                   Filed 12/18/19 by Clerk of Supreme Court

                     IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA

                                 2019 ND 304

In the Interest of G.L.D.
      ----------
Allen Koppy, State’s Attorney,                         Petitioner and Appellee
      v.
G.L.D.,                                              Respondent and Appellant



                                 No. 20190179

Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.

REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

Allen M. Koppy, Morton County State’s Attorney, Mandan, ND, petitioner and
appellee.

Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.
                              Interest of G.L.D.
                                No. 20190179

VandeWalle, Chief Justice.

[¶1] G.L.D. appealed from a district court order denying his petition for
discharge from civil commitment as a sexually dangerous individual. We
conclude the district court did not make sufficient findings of fact, and we
remand for further findings.

                                        I

[¶2] G.L.D. was civilly committed as a sexually dangerous individual in 2007.
This Court has affirmed G.L.D.’s commitment. In re G.L.D., 2016 ND 26, 876
N.W.2d 485 (per curiam); In re G.L.D., 2016 ND 25, 876 N.W.2d 485 (per
curiam); In re G.L.D., 2014 ND 194, 855 N.W.2d 99; In re G.L.D., 2012 ND 233,
823 N.W.2d 786 (per curiam); In re G.L.D., 2011 ND 52, 795 N.W.2d 346.
G.L.D. petitioned the district court for discharge in April 2016, and a discharge
hearing was held in June 2019. At the hearing, Dr. Richard Travis testified for
the State. Dr. Travis testified that G.L.D. remains a sexually dangerous
individual subject to continued civil commitment. G.L.D. did not call any
experts in support of his petition for discharge. At the conclusion of the
hearing, the district court orally issued the following findings of fact and
conclusions of law:

            Thank you. And for the record, the Court does weigh this
      that the State is the one moving forward, has the burden and that
      burden beyond a clear and convincing evidence and we go into this
      Prong 1 as stipulated to.

             Prong 2, there is a diagnosis. We had – the diagnosis was
      testified to. The State had called one expert. No other experts were
      called. There was some possible impeachment by the respondent
      attempts, but I find the weight and the credibility of the expert
      that was called very credible and I’m giving it great weight
      particularly when we go on to Prongs 3 and 4. And when – I
      intermingle these a little bit because he testified that it is very
      likely that [G.L.D.] would reoffend if released into the community.
      I wrote that down specifically. He said that right before he said,

                                       1
      “[G.L.D.] would have serious difficulties controlling his behavior if
      he was released into the community.”

            And I’m giving great weight and credibility to the expert in
      that regard. And when we look at In the Interest of J.M., which the
      Court has in front of it, I know that, Mr. Morrow, you had indicated
      in that 2016 case that just not participating in treatment can’t be
      used. But the Court in your – in this latest case reflects that J.M.
      not only had not acted out sexually and not had any sexual nature
      rule violations, he has either completed his sexual offender
      treatment and made substantial – or made substantial progress
      since his last evaluation.

            The Court goes on to say that the standard is an individual
      may only be committed when the individual has serious difficulties
      controlling his or her sexual predatory behavior making that
      individual a danger to others.

            In the case at hand, Dr. Travis said that [G.L.D.] would have
      serious difficulties controlling his behavior in the community and
      that he would be very likely to reoffend. So the Court’s making that
      finding that with the diagnosis and – paraphilia diagnosis with the
      other two diagnoses and the substance abuse issue that’s been in
      remission for a long time because of the controlled environment,
      I’m not really weighing that. There’s been at least, it looks like, 20
      years of sobriety here whether it be forced or not, I don’t – I’m not
      weighing that part of it.

             What I’m really looking at is the nexus between the
      diagnosis and the fact that the doctor feels that based on all the
      circumstances, and that includes behaviors as recent as February
      where [G.L.D.] refused to take part in providing any more
      information that may have helped the doctor to make any kind of
      different diagnosis, his being uncooperative with the – with the
      doctor, it’s hard for the Court to find any other way than the
      commitment would have to continue and the State’s met its
      burden.

[¶3] After it issued its findings, the district court requested the State draft a
proposed order that G.L.D. remain civilly committed. The proposed order
submitted by the State incorporated by reference the court’s oral findings and


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did not contain any additional or more specific findings of fact. The court signed
the State’s proposed order subjecting G.L.D. to continued civil commitment.

                                        II

[¶4] On appeal, G.L.D. argues the district court made insufficient findings of
fact to support its conclusion that G.L.D. is likely to engage in further acts of
sexually predatory conduct and has difficulty controlling his behavior.

            This Court reviews civil commitments of sexually dangerous
      individuals under a modified clearly erroneous standard of
      review. Interest of Nelson, 2017 ND 152, ¶ 3, 896 N.W.2d 923. We
      affirm a district court’s order unless it is “induced by an erroneous
      view of the law, or we are firmly convinced the order is not
      supported by clear and convincing evidence.” Id. When reviewing
      the district court’s order, this Court gives “great deference to the
      court’s credibility determinations of expert witnesses and the
      weight to be given their testimony.” In re Johnson, 2016 ND 29, ¶
      3, 876 N.W.2d 25. To be committed as a sexually dangerous
      individual a person must meet the three statutory elements:

            (1) the individual has engaged in sexually predatory conduct,
            (2) the individual has a congenital or acquired condition that
            is manifested by a sexual disorder, a personality disorder, or
            other mental disorder or dysfunction, and
            (3) the individual’s condition makes them likely to engage in
            further acts of sexually predatory conduct which constitute
            a danger to the physical or mental health or safety of others.

      N.D.C.C. § 25-03.3-01(8).

             In addition to the three statutory elements, the State must
      satisfy substantive due process and prove the committed
      individual has serious difficulty controlling his behavior. In re
      Whitetail, 2013 ND 143, ¶ 5, 835 N.W.2d 827. In Kansas v. Crane,
      the Supreme Court explained that “we did not give to the phrase
      ‘lack of control’ a particularly narrow or technical meaning. And
      we recognize that in cases where lack of control is at issue,
      ‘inability to control behavior’ will not be demonstrable with
      mathematical precision.” 534 U.S. 407, 413, 122 S. Ct. 867, 151 L.
      Ed. 2d 856 (2002). Although not mathematical, the “inability to


                                        3
      control behavior . . . must be sufficient to distinguish the dangerous
      sexual offender whose serious mental illness, abnormality, or
      disorder subjects him to civil commitment from the dangerous but
      typical recidivist convicted in an ordinary criminal case.” Id. Thus,
      a “connection between the disorder and the individual’s inability
      to control” his actions must be found. Nelson, 2017 ND 152, ¶ 4,
      896 N.W.2d 923.

            North Dakota incorporates the Crane requirement through
      the definition of sexually dangerous individual, which requires
      “proof of a nexus between the requisite disorder and
      dangerousness [to] encompass[ ] proof that the disorder involves
      serious difficulty in controlling behavior and suffices to distinguish
      a dangerous sexual offender whose disorder subjects him to civil
      commitment from the dangerous but typical recidivist in the
      ordinary criminal case.” In re J.M., 2006 ND 96, ¶ 10, 713 N.W.2d
      518. The three statutory elements and the Crane element must be
      proven by the State with clear and convincing evidence. Nelson,
      2017 ND 152, ¶ 5, 896 N.W.2d 923.

In re T.A.G., 2019 ND 115, ¶¶ 3-5, 926 N.W.2d 702.

[¶5] A district court must make the specific factual findings upon which it
bases legal conclusions. Nelson, 2017 ND 152, ¶ 5, 896 N.W.2d 923. The district
court errs as a matter of law when its findings are insufficient or do not support
the legal conclusions. Id.

      Under N.D.R.Civ.P. 52(a)(1), the district court “must find the facts
      specially and state its conclusions of law separately.”

            Conclusory, general findings do not comply with
            N.D.R.Civ.P. 52(a), and a finding of fact that merely
            states a party has failed in [or has sustained] its
            burden of proof is inadequate under the rule. The court
            must specifically state the facts upon which its
            ultimate conclusion is based on. The purpose of the
            rule is to provide the appellate court with an
            understanding of the factual issues and the basis of
            the district court’s decision. Because this Court defers
            to a district court’s choice between two permissible
            views of the evidence and the district court decides

                                        4
            issues of credibility, detailed findings are particularly
            important when there is conflicting or disputed
            evidence. This Court cannot review a district court’s
            decision when the court does not provide any
            indication of the evidentiary and theoretical basis for
            its decision because we are left to speculate what
            evidence was considered and whether the law was
            properly applied. The court errs as a matter of law
            when it does not make the required findings.

In re Johnson, 2015 ND 71, ¶ 8, 861 N.W.2d 484 (quoting In re R.A.S., 2008
ND 185, ¶ 8, 756 N.W.2d 771).

[¶6] Here, the findings for element three and the Crane requirement are
insufficient for this Court to understand the basis of the district court’s order.
The district court did not state which risk factors it found sufficient to support
the finding that G.L.D. is likely to reoffend. Nor are we provided with sufficient
findings or reasoning on the Crane element to understand the nexus between
G.L.D.’s disorder and any behavior demonstrating lack of behavioral control,
such as his unwillingness to participate in Dr. Travis’s evaluation. As a result,
it is unclear how G.L.D. is different from the dangerous but typical recidivist.

                                        III

[¶7] In light of our heightened standard of review requiring clear and
convincing evidence, the need for the district court to make specific findings on
which it bases its decision, and the constitutional concerns surrounding civil
commitment of sexually dangerous individuals, it is the best practice for
district courts to issue written findings on each of the four required elements.
This Court is usually better able to discern the evidence relied on by the district
court when it issues written, rather than oral, findings. Should the district
court request that a party prepare written findings or an order, the court must
ensure that the proposed findings on each element are sufficient. If the court
determines the proposed findings submitted by a party are insufficient, the
court must issue sufficient written findings to support its decision.




                                        5
                                       IV

[¶8] We conclude the district court’s findings are inadequate to permit
appellate review. We retain jurisdiction under N.D.R.App.P. 35(a)(3), and
remand the district court’s commitment order with instructions that, within
thirty days from the filing of this opinion, the district court make specific
findings of fact on whether G.L.D. is likely to engage in further acts of sexually
predatory conduct and whether G.L.D. has a present serious difficulty
controlling his behavior.

[¶9] Gerald W. VandeWalle, C.J.
     Daniel J. Crothers
     Lisa Fair McEvers
     Jerod E. Tufte
     Jon J. Jensen




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