                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0619

                        In the Matter of the Civil Commitment of:
                                   Brenda Sue Loewen

                                Filed September 22, 2014
                                        Affirmed
                                    Klaphake, Judge*

                             Goodhue County District Court
                                File No. 25-PR-14-158

Brenda Sue Loewen, St. Peter, Minnesota (pro se appellant)

Stephen N. Betcher, Goodhue County Attorney, Red Wing, Minnesota (for respondent)

       Considered and decided by Halbrooks, Presiding Judge; Chutich, Judge; and

Klaphake, Judge.

                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant Brenda Loewen challenges the district court’s order civilly committing

her because she is mentally ill and no less restrictive alternative to commitment is viable.

She argues primarily that her civil commitment should be reversed because the district

court lacked sufficient evidence to conclude that civil commitment was necessary and

because the petition for civil commitment was technically flawed. We affirm.


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                     DECISION

Sufficiency of Evidence

       Loewen makes several arguments challenging the evidence supporting the district

court’s order to civilly commit her. Our review of a civil commitment focuses only on

whether the district court adhered to the relevant statutory requirements. In re Civil

Commitment of Janckila, 657 N.W.2d 899, 902 (Minn. App. 2003). We will reverse the

district court’s findings of fact only if they are clearly erroneous. In re McGaughey, 536

N.W.2d 621, 623 (Minn. 1995). The same standard applies to our review of the district

court’s decision that no less restrictive means of treatment other than commitment is

viable. In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003). We review the district

court’s decision based on the evidence presented at the hearing. In re Knops, 536

N.W.2d 616, 620 (Minn. 1995). Deference to the district court’s assessment of witness

credibility is particularly important for findings that rest primarily on expert testimony.

Id.   But we consider de novo whether clear and convincing evidence justifies

commitment. Thulin, 660 N.W.2d at 144.

       A mentally ill person is someone with “a substantial psychiatric disorder of

thought, mood, perception, orientation, or memory which grossly impairs judgment,

behavior, [or] capacity to recognize reality . . . which is manifested by . . . faulty

perceptions and poses a substantial likelihood of physical harm to self or others.” Minn.

Stat. § 253B.02, subd. 13(a) (2012). The illness may be demonstrated by “a failure to

obtain necessary food, clothing, shelter, or medical care as a result of the impairment . . .

[or] a recent attempt or threat to physically harm self or others.” Id., subd. 13(a)(1), (3).


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The district court must find that these elements are present. McGaughey, 536 N.W.2d at

623. Merely speculating that the elements will arise in the future is insufficient to

support a civil commitment. Id.

       Loewen asserts that her examining physicians gave “erroneous, exaggerated, and

speculative” testimony, that the examiners and the social worker gave evidence on topics

that “they had no direct knowledge” of, and that there is “no clear and convincing

evidence” that her commitment is warranted. She also contends that the 72-hour hold the

district court ordered two days after Loewen’s preliminary hearing, which followed her

second, independent examination, “had a prejudicial effect on the outcome of the second

hearing” and effectively foreclosed less-restrictive alternatives.

       Two mental health professionals independently examined Loewen and diagnosed

Loewen with delusional disorders and forms of depression; both of their reports were

admitted into evidence. The doctors agreed that Loewen posed an imminent threat of

harm to others because of her history of stalking behavior, consisting of previous stalking

convictions and recent allegations that she was stalking the Red Wing police chief, and

because of her belief others were stalking her. The second examiner emphasized that

Loewen’s fears were heightened after her preliminary commitment hearing and that she

had expressed a need to acquire weapons as a means of defending herself against her

purported stalkers.   The first examiner acknowledged that his initial prognosis that

Loewen would not pose a short-term threat was “an underestimate.” Both examiners

testified that Loewen’s problems were treatable but that her fears prevented her from

voluntarily submitting to treatment.


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       While Loewen denied some of these claims in her testimony, the district court’s

decision is based on the kind of credibility determination that we leave to the finder of

fact. We are satisfied that the evidence was sufficient to establish that Loewen has a

mental illness and that she needs treatment. Those conclusions are not clearly erroneous.

And given the testimony it heard about her unwillingness to submit to treatment, the

district court reasonably concluded that civil commitment is the least restrictive means of

securing treatment for Loewen and minimizing the risk she poses to herself and others.

Petition for Civil Commitment

       Loewen alleges three flaws in the petition to civilly commit her: that she received

inadequate notice of her rights, that a member of the prepetition screening team

improperly acted as petitioner, and that the petition lacked the required supporting

examination. As she did not object to any of these alleged flaws before the district court,

we may deem them waived. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); In re

Travis, 767 N.W.2d 52, 67 (Minn. App. 2009) (applying Thiele in civil commitment

context). But we may nonetheless review and modify the district court’s order in the

interest of justice. Minn. R. Civ. App. P. 103.04.

       Technical flaws will not invalidate a petition for civil commitment provided the

patient’s rights have been protected. In re Grafstrom, 490 N.W.2d 632, 636 (Minn. App.

1992). But we will construe any ambiguities in the civil commitment law in favor of the

patient and against the state. Id. The screening team must give the patient written notice

informing her that she “has certain rights, including the right to a court-appointed

attorney, the right to request a second examiner, the right to attend hearings, and the right


                                             4
to oppose the proceeding and to present and contest evidence.” Minn. Stat. § 253B.07,

subd. 1(c)(1) (2012). The petition must include “a written statement by an examiner

stating that the examiner has examined the proposed patient within the 15 days preceding

the filing of the petition and is of the opinion that the proposed patient is suffering a

designated disability and should be committed . . . [or] documentation that a reasonable

effort has been made to secure the supporting statement” if absent. Id., subd. 2(c) (2012).

And the petitioner may be “[a]ny interested person, except a member of the prepetition

screening team.” Id., subd. 2(a).

       Loewen accurately identifies several technical flaws in the petition. She received

the statutory notice after the filing of the petition, not before. The petitioner, a county

social worker, also performed the screening, contrary to the statutory requirement that the

petitioner may not be a member of the screening team; and the petition did not include

the required supporting statement by a doctor who had examined the patient within 15

days prior to filing the petition or a reason for the absence of such a statement. But

Loewen did not object to any of these flaws before the district court, and her arguments

on appeal do not suggest that she suffered any prejudice as a result. We conclude that

these unobjected-to technical flaws in the petition did not deprive Loewen of any of her

rights during the commitment process.

Other Agruments

       Loewen raises several other arguments, including that the same district court judge

should have presided at her preliminary and final hearings, that the district court

appointed a second, independent examiner who was ineligible for the task, and that she


                                            5
received ineffective assistance of counsel. These claims consist of assertions that lack a

factual and legal basis. An appellant must demonstrate that the district court erred,

Horodenski v. Lyndale Green Townhome Ass’n, Inc., 804 N.W.2d 366, 372 (Minn. App.

2011), and arguments that amount to mere assertions are waived unless a prejudicial error

is readily apparent, State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App.

1997). This is true even for pro se parties like Loewen, who are afforded some leeway

but who are generally held to the same standards as attorneys. Carpenter v. Woodvale,

Inc., 400 N.W.2d 727, 729 (Minn. 1987). We therefore reject Loewen’s other arguments.

      Affirmed.




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