                          This opinion will be unpublished and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
                                  A14-0450, A14-0451

           In the Matter of the Civil Commitment of: Adam Christopher Robb.

                                  Filed August 11, 2014
                                        Affirmed
                                      Hudson, Judge

                               Aitkin County District Court
                                  File No. 01-PR-13-528

Jim Ratz, Aitkin County Attorney, Sarah Winge, Assistant County Attorney, Aitkin,
Minnesota (for respondent county)

Erica Austad, Grand Rapids, Minnesota (for appellant)

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

Reilly, Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

       On appeal from a district court order extending his commitment as mentally ill and

committing him indeterminately as mentally ill and dangerous (MID), appellant argues

that (1) the district court did not have jurisdiction over the mentally ill petition; (2) the

district court erred by concluding that he meets the criteria for continued commitment as

mentally ill and MID; (3) the district court erred by concluding that he meets the criteria

for indefinite commitment as MID; and (4) the district court failed to place him in the

least restrictive alternative placement. We affirm.
                                         FACTS

       Appellant Adam Christopher Robb has a history of harassment, stalking, and

domestic assault against A.M., the mother of his children, as well as a history of

marijuana use. He has been previously committed twice. Most recently, in the summer

of 2013, while appellant was incarcerated at the Aitkin County jail on a probation

violation, respondent Aitkin County petitioned to civilly commit him as mentally ill after

appellant “engaged in numerous bizarre and aggressive incidents, and refused to take his

prescribed medication.” Appellant admitted to the petition and was transferred to the

Anoka Metro Regional Treatment Center (AMRTC) on July 10 for a commitment “not to

exceed six (6) months.” Prior to that hearing, appellant had five different evaluations by

mental-health professionals. All five diagnosed him with some form of schizoaffective

disorder.   Appellant was also diagnosed with polysubstance abuse/dependence in

remission in a controlled environment and antisocial personality disorder.

       On July 29, 2013, the county filed a petition to commit appellant as MID. The

district court appointed James Gilbertson, Ph.D., to examine appellant in connection with

the petition; he concluded that appellant has schizoaffective disorder, polysubstance

abuse/dependence in remission in a controlled environment, cognitive disorder, and

antisocial personality disorder. He opined that this combination of diagnoses “frequently

represents one of the highest risk configurations for aggressivity toward others.”

Dr. Gilbertson concluded that appellant meets the statutory requirements to be committed

as MID.     Following a trial, the district court committed appellant as MID at the

Minnesota Security Hospital (MSH) on October 10.


                                            2
       On November 21, Christopher Bollig, Psy.D., submitted a treatment report to the

district court, along with the county’s request to extend appellant’s commitment as

mentally ill.   Dr. Bollig diagnosed appellant with a “mood disorder not otherwise

specified,” polysubstance dependence, and antisocial personality disorder. Dr. Bollig

noted that appellant presented with no visible symptoms of schizoaffective disorder,

bipolar disorder, of cognitive disorder, but stated it could be “the result of effective

symptom management resulting from his current medication regimen.” Dr. Bollig also

noted that appellant’s pervasive use of substances “appears to have impacted his

psychiatric functioning.” Overall, Dr. Bollig concluded that appellant “satisfies statutory

requirements for continued commitment to a treatment facility as a person who is

[m]entally [i]ll.”

       The parties agreed to hold a joint hearing for both the request to extend appellant’s

commitment as mentally ill and the final hearing on the MID petition. The hearing was

set to take place in December (before the expiration of appellant’s commitment as

mentally ill in early January), but appellant’s attorney requested a continuance.

Appellant’s attorney explicitly waived the 14-day scheduling requirement and requested

that a hearing be set for mid-January.

       Adam Milz, Ph.D., submitted a December 13 report on appellant’s condition in

relation to the MID petition.       Dr. Milz diagnosed appellant with polysubstance

dependence and antisocial personality disorder, but deferred any diagnoses of a mental

illness. Dr. Milz expressed concern that appellant may have been feigning his psychotic

symptoms in the past to avoid incarceration and noted that appellant has repeatedly been


                                             3
described as a “poor historian” of his psychiatric symptoms. Dr. Milz did acknowledge

that appellant was exhibiting “psychiatric symptomatology” during his incarceration at

the Aitkin County jail and that these acts “appear[ed] to be a distinct difference from the

majority of [appellant’s] previous contacts with mental health treatment providers.”

Dr. Milz offered several possible explanations for those behaviors, including the fact that

appellant may actually suffer from schizoaffective disorder or bipolar disorder.

Nonetheless, Dr. Milz concluded that “[g]iven the uncertain nature of the respondent’s

psychiatric history, diagnoses of a psychotic or mood disorder are currently deferred.

Clarification of [appellant’s] psychiatric status requires additional information regarding

his functioning over an extended period of time and under close supervision.” Dr. Milz

stated that appellant’s diagnosis of antisocial personality disorder does not meet the

statutory definition of a person who is mentally ill, but that appellant “is at an elevated

risk of future violence.” Dr. Milz opined that appellant is “in need of treatment in a

secured, inpatient setting that offers structure and consistency in programming,

supervision and oversight; and access to multidisciplinary supports for an extended

period of evaluation in order to clarify his diagnoses.” Therefore, Dr. Milz recommended

a continuance of the MID petition for a year.

       The district court held a hearing on January 21, 2014, on both the MID petition

and the request to extend appellant’s commitment as mentally ill. The district court

continued appellant’s commitment as mentally ill for one year and committed him as

MID for an indeterminate period of time. This consolidated appeal from both orders

follows.


                                            4
                                     DECISION

                                             I

       Appellant argues that the district court did not have jurisdiction to continue his

commitment as mentally ill because the review hearing held on January 21 was untimely.

Although appellant argues that the district court lacked jurisdiction, we note that the

failure to hold timely hearings does not necessarily affect the district court’s ability to

conduct further proceedings related to the petition. See In re Civil Commitment of Giem,

742 N.W.2d 422, 430 (Minn. 2007) (concluding that the district court does not lose

subject matter jurisdiction when statutory deadlines in sexual-psychopathic-personality

and sexually-dangerous-person (SPP/SDP) proceedings pass before a hearing is held).

Based upon the record here, we conclude that appellant waived his right to a timely

review hearing.

       Minn. Stat. § 253B.12, subd. 1(b), (c) (2012), requires that prior to the termination

of a patient’s initial commitment order, the treatment facility must file a written report

with the committing court that sets forth various details about the patient’s care and

provides a discharge plan or a basis for continued treatment. Minn. Stat. § 253B.12,

subd. 2a (2012), requires that the district court hold a hearing within 14 days of the

receipt of this report, or within another 14-day continuance if good cause is shown.

Dr. Bollig’s treatment report was submitted on November 21, 2013; thus appellant

correctly points out that the January 21 hearing was outside the statutory guidelines. But

appellant’s attorney explicitly requested the later date in writing and waived the 14-day

requirement. Nonetheless, appellant argues that waiver is not allowed under the statute


                                             5
because section 253B.12, subdivision 2a, does not mention waiver, while the

corresponding statute for MID review hearings explicitly allows waiver of the time

requirements. See Minn. Stat. § 253B.18, subd. 2 (2012). We disagree. See Minn. Stat.

§ 253B.12, subd. 6 (2012) (stating that “[a] patient, after consultation with counsel, may

waive any hearing under this section . . . in writing”); see also Giem, 742 N.W.2d at 431

(concluding that a patient involved in SPP/SDP proceedings could waive statutory

hearing deadlines although the statute did not explicitly allow for waiver). Accordingly,

the district court did not err by extending the deadline for the review hearing on

appellant’s mental-health file.1

                                             II

       Review of a district court’s order extending a patient’s commitment as mentally ill

“is limited to an examination of the district court’s compliance with the statute, and the

commitment must be justified by findings based on the evidence at the hearing.” In re

Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003). We view the record in the light most

favorable to the district court’s decision and we will not set aside findings of fact unless

clearly erroneous. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). We review de novo

whether the record contains clear and convincing evidence to support the district court’s

legal conclusion regarding commitment. Thulin, 660 N.W.2d at 144.




1
  In his brief to this court, appellant also argues that the district court did not state the
time period for which appellant’s commitment as mentally ill is to continue. But the
order plainly states that the commitment expires on January 6, 2015, and at oral
argument, appellant’s counsel acknowledged that the order so states.

                                             6
          If, after the initial six-month commitment period, a mental-health facility

concludes that a patient committed as mentally ill is in need of further treatment, that

facility must file a written report with the committing court, which must conduct a review

hearing.     Minn. Stat. § 253B.12, subds. 1(c), 2a.        To order continued involuntary

commitment, the court must find by clear and convincing evidence that: (1) the person

continues to be mentally ill; (2) continued involuntary commitment is necessary to

protect the patient or others; and (3) there is no alternative to continued commitment.

Minn. Stat. § 253B.12, subd. 4 (2012). Appellant argues that there is not clear and

convincing evidence that he has a mental illness or that he poses a danger to himself or

others.

Mental Illness

          A person is mentally ill, for purposes of civil commitment, if he or she

                 has an organic disorder of the brain or a substantial
                 psychiatric disorder of thought, mood, perception, orientation,
                 or memory which grossly impairs judgment, behavior,
                 capacity to recognize reality, or to reason or understand,
                 which is manifested by instances of grossly disturbed
                 behavior or faulty perceptions and poses a substantial
                 likelihood of physical harm to self or others.

Minn. Stat. § 253B.02, subd. 13(a) (2012). Here, the district court relied on Dr. Bollig’s

report, in which he diagnosed appellant with mood disorder not otherwise specified, a

diagnosis that fits the statutory definition of mental illness. Dr. Bollig also concluded

that appellant poses a substantial likelihood of physical harm to himself or others because

of appellant’s inability to “obtain necessary care as a result of his impairment.”




                                                7
       Appellant argues that the more recent evaluation of appellant conducted by

Dr. Milz contradicts Dr. Bollig’s report because Dr. Milz deferred any diagnoses of a

psychotic or mood disorder. But, importantly, Dr. Milz never concluded that appellant

does not have a psychotic or mood disorder; in fact, Dr. Milz suggested that such a

disorder may be one possible explanation for appellant’s actions. The district court, as

fact finder, was free to weigh the two differing reports and reach its own conclusion. See

Thulin, 660 N.W.2d at 144. In addition to Dr. Bollig’s report, all five of the experts who

provided reports completed at the start of appellant’s commitment concluded that he has

some form of schizoaffective disorder. The district court did not err by concluding that

clear and convincing evidence supports this prong.

Physical Harm to Self or Others

       The district court also “must find that the patient is likely to attempt to physically

harm self or others, or to fail to provide necessary personal food, clothing, shelter, or

medical care unless involuntary commitment is continued.” Minn. Stat. § 253B.12,

subd. 4.

       Although appellant’s symptoms were improving while he was in treatment,

Dr. Bollig’s report stated that appellant “would likely be unable to care for himself and

meet his basic needs in healthy and prosocial ways, especially given [his] history of

discontinuing his medications and suffering subsequent psychiatric decompensations.”

Dr. Bollig concluded that appellant poses a risk of physical harm to himself or others

because of his inability to care for himself outside of a treatment setting. Dr. Milz noted

that, while he could not conclude appellant poses a risk of harm to himself, appellant


                                             8
does pose “an elevated risk of future violence” to others. Accordingly, because both

experts concluded that appellant poses a risk of harm to either himself or to others, the

district court did not err by concluding that there is clear and convincing evidence

supporting this prong.

                                            III

      Appellant argues that the district court erred by committing him indeterminately as

MID because there is not clear and convincing evidence that he meets the statutory

requirements. The petitioner has the burden of proving by clear and convincing evidence

that an individual is MID. In re Welfare of Hofmaster, 434 N.W.2d 279, 280 (Minn.

App. 1989). For purposes of civil commitment:

                     (a)     A “person who is mentally ill and dangerous to
             the public” is a person:
                     (1)     who is mentally ill; and
                     (b)     who as a result of that mental illness presents a
             clear danger to the safety of others as demonstrated by the
             facts that (i) the person has engaged in an overt act causing or
             attempting to cause serious physical harm to another and
             (ii) there is a substantial likelihood that the person will
             engage in acts capable of inflicting serious harm on another.

Minn. Stat. § 253B.02, subd. 17 (2012).

Mental Illness

      As discussed above, there are different opinions as to whether appellant was

suffering from a mental illness at the time of the hearing. In its MID order, the district

court took into consideration all of the psychiatric reports from appellant’s past

commitments, the most current reports of Dr. Bollig and Dr. Milz, and the testimony of

Dr. Milz.   The district court noted that, of the approximately seven mental-health


                                            9
professionals who had evaluated appellant, most within the last year, Dr. Milz was “one

of the only evaluators to opine that [appellant] may not have an Axis I psychiatric

disorder and that [appellant] may not meet criteria as a ‘person with a mental illness’

under Chapter 253B.”

          Appellant argues that Dr. Milz’s testimony was the only new evidence the district

court had following the initial MID petition and that therefore the district court could not

conclude that there is clear and convincing evidence that appellant has a mental illness.

But Dr. Bollig’s report was issued after the initial MID hearing and unequivocally

concluded that appellant has a mental illness that meets the statutory definition. Thus, the

district court did not err by concluding that this prong was satisfied.

Clear Danger to the Safety of Others as a Result of the Mental Illness

Overt Act

          The district court concluded that appellant has engaged in overt acts causing or

attempting to cause serious physical harm to another.           Appellant has a history of

assaultive behavior. One past mental-health examiner noted, “I am aware of several

incidents involving degrees of physical assaults by [appellant] while he was in jail.” One

treatment report detailed appellant’s past physical altercations with his girlfriend. During

one incident, appellant hit her several times, “head-butted her nose, smashed her head

into a coffee table, attempted to strangle her, and ‘threw her neck around.’” During

another incident, he held her “by the neck and ‘bashed her head into a car.” The report

also documented two other incidents of appellant hitting his girlfriend in the head and

throat.


                                             10
       Appellant claims these acts were not as serious as other overt acts identified by the

supreme court, but “it is not necessary that ‘mayhem or murder’ occur, and less violent

conduct may meet the statutory requirement.” In re Civil Commitment of Carroll, 706

N.W.2d 527, 531 (Minn. App. 2005). In addition, the district court was free to rely on

past incidents that occurred before appellant was in treatment and receiving medication.

See In re Dirks, 530 N.W.2d 207, 210 (Minn. App. 1995) (relying on past acts to satisfy

the overt-acts requirement). Accordingly, there is clear and convincing evidence in the

record that appellant committed an overt act causing or attempting to cause serious

physical harm.

Substantial Likelihood

       Next, the district court concluded that the evidence established “that there is a

substantial likelihood that [appellant] will engage in acts capable of inflicting serious

physical harm to another.” The statute requires that this substantial likelihood arises as a

result of the patient’s mental illness. Minn. Stat. § 253B.02, subd. 17(a). The record

supports the district court’s conclusion.     Dr. Milz concluded that appellant has an

elevated risk of future violence that is “possibly, although not clearly, elevated by

psychopathy.” Notably, when Dr. Milz testified that he would recommend discontinuing

appellant’s medications in a controlled setting, appellant responded on the record, “What

if I end up killing somebody?” Dr. Bollig’s report indicated that appellant “poses a

substantial likelihood of physical harm to self or others as demonstrated by his apparent

inability [to] obtain necessary care as a result of his impairment.” In addition, the report

of Dr. Gilbertson, who evaluated appellant for purposes of the first hearing on the MID


                                            11
petition, concluded that appellant has a major mental illness (schizoaffective disorder) as

well as an antisocial personality disorder, the combination of which “frequently

represents one of the highest risk configurations for aggressivity toward others.”

Dr. Gilbertson noted that this aggressivity “even in the face of recognized

interventions/sanctions,    i.e.   psychiatric      treatment,   incarceration,   probationary

supervision, suggests an aggressive persistence that . . . substantially increases his risk for

interpersonal harmful aggression.”

       Based on the reports of the experts, the district court did not err by concluding that

clear and convincing evidence supports the conclusion that, based on his mental illness,

there is a substantial likelihood that appellant may engage in acts capable of inflicting

serious harm on others. Although Dr. Milz may have not explicitly made the connection

between appellant’s mental illness and his risk of these acts, other experts did. As fact-

finder, the district court was free to weigh the competing evidence. See Thulin, 660

N.W.2d at 144.

                                              IV

       Finally, appellant argues that the district court erred by failing to consider the

least-restrictive alternative placement possible.

              If the court finds by clear and convincing evidence that the
              proposed patient is a person who is mentally ill and
              dangerous to the public, it shall commit the person to a secure
              treatment facility or to a treatment facility willing to accept
              the patient under commitment. The court shall commit the
              patient to a secure treatment facility unless the patient
              establishes by clear and convincing evidence that a less
              restrictive treatment program is available that is consistent



                                              12
             with the patient’s treatment needs and the requirements of
             public safety.

Minn. Stat. § 253B.18, subd. 1(a) (2012). Appellant does not identify what evidence he

provided at the district court that showed by clear and convincing evidence that a less

restrictive treatment facility would be appropriate.    Appellant simply reiterates his

argument that he should not have been committed at all because Dr. Milz did not

diagnose him with a mental illness.      But Dr. Milz concluded that lesser restrictive

outpatient treatment options would not be appropriate for appellant. Dr. Bollig also

recommended that appellant be placed in “a structured setting.” Accordingly, appellant

has not provided clear and convincing evidence that a less-restrictive treatment program

would meet his needs or protect public safety.

      Affirmed.




                                           13
