               IN THE SUPREME COURT OF IOWA
                                No. 13–1241

                            Filed March 13, 2015


IN RE THE DETENTION OF STEPHEN C. CURTISS,

STEPHEN C. CURTISS,

      Appellant.


      Appeal from the Iowa District Court for Story County, Steven J.

Oeth, Judge.



      A person committed under the Sexually Violent Predator Act

appeals the district court’s revocation of his release with supervision.

AFFIRMED.



      Steven L. Addington and Thomas J. Gaul, Assistant State Public

Defenders, for appellant.



      Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer,

Assistant Attorney General, for appellee.
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WIGGINS, Justice.

       The court placed Stephen Curtiss in the Civil Commitment Unit for

Sexual Offenders (CCUSO) in 2008 following a hearing in which the State

proved beyond a reasonable doubt that he was a sexually violent

predator. At an annual review hearing on January 17, 2011, the district

court found the State failed to meet its burden to prove Curtiss was likely

to commit a sexual offense if discharged and ordered Curtiss discharged

from CCUSO.          However, the district court determined that “any such

discharge must be supervised as per Iowa Code Section 229A.9A.” The

district court order Curtiss “released with supervision” to the House for

New Life in Lincoln, Nebraska.

       The State filed a motion to enlarge or amend the findings of the

court, challenging Curtiss’s placement in the House for New Life, an out-

of-state facility.    On February 17, 2012, the district court granted the

motion and found the facility was not an agency with jurisdiction as

defined by the Code. 1 The district court then ordered Curtiss released

with supervision and ordered the Iowa Department of Human Services

(DHS) to develop a new release plan for Curtiss. DHS created a release

plan for Curtiss releasing him to the transitional release program within
CCUSO under a release with supervision status.                  The district court

approved the plan on September 5, 2012. Curtiss did not appeal any of

these orders.

       While released with supervision, Curtiss had a number of

violations of his release conditions. These included his (1) failure to fully

participate in counseling, (2) failure to identify a primary healthcare


       1Judge Dale Ruigh entered the second order because the original judge who

determined the State failed to meet its burden at the 2011 review hearing had retired.
                                       3

provider in the community, (3) failure to establish a case manager, (4)

failure to complete his GED and procure employment, (5) failure to fully

participate   in   group   treatment   discussions   during   sex   offender

treatment, and (6) the use of his six community outings to shop and dine

out rather than work on procuring housing and community support. In

April 2013, DHS alerted the court to these violations.

      In July, the court conducted a hearing concerning his release

condition violations. Prior to the presentation of any testimony, the court

and the parties made the following record.

             MS. KRAEMER [(attorney for the State)]: . . . We have
      filed a motion to revoke the release with supervision status
      under Iowa Code 229A.9B, and we’re prepared to present
      information on that today.

            THE COURT: Okay. And, Mr. Addington [(Curtiss’s
      attorney)], do you agree that that’s the issue before the
      court, whether or not there’s a basis for that?

            MR. ADDINGTON: I believe that’s one of the issues, is
      whether they have a basis to revoke. I also have - - I think
      we should discuss whether Judge Ruigh’s plan is a feasible
      plan given the nature that they want to revoke it at this time.

            THE COURT: Okay. I’m not following the second part
      of what you said, sir.

            MR. ADDINGTON: Sure. They are basically wanting to
      revoke Mr. Curtiss because he’s not progressing in
      treatment. We have Judge Pattinson’s order saying he no
      longer has a mental abnormality and should be released and
      released with services. It’s res judicata that he no longer has
      a mental abnormality and should not held in CCUSO.

             Judge Pattinson then ordered that he be released with
      services to a facility in Nebraska, and Judge Ruigh ordered
      that that was not a feasible plan; that Nebraska did not have
      any jurisdiction over this under 229A and it was not an
      agency under 229A. He then adopted the State’s plan under
      our resistance to place him back at the CCUSO facility, and I
      don’t think that’s been workable.
                                     4
          THE COURT: All right. So you want to review Judge
     Ruigh’s plan as well?

           MR. ADDINGTON: We would just ask for outright
     release today.

             THE COURT: All right.

           MS. KRAEMER: Your Honor, we would object to that.
     We don’t think that’s before the court today, as there’s been
     no motion to that effect and no notice that that’s
     Mr. Addington’s position.

     The gist of the argument made by Curtiss at this point in the

hearing was that the district court erred in its January 17, 2011 order

because the court should have discharged Curtiss from CCUSO, rather

than releasing him with supervision, because he no longer suffered from

a mental abnormality. Curtiss further argued the court compounded the

original error on September 5, 2012, when it ordered him released with

supervision to the transitional release program within CCUSO.

     At the close of the evidence, Curtiss made two other arguments
that bear on this appeal. First, in speaking about the 2012 release plan

he argued:

           First of all, I believe that that statute itself is vague. It
     would always be in the best interests of the community and
     probably violate some due process law, but I’m not arguing
     that today. I’m arguing that the attorney general then had a
     motion to enlarge and their basis was that the release with
     services to a proper agency, which happened to be a house
     in Nebraska, was not a proper agency and we needed a
     proper agency. [T]he head of CCUSO, came in and testified
     that the best release plan would be the transitional release
     at CCUSO. We objected to that. He was then placed there in
     September of 2012.

     He then argued:

           Really what they’re saying is we were wrong in 2010;
     we want to correct it today. This is not the proper forum for
     that. I believe that he should be retained in release with
     supervision but we need a new release with supervision plan.
     We’d like a hearing on that so we can explore having him
                                     5
      released with supervision to DOC, somebody that can
      actually - - would move him through the program.

At this point in the proceedings, Curtiss appears to abandon his claim
that the court should have discharged him from CCUSO and asks the

court to redo the release with supervision plan approved by the court on

September 5, 2012.

      On July 17, 2013, the district court found the State met its burden

to prove Curtiss had violated his release plan and returned him to

CCUSO in the full commitment side of the facility.        Curtiss filed an

appeal from this order.

      On appeal, Curtiss returns to his original argument claiming he

should not be in CCUSO when a court has determined he no longer

suffers from a mental abnormality. His only brief point states:

      WHEN A PERSON HAS BEEN FOUND TO NO LONGER
      HAVE A MENTAL ABNORMALITY UNDER IOWA CODE
      229A.8(6)(D)(1) AND IS DISCHARGED FROM THE CIVIL
      COMMITMENT PROGRAM, THE STATE DOES NOT HAVE A
      RIGHT TO REVOKE HIS RELEASE AND PUSH HIM BACK
      INTO THE PROGRAM.

The conclusion of his brief reaffirms this position by stating: “For the

foregoing reasons, Mr. Curtiss requests the Court to remand this case to

the district court for discharge of Mr. Curtiss from civil commitment

under Iowa Code 229A.”

      In addressing this issue, we must first focus on the initial rulings

the court made in releasing Curtiss with supervision. A fair reading of

the order releasing Curtiss with supervision does not support Curtiss’s

position that he does not suffer from a mental abnormality.           In its

January 17, 2011 order, the district court specifically found, “Mr. Curtiss

is a pedophile and that he is also afflicted with an anti-social personality

disorder.” However, the court was unable to find beyond a reasonable
                                            6

doubt that Curtiss is more likely than not to reoffend.                   This finding

caused the court to release Curtiss with supervision.                  See Iowa Code

§ 229A.8(6)(d)(1) (2011) (placing the burden of proof on the State to prove

beyond a reasonable doubt “[t]he committed person’s mental abnormality

remains such that the person is likely to engage in predatory acts that

constitute    sexually     violent   offenses     if   discharged”);    see    also   id.

§ 229A.9A(1)(b) (“The court or jury has determined that the person

should be discharged from the program, but the court has determined it

is in the best interest of the community to order release with or without

supervision before the committed person is discharged.”).

       The only argument Curtiss makes on appeal to support his present

contention      is   section     229A.9B(5)      is    inconsistent     with     section

229A.8(6)(d)(1). He argues that once the court has found the State failed

to meet its burden that the committed person is likely to engage in

predatory acts that constitute sexually violent offenses if discharged, the

court cannot return that person to CCUSO because of the violations of

his release conditions. Curtiss did not argue on appeal or in the district

court that his return to CCUSO violates his constitutional rights. 2 Thus,

the only issue for us to decide in this appeal is whether the court can
return him to the secure side of CCUSO upon revocation of his release

with supervision under chapter 229A.



       2We  understand that confining a person as a sexual predator without the finding
that the person has a mental abnormality that makes him more likely than not to
engage in acts of a sexually violent nature violates a person’s due process at the time of
the original commitment. See In re Det. of Garren, 620 N.W.2d 275, 284 (Iowa 2000).
Curtiss has not raised a due process argument as to whether the State can return him
to the secure side of CCUSO from the transitional release side of CCUSO after he
violated the conditions of his release with supervision when the court previously
determined the State did not meet its burden to prove he was more likely than not to
reoffend. Therefore, we must leave this issue for another day.
                                    7

      We start by noting two important points relevant to our decision in

this appeal. First, we have determined the statutory scheme allowing for

release with supervision does not suffer from any statutory or

constitutional infirmities if the person still suffers from a mental

abnormality. In re Det. of Matlock, ____ N.W.2d ____, ____ (Iowa 2015).

Thus, release with supervision when a person still suffers from a mental

abnormality is proper.

      Second, and more importantly, when the court released Curtiss

with supervision, the court did not release him from CCUSO, but rather

put him in the transitional release side of CCUSO. Curtiss chose not to

appeal this order. Thus, he has waived the argument that he cannot be

at CCUSO when the State has failed to prove beyond a reasonable doubt

that he was more likely than not to reoffend.

      When a person violates release with supervision, section 229A.9B

of the Code governs how the court handles a violation of release. Section

229A.9B states in relevant part:

      If the court determines a violation occurred, the court shall
      receive release recommendations from the department of
      human services and either order that the committed person
      be returned to release with or without supervision or placed
      in a transitional release program, or be confined in a secure
      facility. The court may impose further conditions upon the
      committed person if returned to release with or without
      supervision or placed in the transitional release program. If
      the court determines no violation occurred, the committed
      person shall be returned to release with or without
      supervision.

Iowa Code § 229A.9B(5).

      The clear and unambiguous language of the statute allows the

court to return Curtiss to a secure facility including CCUSO. Curtis’s

argument that the court cannot return him to CCUSO after a finding that
                                    8

the State failed to prove he was more likely than not to reoffend, cannot

be made in this appeal for two reasons.

      First, the district court never released him from CCUSO when the

court placed him on the transitional release side of CCUSO.        Second,

Curtiss failed to appeal the order placing him in the transitional release

side of CCUSO after the court determined the State failed to prove he was

more likely than not to reoffend. The time to appeal his placement in

CCUSO was within thirty days after the court placed him in transitional

release within CCUSO, not after he violated the terms of the conditions of

his release. See Iowa R. App. P. 6.101(1)(b) (requiring an appeal to be

filed within thirty days of the final order or judgment). By not appealing

the prior court order, Curtiss has waived this claim.

      Accordingly, we affirm the judgment of the district court.

      AFFIRMED.
