             Filed 10/29/2019 by Clerk of Supreme Court

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                               2019 ND 258

In the Interest of J.B.


Kathleen K. Murray, State's Attorney,               Petitioner and Appellee
        v.
J.B.,                                             Respondent and Appellant



                                No. 20190111

Appeal from the District Court of Wells County, Southeast Judicial District,
the Honorable James D. Hovey, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

Tyler Morrow, Grand Forks, ND, for respondent and appellant.

Kathleen Murray, State's Attorney, Fessenden, ND, for petitioner and
appellee.
                                Interest of J.B.
                                 No. 20190111

Jensen, Justice.

[¶1] 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.

                                        I

[¶2] 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.

[¶3] 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.

[¶4] 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.




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                                       II

[¶5] 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. Id.

[¶6] The State must prove three statutory elements to show the petitioner
remains a sexually dangerous individual:

      [1] [The individual] engaged in sexually predatory conduct and [2]
      . . . has a congenital or acquired condition that is manifested by a
      sexual disorder, a personality disorder, or other mental disorder or
      dysfunction [3] 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 process,
the State must also prove:

      [T]he committed individual has serious difficulty controlling his
      behavior. . . . We construe the definition of a sexually dangerous
      individual to mean that proof of a nexus between the requisite
      disorder and dangerousness encompasses 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 Johnson, 2016 ND 29, ¶ 3, 876 N.W.2d 25 (quoting In re Wolff, 2011 ND
76, ¶ 7, 796 N.W.2d 644); see also Kansas v. Crane, 534 U.S. 407, 413 (2002).

“The district court may consider sexual and non-sexual conduct demonstrating
an individual’s serious difficulty controlling behavior, but the presence of a
mental disorder or condition alone does not satisfy the requirement of clear

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and convincing evidence the individual is likely to engage in further sexually
predatory conduct.” R.A.S., 2019 ND 169, ¶ 7, 930 N.W.2d 162. “[T]he
evidence must clearly show . . . a serious difficulty in controlling sexually
predatory behavior.” In re J.M., 2019 ND 125, ¶ 16, 927 N.W.2d 422 (quoting
In re J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 518). The court must make specific
findings upon which its conclusion is based. R.A.S., at ¶ 7.

[¶7] J.B. does not argue the district court erred in finding the State met its
burden of proving the three statutory elements to prove he remains a sexually
dangerous individual, but he claims the court’s factual basis was not sufficient
to support its finding that he has serious difficulty controlling his behavior. He
contends the only evidence that supports the court’s finding was that he had
one write-up for failing to get up for breakfast and empty his breakfast tray.
He asserts that evidence was not sufficient and the court’s findings do not
support its conclusion that the State provided clear and convincing evidence
that he has serious difficulty controlling his behavior.

[¶8] The district court concluded clear and convincing evidence established
J.B. continues to have serious difficulty controlling his behavior. The court
found:

      The addendum to Dr. D’Orazio’s report indicates that [J.B.]
      continues to have difficulty conforming to the rules at the Level 3
      Community Transition Center, where he [has] required redirection
      for swearing and going against staff orders not to speak with a
      specific female staff person that he finds attractive. He continues
      to have difficulty listening to feedback, taking the perspective of
      others, interrupting others, and engaging in obtrusive behaviors.

The court further found:

      [J.B.’s] deviant behavior started at an early age and is atypical.
      He has been institutionalized for the majority of his life. [J.B.]
      continues to relate to people with anger, resentment, and conflict.
      Between the date of Dr. D’Orazio’s original report and the hearing,
      [J.B.] continued to have difficulty consistently getting along with
      his peers and required redirection. He also received one behavioral
      write-up during that time frame for irresponsible treatment,


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      interfering behavior, and failure to follow rules and directions.
      Considering [J.B.’s] insufficient progress in completing the sex
      offender treatment program and continued behavioral issues, the
      Court finds that without the benefit of the structured environment
      in which he is currently placed that he would have serious
      difficulty controlling his sexual behavior. He requires slow
      incremented return to the community, which he is receiving.

Based on its findings, the court concluded J.B. has serious difficulty controlling
his behavior and remains a sexually dangerous individual.

[¶9] The only evidence presented to the district court was through Dr.
D’Orazio’s reports and her testimony. J.B. did not present any conflicting
evidence.

[¶10] Dr. D’Orazio stated in her evaluation that J.B. has a history of
irritability and aggressiveness; he has been physically violent, sexually violent,
and verbally aggressive towards others; he has a pervasive disregard for the
rights of others; and he demonstrates an absence of remorse for his actions.
J.B. has resided in secure placements since he was twelve years old due to
sexual offending behavior. Evidence established J.B. committed multiple
sexual offenses while he was a juvenile and he was convicted of aggravated
assault and theft of property related to an attack on a female State Hospital
staff member in 2006 while civilly committed.

[¶11] Dr. D’Orazio testified J.B. is in the most advanced level of the treatment
program and has achieved the community transition center house, which
allows the highest levels of freedom within the hospital treatment program,
but she believes he continues to need treatment and is not ready for a less
restrictive alternative. She testified she believes J.B. would have serious
difficulty controlling his sexual behavior if he was discharged at this time
without slow incremental steps to return to community living; and she
explained his long-term institutionalizations, being removed from society at a
young age, and persistent ingrained sexual deviancy makes him likely to fail
if he is released without conditions.




                                        4
[¶12] Evidence established J.B. was diagnosed with other specified paraphilic
disorder, coercion and sexual sadism (“OSPD”); antisocial personality disorder;
and attention deficit hyperactivity disorder; and the symptoms of the disorders
create a mental condition resulting in J.B. having serious difficulty controlling
his behavior. Dr. D’Orazio stated in her evaluation that J.B.’s three mental
disorders affect his capacity to control his sexual behavior. Based on J.B.’s
mental disorders, treatment progress, and other factors, Dr. D’Orazio said J.B.
is likely to engage in further acts of sexually predatory conduct and would have
serious difficulty controlling his sexual behavior if he was discharged at this
time. Dr. D’Orazio testified J.B.’s antisocial personality disorder impairs his
ability to control his behavior and contributes to his likelihood to reoffend
sexually. Dr. D’Orazio stated in the addendum to her report that J.B.’s OSPD
“impairs his volitional functioning in that he is unable to restrain these
impulses despite having been witness to the negative effects to self and others
of acting on such urges.” She stated there is a nexus between his mental
disorders and his likelihood to commit sexual offenses because the disorders
inhibit his ability to control his behavior.

[¶13] Evidence exists in the record that between August 2017 and May 2018
J.B. stated he was emotionally attached to a female staff member, he would
seek her out but he would like to think that he was not breaking boundaries
with the staff member, he was going to a female staff member’s office several
times a day and was asked to not go to her office, and he compared his
attempted rape of a past staff member with a current staff member. The
addendum to Dr. D’Orazio’s report, which covered a five-month period before
the discharge hearing, stated J.B. was redirected for going against staff orders
not to speak with a specific female staff person he finds attractive. Dr.
D’Orazio testified J.B. disclosed he had a sexual interest in a staff person, he
was ordered to not talk to that person, and he broke the rules by talking to the
person. She testified:

      He has a history of breaking boundaries with staff. He sexually
      targeted a staff person, seriously sexually assaulted her, and had
      a desire to kill her, so he has to really be monitored in this area.
      He really has to be closely monitored. And for him to go against
      the treatment directive, “Do not talk with this staff person,” and to

                                       5
      do that anyway out of his own sexual interests, that is evidence
      that this dynamic risk factor remains present for him.

She testified the hospital is not permitting J.B. to advance in his treatment at
least partly because of his issues with females and boundary violations.

[¶14] Evidence established J.B. talks over and interrupts others, he does not
listen to others, he struggles with attention seeking behaviors, sometimes he
is not redirectable, and he tells others to shut up and cuts others off. The
addendum to Dr. D’Orazio’s report stated:

      [J.B.] continues to have difficulty consistently getting along with
      peers (there were several instances of arguments with peers and a
      redirection for swearing). . . . He is repeatedly noted to have
      difficulty listening to feedback, listening to complete questions,
      taking the perspective of others, interrupting others, and engaging
      in obtrusive behaviors. On a few occasions he was informed his
      behaviors were below that acceptable for his treatment level. In
      treatment he discussed excessive spending habits and difficulties
      interacting with females.

The addendum also noted J.B. received one write-up for “Irresponsible
treatment interfering behavior and failure to follow rules and directions. He
did not get [up] for breakfast or empty his breakfast tray.”

[¶15] Dr. D’Orazio testified J.B. continues to have difficulty managing himself,
including cutting off people during conversation. She stated the manifestations
of J.B.’s serious difficulty controlling his behavior are not as severe in the
hospital setting as they would be in an unconditional release because the
hospital is doing what it is supposed to do. She testified, “He has not
completely achieved the treatment that he needs, such that if he were released
to the community, even provisionally in a community commitment, that he
would reoffend sexually. And that would obviously represent substantial and
serious difficulty controlling his behavior.” She testified the absence of
negative behavioral write-ups does not equate to an absence of any evidence of
serious difficulty controlling his behavior.




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[¶16] Dr. D’Orazio’s testimony and reports support the district court’s finding
that J.B. has serious difficulty controlling his behavior. Under our modified
clearly erroneous standard of review, we conclude the evidence supports the
court’s findings. We conclude the court’s findings the State proved by clear and
convincing evidence that J.B. has serious difficulty controlling his behavior and
that he remains a sexually dangerous individual are not clearly erroneous.

                                       III

[¶17] We affirm the district court’s order denying J.B.’s petition for discharge
and continuing his commitment as a sexually dangerous individual.

[¶18] Jon J. Jensen
      Lisa Fair McEvers
      Gerald W. VandeWalle, C.J.

      We concur in the result.
      Jerod E. Tufte
      Daniel J. Crothers




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