                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1137
                              Filed August 13, 2014

IN RE THE DETENTION OF
CLYDE HOLLINS,
      Applicant-Appellee,

STATE OF IOWA,
     Petitioner-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Des Moines County, Michael J.

Schilling, Judge.



       The State appeals the district court’s order denying its request for

supervised release of Clyde Hollins, a sexually violent predator found to be

suitable for discharge from the civil commitment program. AFFIRMED.



       Thomas J. Miller, Attorney General, and John McCormally, Assistant

Attorney General, for appellant.

       Michael Adams, Local Public Defender, and Amy Kepes, Assistant Public

Defender, for appellee.



       Considered by Vaitheswaran, P.J., and Bower and McDonald, JJ. Tabor,

J., takes no part.
                                             2



BOWER, J.

        The State appeals the district court’s order denying its request for

supervised release of Clyde Hollins, a sexually violent predator found to be

suitable for discharge from the civil commitment program.                See Iowa Code

§ 229A.9A (2013). The State contends the district court abused its discretion in

failing to order release with supervision.         Finding no abuse of discretion in

discharging Hollins from the program and no provision in Iowa law for his

supervision once discharged, we affirm.

I. Background Facts and Proceedings.

        Starting in March 1975, seventeen-year-old Hollins committed eight sexual

assaults in a ten-year period. In September 1990, Hollins was convicted of two

counts of third-degree sexual abuse and sentenced to serve an indeterminate

term of incarceration not to exceed thirty years. In re Det. of Hollins, No. 04-

1829, 2006 WL 623523, at *1 (Iowa Ct. App. Mar. 15, 2006).                    Prior to his

scheduled release in August 2004, the State “filed a petition requesting Hollins’s

commitment as a sexually violent predator.” Id. At his civil commitment trial,

Hollins was found “to be ‘a sexually violent predator’ [(SVP),1 and] the court

placed him in the custody of the Iowa Department of Human Services [(DHS)] for

confinement in a secure facility.” Id. at *3. Hollins appealed, and we affirmed.

Id. at *7.


1
  A “sexually violent predator” is a person who “[(1)] has been convicted of or charged
with a sexually violent offense and [(2)] suffers from a mental abnormality which makes
the person likely to engage in predatory acts constituting sexually violent offenses, if not
confined in a secure facility.” Iowa Code § 229A.2(11). The State was required to prove
both elements in order to show Hollins was subject to commitment. See In re Det. of
Blaise, 830 N.W.2d 310, 318 (Iowa 2013).
                                            3



       At the time of his 2004 commitment, Hollins was diagnosed with two

mental abnormalities,2 anti-social personality disorder and paraphilia not

otherwise specified.       After his commitment, Hollins resided at the civil

commitment unit for sex offenders (CCUSO). The statutory scheme of chapter

229A establishes a goal of treatment services:

       If the court or jury determines . . . the respondent is a [SVP], the
       respondent shall be committed to the custody of the [DHS] for
       control, care, and treatment until such time as the person’s mental
       abnormality has so changed that the person is safe to be placed in
       a transitional release program or discharged.

Iowa Code § 229A.7(5)(b) (emphasis added).

       In 2009, Hollins was placed in the transitional release facility at CCUSO.

Within a few months, Hollins was removed from this facility.3               We note Dr.

Thomas of CCUSO testified the 2009 incident is not relevant to the issues now

reviewed.




2
  “[M]ental abnormality” is defined as “a congenital or acquired condition affecting the
emotional or volitional capacity of a person and predisposing that person to commit
sexually violent offenses to a degree which would constitute a menace to the health and
safety of others.” Iowa Code § 229A.2(5). “Both the definition of ‘mental abnormality’
and the definition of ‘sexually violent predator’ are focused on the likelihood that the
respondent will commit a sexual offense.” In re Det. of Altman, 723 N.W.2d 181, 185
(Iowa 2006).
3
  The district court found the CCUSO director had filed a motion requesting the court
remove Hollins from his first transitional release due to alleged violations of the
transitional release agreement. The court also found, before the matter could be heard,
the State moved to dismiss its motion, stating: “In the twelve months since his return to
confinement, [Hollins] has successfully completed specific treatment goals identified by
the CCUSO staff. CCUSO staff now believes that Mr. Hollins should be given another
opportunity for transitional release.” Based on this history, the court concluded: “In view
of this recommendation, no final violation hearing was ever held and no finding was ever
made that [Hollins] violated any condition of transitional release.”
                                          4



       After Hollins successfully completed treatment goals, in 2011 he was

again placed in the transitional release facility. Hollins’s 2012 annual report4 filed

in December 2011 and prepared by Dr. Thomas of CCUSO, stated Hollins had

made progress over the last several years and he no longer suffered from

paraphilia. Dr. Thomas testified and explained the transitional program:

               Patients who are in transitional release have the opportunity
       to have more independence, more access to the community, and
       they are expected to really guide their treatment with some more
       independence.
               So patients in transition will have the opportunity to get a
       driver’s license, get a vehicle, get a job in the community. They will
       start traveling with staff escorts into the community for things like
       shopping or AA appointments, and then gradually once they’ve
       done well in those trips into the community, start traveling
       independently back and forth to shopping or to work.

       Dr. Thomas’s next annual report on Hollins, filed on March 5, 2013, opined

Hollins’s antisocial personality disorder had abated.         She concluded, to a

reasonable degree of medical certainty, Hollins no longer suffers from a mental

abnormality making him more likely than not to reoffend.

       The next month, Hollins filed a petition for discharge and request for

hearing regarding annual review. In July 2013, the district court held a final

hearing, at which the State had the burden “to prove beyond a reasonable doubt”

that Hollins’s “mental abnormality remains such that [he] is likely to engage in

predatory acts that constitute sexually violent offenses if discharged.” Iowa Code

§ 229A.8(6)(d)(1).




4
 Iowa Code section 229A.8(2) provides: “A person committed . . . shall have a current
examination of the person’s mental abnormality made once every year.”
                                        5



       At the time of the hearing, fifty-six-year-old Hollins had been in the

transitional release program for twenty-six months. During that time, Hollins had

no “reports of incident,” had obtained employment at Tyson Foods in Storm Lake,

had bid on and was selected for a promotion at Tyson Foods, had prepaid three

months of rent on an apartment, and had saved $30,000. Independently, Hollins

travelled to work in Storm Lake from CCUSO in Cherokee without incident.

Hollins also went shopping, exercised, and participated in treatment without

direct supervision.

       At the final hearing the State requested, if it had not met its burden of

proof, the court order DHS to release with supervision under Iowa Code section

229A.9A(1)(b). Hollins requested a “direct discharge.”

       The court heard the testimony of Hollins, Dr. Thomas of CCUSO, forensic

psychologist Dr. Rosell, and K.K., a woman Hollins sexually assaulted in 1989.

Both doctors testified Hollins did not suffer from a mental abnormality such that

he was more likely to engage in predatory acts that constitute sexually violent

offenses if discharged from CCUSO. Thus, Hollins no longer met the criteria for

civil commitment.     But, the doctors disagreed on whether release with

supervision was warranted—the proverbial battle of the experts.

       At the end of the testimony, Hollins moved for a directed verdict, and the

court and the parties discussed the statutory language in section 229A.9A(1)(b),

which states the court “may order the committed person released with or without

supervision if” the court “has determined that the person should be discharged

from the program, but the court has determined it is in the best interest of the
                                          6



community to order release with or without supervision before the committed

person is discharged.”      (Emphasis added.)        The parties agreed the word

“program” referred to the CCUSO program. See id. § 229A.9A(1)(b).

       The court recognized the next statutory section stated, when a court

orders a release “with or without supervision,” the DHS has thirty days to prepare

a release plan.5 Id. § 229A.9A(2). The State emphasized that a person released

“with or without supervision” from the CCUSO program “is not discharged from

being civilly committed until ordered by the court at a subsequent proceeding”

after successful “completion of the release program.”6

       The court told the parties it would enter an order discharging Hollins from

the CCUSO program and “he can go live at the apartment.”              The court also

stated it would resolve by a separate order whether Hollins is discharged from

commitment: “I don’t believe it’s appropriate if I discharge him from the program

to continue to make him live at CCUSO while I decide the issue of whether he’s

discharged from commitment in its entirety.” The State objected: “[I]f the court is

going to go ahead and discharge him from the program today and he can go live

in the apartment as of tomorrow, I think it becomes difficult to reestablish

supervision over him.”




5
   The release plan addresses “the person’s needs for counseling, medication,
community support services, residential services, vocational services, alcohol or other
drug abuse treatment, sex offender treatment, or any other treatment or supervision
necessary.” Iowa Code § 229A.9A(2).
6
  Iowa Code section 229A.9A(6) states: “A committed person released with or without
supervision is not considered discharged from civil commitment.” Iowa Code section
229A.9A(7) states: “After being released with or without supervision, the person may
petition the court for discharge.”
                                          7



       The court’s “order for discharge from program,” filed on the morning of

July 8, 2013, retained jurisdiction to rule “in the near future” upon the State’s

“request that the court order Hollins released with supervision before he is

discharged from commitment.” The court ordered Hollins “be discharged from

CCUSO.”

       Following this order, the State e-mailed an “emergency motion for stay

pending court’s order on release with supervision” to the court.         The motion

stated it “is uncertain how to proceed with physical custody of Mr. Hollins while

the court decides the supervision issue.” On the afternoon of July 8, the court

denied the State’s motion for stay and also ruled: “[T]he request made by the

State of Iowa to order [Hollins] released with supervision . . . or in the alternative

released without supervision is DENIED.”

       The State appeals and does not challenge the court’s conclusion Hollins

should be released from the program, admitting “the evidence both from the

CCUSO evaluator and Dr. Rosell[7] was that [Hollins] no longer meets the

statutory criteria of being ‘more likely than not’ to reoffend.” On appeal, the State

claims the court abused its discretion in ordering an “unconditional release”

instead of a release with supervision.

II. Standard of Review.

       The parties dispute the applicable standard of review.           Commitment

proceedings under chapter 229A are civil in nature. In re Det. of Garren, 620



7
  Dr. Rosell opined he would not have diagnosed Hollins with paraphilia not otherwise
specified at any time, past or present, because he does not believe it is an official
diagnosis—it is not in the DSM-V.
                                        8



N.W.2d 275, 283 (Iowa 2000); see also Iowa Code § 229A.1 (recognizing the

need for a civil commitment procedure for the long-term care and treatment of

SVPs).

      Hollins claims this court should review the district court’s decision “for an

abuse of discretion.” The State agrees “chapter 229A vests discretion with the

district court for a determination of whether release with supervision is

appropriate following a determination a [SVP] should be discharged from the

program.” However, the State claims our review should be “de novo to the extent

of examining all the evidence to determine whether the court abused that

discretion in denying the State’s request for supervision.”      In support of its

proposed standard of review, the State cites two juvenile court cases,

proceedings that are non-civil and are generally reviewed de novo: State v.

Tesch, 704 N.W.2d 440, 447 (Iowa 2005) and In re Matzen, 305 N.W.2d 479,

482 (Iowa 1981). The Tesch court cited Matzen and explained:

             We generally review court rulings in juvenile proceedings de
      novo. See In re Interest of Henderson, 199 N.W.2d 111, 116 (Iowa
      1972) (stating because juvenile proceedings are neither criminal
      nor civil, they are special proceedings subject to de novo review).
      Nonetheless, where the legislature has clearly vested the juvenile
      court with discretion in a specific area, we review the court’s
      decision on that matter for an abuse of discretion. See In re
      Interest of Matzen, 305 N.W.2d 479, 482 (Iowa 1981) (considering
      juvenile court’s statutory discretion to enter a consent decree). Our
      review remains de novo only in the sense that we examine “all the
      evidence to determine whether the court abused that discretion.”
      State v. Greiman, 344 N.W.2d 249, 251 (Iowa 1984) (reviewing
      juvenile court’s waiver ruling).

704 N.W.2d at 447 (emphasis added).

      We are not persuaded by the State’s authorities. First, the State cites no

authority, from this State or any other, using its proposed standard in
                                        9



circumstances similar to the circumstances herein.       Second, as the above

quotation shows, juvenile proceedings are not civil or criminal and are generally

reviewed de novo. Thus, juvenile cases are clearly distinguishable from civil

commitment cases. See also In re Det. of Geltz, 840 N.W.2d 273, 274 (Iowa

2013) (holding we review the district court’s construction of chapter 229A for the

correction of errors at law and a juvenile adjudication of delinquency cannot

serve as a predicate conviction to adjudicate the offender a SVP under the civil

commitment statute).

      It is undisputed that our supreme court has not explicitly adopted the

standard of review urged by the State. In the absence of a clear direction to

employ such a standard, we will review for an abuse of discretion. Under an

abuse of discretion standard, “we reverse only if the district court exercised its

discretion on clearly untenable or unreasonable grounds.” In re Det. of Stenzel,

827 N.W.2d 690, 697 (Iowa 2013). “A ground or reason is untenable when it is

not supported by substantial evidence or when it is based on an erroneous

application of the law.” Id. (quoting Ranes v. Adams Labs., Inc., 778 N.W.2d

677, 685 (Iowa 2010)).

III. Discussion.

      The State raises one issue: whether the district court abused its discretion

in declining the State’s request that Hollins be released with supervision and

subject to a release plan under section 229A.9A upon his discharge from the

CCUSO program. Iowa Code section 229A.9A(1)(b) states:
                                           10



       In any proceeding under section 229A.8,[8] the court may order the
       committed person released with or without supervision if . . . [t]he
       court . . . 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.

       At the 2013 hearing, Dr. Thomas testified she joined CCUSO in September

2011 “primarily to conduct the annual evaluations.” She also testified she spent

five hours with Hollins as she created his 2012 and 2013 annual reports and

Hollins “has done very well” during his second transitional release.                  She

acknowledged that since 2004, Hollins has had his victim pool—adult women—

available to him. Further:

              Q. [I]n your interview, you asked Mr. Hollins if he sees
       himself as a risk at all for committing future sex offenses; correct?
       A. Yes.
              Q. And do you recall his response? A. . . . I believe my
       question was a . . . zero to ten scale, and he had said a “one” with
       the rationale that essentially anybody with a history and that has
       done these things in the past has to acknowledge that they have
       some chance in the future of re-engaging in those activities.

       Dr. Thomas opined it is in the best interest of the community “for Mr. Hollins

to be supervised.” As to “why,” she explained:

              A. I think that any time you have an offender having
       additional supervision it’s going to increase public safety and
       having supervision and/or additional treatment is going to serve to
       reduce the chance that they reoffend.
              ....
              Q. Now, you were asked if additional supervision would
       increase public safety, and you said, yes? A. Correct.
              Q. Wouldn’t it always increase public safety? A. It would.


8
  Section 229A.8(1) states civil commitment continues unless “facts exist to warrant a
hearing to determine whether a committed person no longer suffers from a mental
abnormality which makes the person likely to engage in predatory acts constituting
sexually violent offenses if discharged.” See Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 313
(Iowa 2013).
                                          11



              Q. Wouldn’t we all be safer if Mr. Hollins and those in his
       position are supervised forever? A. Yes.

       Dr. Rosell testified, after spending ten years working in a Maryland

prison’s sex offender program, he worked as the sex offender treatment director

for the Mount Pleasant, Iowa correctional facility from 1998 until 2002. He then

entered private practice. Dr. Rosell testified he has known Hollins since Hollins

was involved in sex offender treatment in 2000 or 2001 at Mt. Pleasant. Hollins

stood out to Dr. Rosell from the hundreds of offenders—“I was aware of his

criminal history, which was pretty significant. But he was involved in treatment.

He was doing really well. He was very interested in treatment. So he was trying

to do his best at that time.”

       After he left Mt. Pleasant for private practice, Dr. Rosell observed changes

in Hollins:

              Q. In the time that you have known Mr. Hollins, how has he
       changed? A. . . . First of all, I was asked in [2004] to determine if
       he was an SVP, and I evaluated him and I found that he was. And
       that’s why I wasn’t in that case because I . . . wasn’t favorable for
       the attorney who hired me . . . . [Hollins] always had this underlying
       anger . . . .
              And then since that time, he has changed immensely . . . .
       [H]e had changed significantly in [2009] when I was here and saw
       him testify, and I interviewed him before he testified.
              The more I see him, the more he continues to change, and
       not just talking the talk . . . he also does the work.
              Twenty-six months in the community, no problems, making
       money, access to do whatever he wants . . . . [H]e could have
       easily left Iowa if he wanted to, but he chose not to. He chose to
       work a twelve-hour day, go back to CCUSO, spend the night, go
       back to work. I mean, while still going to groups, going to AA,
       helping other people, getting help from other people when he
       needed it.
              . . . [T]he record shows . . . how well he’s done. If he still has
       this underlying anger, it’s not being expressed in any untoward
                                         12



      manner . . . and I think that’s important . . . . And I think he is
      genuine when he talks about the harm he has done to others.
               So in those ways . . . this is a very unique situation. It’s not
      often that I come in and testify for an individual who actually has
      been in the community back and forth and is following all the rules
      . . . . It’s over two years of doing the right thing. And why would he
      not continue to do the right thing? [It] would be absurd for him to
      then all of a sudden start doing the wrong thing, just because he’s
      no longer supervised. I think [he has] done well under this
      supervision period.

Dr. Rosell specifically opined supervision of Hollins would not “really make that

much of a difference.” Also:

              The community would feel a little better, but . . . I’m of the
      opinion that if an individual wants to do something, they’re going to
      do it. And he has had the opportunity to do something, and he
      didn’t.
              If he didn’t have such a good record, then it would be
      different. I often recommend supervision for individuals who I’m not
      as comfortable with . . . [b]ut that’s not Mr. Hollins. Not everybody
      is the same.
              So I think he has demonstrated responsibility. I mean, he
      already has an apartment paid for, for three months. That’s taking
      responsibility. That’s just trying to keep progressing . . . . [I]n this
      case, I don’t think he needs [supervision].

      Section 229A.9A provides the district court with the discretion to release

committed persons unconditionally, as was done here, or with or without

supervision, either of which makes the person subject to a release plan and to

continuing civil commitment until another, separate hearing. The district court’s

ruling shows the court concluded Dr. Rosell’s testimony was more credible and

more responsive to the particular circumstances of Hollins’s case.

      Generally, we defer to a district court’s assessment of conflicting expert

witnesses because that court is in a better position to judge the credibility of

witnesses.   See In re Det. of Barnes, 689 N.W.2d 455, 461 (Iowa 2004)
                                         13



(“Because the issue essentially turned on a judgment of credibility of two experts

with different opinions, we give weight to the district court’s judgment.”); State v.

Jacobs, 607 N.W.2d 679, 685 (Iowa 2000) (“When a case evolves into a battle of

experts, we, as the reviewing court, readily defer to the district court’s judgment

as it is in a better position to weigh the credibility of the witnesses.”); State v.

Fetters, 562 N.W.2d 770, 775 (Iowa Ct. App. 1997) (“When the psychiatric

testimony is conflicting, the reviewing court will not determine anew the weight to

be given trial testimony.”).

       The expert opinion testimony of Drs. Thomas and Rosell was in conflict,

and the district court certainly could have accepted Dr. Thomas’s evidence—it

chose not to. We do not interfere with such decisions, and even though this

court may have come to a different conclusion, we give deference to the district

court and will only overturn its ruling for an abuse of discretion. We note Dr.

Rosell undisputedly was more familiar with Hollins and his circumstances for

much longer periods of time—years versus hours for Dr. Thomas. We find that

once the court’s order of July 8, 2013 was filed, discharging Hollins from the

program, the question of whether he should have been supervised or not

became moot. Finding no abuse of discretion, we affirm.

       AFFIRMED.
