did not score Respondent on this tool. According to the SVRA Update,
the SAPROF is an assessment tool designed to measure protective factors for offenders.
Dr. Pascucci testified that she was trained on this tool in 2013 and the tool was normed
27
on forensic inpatients in Europe. Because the tool is in its early stages, she elected to use
it only as a structured measure.
109.
Dr. Pascucci determined that the following areas may currently be active
protective factors: Respondent presently resides in a treatment environment with access
to mental health professional and his current living environment is secure.
These
protective factors would no longer be in place should Respondent be fully discharged.
Respondent has been resistant to relapse prevention planning, planning for discharge, or
making care arrangements. If he were discharged, MSOP could no longer manage his
care.
110.
Dr. Pascucci encouraged improvement in following areas to increase their
protective factors: Respondent should demonstrate the ability to develop and maintain
reciprocal and intimate peer relationships; Respondent should form a secure attachment
with a prosocial adult to develop empathy, social competence and pro-social problemsolving and coping skills; Respondent must have goals of educational achievement,
obtaining gainful employment, living independently, and increasing financial
management skills; Respondent should work on coping skills, self-control and empathy;
and, Respondent should be motivated for treatment and work on his positive attitude
toward authority to decrease his risk for recidivism. Dr. Pascucci acknowledges that
Respondent’s father is willing to provide Respondent the necessary support.
111.
Respondent was commended for actively participating in therapeutic recreation.
112.
According to Dr. Pascucci, Respondent demonstrates an ongoing need for
treatment to increase protective factors to guard against future actions of violence and
sexual violence. Dr. Pascucci opined Respondent does not meet the criteria for a full
discharge.
28
113.
Dr. Pascucci also opined Respondent does not meet the criteria for a provisional
discharge. Dr. Pascucci believes that Respondent lacks cooperation and commitment to
provisional discharge planning and has articulated dissatisfaction with continued
supervision.
Reports & Testimony of Dr. Powers-Sawyer
114.
Dr. Powers-Sawyer was previously the Clinical Director of MSOP. Dr. Powers-
Sawyer was appointed as the Court’s examiner in this matter. She issued a report dated
April 3, 2016. She was previously retained by the Department of Human Services to
render an opinion with regard to Respondent after the federal court-appointed panel in the
Karsjens matter unanimously agreed Respondent should be unconditionally discharged.
Her report for the Department of Human Services was dated June 10, 2014.
115.
Dr. Powers-Sawyer incorporated her previous findings and opinions from 2014
into her current report, and she also provided current or updated information.
116.
In the interview with Dr. Powers-Sawyer, Respondent reported a good
relationship with his adoptive father, Ron Terhaar. If discharged, Respondent would
reside with his father.
117.
Dr. Powers-Sawyer noted that records indicate Respondent sexually abused his
developmentally delayed 10-year old and 7-year old sisters and he told them not to tell
anyone. Respondent displayed guilt, remorse, and empathy for his sisters. In his interview
with Dr. Powers-Sawyer, Respondent did not recall how many times he had contact with
his sisters, but thought it was only over a one month duration. He did not use force or
threaten them in any way.
118.
In addition to the offenses against Respondent’s sisters, Dr. Powers-Sawyer also
considered the allegations of inappropriate touching during a touch football game,
29
masturbation in his bedroom, and masturbation in the back of a car. With regard to the
touch football incident, Dr. Powers-Sawyer testified that it is possible the contact was
intentional or accidental. Nevertheless, the incident itself does not evidence a sexual
disorder or paraphilia. Moreover, Dr. Powers-Sawyer noted that Respondent successfully
completed a full disclosure polygraph at age 16 in which he denied any intentional
contact. The next two incidents involve alleged masturbation while in the care of a foster
mother. First, Respondent allegedly masturbated in his bedroom with the door open and
was discovered by the foster mother. According to Dr. Powers-Sawyer, the records
surrounding this incident suggest that the foster mother happened upon the situation and
Respondent was not intending to expose himself to her. Dr. Powers-Sawyer testified that
this is not an example of exhibitionism, because the diagnosis requires exposure to
unsuspecting individuals, generally in public, to surprise that person.
Finally, Dr.
Powers-Sawyer testified that the incident in the backseat of the car is “not uncommon
among adolescent boys.” In her experience, she has been asked by many parents about
similar behaviors. According to her, such behaviors are not necessarily offensive or
illegal.
119.
The Panel agrees with Dr. Powers-Sawyer’s assessment of these allegations.
None of these allegations together or individually support a diagnosis of any sexual
disorder or paraphilia, nor do they necessarily support a present need for sex offender
treatment.
120.
Dr. Powers-Sawyer noted that records indicate Respondent expressed remorse
about his sexually offensive behavior and demonstrated insight about how his own sexual
victimization was connected to his behavior toward his sisters. Respondent’s delinquency
behaviors began following adjudication for the sexual offenses.
30
121.
Dr. Powers-Sawyer opined that Respondent’s history of abandonment by his
biological mother, his grandmother and his adoptive mother manifests in his therapeutic
relationships, evidenced by efforts to detach from his therapist and avoid therapy because
it is an external reminder of his own victimization.
122.
Respondent has never received treatment for his traumatic experiences. Dr.
Powers-Sawyer opined that his sexually abusive behavior at age 10 set off a series of
placements in efforts to apply juvenile sex offender treatment without first providing him
with treatment for his own trauma. His behaviors were clearly signs for wanting
attention.
123.
Dr. Powers-Sawyer opined that Respondent’s general delinquency and
misconduct were driven more by a lack of coping skills and exposure to environmental
placements where he resided with other behaviorally disordered youth rather than
endorsing antisocial beliefs and behaviors. This Panel agrees and finds Dr. PowersSawyer’s opinion persuasive.
124.
At the time of her 2014 report, Dr. Powers-Sawyer opined that Respondent met
the criteria for unconditional discharge because he does not pose a level of dangerousness
to the public with respect to sexual matters; he is not in need of residential adult sex
offender treatment and supervision; and he is capable of making an acceptable adjustment
to society. Dr. Powers-Sawyer opined Respondent may benefit from ongoing individual
psychotherapy on an outpatient basis to continue addressing symptoms related to PTSD.
125.
Dr. Powers-Sawyer reported that she talked with Respondent’s father, who
reported Respondent has done well on home visits and Respondent’s sisters hold no
resentment toward him. His family welcomes a new relationship. Mr. Terhaar reported
Respondent would return home and live with him, and he is prepared to assist
31
Respondent with life’s basic needs. Respondent agreed the home visits have gone well,
and he is looking forward to rejoining his family.
126.
Respondent indicated a desire to join the military, like his father. However, he
understands his civil commitment may prevent him from doing so. In the event that
military service is prohibited, Respondent would like to attend St. Cloud Technical
College to become an electrical technician. Respondent provided a prepared resumé and
plans to ask his father to help him find a job. Respondent has set realistic goals for his life
in the immediate future.
127.
Dr. Powers-Sawyer explained that the MSOP risk assessment report dated June
11, 2014, used risk factors related to juvenile offenders. According to Dr. PowersSawyer, these factors are inapplicable to individuals who are now adults and committed a
sex offense as a juvenile. The report also relies on a past PCL-R score which is
inappropriate because Respondent has never been an adult offender and does not carry a
paraphilic diagnosis. PCL-R scores are only statistically relevant when the examinee has
a paraphilic disorder.
128.
While in treatment at Mille Lacs Academy, Respondent passed a full disclosure
polygraph examination. However, Respondent refused to take a polygraph at CPS
because he does not trust the test based upon peer reports of unreliability.
129.
Dr. Powers-Sawyer testified that a polygraph examination is inappropriate, unless
the treatment team has reason to believe he is offending against someone.
130.
Dr. Powers-Sawyer also testified that the use of a PPG or Abel Assessment of
Sexual Arousal is in appropriate for evaluating Respondent because Respondent does not
need sex offender treatment and he has not engaged in any adult sex offending behavior.
32
131.
Respondent continually reports that he has no sexual fantasies of minors. He also
reports he has not engaged in any inappropriate or illegal sexual behavior at CPS.
132.
Respondent continues to report to Dr. Powers-Sawyer that he has distressing
dreams around Thanksgiving likely due to his childhood trauma. He reported increasing
coping skills.
133.
Dr. Powers-Sawyer provided the following diagnosis for Respondent: Attention-
Deficit/Hyperactivity Disorder, In full remission. Moreover, she opines that Respondent
continues to meet some of the criteria for Posttraumatic Stress Disorder, but he does not
meet critera for the full disorder because he does not experience alterations in cognitions
and mood associated with the traumatic event and his symptoms tend to wax and wane.
134.
Dr. Powers-Sawyer opined that Respondent’s general history of delinquency can
be viewed as a chronic adjustment disorder with mixed disturbance of emotions and
conduct. Respondent presents as a young boy and adolescent whose neurodevelopmental
disorder (FAS or FAE) and ADHD symptoms (impulsivity and hyperactivity) contributed
to a profound lack of emotional and cognitive development. Respondent found MSOP to
be very stressful, and he was exposed to a population that includes highly antisocial
individuals. His increased compliance with rules is a result of maturity and treatment
intervention. Dr. Powers-Sawyer opined that a diagnosis of any personality disorder is
premature.
135.
Dr. Powers-Sawyer did not find Respondent met criteria for any sexual disorder
or paraphilia. According to Dr. Powers-Sawyer, Respondent’s actions toward his sisters
as a 10 year old were driven by curiosity and wanting to act out the pornography he was
shown by his abusers. He also believed that his behavior was permitted because the same
33
behavior was being done to him. He was already sexualized and thought such behavior
was normal.
136.
Respondent’s treatment records as a juvenile reference hypersexual behavior.
Hypersexuality is understood as a maladaptive coping behavior that acts as a
“medicating” process for untreated symptoms of depression and anxiety. These behaviors
can be complicated by deficits in forming intimate bonds. Dr. Powers-Sawyer opines that
Respondent’s struggles with managing his general sexual arousal and behavior co-existed
with mood disturbance and ADHD. There is no evidence that he currently exhibits
hypersexual problems. Respondent reports he does not use sex to cope with problems.
Respondent’s sexually offensive behaviors are limited to childhood and his sexual
compulsivity problems are limited to adolescence.
137.
Dr. Powers-Sawyer explains that Respondent’s behavior, while illegal by
definition, did not have the same intent as an adult offender. Respondent is not disordered
with respect to any sexual matters.
138.
In her 2014 report, Dr. Powers-Sawyer opined that there are a number of
problems with the application of risk assessment tools to Respondent. The tools used to
determine Respondent was at high risk for sexual re-offense and that ultimately led to his
SDP commitment were normed on adults who committed sexual offenses as adults. The
Static-99R authors caution use of the tool with juveniles because of the difference in
adolescent and adult offending. Additionally, the PCL-R is a poor predictor of sexual
recidivism. The ERASOR risk tool was designed for juvenile sex offenders to determine
the level of treatment intensity. The instruments include small sample sizes and should
never be used absent other comprehensive information to communicate categorical risk
levels in forensic settings. Because prior risk assessments did not discuss these
34
limitations and assessment issues, Dr. Powers-Sawyer opined that the committing Court
was unknowingly using misused risk assessment data.
139.
In her 2016 report, Dr. Powers-Sawyer once again explained the problems with
applying risk assessment tools to Respondent’s history. Literature describes juvenile sex
offenders as qualitatively different from adult sex offenders. Most juvenile sex offenders
do not continue sexually offending into adulthood. Most importantly, the body of
research regarding juvenile sex offenders is for juveniles between the ages of 12 and 18.
Respondent was 10 years old and was a prepubescent child.
140.
Dr. Powers-Sawyer indicated, “To presume that he was ever similar to other
juvenile sex offenders is over-interpreting the literature and, consequently, may have
placed him in a category that he did not belong to.”
141.
Respondent’s current risk of sexual recidivism cannot be determined through the
use of a comprehensive juvenile risk assessment because he is no longer a juvenile, and
those dynamics do not apply to him. Sexual recidivism cannot be determined through the
use of adult risk assessment tools because those tools are inappropriate for an individual
whose sex offenses occurred when he was 10 years old.
142.
Juvenile only offenders have a base rate of reoffending at around five percent.
143.
Dr. Powers-Sawyer testified about Dr. Pascucci’s use of the SAPROF tool. Dr.
Powers-Sawyer testified that use of this tool is inappropriate because the tool was normed
in another country and the results have not been validated or studied on this population.
Additionally, she testified that the tool was normed on adults and juveniles.
144.
Respondent received a substantial amount of sex offense specific treatment while
at Mille Lacs Academy. Respondent has received over five years of MSOP treatment
which has focused on emotional and behavioral management issues.
35
145.
Respondent is aware he has difficulty managing his emotions, but he has
improved over time. Respondent is currently participating in the STEPPS group therapy
and an intimacy module, which he utilizes for anxiety-reducing strategies. Respondent
struggles, though, with understanding MSOP’s stance on recommending sex offender
treatment when other experts have strongly recommended discharge. This has caused his
engagement in treatment to wax and wane.
146.
Dr. Powers-Sawyer believes there is substantial evidence that treatment has
created an internal change for Respondent and likely mitigated his risk level. This, along
with a lack of sexual deviancy, indicates Respondent exhibits characteristics of an
individual who is not at high risk for sexual reoffending or in need of adult sex offender
treatment. The Panel agrees and finds Dr. Powers-Sawyer’s opinion persuasive.
147.
Dr. Powers-Sawyer describes that MSOP’s treatment plan for Respondent
involves the application of dynamic risk factors known to be important for adult sex
offenders who are in need of adult sex offender treatment. This application to Respondent
is scientifically inappropriate. The dynamic variables used by MSOP are derived from the
Dynamic Supervision Project and are used in adult sex offender treatment programs for
dynamic considerations. This research, however, is normed on adults serving adult
probation sentences and excludes juvenile-only offenses.
148.
Dr. Powers-Sawyer was adamant in her testimony that the treatment program at
MSOP is inappropriate for Respondent.
She’s maintained that MSOP, including
placement at CPS, is inappropriate. She testified that the issues MSOP is raising are
concerns for adult sex offenders to mitigate risk, which do not apply to Respondent.
149.
Dr. Powers-Sawyer concludes that “applying adult sex offender intervention to an
individual whose ‘offensive’ behavior was as a fifth grader invites a conversation about
36
adherence to ethical principles and code of conduct with respect to keeping integrity in
the science and practice of psychology.”
150.
This assertion by Dr. Powers-Sawyer carries great weight with the Panel. The
Panel is also deeply concerned about the application of adult sex offender principles to an
individuals whose offenses occurred at age 10.
151.
When considering the statutory factors for provisional discharge, Dr. Powers-
Sawyer opines that Respondent is not in need of adult sex offender treatment. Moreover,
Respondent does not need a provisional discharge plan to successfully adjust to the
community or provide protection to the public.
152.
The Panel agrees that Respondent is not in need of sex offender treatment.
153.
Regarding a full discharge, Dr. Powers-Sawyer opines that Respondent is capable
of making an open adjustment to society, he is not a danger to the public, and he does not
require adult sex offender treatment. Respondent plans to live with his father and begin
his adult life in the community for the first time. Respondent’s intelligence and
psychological functioning provides an adequate foundation for him to begin living in the
open community without risk to the public. Respondent may benefit from outpatient
psychotherapy to assist him in managing symptoms of anxiety related to past trauma as
well as foreseeable issues with starting a new phase in life. Dr. Powers-Sawyer opined
that Respondent meets criteria for full discharge from MSOP.
154.
Dr. Powers-Sawyer testified that if Respondent has any issues to be addressed,
those issues should not be addressed at MSOP.
155.
The Panel found Dr. Powers-Sawyer’s opinion credible and adopts her opinion as
its own.
37
Richard Mettler – Todd County Health & Human Services
156.
Richard Mettler is an adult mental health case manager with Todd County Health
and Human Services. Mettler testified that he is familiar with Respondent, but only met
him at the hearing in this matter.
Respondent was previously assigned a different
caseworker.
157.
Mettler will participate in future quarterly and annual meetings regarding
Respondent.
158.
Mettler testified that he would meet with Respondent to put together a plan for
services upon discharge. In addition, he would get an updated diagnostic assessment of
Respondent to determine if Respondent qualifies for targeted mental health services.
159.
Mettler testified that Respondent would qualify for Medical Assistance.
In
addition, Mettler would assist Respondent in finding family counseling and individual
counseling in the area, which would be covered by Medical Assistance.
CONCLUSIONS OF LAW
1.
The Commissioner has failed to show by clear and convincing evidence that the
petition for full discharge should be denied. Minn. Stat. § 253D.28, subd. 2(d).
2.
Respondent is capable of making an acceptable adjustment 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).
38
ORDER
I.
Respondent's petition for Discharge is hereby GRANTED.
2.
The entry of this order granting Respondent's petition for Discharge is hereby
STAYED for 15 days, pursuant to Minn. Stat.§ 2530.28, subd 3.
3.
The attached memorandum is hereby incorporated as additional findings of fact and
conclusions oflaw.
Dated this
deyor
1~
~r
BY THE COURT:
,2016.
&d~
Judge ofDistricte:
~
Higgs. David (Judge}
Aug 22 2016 10:33 AM
David Higgs
Judge of District Court
~·~
orustrict:
Leslie Metzen
Senior Judge
39
MEMORANDUM
I.
Legal Standard for Discharge
Minn. Stat. § 253D.31 governs discharge. In order to be eligible for discharge, there
must be a showing that the committed person is “capable of making an acceptable adjustment to
open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment
and supervision.” Minn. Stat. § 253D.31 (2013). The panel must consider “whether specific
conditions exist to provide a reasonable degree of protection to the public and to assist the
committed person in adjusting to the community. Id.
Beyond the statutory factors of Minn. Stat. § 253D.31, the Panel must consider
constitutional implications of continued confinement. Discharge must be granted "if no
reasonable relation exists between the original reason for commitment and the continued
confinement. Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995). Continued confinement is
justified “so long as the statutory discharge criteria are applied in such a way that the person…is
confined for only so long as he or she continues both to need further inpatient treatment and
supervision for his sexual disorder and to pose a danger to the public.” Id. at 319. Discharge
must be granted “if no reasonable relation exists between the original reason for commitment and
the continued confinement. Id. In other words, a person subject to commitment may only be
confined so long as he “continues both to need further inpatient treatment and supervision for his
sexual disorder and to pose a danger to the public.” Id. It is not necessary for the committed
person to continue to meet the initial commitment criteria for confinement to continue as long as
the continued confinement bears a reasonable relationship to the purpose for which the person
was originally committed. Id. at 318. The Court further explained that “commitment and
treatment should continue if the state proves be clear and convincing evidence that he does not
40
meet the statutory discharge criteria because he continues to need inpatient treatment and
supervision for his sexual disorder and continues to be a danger to the public.” Id.at 319.
The Minnesota Supreme Court in Call collapsed the three statutory factors for discharge
into two factors by omitting reference to capability to make an acceptable adjustment to open
society. Id. Confinement may only continue if the person continues to need both inpatient
treatment and supervision for his sexual disorder and poses a danger to the public. (Emphasis
added). Although the discharge criteria in Minn. Stat. § 253D.31 are connected by an “and,” the
criteria must be applied with an “or” in order to pass constitutional muster and be consistent with
Foucha v. Louisiana. See Call, 535 N.W.2d at 319, citing In re Blodgett, 510 N.W.2d 910, 918
(Minn. 1994).(“In Foucha the confinement was for insanity and, when the insanity was shown to
be in remission, the United States Supreme Court said Foucha had to be released. Here, if there
is a remission of Blodgett’s sexual disorder, if his deviant sexual assaultive conduct is brought
under control, he, too, is entitled to be released.”). In other words, the committed person need
only show that he no longer needs inpatient treatment and supervision or is no longer a danger to
the public. At this phase of the proceedings, the party opposing discharge has the burden to
show by clear and convincing evidence that discharge should be denied. To do so, the party
opposing discharge must show that the committed person requires both inpatient treatment and
supervision for a sexual disorder and continues to be a danger to the public.
a. Respondent is no longer a danger to the public
As testified by Drs. Pascucci and Powers-Sawyer, there are no actuarial tools available to
assess Respondent’s risk for sexual recidivism. Dr. Pascucci utilized the SAPROF to guide her
professional judgment, although she testified that she was uncertain what segment of the
population this tool was normed, nor did she know how created this tool. Dr. Pascucci’s
decision to give weight to a tool with which she had little familiarity weakens her overall opinion
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that Respondent continues to be a danger, especially if that opinion is based in part upon her use
of this tool. Although Dr. Powers-Sawyer was unable to conduct a traditional risk assessment,
she noted that juvenile only sex offenders, as a group, reoffend a significantly lower rates than
adult sex offenders. Statistically, juvenile only offenders typically reoffend during their lifetimes
at a rate of 5%. It is also significant that Respondent does not have a sexual disorder or
paraphilia, as the presence of either increases the risk of re-offense.
Respondent participated in numerous community outings without incident. Those
outings were stopped as a result of unrelated rule-breaking behavior on campus. In addition,
Respondent has participated in several home visits with his father, where he would reside if
discharged. According to Respondent and his father, those visits have been productive and
positive. Those visits were also stopped allegedly as a result of Respondent’s attempt to
manipulate a polygraph examination.
The bulk of Respondent’s rule-breaking behavior is minor. He has engaged in assaultive
behavior towards peers in the past while at Moose Lake, but this type of behavior has ceased.
While at CPS, Respondent admitted to making hooch and ingesting ditch weed. Respondent
does not have an RPP, but the Panel specifically found that one is not necessary given that
respondent does not have any deviant sexual interest or high risk factors related to sexual
offending.
There is little evidence in the record to support a finding that Respondent is a danger to
the public. His failure to abide by MSOP’s rules does not, in the Panel’s opinion, support such a
finding. Respondent has been in an institutional setting the majority of his life. He has never
had the opportunity to learn social norms or mature in a natural way. Frankly, Respondent has
spent most of his life living with others who failed to abide by societal rules and laws. As a
result, it is not necessarily surprising that Respondent’s struggles to follow MSOP’s rules.
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Moreover, Respondent’s more recent lack of compliance with treatment is a result of several
experts recommending his unconditional release. Dr. Powers-Sawyer acknowledged that
Respondent’s behavior is expected to a certain degree given the stress of confinement, his
immaturity, and his reasonable belief that he is being wrongfully confined. The Panel certainly
recognizes that there it may be difficult to follow the recommendations of his treatment team
when other experts have essentially said those recommendations are unnecessary. Respondent’s
potential for breaking minor rules or laws in the community does not rise to the level of
dangerousness to the public. Respondent will have to live with any consequences should he fail
to abide by community norms. The Panel believes that Respondent’s desire to participate in
therapy and the structure provided by his father will provide for adequate safety to the public.
The Commissioner has failed to show by clear and convincing evidence that Respondent is a
danger to the public.
b. Respondent is no longer in need of inpatient treatment and supervision
No evidence was presented that Respondent has a sexual disorder. Pursuant to the
Minnesota Commitment and Treatment Act, commitment is warranted as a Sexually Dangerous
Person when a person engaged in a course of harmful sexual conduct, manifested a sexual,
personality, or mental disorder or dysfunction, and as a result, is likely to engage in acts of
harmful sexual conduct. Minn. Stat. § 253D.02 subd. 16 (2014). Therefore, the presence of a
“sexual, personality, or mental disorder or dysfunction,” along with a continued need for
treatment and ongoing dangerousness to the public provides a reasonable relation to the original
reason for commitment, such that continued commitment is justified. The Panel acknowledges
that Minnesota Courts have found that Antisocial Personality Disorder is a mental disorder
sufficient to justify commitment “if treatment is necessary to abate the mental disorders that
make [sex offenders] so dangerous to others. In re Linehan, 557 N.W.2d 171, 182 (Minn. 1996)
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citing Call, 535 N.W.2d at 319. Similarly, in Blodgett, the Minnesota Supreme Court agreed
with the District Court’s findings that Blodgett was dangerous and suffered from Antisocial
Personality Disorder, which provided a valid mental health basis for commitment. In re
Blodgett, 510 N.W.2d 910, 916 (Minn. 1994). Dr. Powers-Sawyer was adamant that the
diagnosis of antisocial personality disorder is inappropriate at this time and premature. The
Panel found Dr. Powers-Sawyers’ testimony more persuasive than Dr. Pascucci’s and
specifically found that Respondent does not meet the criteria for Antisocial Personality Disorder.
Therefore, Respondent lacks a sexual, personality, or mental disorder or dysfunction that
requires ongoing treatment.
Dr. Powers-Sawyer was adamant throughout her report and testimony that Respondent
does not need sex offender specific treatment.
The Panel agrees with her testimony that
Respondent’s acts, while sexually offensive in nature, were not motivated by the same sexual
deviancy that may motivate adult offenders. Respondent’s offending was a product of his
upbringing and personal abuse.
Further, Dr. Pascucci acknowledged that Respondent’s
offending against his sisters was more developmental in nature than sexual.
Most of the testimony regarding Respondent’s specific treatment needs centered on rule
compliance and behavioral control. Schiffer’s testimony confirmed these treatment needs and
made no mention of any treatment specific to sex offending when asked about Respondent’s
treatment needs.
The only recent concerns about any sexual behaviors were a result of
Respondent’s behavior with another peer, G.G.
Dr. Pascucci expressed concerned about
Respondent’s use of sexualized behavior for personal gain at the peril of himself and others. As a
result of this behavior, Dr. Pascucci opined that Respondent needed inpatient treatment to
mediate the risk his behaviors pose to himself and public safety. As discussed above, the Panel
disagreed with Dr. Pascucci’s characterization of Respondent’s behavior, especially given that
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fact that there is no evidence that Respondent actually engaged in any sexual contact with this
peer. Respondent’s decision to take advantage of G.G’s sexual interest in Respondent is not
evidence of Respondent’s sexual dangerousness.
It is evidence that G.G. may have been
engaged in his offense cycle. The suggestion that Respondent requires inpatient sex offender
treatment because of his decision to use his sexuality for personal gain in a situation that would
not be considered sexually offensive for Respondent lacks credibility. The Panel also gave
significant weight and consideration to Dr. Powers-Sawyer’s statement that “applying adult sex
offender intervention to an individual whose ‘offensive’ behavior was as a fifth grader invites a
conversation about adherence to ethical principles and code of conduct with respect to keeping
integrity in the science and practice of psychology.” As the previous clinical director of MSOP,
Dr. Powers-Sawyer has significant understanding of the treatment milieu at MSOP and
principles of sex offender treatment. She specifically opined that the sex offender treatment
provided at MSOP is inappropriate for Respondent. Simply put, Respondent does not belong at
MSOP and may never have.
Respondent’s treatment needs are needs that can be met in the community. Those needs
are a result of childhood abuse and years of institutionalization.
The Panel has heard no
compelling evidence as to why Respondent’s remaining treatment needs could not be met in the
community. Respondent’s treatment needs are best addressed in the community in that he
requires deinstitutionalization and therapy in a community-based setting. The Panel finds that
continued confinement in his current setting would be detrimental, rather than beneficial to
Respondent, given his current needs. The Commissioner has failed to establish by clear and
convincing evidence that Respondent requires inpatient treatment and supervision.
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c. Respondent’s continued confinement is unconstitutional
Respondent’s continued confinement no longer bears a reasonable relationships to his
original commitment. Respondent does not require inpatient treatment and supervision for a
sexual, personality or mental disorder, nor is he a danger to the public. Respondent’s continued
confinement is unconstitutional.
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