
                        IN THE SUPREME COURT OF IOWA

                               No. 9 / 04-1703

                            Filed March 31, 2006


IN RE THE DETENTION OF EMERY E. DARLING,


EMERY E. DARLING,

      Appellant.



      Appeal from the Iowa District Court for Appanoose  County,  Daniel  P.
Wilson and Annette J. Scieszinski, Judges.

      Mentally retarded adult appeals his commitment as a  sexually  violent
predator.  AFFIRMED.

      Mark Smith, First Assistant State  Public  Defender,  and  Michael  H.
Adams, Assistant State Public Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines and  Denise  A.
Timmons, Assistant Attorneys General, for appellee, State of Iowa.

TERNUS, Justice.
      The appellant, Emery Darling, is moderately mentally retarded,  has  a
history  of  molesting  young  children,  and  has   been   diagnosed   with
pedophilia.  He was committed as a  sexually  violent  predator  under  Iowa
Code chapter 229A (2003) on September 22, 2004.  He appeals the judgment  of
commitment, contending chapter 229A does  not  apply  to  a  person  who  is
mentally retarded and not amenable to sex offender treatment.  Darling  also
asserts his confinement violates his statutory and  due  process  rights  to
treatment.
      I.  Application of Chapter 229A.
      Darling argued in the district court and claims on appeal that chapter
229A does not apply to him because  he  is  mentally  retarded  and  is  not
amenable to cognitive behavioral  therapy.   We  recently  rejected  similar
arguments made by a respondent who suffered from an organic  brain  disorder
that  rendered  him  unlikely  to  benefit  from  traditional  sex  offender
treatment.  See In re Matter of Betsworth, ___ N.W.2d ___ (Iowa  2006).   In
Betsworth, we held the “mental abnormality” required  for  commitment  under
chapter 229A is not limited to  a  particular  type  of  mental  disease  or
defect.[1]   Id.  at  ___.   Moreover,  the  fact  that  the  respondent  in
Betsworth had  previously  been  committed  under  chapter  229,  the  civil
commitment statute for mentally ill persons, did not mean that he could  not
simultaneously qualify for commitment under chapter 229A.  Id. at ___.
      In Betsworth, we  also  rejected  the  suggestion  that  chapter  229A
requires “that the person committed be amenable to the  long-term  cognitive
behavioral treatment principally used to treat sex offenders.”  Id. at  ___.
 We explained that “the State is free to  provide  individualized  treatment
for sexually violent predators,” and therefore,  “chapter  229A  encompasses
sexually violent  predators  who  .  .  .  will  not  benefit  greatly  from
cognitive  behavioral  therapy  and  must  instead  be  treated  with  other
modalities.”  Id.
      The same conclusions are warranted here, as we explain.
      A.  Mental abnormality.  Initially, it is important to recognize  that
Darling’s commitment is not based on his mental  retardation.   The  State’s
expert testified at trial that Darling suffered from the mental  abnormality
of pedophilia and was at a high risk to reoffend  if  not  confined.   Thus,
the basis for his commitment under chapter 229A is his pedophilia,  not  his
mental retardation.   The  State’s  expert  further  opined  that  Darling’s
pedophilia was congenital or acquired and affected the respondent’s  ability
to   control   his   sexual   impulses.    Therefore,    Darling’s    mental
abnormality—pedophilia—is a  proper  foundation  for  his  commitment  under
chapter 229A. See In re Detention of  Palmer,  691  N.W.2d  413,  415  (Iowa
2005) (committing as a sexually violent predator a respondent  who  suffered
from pedophilia); In re Detention of Cubbage,  671  N.W.2d  442,  443  (Iowa
2003) (same); In re Detention of Garrett, 671 N.W.2d 497,  498  (Iowa  2003)
(same); In re Detention of Ewoldt, 634 N.W.2d 622, 622 (Iowa  2001)  (same).
The fact the respondent also suffers from mental retardation does not  alter
this conclusion.
      Darling also argues he should be committed under the statute providing
for the civil commitment of mentally retarded  persons,  Iowa  Code  chapter
222, rather than under chapter 229A.  He asserts the  former  statute  would
allow for the least restrictive means necessary  to  deal  with  his  mental
retardation,  rather  than  confinement  in  a  secure  facility,  which  is
mandated under chapter 229A.  This argument rests on a faulty premise:  that
Darling’s confinement  is  intended  to  address  his  condition  of  mental
retardation.   But  as  we  have  already  pointed  out,  Darling  is  being
committed for  his  pedophilia,  not  his  mental  retardation.   Therefore,
chapter 229A is the  appropriate  vehicle.   Moreover,  as  this  court  has
previously held, chapter 229A’s requirement that a  respondent  be  confined
in a secure facility does not violate the respondent’s right  to  the  least
restrictive placement.  See In re Detention of Garren, 620 N.W.2d  275,  285
(Iowa 2000).
      B.  Amenability to treatment.  In Betsworth, we  held  the  respondent
could properly be committed under  chapter  229A  notwithstanding  the  fact
that his organic brain disorder made it unlikely that he would benefit  from
traditional sex offender treatment.  ___ N.W.2d  at  ___.   Likewise,  here,
the fact that Darling’s mental retardation makes it  unlikely  that  he  can
effectively participate in cognitive behavioral therapy  does  not  preclude
his commitment under chapter 229A.  There  was  evidence  at  trial  that  a
treatment plan for Darling could be tailored to  his  individual  abilities.
Therefore, his cognitive  limitations  do  not  disqualify  him  from  being
committed as a sexually violent predator.
      II.  Right-to-Treatment Claims.
      Darling claims he has a statutory right to effective treatment  and  a
constitutional  due  process  right  to  treatment,  and  these  rights  are
violated by his commitment under chapter 229A because he is not amenable  to
sex  offender  therapy.   These  statutory  and  constitutional  claims  are
somewhat overlapping insofar as the sexually violent predator  act  requires
that the involuntary commitment of persons under chapter 229A must  “conform
to constitutional  requirements  for  care  and  treatment.”   Iowa  Code  §
229A.9.   We  will  discuss  the   statutory   and   constitutional   claims
separately, however.
      A.  Chapter 229A.  One goal  of  chapter  229A  is  treatment  of  the
sexually violent predator.  See Betsworth, ___ N.W.2d at ___.  But like  the
respondent in Betsworth, Darling has failed to establish  that  his  chapter
229A right to treatment has been violated.  The record shows the State  will
individualize a  treatment  program  to  compensate  for  Darling’s  limited
cognitive abilities.  Chapter 229A does not require that the treatment  will
ultimately be successful as a prerequisite for commitment.
      B.  Substantive due  process.   We  reach  the  same  conclusion  with
respect to the respondent’s substantive due  process  claim.   There  is  no
constitutional bar to the civil confinement of  sexually  violent  predators
with untreatable conditions when confinement is  necessary  to  protect  the
public. Id. at ___; accord Seling v. Young, 531 U.S. 250, 262,  121  S.  Ct.
727, 734, 148 L. Ed. 2d 734, 746 (2001).  Here, Darling was  committed  only
after a jury unanimously determined beyond  a  reasonable  doubt  he  was  a
sexually violent predator, a determination that required a  finding  he  was
“likely to engage in predatory acts constituting sexually violent  offenses,
if not confined in a secure facility.”  Iowa Code  §  229A.2(11).   Clearly,
his confinement is necessary to protect the public.   See  generally  id.  §
229A.1, para. 2 (noting “legitimate public safety  concerns”  regarding  the
commitment of sexually violent  predators  and  “the  need  to  protect  the
public”).  Consequently, even if Darling’s mental retardation  will  prevent
effective treatment of his pedophilia, the Constitution  does  not  prohibit
his confinement.
      AFFIRMED.
-----------------------
       [1]The  requirement  of  a  “mental  abnormality”  is  found  in  the
statutory definition of “sexually violent predator.”   The  latter  term  is
defined as

      a person who has been convicted of or charged with a sexually  violent
      offense and who 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) (emphasis added).  A “mental 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.”  Id. § 229A.2(5).

