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Barbara L. Whelan, State's Attorney v. A.O

February 8, 2011

BARBARA L. WHELAN, STATE'S ATTORNEY,
PETITIONER AND APPELLEE
v.
A.O.,
RESPONDENT AND APPELLANT



Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme CourtWhelan v. A.O.,

2011 ND 26

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] A.O. appeals from the trial court's order finding he remains a sexually dangerous individual and continuing his civil commitment to the care, custody, and control of the executive director of the Department of Human Services. On appeal, A.O. argues the trial court must consider the treatment he was receiving at the North Dakota State Hospital and erred in finding it was the least restrictive treatment available to him. We conclude the trial court made detailed findings and the court's findings are supported by clear and convincing evidence and are not clearly erroneous. Therefore, we affirm.

I

[¶2] In 2006, the trial court found A.O. to be a sexually dangerous individual and committed him to the care, custody, and control of the executive director of the Department of Human Services ("DHS"). In 2007, upon completion of a review hearing, the trial court concluded A.O. remained a sexually dangerous individual and continued his commitment. In 2008, the trial court again denied A.O.'s petition for discharge, although this time the court ordered the executive director of DHS to conduct a developmental assessment of A.O. and determine his level of cognitive functioning. DHS was to also perform a neuro-psychological assessment of A.O. Dr. Robert D. Lisota conducted the developmental assessment and Dr. David Brooks performed the neuro-psychological assessment of A.O. Both filed a summary of the assessments' results with the court. The court also received a letter from Kerry Wicks, the clinical director of the Behavioral Health Services of the North Dakota State Hospital, discussing A.O.'s treatment. In particular, the letter outlined the reasons for A.O.'s current placement and explained why the sexual responsibility program in Grafton was not appropriate for A.O.

[¶3] In May 2009, after receiving his annual evaluation, A.O. filed a request for a discharge hearing. He also moved for the appointment of an independent qualified expert. The court appointed Dr. Robert Riedel as the independent evaluator. Dr. Riedel filed his report and evaluation with the court in June 2009. After a number of delays, the trial court held a full hearing on April 7, 2010, and heard testimony from Dr. Lisota and Kerry Wicks.

[¶4] The trial court issued its findings of fact, conclusions of law, and order for continued commitment on June 9, 2010. The court found by clear and convincing evidence that A.O. remains a sexually dangerous individual and that A.O.'s treatment placement at the North Dakota State Hospital is appropriate for his level of cognitive functioning. After reviewing the experts' reports and listening to the witnesses' testimony, the court concluded the North Dakota State Hospital is the least restrictive treatment facility and program available to A.O. Accordingly, the court denied A.O.'s petition for discharge and ordered his continued commitment as a sexually dangerous individual. A.O. appeals.

II

[¶5] We review civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review. Matter of Midgett, 2010 ND 98, ¶ 6, 783 N.W.2d 27. At a discharge hearing, the State has the burden of proving by clear and convincing evidence the committed individual remains a sexually dangerous individual. Id. at ¶ 7. In reviewing a trial court's order denying a petition for discharge, we give great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony. Matter of Rush, 2009 ND 102, ¶ 14, 766 N.W.2d 720; see also Matter of Midgett, 2009 ND 106, ¶ 8, 766 N.W.2d 717. We will affirm a trial court's order denying a petition for ...


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