In the Interest of J.B.
J.B., Respondent and Appellant Kathleen K. Murray, State's Attorney, Petitioner and Appellee
from the District Court of Wells County, Southeast Judicial
District, the Honorable James D. Hovey, Judge.
Morrow, Grand Forks, ND, for respondent and appellant.
Kathleen Murray, State's Attorney, Fessenden, ND, for
petitioner and appellee.
J.B. appeals from an order denying his petition for discharge
from commitment as a sexually dangerous individual. J.B.
argues the district court erred in determining he remains a
sexually dangerous individual because the State failed to
prove by clear and convincing evidence that he has serious
difficulty controlling his behavior. We conclude clear and
convincing evidence supports the court's finding J.B. has
serious difficulty controlling his behavior, and we affirm.
In 2005, the district court found J.B. was a sexually
dangerous individual and committed him to the care, custody,
and control of the executive director of the North Dakota
Department of Human Services. In July 2018, J.B. petitioned
for discharge from commitment and requested a hearing. Dr.
Deirdre M. D'Orazio completed an annual evaluation of
J.B., and a report from the evaluation was filed. Dr.
D'Orazio stated in her report that it was her
professional opinion that J.B. continues to meet the criteria
as a sexually dangerous individual. Dr. D'Orazio also
completed an addendum to her report before the discharge
hearing to provide a current opinion about whether J.B.
continued to meet the definition of a sexually dangerous
individual because more than five months had passed since the
prior evaluation was completed.
J.B. moved for an independent examiner to be appointed, and
the district court appointed Dr. Stacey Benson. Dr.
Benson's report and evaluation was not filed and she did
not testify at the hearing.
After a January 2019 discharge hearing, the district court
denied J.B.'s petition. The court found there was clear
and convincing evidence J.B. remains a sexually dangerous
individual and ordered that he continue to be committed.
We review civil commitments of sexually dangerous individuals
under a modified clearly erroneous standard. In re
R.A.S., 2019 ND 169, ¶ 5, 930 N.W.2d 162.
"[W]e will affirm the district court's decision
unless it is induced by an erroneous view of the law, or we
are firmly convinced the decision is not supported by clear
and convincing evidence." Id. The State has the
burden to prove by clear and convincing evidence that the
petitioner remains a sexually dangerous individual.
The State must prove three statutory elements to show the
petitioner remains a sexually dangerous individual:
 [The individual] engaged in sexually predatory conduct
and  . . . has a congenital or acquired condition that is
manifested by a sexual disorder, a personality disorder, or
other mental disorder or dysfunction  that makes that
individual likely to engage in further acts of sexually
predatory conduct which constitute a danger to the physical
or mental health or safety of others.
R.A.S., 2019 ND 169, ¶ 5, 930 N.W.2d 162;
see also N.D.C.C. § 25-03.3-01(8). In addition
to the three statutory elements, to satisfy substantive due