text:
    2006 ND 96
    In the Interest of J.M. Cynthia M. Feland, Petitioner and Appellee v. J.M., Respondent and Appellant.
    No. 20050383.
    Supreme Court of North Dakota.
    May 11, 2006.

      Susan Schmidt, Bismarck, N.D. for respondent and appellant.
    Cynthia M. Feland, Assistant State’s Attorney, Bismarck, N.D. for petitioner and appellee.
   MARING, Justice.

[¶ 1] J.M. appeals from an October 28, 2005, order committing him as a sexually dangerous person. J.M. argues the trial court erred by not dismissing the petition for commitment on the grounds the commitment hearing was not held within sixty days after the finding of probable cause. He also argues there was not sufficient evidence presented to commit him as a sexually dangerous person. We affirm.

I

[¶ 2] On December 28, 1998, J.M. pled guilty to corruption of a minor involving a sexual act committed on a minor victim. On August 22, 2001, J.M. pled guilty to gross sexual imposition involving a nine-year-old child and was sentenced to ten years with the North Dakota Department of Corrections, with five years suspended. On March 23, 2005, the State petitioned to commit J.M. as a sexually dangerous person. A preliminary hearing on the petition was held on March 29, 2005. The trial court found probable cause existed to believe that J.M. is a sexually dangerous person and ordered an evaluation to be completed at the North Dakota State Hospital within sixty days.

[¶ 3] On April 13, 2005, the State moved to transfer J.M. from the State Hospital back to the North Dakota State Penitentiary until he completed his sentence in November 2005. The trial court granted the motion on April 14, 2005. J.M. was not notified of this motion and had no opportunity to respond.

[¶ 4] On July 19, 2005, J.M. moved to dismiss the petition for commitment asserting that a commitment hearing had not been held within sixty days after the finding of probable cause, as required under N.D.C.C. § 25-03.3-13. The trial court denied J.M.’s motion, relying on its discretion under N.D.C.C. § 25-03.3-13 to extend the sixty-day limit upon a showing of good cause. A commitment hearing was scheduled for September 8, 2005, but, at the State’s request, was rescheduled for September 28, 2005.

[¶ 5] Evaluations of J.M. by two experts were completed at the North Dakota State Hospital and filed with the trial court on September 6, 2005. J.M. requested an independent examination and his request was granted. J.M. also moved for a continuance to allow the independent expert time to conduct an evaluation. As a result, the commitment hearing was again rescheduled, this time for October 21, 2005. The State moved for another continuance. The hearing was finally held October 26, 2005.

[¶ 6] At the commitment hearing, clinical psychologists Joseph Belanger, Ph.D., and Rosalie Etherington, Ph.D., testified that J.M. suffered from antisocial personality disorder and was likely to commit sexually predatory activity in the future. Following the testimony, the trial court found J.M. was a sexually dangerous person and committed him to the North Dakota State Hospital for treatment.

[¶ 7] On appeal, J.M. argues the petition for commitment should have been dismissed because the commitment hearing was not held within sixty days of the finding of probable cause. He also argues the evidence presented at the commitment hearing was insufficient to support his commitment as a sexually dangerous person.

II

[¶ 8] J.M. argues the State did not meet its burden of presenting sufficient evidence to commit him as a sexually dangerous person.

[¶ 9] Commitment as a sexually dangerous person is governed by N.D.C.C. ch. 25-03.3. Involuntary commitment of an individual is authorized when the State can establish by clear and convincing evidence that the individual is a sexually dangerous individual. N.D.C.C. § 25-03.3-13. A sexually dangerous individual is one who:

[I]s shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction 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.

N.D.C.C. § 25-03.3-01(8). Thus, commitment of an individual as sexually dangerous requires the State to establish by clear and convincing evidence:

(1) the individual has engaged in sexually predatory conduct; (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; and (3) the disorder makes the 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.

In the Matter of G.R.H., 2006 ND 56, ¶ 6, 711 N.W.2d 587.

[¶ 10] In In the Matter of G.R.H., our Court upheld the commitment of a person diagnosed with antisocial personality disorder as a sexually dangerous individual. 2006 ND 56, 711 N.W.2d 587. Recognizing, as the United States Supreme Court did in Kansas v. Crane, that constitutional considerations require proof that the individual’s disorder or dysfunction in some way causes that individual serious difficulty in controlling his or her behavior, our Court stated:

[W]e 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. We conclude that nexus between the requisite disorder and future dangerousness satisfies the due process requirements of Crane.

2006 ND 56, ¶ 18, 711 N.W.2d 587; see also Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). A diagnosis of antisocial personality disorder does not, per se, establish a nexus between the requisite disorder and future dangerousness. The evidence must clearly show the antisocial personality disorder is likely to manifest itself in a serious difficulty in controlling sexually predatory behavior.

[¶ 11] In reviewing a trial court’s order committing an individual as sexually dangerous, this Court applies a modified clearly erroneous standard and will affirm unless the order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence. In re M.D., 1999 ND 160, ¶34, 598 N.W.2d 799.

[¶ 12] The evidence in the record clearly and convincingly establishes that J.M. has engaged in sexually predatory conduct. Sexually predatory conduct is defined at N.D.C.C. § 25-03.3-01(9). Relevant in this case, that definition includes engaging in a sexual act or sexual contact with another individual if the victim is less than fifteen years old or the victim is a minor and the actor is an adult. N.D.C.C. § 25-03.3-01(9)(a)(4) and (7). J.M. pled guilty in 1998 to corruption of a minor involving a sexual act committed on a minor victim after he had sexual intercourse with a fifteen-year-old girl. J.M. was eighteen at the time of the encounter. J.M. also pled guilty in 2001 to gross sexual imposition after admitting he had digitally penetrated a nine-year-old girl.

[¶ 13] The evidence in the record also clearly and convincingly establishes that J.M. has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction and that the disorder makes J.M. likely to engage in further acts of sexually predatory conduct. At the commitment hearing, both clinical psychologists testified that they had diagnosed J.M. with a severe antisocial personality disorder that would make it difficult for him to, in the future, avoid reengaging in sexually predatory conduct.

[¶ 14] In this case, Dr. Belanger testified that the diagnosis of antisocial personality disorder was “extremely germane” to a determination of whether J.M. should be committed as a sexually dangerous person:

Because this isn’t a garden variety antisocial personality disorder. This is someone who by the severity of the antisocial personality disorder has also buttressed not just by the overwhelming score overall on the PCL-R 2nd Edition, he’s at the 99 percentile overall. But if you look at the tacit factors and facet score of the PCL-R, particularly factor 1, these would be strong evidence if one were to ask questions out of Kansas v. Crane, which is, Does [sic] the requisite mental condition create a diminishment of volitional capacity such as the individual would have serious difficulty in conforming his conduct to the code of laws? The answer would be yes, because seven out of seven on the antisocial personality disorder, because a score of 34 overall on the PCL-R 2nd Edition makes him 99 percentile, because an extremely high tacit one score and extremely high facet one score, these are exactly the measures that were taken in the Newman Labs and other zones where people have researched psychopathy as showing an underlying deficit in response modulation. He has got the same scores as those individuals. They have shown clear unequivocal laboratory evidence of a deficit in response modulation. That’s the best operational you are going to get of diminishment of volitional capacity; and therefore I find it very important to underlining [sic] considerations of the Court that it is a personality disorder that makes him likely to engage.

Dr. Etherington’s conclusion was also that J.M.’s antisocial personality disorder made him likely to engage in future predatory conduct, based both on her own diagnosis and J.M.’s scores on the MnSOST, Static 99, and RRASOR actuarial assessment tools.

[¶ 15] The trial court’s findings of fact and order committing J.M. as a sexually dangerous person are supported by clear and convincing evidence.

Ill

[¶ 16] J.M. argues the trial court erred by not dismissing the petition for commitment on the grounds the commitment hearing was not held ivithin sixty days after the finding of probable cause.

[¶ 17] As this Court made very clear in In re M.D., our trial courts must be mindful that proceedings for commitment as a sexually dangerous person, although civil in nature, implicate the liberty interests of the person sought to be committed. 1999 ND 160, ¶ 18, 598 N.W.2d 799. The deprivation of liberty resulting from commitment as a sexually dangerous individual can, in many cases, be greater than that imposed as a criminal sanction for the underlying sexually predatory conduct which brought the individual to the State’s attention. In In re M.D., we attempted to keep these liberty interests in the forefront of those who bring and decide these cases.

[¶ 18] Several of the cases recently before this Court, however, lead us to doubt that our admonition in In re M.D. is considered any longer — let alone heeded. See, e.g., In Interest of P.F., 2006 ND 82. The crimes our sexual predator commitment statutes seek to protect the public from are often the most heinous of crimes; actions rightfully deserving of the outrage they provoke in society. They are crimes that violate the victim physically, emotionally, psychologically, and spiritually; taking what should only be given by an individual’s most personal of choices. Nevertheless, our trial courts and practitioners must always remain cognizant that the fervor of a rightfully outraged public to prevent these crimes cannot be allowed to overcome the necessary safeguards to individual liberty the law has established. The crimes of the sexual predator must not be allowed to impassion a system that relies on the dispassion of those who mete out its justice. Our system demands zeal, but should not tolerate zealotry.

[¶ 19] What remains for us to decide is if the State’s errors in this case rise to such a level that they demand we vacate the order of commitment. In essence, do we fire another shot across the bow, as we did In re M.D., or do we require the consequence we then withheld?

[¶ 20] The State’s errors began with the March 23, 2005, notice of rights served on J.M. with the petition for commitment. In that document, the State informs J.M. that if probable cause is determined, “you will have the right to a Commitment Proceeding within thirty (30) days of the finding of probable cause.” Although thirty days was once the time allowed for a commitment proceeding under N.D.C.C. § 25-03.3-13, that statute was amended and reenacted in 2001 to allow for sixty days. 2001 N.D. Sess. Laws ch. 256, § 11.

[¶ 21] After the trial court found probable cause, the State filed an April 13, 2005, motion to have J.M. transported from the State Hospital to the State Penitentiary. The State failed to serve a copy of the motion on J.M. or his attorney. Also, while the State alludes in the motion to a letter from the State Hospital indicating the hospital was too busy to get a psychological evaluation of J.M. done within the sixty-day period, that letter cannot be found anywhere in the record. Nevertheless, the trial court granted the motion.

[¶ 22] On July 21, 2005, J.M. moved to dismiss the petition following the expiration of the sixty-day time period for a commitment hearing. The State responded arguing that the State Hospital’s heavy workload, which was alluded to in its motion for transfer, constituted good cause for an extension under N.D.C.C. § 25-03.3-13, and that “[w]hile the title of the motion did not specifically request an extension, the motion itself did explain a ‘good cause’ basis for an extension in which to complete the evaluation.” Again, with no evidence submitted to support the State’s allegations, the trial court denied J.M.’s petition and ordered the hearing to be held as soon as possible after completion of the evaluation.

[¶ 23] At oral argument, the State admitted it was in error. We agree. However, under our prior holdings, none of these errors, in and of themselves, constitute an error such that we must vacate the order for commitment. In In re M.D., we said that a trial court’s failure to make a finding of good cause to extend the time for holding a commitment hearing prior to the expiration of the time mandated by statute did not necessitate vacating a subsequent order for commitment. 1999 ND 160, ¶ 16, 598 N.W.2d 799. Additionally, in the context of proceedings for the commitment of an individual as a sexually dangerous person, we recently stated that an individual seeking relief from a delay in commitment proceedings must show that the delay violated his rights. See In the Interest of B.V., 2006 ND 22, ¶ 19, 708 N.W.2d 877 (citing to Holen v. N.D. Workers Comp. Bureau, 2000 ND 145, ¶ 9, 615 N.W.2d 141). J.M. cannot show he was prejudiced by the delay. The State petitioned to commit J.M. while he was still incarcerated for the gross sexual imposition charge. The order for commitment was issued by the trial court on October 28, 2005, before J.M. was to have been released from the State Penitentiary. Although J.M. argues his rights were violated in that he had greater liberties while at the State Penitentiary than while being held at the State Hospital, we find this argument unpersuasive. We do not see how, under the facts of this case, J.M. was prejudiced by the delay in holding the commitment hearing.

[¶ 24] We have also stated that N.D.C.C. § 25-03.3-13 gives the trial court discretion to determine if good cause has been shown. In re M.D., 1999 ND 160, ¶ 15, 598 N.W.2d 799. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law.” State v. Hoverson, 2006 ND 49, ¶ 13, 710 N.W.2d 890. With the increase in the number of cases involving commitment as a sexually dangerous person that our trial courts must handle, it is evident that our State Hospital is having difficulty timely handling the evaluations. Nevertheless, our trial courts must require evidence be introduced into the record when determining if good cause is shown to extend the time for the commitment hearing because of a delay due to the backlog at the State Hospital. The use of proper motion practice is expected in these cases. See In the Interest of P.F., 2006 ND 82, ¶ 13, 712 N.W.2d 610.

[¶ 25] Under the facts of this case, we hold the trial court’s decision that there was good cause was not an abuse of discretion. The trial court stated That its reason for granting the extension was because “it was impossible to have the civil commitment evaluation done in time to schedule the hearing within sixty days.” We do not believe, however, that such delays, now readily apparent to the State, can continue to automatically constitute good cause. See In the Interest of P.F., 2006 ND 82, ¶ 15. Prior to 2001, N.D.C.C. § 25-03.3-13 gave just thirty days between the time of the finding of probable cause and the commitment hearing. See In re M.D., 1999 ND 160, ¶ 11, 598 N.W.2d 799; see also 2001 N.D. Sess. Laws ch. 256, § 11. The legislature, addressing the State Hospital’s concerns that thirty days was not long enough, rejected a proposal to extend the period to ninety days and instead adopted the current sixty-day time period. See Hearing on S.B.203I Before the Senate Judiciary Comm., 57th N.D. Legis. Sess. (Jan. 15, 2001) (testimony of Jean R. Mullen, Assistant Attorney General). If our legislature agrees that the State Hospital cannot be expected to complete its evaluations within sixty days, it can say so. If not, we must uphold the attempt to balance individual liberties with the practical concerns of the State Hospital that our legislature sought to implement. Although there will no doubt occasionally be special circumstances for which the State Hospital’s inability to conduct evaluations within sixty days will constitute good cause, this reason cannot remain the blanket excuse it has become. See In the Interest of P.F., 2006 ND 82, ¶ 15; see also In re M.D., 1999 ND 160, ¶ 15, 598 N.W.2d 799; Madison v. North Dakota Dep’t of Transp., 503 N.W.2d 243, 246-47 (N.D.1993) (stating that judicial conduct constituting a systemic disregard of the law may warrant reversal even when nonprejudicial).

IV

[¶ 26] We affirm the trial court’s order committing J.M. as a sexually dangerous person.

[¶ 27] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2006 ND 99
    Karen ZIESCH, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE, Appellee and Aviko USA, LLC, Respondent.
    No. 20050256.
    Supreme Court of North Dakota.
    May 11, 2006.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, N.D., for ap-pellee.
   MARING, Justice.

[¶ 1] Karen Ziesch has appealed from a judgment affirming an order of Workforce Safety and Insurance (“WSI”) denying further disability benefits. We affirm, concluding that WSI’s issuance of a lump sum disability award did not violate Ziesch’s right to due process and that WSI was not barred by the doctrine of administrative res judicata from denying further disability benefits.

I

[¶ 2] Ziesch injured her back at work in 1995 and filed a claim for workers compensation benefits. Ziesch received disability benefits until September 9, 1997, when WSI determined she was able to return to work. Ziesch did in fact return to work after that date.

[¶ 3] On September 5, 1999, Ziesch again suffered a work-related back injury. She filed a claim for medical benefits on September 14,1999, but continued working until November 10, 1999. At that point one of her treating physicians took Ziesch off work, and Ziesch filed a claim for disability benefits.

[¶ 4] On December 2, 1999, WSI denied Ziesch’s claim, finding that her 1999 injury resulted from her exceeding work restrictions previously set by her doctor. Ziesch requesting a rehearing, and a formal hearing was held on January 12, 2001. The administrative law judge (“ALJ”) determined that, although Ziesch had exceeded her work restrictions, she had never been informed of those restrictions and therefore had not intentionally exceeded her restrictions. The ALJ issued recommended findings of fact, conclusions of law, and order recommending that WSI’s earlier order denying benefits be reversed. On February 22, 2001, WSI issued an order adopting the ALJ’s recommendations.

[¶ 5] Upon reviewing Ziesch’s medical records, WSI determined that her treating physicians had advised her to stay off work until December 15, 1999. WSI therefore concluded Ziesch was entitled to disability benefits from November 10, 1999, when one of her doctors first took her off work, until December 15, 1999, when she was released to return to work. On July 11, 2001, WSI issued a Notice of Intention to Discontinue/Reduce Benefits (“NOID”) advising Ziesch her disability benefits would be terminated effective December 15, 1999. On October 12, 2001, WSI issued an order determining Ziesch was entitled to a lump sum award of disability benefits for the period between November 10 and December 15, 1999, but not to further disability benefits beyond that date.

[¶ 6] Ziesch again requested a rehearing, alleging that the retroactive NOID and lump sum award violated her right to due process and that WSI was precluded by the doctrine of administrative res judi-cata from denying further disability benefits. Following a hearing, the ALJ rejected Ziesch’s contentions and recommended that WSI’s October 12, 2001, order be affirmed. WSI accepted the ALJ’s recommendations and, on August 27, 2002, issued an order affirming its prior order.

[¶ 7] Ziesch appealed to the district court, and the district court reversed WSI’s August 27, 2002, order and remanded the case with directions that a functional capacity evaluation be performed and that Ziesch be allowed to present additional evidence of disability beyond December 15,1999. After completion of the functional capacity evaluation, WSI again, in a September 23, 2003, order, determined that Ziesch had failed to show disability beyond December 15, 1999. Ziesch requested a rehearing, which was ■ held on April 20, 2004, before a different ALJ. The ALJ issued recommended findings of fact, conclusions of law, and order recommending affirmance of WSI’s September 23, 2003, order, and WSI adopted the ALJ’s recommendation in a June 3, 2004, order. Ziesch again appealed to the district court, which affirmed WSI’s order. Ziesch has appealed to this Court, arguing that WSI’s issuance of a retroactive NOID and lump sum disability award violated due process and that WSI was barred by administrative res judicata from denying further disability benefits.

II

[¶ 8] Courts exercise a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Victor v. Workforce Safety & Ins., 2006 ND 68, ¶ 12, 711 N.W.2d 188; Sorlie v. Workforce Safety & Ins., 2005 ND 83, ¶ 7, 695 N.W.2d 453. Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8.The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from the district court’s decision on an administrative appeal, this Court reviews the agency order in the same manner. N.D.C.C. § 28-32-49; Victor, at ¶ 12; Rojas v. Workforce Safety & Ins., 2005 ND 147, ¶ 10, 703 N.W.2d 299.

Ill

[¶ 9] Ziesch contends that her due process rights were violated when WSI in 2001 issued a retroactive NOID advising her that her disability benefits would be terminated effective December 15, 1999.

[¶ 10] In Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 773-75 (N.D.1988), this Court held that due process requires WSI to provide pretermination notice and a limited opportunity to respond before terminating a claimant’s ongoing disability benefits. See Nemec v. North Dakota Workers Compensation Bureau, 543 N.W.2d 233, 237 (N.D.1996). In subsequent cases, however, we have held that our holding in Beck-ler is limited to termination of ongoing, continuing disability benefits, and WSI does not violate due process when it issues a retroactive NOID and a lump sum award of disability benefits for a limited period to a claimant who was not at the time receiving ongoing benefits. See Sorlie, 2005 ND 83, ¶ 10, 695 N.W.2d 453; Nemec, at 237-38. In Sorlie, at ¶ 10 (quoting Nemec, at 237-38), this Court noted that Beckler expressly applied only to termination of continuing benefits, and did not prohibit issuance of a retroactive NOID and lump sum award of benefits:

This Court [in Beckler ] held the right to continuing disability benefits by a claimant already receiving them was a property right giving rise to due process protection. Beckler at 772-773. The Court stressed its holding applied only to termination of continuing benefits, and distinguished a claimant’s rights upon an initial determination of a claim. See Beckler at 772, 774. This Court concluded the Bureau must provide pre-termination notice and a limited opportunity to respond before retroactively terminating ongoing disability benefits. See Beckler at 775.
Beckler is clearly distinguishable from this case. Nemec was not receiving benefits on a continuing basis when she was notified her benefits were terminated. The procedure employed here, with the Bureau simultaneously notifying Nemec that she was entitled to disability benefits for a closed five-day period and that benefits would be terminated effective March 18, 1992, was effectively an award of a single lump-sum disability payment for a five-day period. The claimant has a right to rely upon continuing, regular, on-going payments which trigger[] the due process protections under Beckler. Those same protections do not apply to a one time lump-sum award of disability benefits for a short, closed period of time.

[¶ 11] There is no material distinction between Sorlie and this case. Sorlie was injured in March 2000, and WSI initially accepted his claim and paid disability benefits from June through October 2000. WSI subsequently determined that Sorlie’s injury was not work related, and issued an order denying all further benefits. In January 2003 the district court reversed WSI’s decision, concluding Sorlie’s injuries were work related and remanding to WSI for an award of further benefits. In April 2003 WSI awarded a lump sum disability benefit for the period October 2000 to February 2002, and simultaneously issued a retroactive notice of intention to discontinue benefits as of February 2002. On appeal, Sorlie contended that the retroactive NOID violated his due process right to pretermination notice and an opportunity to respond. Sorlie sought to distinguish Nemec on the ground that his benefits had been wrongfully delayed, and intervention by the district court had been required to correct WSI’s initial wrongful denial of benefits. This Court, although noting the differences between Sorlie’s case and Nemec, concluded that the issuance of the lump sum award and simultaneous notice of intention to discontinue benefits retroactively did not violate Sorlie’s due process rights. Sorlie, 2005 ND 83, ¶ 12, 695 N.W.2d 453.

[¶ 12] In this case, WSI initially denied Ziesch’s claim, but reversed its decision following a hearing. WSI then investigated Ziesch’s disability claim and, after determining she was entitled to benefits for a closed, limited period of time, made a lump sum award and issued the NOID. The only difference between this case and Sorlie is that here WSI after a hearing reversed its own decision denying benefits, whereas in Sorlie a district court reversed WSI’s original denial of benefits.

[¶ 13] This Court has consistently held that WSI’s practice of issuing a lump sum disability award for a closed, limited period of time and simultaneously issuing a retroactive NOID does not trigger due process considerations if the claimant was not receiving ongoing disability benefits at the time of WSI’s decision. Although Ziesch had received disability benefits following her 1995 injury, those benefits were terminated in 1997. Ziesch received no ongoing disability benefits either before or after her 1999 injury which would trigger the due process protections delineated in Beck-ler.

[¶ 14] Zieseh contends that her situation parallels that of the claimant in Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297 (N.D.1996). However, this Court in Frohlich distinguished Nemec, expressly noting that Nemec involved a closed five-day period of benefits, whereas Frohlich’s “award was a continuous, ongoing grant of benefits.” Frohlich, at 301. Ziesch’s case is governed by Sorlie and Nemec, not by Frohlich.

[¶ 15] We conclude the procedure employed by WSI in this case did not violate Ziesch’s right to due process.

IV

[¶16] Zieseh contends that the doctrine of administrative res judicata bars WSI from limiting her disability benefits to the period between November 10 and December 15, 1999. Specifically, Zieseh claims WSI should have been required to raise the issue of the duration of Ziesch’s disability at the initial January 12, 2001, formal hearing, and decide the issue in its final order of February 22, 2001. Zieseh contends that, because WSI failed to raise and address this issue at the initial hearing and in its order, WSI is precluded from now attempting to limit the duration of her disability benefits. Relying upon Cridland v. North Dakota Workers Compensation Bureau, 1997 ND 223, 571 N.W.2d 351, and McCarty v. North Dakota Workers Compensation Bureau, 1998 ND 9, 574 N.W.2d 556, Ziesch argues that WSI is now attempting to relitigate an issue which could and should have been raised and decided at the earlier hearing.

[¶ 17] Administrative res judi-cata derives from and is similar to judicial res judicata:

Res judicata ... prohibits relitigation of claims that were raised or could have been raised in a prior proceeding between the same parties or their privies, and which were resolved by a final judgment in a court of competent jurisdiction. The applicability of the doctrine of res judicata is a question of law.
Administrative res judicata is the judicial doctrine of res judicata applied to an administrative proceeding.

Baier v. North Dakota Workers Compensation Bureau, 2000 ND 78, ¶ 18, 609 N.W.2d 722 (quoting Cridland, 1997 ND 223, ¶¶ 17-18, 571 N.W.2d 351). The purpose of administrative res judicata is to preserve scarce administrative resources and avoid wasteful expense and delay. See Baier, at ¶ 23; Cridland, at ¶ 13; Americana Healthcare Center, Inc. v. North Dakota Dep’t of Human Servs., 513 N.W.2d 889, 891 (N.D.1994). However, administrative res judicata is applied more circumspectly than its judicial counterpart, taking into account (1) the subject matter decided by the administrative agency, (2) the purpose of the administrative proceeding, and (3) the reasons for the later proceeding. Americana Healthcare, at 891; United Hospital v. D’Annunzio, 466 N.W.2d 595, 599 (N.D.1991).

[¶ 18] Zieseh argues, in effect, that when a claimant requests a hearing on WSI’s initial informal denial of a claim, WSI must conduct a full investigation and make a determination of all aspects of the benefits the claimant would be entitled to if the claim is ultimately determined to be compensable. Zieseh reads Cridland and its progeny too broadly. Those cases do not suggest that, when the only issue raised in WSI’s initial order is whether the claimant was entitled to any benefits, WSI must nevertheless conduct a full investigation of all factual and medical issues relating to the amount of medical benefits to be allowed, the duration of any disability, and the presence of permanent partial impairment.

[¶ 19] Administrative res judicata must be applied in accordance with its purpose — to conserve scarce administrative resources and avoid wasteful expense and delay. By providing a hearing addressing compensability of the claim and the claimant’s entitlement to benefits, and reserving determination of specific amounts of benefits, if necessary, for a later date, WSI has employed a procedure which seeks to ensure a quick determination of a claimant’s entitlement to benefits while avoiding unnecessary waste of administrative time, resources, and expenses. If WSI is required to immediately investigate, raise, and decide issues relating to the specific amounts of benefits a claimant may be entitled to if WSI’s initial determination of noncom-pensability is reversed,, the ultimate result in many cases will be a great waste of WSI’s time and resources, delay of a determination on the fundamental issue of compensability of the claim, and unnecessary complication of the proceedings. This is not, as in Cridland and its progeny, a case where WSI has, in effect, held eviden-tiary ammunition on compensability in reserve, to be brought out if its initial determination denying the claim is reversed. Rather, WSI has logically attempted to draw a distinction between a claimant’s entitlement to benefits and the determination of the amount and duration of benefits if, in fact, any benefits are due.

[¶ 20] The result urged by Ziesch would lead to absurd results and would not serve the purpose of the doctrine of administrative res judicata to conserve administrative resources and avoid unnecessary expense and delay. We conclude WSI was not barred by the doctrine of administrative res judicata from determining Ziesch was entitled to disability benefits only for the period between November 10 and December 15,1999.

V

[¶21] The district court judgment affirming WSI’s June 3, 2004, order denying further disability benefits is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2006 ND 102
    STATE of North Dakota, Plaintiff and Appellant v. Ralph GRAGER, Defendant and Appellee. State of North Dakota, Plaintiff and Appellant v. Linda L. Burgard, Defendant and Appellee.
    Nos. 20050280, 20050281, 20050282, 20050283, 20050284, 20050285, 20050286, 20050287, 20050288, 20050289, 20050290, 20050291, 20050292.
    Supreme Court of North Dakota.
    May 11, 2006.
    Rehearing Denied June 1, 2006.

      Kathleen K. Trosen, State’s Attorney, Fessenden, N.D., for plaintiff and appellant.
    Dennis D. Fisher, Bredahl, Frisk & Grande, Fargo, N.D., for defendant and appellee Ralph Grager.
    Mark A. Beauchene, Wold Johnson, P.C., Fargo, N.D., for defendant and ap-pellee Linda L. Burgard.
   SANDSTROM, Justice.

[¶ 1] The State appeals from a district court order granting the defendants’ motions to suppress and from the orders dismissing the prosecutions. We do not reach the merits of the State’s argument because we conclude the State has no right to appeal the orders to dismiss, and the issues involving the suppression order are now moot. We therefore dismiss the appeals.

I

[¶ 2] On April 23, 2004, a search warrant was issued and executed at the residence of Linda Burgard and Ralph Grager. The search resulted in the seizure of drugs and methamphetamine manufacturing equipment. Burgard and Grager were charged with manufacture of methamphetamine, possession of drug paraphernalia, and possession of a controlled substance.

[¶ 3] Grager and Burgard filed motions to suppress, arguing there was insufficient probable cause to justify issuing the search warrant. On July 20, 2005, the district court issued an order granting the motions and suppressing all evidence seized as a result of the search. On August 12, 2005, the State moved to dismiss the cases, stating it had insufficient evidence to prosecute the cases after the evidence seized during the search was suppressed. On August 17, 2005, the district court granted the State’s motions and dismissed the prosecutions without prejudice. On August 18, 2005, the State appealed both the order suppressing the evidence and the orders dismissing the prosecutions.

II

[¶ 4] Before we can consider the merits of the State’s appeals, we must consider whether this Court has jurisdiction to hear the appeals. Nodak Mut. Ins. Co. v. Stegman, 2002 ND 113, ¶ 6, 647 N.W.2d 133. Although jurisdiction was not raised by the parties, we must dismiss an appeal upon our own motion if we conclude that we do not have jurisdiction. Interest of A.B., 2005 ND 216, ¶5, 707 N.W.2d 75. The right to appeal “is governed solely by statute, and if there is no statutory basis to hear an appeal we must take notice of the lack of jurisdiction and dismiss the appeal.” Id.

[¶ 5] In criminal prosecutions, N.D.C.C. § 29-28-07 authorizes appeals by the State from:

1. An order quashing an information or indictment or any count thereof.
2. An order granting a new trial.
3. An order arresting judgment.
4. An order made after judgment affecting any substantial right of the state.
5. An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal.

[¶ 6] The State argues it may appeal the orders to dismiss under N.D.C.C. § 29-28-07(1). This Court has said the State may appeal an order to dismiss under N.D.C.C. § 29-28-07(1) because the dismissal has the same effect as an order to quash and in both cases the order vacates, annuls, or makes void the indictment, information, or complaint. State v. Howe, 247 N.W.2d 647, 652 (N.D.1976). In this Court’s cases involving the appeala-bility of dismissal orders, the district court hás ordinarily ordered dismissal on its own motion or at the request of the defendant. See, e.g., City of Jamestown v. Snellman, 1998 ND 200, ¶ 5, 586 N.W.2d 494; State v. Hogie, 424 N.W.2d 630, 631 (N.D.1988); State v. Jelliff, 251 N.W.2d 1, 4 (N.D.1977). Here the State sought the orders for dismissal. An order to dismiss without prejudice entered at the request of the State is different from an order to dismiss entered on the court’s own volition or at the request of the defendant, because the State is actually withdrawing the case as opposed to the court’s rendering a decision on its own motion or at the request of the defendant, either of which would vacate, annul, or void the prosecution. The order to dismiss at the request of the State does not have the same effect as an order to quash.

[¶ 7] “It is ‘a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.’ ” United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.1985)). Our judicial maxims, which aid in the application of the law, support this position: “[acquiescence in error takes away the right of objecting to it.” N.D.C.C. § 31-11-05(7). Our caselaw recognizes, “ *[i]t is “fundamental that where [a litigant] ‘opened the door’ and ‘invited error’ there can be no reversible error.” ’ ” Wagner v. Miskin, 2003 ND 69, ¶ 16, 660 N.W.2d 593 (quoting Dillon v. Nissan Motor Co., 986 F.2d 263, 269 (8th Cir.1993)).

[¶ 8] In this case, the State moved to dismiss the cases without prejudice, stating, “the State lacks sufficient evidence to prosecute the cases due to the Order granting the Motion to suppress the search warrant and suppressing the evidence seized as a result of the search warrant.” The State cannot complain on appeal about the district court’s orders dismissing the cases when the State requested the dismissals.

[¶ 9] We conclude N.D.C.C. § 29-28-07(1) does not apply and the State may not appeal the orders. Because the State sought dismissal of these prosecutions, we conclude N.D.C.C. § 29-28-07(1) does not authorize the State’s appeals from the orders dismissing the prosecutions.

III

[¶ 10] Generally, the State can appeal an order suppressing evidence if the appeal is not taken for purpose of delay and the evidence suppressed is substantial proof of a fact material in the proceeding. N.D.C.C. § 29-28-07(5).

[¶ 11] In this case, however, the issues involving the suppression order are now moot because the State requested the district court dismiss the cases and it cannot appeal those dismissals. When it becomes impossible for the Court to issue relief, no controversy exists and the issue is moot. In re W.O., 2004 ND 8, ¶ 10, 673 N.W.2d 264. We do not render advisory opinions and will dismiss an appeal if the issue becomes moot. Id. If this Court were to decide the merits of the suppression argument, our decision would be purely advisory because the cases were withdrawn and the controversy no longer exists. We conclude the suppression issue is moot because the cases have been dismissed and the State cannot appeal the dismissals.

IV

[¶ 12] We conclude the State has no right to appeal the orders to dismiss, and the State’s appeal of the suppression order was rendered moot by the State’s request to dismiss the cases. We therefore dismiss the appeals.

[¶ 13] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


author: CROTHERS, Justice.

text:
    2006 ND 98
    STATE of North Dakota, Plaintiff and Appellee v. Scott PACE, Defendant and Appellant.
    No. 20050342.
    Supreme Court of North Dakota.
    May 11, 2006.
    Chad R. McCabe (on brief), Vinje Law Firm, Bismarck, N.D., for defendant and appellant.
    Julie Ann Lawyer (on brief), Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
   CROTHERS, Justice.

[¶ 1] Scott Pace appeals from a judgment entered upon his conditional plea of guilty for a charge of driving under the influence, following the denial of a motion to suppress the results of a chemical test. We affirm.

I

[¶ 2] Pace was stopped in the early morning hours of January 5, 2005, on suspicion of driving under the influence. After failing several field sobriety tests and the preliminary Breathalyzer test, Pace was arrested, advised of his Miranda rights, and placed in the backseat of a police car. Evidence and a video and audio tape showed that arresting Officer Ha-gel asked Pace for consent to a blood draw at the hospital to determine Pace’s blood alcohol content. Pace responded, “I don’t know how to answer that” and asked if he could speak to his attorney.

[¶ 3] Pace provided the name of his attorney and the attorney’s law firm. Ha-gel contacted dispatch for the phone num-. ber of the firm. Hagel called the firm but reached an answering machine. Hagel told Pace he had been unable to reach Pace’s attorney and asked Pace how he wished to proceed. Pace asked, “What are my options again?” Hagel repeated that Pace could consent to or refuse the blood draw and briefly explained the potential consequences of each. Hagel said that he “needed a ‘yes’ or ‘no,’ ” and after brief discussion, Pace consented to the blood draw. No mention of an attorney was made by either Pace or Hagel after the failed attempt to contact Pace’s attorney.

[¶ 4] The hospital blood draw revealed Pace’s blood alcohol level exceeded the legal limit, and he was charged with driving under the influence. Pace moved to dismiss the charges or suppress the failed chemical test results on the basis he was denied access to an attorney after one was requested. The district court denied the motion. Pace entered into a conditional guilty plea, and the district court entered an order consistent with that plea. Pace argues on appeal that the district court erred in denying his motion to dismiss the charges or suppress the failed chemical test results.

II

[¶ 5] On appeal of a district court’s denial of a motion to suppress, this Court defers to the district court’s findings of fact, but questions of law are fully reviewable. State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1.

[¶ 6] This Court has repeatedly held that defendants must be afforded a reasonable opportunity to consult with counsel before deciding whether to submit to a chemical test. Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 12, 622 N.W.2d 180; Baillie v. Moore, 522 N.W.2d 748, 750 (N.D.1994); Kuntz v. State Highway Comm’r, 405 N.W.2d 285, 288 (N.D.1987). In Baillie, an arrestee was asked to submit to an Intoxilyzer examination three times; each time the arrestee asserted he would not consent without an attorney. 522 N.W.2d at 749. The officer considered Baillie’s demand for counsel a refusal to submit to the examination, and Baillie’s license was revoked. We reversed, holding:

[I]f a DUI arrestee, upon being asked to submit to a chemical test, responds with any mention of a need for an attorney— to see one, to talk to one, to have one, etc. — the failure to allow the arrestee a reasonable opportunity to contact an attorney prevents the revocation of his license for refusal to take the test.

Id. at 750. Pace argues Baillie stands for the proposition that a phone and directory must be made available to a defendant if that defendant indicates any desire for counsel prior to submitting to a chemical test, whether that defendant ultimately consents to or refuses the test. We disagree.

[¶ 7] Baillie, like Wetzel and Kuntz, recognizes an arrestee’s right to a “reasonable opportunity” to consult with an attorney upon request. Baillie, 522 N.W.2d at 750. We have not exacted a definition for “reasonable opportunity,” nor do we do so today. Rather, we objectively review the totality of the circumstances to determine whether an opportunity to consult with counsel was reasonable. Eriksmoen v. Dir., N.D. Dep’t of Transp., 2005 ND 206, ¶ 9, 706 N.W.2d 610. This flexible, dynamic standard has resulted in decisions favoring both sides of the “reasonable opportunity” argument. Both Baillie and Kuntz involved an unequivocal request to consult an attorney, followed by an absolute denial of that request which we deemed “unreasonable.” Baillie, 522 N.W.2d at 750; Kuntz, 405 N.W.2d at 290. Conversely, we have concluded a “reasonable opportunity” existed in varying circumstances, such as when an arrestee was offered the arresting officer’s personal cellular phone, Wetzel, 2001 ND 35, ¶ 20, 622 N.W.2d 180, and when an arrestee was permitted to consult his or her attorney in person, out of earshot but not out of sight of police. Eriksmoen, at ¶¶ 12, 13; Bickler v. N.D. State Highway Comm’r, 423 N.W.2d 146, 148 (N.D.1988).

[¶ 8] Here, Pace requested contact with “his attorney.” Hagel located the firm’s phone number and used his cell phone at the arrest site to call the firm. When that attempted contact failed, Pace suggested no other avenues for contacting his attorney, nor did he make any further requests for that or any other attorney. Although Hagel did present Pace with an “ultimatum” at this time, telling Pace he “needed a ‘yes’ or ‘no’ ” on the blood draw, we do not find this to be per se unreasonable.

[¶ 9] The situation presented here is not factually similar to any cases previously addressed by this Court; however, the “totality-of-the-circumstances” analysis employed in our previous holdings remains controlling. Eriksmoen, 2005 ND 206, ¶ 12, 706 N.W.2d 610. Taking into account that Hagel assisted Pace in attempting to contact his attorney and Pace made no further requests for an attorney, we cannot conclude that Pace was denied a reasonable opportunity to consult with counsel.

Ill

[¶ 10] The judgment of the district court is affirmed.

[¶ 11] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ„ concur.


text:
    2006 ND 103
    In the Interest of K.L. Lori Shaleen, Ph.D., Petitioner and Appellee v. K.L., Respondent and Appellant.
    No. 20060115.
    Supreme Court of North Dakota.
    May 11, 2006.

      Leo A. Ryan, Special Assistant Attorney General, Jamestown, N.D., for petitioner and appellee.
    Thomas E. Merrick, Jamestown, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] K.L. appeals the district court’s continuing treatment order. He was ordered to remain hospitalized for a period of one year in the North Dakota State Hospital. He argues the district court erred when it ordered continued hospitalization, because he contends he is capable of living independently with the help of his family. We affirm, concluding the district court’s findings of fact are not clearly erroneous.

I

[¶ 2] K.L., a 25-year-old man, was admitted to the State Hospital in December 2003. K.L. has been diagnosed with schizophrenia, paranoid type; depressive disorder, not otherwise specified; and substance abuse of over-the-counter medications. K.L. was transferred to the State Hospital’s transitional living home in April 2004, but he soon relapsed into a paranoid and aggressive state and had to be readmitted to the State Hospital after one month in the transitional living home. KL.’s current treatment program includes the Crossroads Program, a hospital-based residential program designed as an intermediate level between inpatient treatment and transitional living home placement; a behavioral plan to monitor the activities of daily living such as taking a shower, changing into clean clothes, brushing one’s teeth, using deodorant, combing one’s hair, taking medication, and keeping one’s room clean; and medication, including Zyprexa to treat paranoia, Prosac to treat depression, and Seroquel for anxiety. He is also working for Progress Enterprises, a sheltered workshop located on the State Hospital grounds that is designed to improve the patient’s vocational skills. According to K.L., he would be capable of living independently with family help, which his family contends they are willing and able to provide.

[¶ 3] In February 2006, Dr. Lori Shaken petitioned to continue KL.’s hospitalization for one year. Alternative treatments to hospitalization included the transitional living home and independent living. According to Dr. Shaken, neither alternative was available because the transitional living home was filled to capacity and K.L. was incapable of living independently. After a hearing, the district court granted the petition and ordered continuing treatment for one year. The court explicitly found:

I find that if the respondent is not treated there exists a serious risk of harm to himself or others in that there would be a substantial deterioration of his physical health, a substantial deterioration of his mental health and the dangers are that he would be unable to care for himself. He would have suicidal thoughts and he would become aggressive to other people as well.
And the key issue here, the main issue is whether he can be treated outside the State Hospital. The family has indicated that they would care for him on an out-patient basis and provide him with the necessary assistance in obtaining his treatment through the Human Service Center and his medication treatment. The hospital believes that he needs more structure. In this case I believe that the evidence is clear and convincing that treatment other than hospitalization would not be adequate to meet his needs or be sufficient to prevent harm or injuries to himself or others. And the specific risks the Court is concerned with are the danger to other people. The danger to himself, however, is the most important issue and his inability to care for himself. And I realize the family is able and willing to care for him, however, the expert testimony of the doctor is that he needs more structure than just somebody watching him and caring for him, and that structure has to be provided in a hospital setting, at least at the Crossroads setting within the hospital. The doctor indicated that at the bare minimum he must be off the behavior plan, to graduate if you will, to the TL home level and he’s not reached that level of care at this time. So while the family is willing to provide for his care I don’t believe that there is a showing that such care would meet the structure as defined by the hospital through testimony of the doctor here today.
I conclude the respondent is mentally ill and chemically dependent and I order he undergo treatment at the North Dakota State hospital not to exceed one year.

[¶ 4] On appeal, K.L. argues the district court clearly erred, because he is capable of living independently with the help of his family. The Petitioner argues the district court properly found that alternative treatment was not adequate to meet KL.’s needs and K.L. requires continued hospitalization.

[¶ 5] The district court had jurisdiction under N.D.C.C. §§ 25-03.1-03 and 25-03.1-19. The appeal was timely under N.D.R.App.P. 2.1(a) and N.D.C.C. § 25-03.1-29. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 25-03.1-29.

II

[¶ 6] Persons who require treatment are entitled to the least restrictive treatment that will meet their treatment needs. N.D.C.C. § 25-03.1-21(1). “To comply with the requirements of N.D.C.C. § 25-03.1-21(1), the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs, and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which an individual may inflict on himself or others.” Interest of D.P., 2001 ND 203, ¶ 12, 636 N.W.2d 921. “The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alter native.” Interest of D.Z., 2002 ND 132, ¶ 10, 649 N.W.2d 231. “The experts’ explanations must show why continuation is the least restrictive condition necessary for the treatment.” Interest of T.H., 482 N.W.2d 615, 625 (N.D.1992) (citing Interest of Goodwin, 366 N.W.2d 809, 814 (N.D.1985)). This Court applies a more probing clearly erroneous standard when reviewing an involuntary treatment order. Interest of M.M., 2005 ND 219, ¶ 9, 707 N.W.2d 78. “Under this more probing standard, ‘we will affirm an order for involuntary treatment unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.’ ” Id. (quoting Interest of P.B., 2005 ND 201, ¶ 5, 706 N.W.2d 78). We will not set aside the district court’s findings of fact unless they are clearly erroneous. Interest of D.P., at ¶ 3. “A district court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made.” Id.

[¶ 7] At the evidentiary hearing, Dr. Shaleen testified and K.L. did not dispute that he continues to be mentally ill and requires treatment. She testified K.L. experiences paranoia and depression. Dr. Shaleen testified K.L. isolates himself from other people, sleeps a great deal, and has poor energy. She admitted he is doing better with his behavioral plan but testified he still needs prompting from hospital staff to do the tasks. Dr. Shaleen testified he has a history of verbal aggression such as swearing at staff and calling other patients names, although this behavior has improved since K.L. has been on a behavioral plan. Dr. Shaleen testified she considers him a danger to himself because he has a history of serious suicide risk, including one incident of drug overdose and another of his holding a shotgun to his head. She testified that without the structure of the Crossroads Program, K.L. would face a substantial likelihood of relapsing. Dr. Shaleen testified K.L. is still a danger to himself and others. She testified he still has suicidal thoughts and was recently suspected of abusing drugs at the State Hospital. She concluded that if he were to relapse, he would be unable to care for himself and could become aggressive towards others. Dr. Shaleen testified that at this time, alternative treatment programs are inappropriate because K.L. is still having difficulty in the Crossroads Program, he requires a behavioral plan, and without the structure of this hospital treatment, he has not demonstrated the ability to care for himself. She testified that continued structure would keep him safer. Dr. Shaleen’s prognosis for K.L. is that the transitional living home will be the next step towards recovery, but he will have to complete his behavioral plan before this alternative becomes viable.

[¶ 8] K.L.’s mother testified she has noticed a great improvement in K.L. She believes that because K.L. has been doing well on his medications, he could do well on out-patient treatment with the help of the Human Service Center. K.L.’s mother testified that if released, K.L. could live in a spare room in his grandmother’s apartment, which is in the same building as her own, until they could find him an efficiency apartment of his own.

[¶ 9] The district court’s findings are supported by the record and are not clearly erroneous. The court considered independent living as an alternative treatment and concluded it is not adequate to meet K.L.’s current treatment needs. The record supports the finding that K.L. poses a danger to himself, because he has not consistently demonstrated he can care for himself and because he continues to have suicidal thoughts. The record reflects he may have recently abused drugs. Although his condition has improved, the district court could reasonably conclude by clear and convincing evidence that K.L. has not improved to a point that he would be safe living by himself, even with the help of his family. K.L.’s mother testified that K.L. would be looking for an efficiency apartment if released. Although KL.’s family may be able to provide some structure, it would be far less than the structure the State Hospital could provide and the record shows K.L. needs. If K.L. were to relapse, the record supports the finding that he could pose an even greater danger to himself and others. The record supports the district court’s findings, and they are not clearly erroneous.

[¶ 10] Mentally ill persons may not be civilly committed if they pose no danger to themselves, and families can play an important role in treating mentally ill persons. O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). The clear and convincing evidence presented in the record, however, reflects that K.L. still poses a danger to himself because of his inability to care for himself and his risk of suicide. While family involvement may be crucial in the recovery of mentally ill persons, the willingness of family members alone cannot defeat a district court finding that a person is dangerous and requires hospitalization if the record supports that finding.

Ill

[¶ 11] The district court’s continuing treatment order is affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


text:
    2006 ND 104
    In the Interest of C.S. Adam O. Miller, Psy. D., Petitioner and Appellee v. C.S., Respondent and Appellant.
    No. 20060116.
    Supreme Court of North Dakota.
    May 11, 2006.

      Thomas E. Merrick, Jamestown, N.D., for respondent and appellant.
    Leo A. Ryan, Special Assistant Attorney General, Jamestown, N.D., for petitioner and appellee.
   MARING, Justice.

[¶ 1] C.S. appeals from a trial court’s order committing him to continuing treatment in the State Hospital for one year and an order allowing the State Hospital to involuntarily medicate him. We hold that the evidentiary record does not disclose that C.S. knowingly, intelligently, and voluntarily waived his right to counsel. We reverse and remand.

I

[¶ 2] C.S. came to the attention of the State after being incarcerated on a charge of fleeing police officers. While incarcerated, a nurse in the mental health unit supplied C.S. with a dose of headache medicine. C.S. then accused the nurse of sedating him, sodomizing him, and giving him the HIV virus. C.S. made threats to kill the nurse and staff he claimed were trying to take his “evidence” of the nurse’s alleged acts. C.S. also claimed to be the brother of Jesus Christ, claimed to be able to control the weather, and threatened that God would destroy the Garrison Dam. C.S. was also refusing to take care of his personal hygiene.

[¶ 3] C.S. was transferred to the State Hospital because of these incidents and an order committing him to hospitalization for ninety days was entered on December 28, 2005. A State request to involuntarily medicate C.S. was denied by the trial court on January 12, 2006. C.S. was allowed to represent himself at both the hearing for the initial commitment and the hearing on the request to involuntarily medicate.

[¶ 4] On March 16, 2006, near the end of the initial ninety-day commitment, a hearing was held on a motion by the State to continue treatment and a new motion to involuntarily medicate C.S. Although counsel for C.S. was appointed and initially present, C.S. again asked to represent himself. The trial court granted the request and counsel was dismissed. C.S’s request for a continuance was granted and the hearing was continued until March 23, 2006.

[¶ 5] According to testimony presented at the March 23 continuing treatment hearing, C.S. suffers from paranoid schizophrenia, grandiose type, and anti-social personality disorder. Testimony presented revealed that C.S. has threatened another patient at the State Hospital, threatened to kill a ward clerk after accusing her of interfering with his mail, and encouraged other patients to kill staff. C.S. has told State Hospital staff that he is the second son of the heavenly father and has a number of women picked out to be his “wives.” According to testimony, C.S. will use these wives and other individuals to perform public sexual acts so as to inform the public that they are sinning and show them how they are sinning. Two of these wives are to be two “genetically perfect” women in Texas and another is to be a female employee of the postal service. C.S. has said that if he fails in his duties, there will be no resurrection. C.S. has also made threats against his neighbor, accusing her of leaving him penniless and threatening to beat her. He also made a “veiled threat” to his neighbor’s daughter that he would kill her if she did not try to help him escape. C.S. has a history of violence and past criminal activity. C.S. was also known to fire weapons at home on his farm and, after his arrest, a number of firearms were taken from his property. The State requested that C.S.’s commitment continue for one year and that the State have the authority to involuntarily medicate him with Risperdal, or in the alternative, Haldol, with twenty-four hours notice.

[¶ 6] Although the trial court repeatedly gave C.S. the opportunity to present a case, C.S. did not speak at any point during the hearing.

[¶ 7] On appeal, C.S. argues his waiver of representation by counsel was not valid.

II

[¶ 8] We review a claim of invalid waiver of counsel in a mental health proceeding de novo. See City of Fargo v. Habiger, 2004 ND 127, ¶ 18, 682 N.W.2d 300 (discussing standard of review on denial of right to counsel in the criminal context); see also In Interest of Ebertz, 333 N.W.2d 786, 788 (N.D.1983) (stating procedures followed in a mental health proceeding “generally are comparable and similar to those followed in criminal cases”).

[¶ 9] A respondent in an involuntary commitment proceeding has a due process right to counsel. Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987); Interest of R.Z., 415 N.W.2d 486, 488 (N.D.1987). This right is embodied in our civil commitment statutes:

Right to counsel' — Indigency-—-Waiver— Recoupment — Limitations.
1.Every respondent under this chapter is entitled to legal counsel. The counsel has access to the respondent’s medical records upon proof of representation.
2. Unless an appearance has been entered on behalf of the respondent, the court shall, within twenty-four hours, exclusive of weekends or holidays, from the time the petition was filed, appoint counsel to represent the respondent. If a respondent retains counsel, the retained counsel shall immediately notify the court of that fact.
4. If the court determines that the respondent is indigent, the court shall order that appointed counsel be compensated from county funds of the county that is the respondent’s place of residence in a reasonable amount based upon time and expenses. After notice and hearing, the court may order a respondent with appointed counsel to reimburse the county for expenditures made on the respondent’s behalf.

N.D.C.C. § 25-03.1-13. This statute also expressly allows a respondent to waive counsel:

3. If, after consultation with counsel, the respondent wants to waive the right to counsel or the right , to any of the hearings provided for under this chapter, the respondent may do so by notifying the court in writing. The notification must clearly state the respondent’s reasons for the waiver and must also be signed by counsel.

Id. We have recognized, however, that a respondent waiving his right to counsel is “as a purely factual matter” relinquishing “many of the traditional benefits associated with the right to counsel.” Interest of R.Z., 415 N.W.2d at 488 (quoting Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). As such, we require, as we do in the criminal context, that a waiver of counsel be knowing, intelligent, and voluntary. Id. In Interest of R.Z., we also said that the trial court must determine the competence of the respondent to make a valid waiver. Id. Although we said, “we rely on criminal cases to define the rights of respondents in mental health proceedings” and that the record must disclose the valid waiver, we did not make explicit how this would effect a determination of competency to waive counsel. See id. This case gives us the opportunity to provide more direction to our trial courts on these matters.

[¶ 10] The right of a respondent in mental health proceedings to waive counsel is not universally recognized. See, e.g., In re Irwin, 529 N.W.2d 366, 371 (Minn.App.1995) (stating that neither statute nor rules of commitment give a respondent the right to represent himself); see also Mont. Code Anno. § 53-21-119 (“The right to counsel may not be waived.”); see generally 53 Am.Jur.2d Mentally Impaired Persons § 40 (2006) (stating: “The right of an individual to waive counsel and proceed with self-representation in a civil-commitment proceeding varies among the states from allowing self-representation as in other suits, to giving the court discretion as to whether waiver and self-representation should proceed, to making the presence of counsel unwaivable.”). Some courts have found that the test for waiver of counsel in the mental health context is not as demanding as in the criminal context. See United States v. Veltman, 9 F.3d 718, 721 (8th Cir.App.1993) (stating “we are satisfied that the statutory right to counsel may be waived-in a [mental health] proceeding under conditions less exacting than the Sixth Amendment requirements in a criminal trial”). Our legislature has not endorsed the approach of jurisdictions like Minnesota. We do not accept, however, that a respondent should be granted less protection than a criminal defendant in the context of waiver of counsel. In an effort to steer a middle course, we have said that, in an involuntary treatment hearing, our courts must take “great care to assure the public, and particularly the respondent, of due process and that the procedures are in accordance with the principles of law and justice.” In re Ebertz, 333 N.W.2d at 789.

[¶ 11] Our Court has recognized the conceptual difficulty that can arise when a court must consider both whether a respondent is competent to waive counsel and also whether the respondent’s mental condition necessitates involuntary treatment. We have said: “[I]t appears inherently contradictory to find a respondent severely mentally ill, yet able to knowingly and intelligently ‘waive’ his right to counsel.” Interest of R.Z., 415 N.W.2d at 488; see also In the Matter of Condition of S.Y., 162 Wis.2d 320, 469 N.W.2d 836, 842 (1991) (stating: “There undoubtedly is a logical tension between a finding of competence [to waive counsel] ... and the ultimate finding of the very proceeding in which the defendant goes it alone when the final decision ... is mental illness.”).

[¶ 12] A trial court must be mindful that our statutes prevent a presumption of incompetence to arise simply due to the fact that mental health proceedings are being undertaken against the respondent.

Legal incompetence — Presumption— Finding — Adjudication negated.
1. No determination that a person requires treatment, no court order authorizing hospitalization or alternative treatment, nor any form of admission to a hospital gives rise to a presumption of, constitutes a finding of, or operates as an adjudication of legal incompetence, or of the inability to give or withhold consent.
2. No order of commitment under any previous statute of this state, in the absence of a concomitant appointment of a guardian, constitutes a finding of or operates as an adjudication of legal incompetence, or of the inability to give or withhold consent.

N.D.C.C. § 25-03.1-33. Under the statute, a respondent who has previously been treated, voluntarily or involuntarily, for a mental health condition cannot be presumed legally incompetent to waive counsel on account of that treatment. In Interest ofR.Z., we stated:

In an involuntary commitment proceeding where the very competence of the respondent is at issue, the trial court must determine the competence of the respondent to make a knowing and intelligent waiver of the right to counsel before permitting the respondent to proceed pro se.

415 N.W.2d at 488 (emphasis added). Implicit is that the determination of competence to waive counsel must be made before the proceeding may go forward if the respondent is to represent himself.

[¶ 13] Our trial courts must recognize a distinction between what are two separate and independent determinations in mental health proceedings. First, the trial court determines competence for the limited purpose of assessing the respondent’s ability to knowingly, intelligently, and voluntarily waive counsel. This determination must occur at the beginning of the proceeding and must keep in mind the presumption that the respondent is competent. Assuming nothing overcomes the presumption that respondent is competent, the trial court proceeds to determine if the respondent’s waiver of counsel is knowing, intelligent, and voluntary. If the respondent has shown competence to waive counsel, and has shown his waiver is knowing, intelligent, and voluntary, the proceeding may continue with the respondent representing himself pro se. However, in some cases, as the proceeding continues, doubt may be cast on the presumption that the respondent is competent to represent himself. In such cases, the trial court should reassess its determination of the respondent’s competence to waive counsel and act accordingly. The ultimate determination of whether the respondent’s condition necessitates the treatment requested by the State must be determined at the conclusion of the hearing, and only after all of the evidence is presented.

[¶ 14] For the record to disclose a valid waiver, it must mirror the record of a valid waiver in a criminal proceeding. See In re Ebertz, 333 N.W.2d at 789; Interest of R.Z., 415 N.W.2d at 488. In the criminal context, we have said:

Criminal defendants who proceed pro se necessarily relinquish many of the benefits associated with the right to counsel, and in order to proceed pro se, they must voluntarily, knowingly, and intelligently relinquish the benefits of counsel. A defendant need not have the skill and experience of a lawyer to competently and intelligently choose self-representation, but the defendant should be aware of the dangers and disadvantages of self-representation so the record establishes the choice is made with eyes open.

State v. Dvorak, 2000 ND 6, ¶ 10, 604 N.W.2d 445. This echoes what we said previously about waiver of counsel in a mental health proceeding:

[A] respondent in a mental health proceeding may waive counsel and assert the right to self-representation, only if the waiver is knowing and intelligent and voluntary and only if it appears on the record. Absent evidence of a knowing, intelligent and voluntary waiver of counsel, a respondent in an involuntary commitment proceeding may not represent himself.

Interest of R.Z., 415 N.W.2d at 488. Admittedly, we have had greater opportunity to discuss at greater length the procedures a trial court should utilize when assessing a waiver of counsel in the criminal setting:

An unavoidable tension exists between the right to counsel and the right to self-representation, because asserting one right necessitates a waiver of the other. In recent years, we have become increasingly involved with the tension between those mutually exclusive rights. In Harmon, 1997 ND 233, ¶23 n. 1, 575 N.W.2d 635, we acknowledged increasing problems with defendants who proceed pro se, and suggested “[t]rial courts should be careful to make specific on-the-record determinations about whether a defendant unequivocally, knowingly, and intelligently waived either his right to counsel or self-representation. Such a determination should make clear the dangers and disadvantages of self-representation.” Although we have not required trial courts to engage in a specific colloquy with a defendant who appears pro se, we prefer that trial courts eliminate any ambiguity about a waiver by making a specific on-the-record decision the defendant voluntarily, knowingly, and intelligently waived the right to counsel. Our preference for an on-the-record determination parallels the well-established principle that a waiver of the right to counsel will not be presumed from a silent record and courts will indulge every reasonable presumption against waiver.

Dvorak, 2000 ND 6, ¶ 11, 604 N.W.2d 445 (citations omitted). We believe, however, it is evident from In Interest of R.Z. that these principles should also apply in the mental health commitment proceeding setting. See 415 N.W.2d at 488. Therefore, we expect in a mental health proceeding where the respondent wishes to represent himself, that the trial court would engage in a colloquy with the respondent before allowing respondent to proceed pro se. This colloquy must ensure that the respondent is advised of the dangers and disadvantages of self-representation. After doing so, the trial court should make its determination, on the record, of respondent’s competence to make a valid waiver and if that waiver was indeed validly made. As in the criminal context: “Courts should indulge every reasonable presumption against waiver.” State v. Ochoa, 2004 ND 43, ¶ 18, 675 N.W.2d 161.

[¶ 15] We acknowledge that, in some cases, “there is a pattern of obstructing the legal process” wherein “the right to counsel becomes a means by which a defendant can further obstruct the legal process by rejecting court-appointed counsel or retaining and discharging private counsel, all the while insisting the desire for and right to counsel.” See Dvorak, 2000 ND 6, ¶ 15, 604 N.W.2d 445. In such cases, in the criminal context, we have said that a defendant can functionally waive counsel, but that the waiver still must be intelligent and knowing. Id. at ¶ 16. As in the criminal context, whether a respondent knowingly and intelligently waived the right to counsel will require an examination of the record and the facts and circumstances of the particular case to determine if the respondent had the required knowledge to make the choice “with eyes open.” See id. As in the criminal context, the test in a mental health case would not be limited to what the trial court said, but would take into account the respondent’s experience with the legal system and focus on what he understood. See id.

[¶ 16] An additional factor, usually not present in criminal cases, must be considered in mental health cases. Unlike in the criminal context, the capacity and competence of a respondent in mental health cases can potentially vary from one proceeding to the next. A respondent incapable of waiving counsel at one hearing may, due to treatment or other factors, gain that capacity by the next hearing. This, in part, is why N.D.C.C. § 25-03.1-33 forbids a presumption against a respondent’s legal capacity from arising simply due to previous mental health treatment. Similarly, a respondent who one time had the capacity to proceed pro se can, by the time of the next hearing, no longer possess this capacity. For this reason, the trial court must assess the validity of a waiver of counsel and competence to make that waiver before each proceeding during which the respondent wishes to represent himself.

[¶ 17] By assessing the competence and validity of a waiver on the record before each proceeding, the trial court will also aid a reviewing court on appeal. Often in mental health cases, the appellate court receives only the transcript of the proceeding at issue in the appeal. If the colloquy that established a respondent’s waiver occurred at a prior proceeding, it often would not be available to the reviewing court.

[¶ 18] The facts in this case demonstrate our holding here and the reasoning behind it. By the time of the March 16 hearing, C.S. had represented himself on two prior occasions and had been successful in one of the proceedings. He also had a record of past legal problems that establishes a potential familiarity with the legal system. The State Hospital argues these facts show C.S. could knowingly and intelligently make a waiver of counsel that both parties acknowledge was voluntary. Nevertheless, because transcripts of the prior hearings were not present in this record, we cannot determine if C.S. previously was made aware of and understood the advantages of counsel and the disadvantages of proceeding pro se.

[¶ 19] Nor does the record demonstrate that C.S. was made aware of the disadvantages of pro se representation at the March 16 hearing. At the beginning of the March 16, hearing, the following exchange occurred between the trial court, C.S., and counsel appointed for C.S.:

MR. SANDNESS: Yes, your Honor, I was duly appointed I believe last week by the Court. I went and visited [C.S.] last week, he indicated he did not want my services. I informed the Court of such and they requested I appear today nonetheless in case he did request my services. When Mr. Ryan and the doctors were out of the room I did ask [C.S] if he wanted my assistance again today and he indicated he did not, but I told him I would be in the gallery here and be able to help him if he had any questions.
[C.S.]: I don’t want an attorney, I don’t use the services of attorneys.
THE COURT: You understand you have a right to have an attorney to represent you in these proceedings, do you understand that?

[C.S.]: I think I understand it, I don’t want an attorney though.

THE COURT: What do you mean you think you understand it?

[C.S.]: I deny the jurisdiction of this court over me, nevertheless, I’m going to deal with — I’m going to continue on. I am not going to hire an attorney or have one represent me. I’m a sovereign—
THE COURT: Do you want Mr. Sandness to remain in the courtroom to assist you in case you need his assistance?
[C.S.]: No, I don’t.
THE COURT: All right, Mr. Sandness, you’re free to go, [C.S.] has waived his right to counsel.

It is implicit here that the trial court correctly presumed that C.S. was competent to waive counsel by the very fact that it allowed C.S. to proceed pro se. However, the trial court did not establish on the record that C.S. understood the disadvantages of proceeding without counsel. In fact, C.S.’s comments that he thinks he understands his right to an attorney, coupled with his subsequent comments, should have put the trial court on notice that C.S. was possibly not making his choice with eyes open. By not presenting on the record a colloquy establishing a knowing and intelligent waiver of counsel at the start of the March 16, 2006, hearing, the trial court erred.

[¶ 20] The March 16 hearing, however, did not determine the ultimate issue of whether C.S.’s commitment should continue and whether he should be involuntarily medicated. Even if we assume, which we do not, that counsel was validly waived on March 16, the proceedings at the March 23 hearing should also have included another colloquy to determine respondent’s competence to waive counsel.

[¶ 21] We recognize the additional burden we place on our trial courts by requiring a determination of respondent’s competence to validly waive counsel at each hearing in a mental health proceeding. However, the nature of these cases, the nature of the records of these cases on appeal, and the need to ensure a respondent’s rights are protected necessitates such an effort. See In Interest Eberbz, 333 N.W.2d at 789.

Ill

[¶ 22] Because the trial court did not establish on the record that C.S.’s waiver of counsel was knowing and intelligent, we reverse and remand for further proceedings in accordance with this opinion.

[¶ 23] GERALD W. YANDE WALLE, C.J., DANIEL J. CROTHERS, DALE Y. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: MEIERHENRY, Justice.

text:
    2006 SD 34
    Shelley NOVAK, Plaintiff and Appellee, v. Brandon G. NOVAK, Defendant and Appellant.
    No. 23787.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2006.
    Decided April 5, 2006.

      Wanda L. Howey-Fox of Harmelink and Fox, Yankton, South Dakota, Attorneys for plaintiff and appellee.
    Melissa B. Nicholson of Nicholson & Peterson, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] In this divorce case, the trial court included as part of the marital estate farm property inherited by the husband during the marriage. The trial court awarded one-half of the farm property to the wife, and the husband appeals. We affirm.

FACTS

[¶ 2.] Brandon and Shelley Novak were married on August 20, 1988. Over the course of their marriage, the couple had five children. Approximately nine years into their marriage, Brandon inherited farm property from his great uncle on his mother’s side of the family. The family had owned the farm for over one hundred years. Seven years after Brandon inherited the property, Shelley sued for divorce. After hearing the evidence at trial, the court ordered the division of the marital assets and liabilities and awarded both parties, as tenants in common, the real estate inherited by Brandon, which consisted of 389 acres of farm land near Ver-digre, Nebraska. Brandon appeals from the trial court’s judgment and decree of divorce. He argues that the trial court erred by granting Shelley a one-half interest in the farm.

DECISION

[¶ 3.] We review a trial court’s division of marital property under the abuse of discretion standard. Godfrey v. Godfrey, 2005 SD 101, ¶ 11, 705 N.W.2d 77, 80. We find an abuse of discretion when discretion is exercised “to an end or purpose not justified by, and clearly against, reason and evidence.” Id. (citation omitted). Our inquiry is not whether we would have made the same decision, but “whether ‘a judicial mind, in view of the law and the circumstances of the particular case, could have reasonably reached such a conclusion.’ ” Id. (citation omitted). In an appeal of a divorce decree, we uphold findings of fact unless they are clearly erroneous. Id.

[¶ 4.] When a trial court grants a divorce, SDCL 25-4-44 allows the court to equitably divide the marital estate regardless of the ownership of the property. The statute provides:

When a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties.

SDCL 25-4-44. We have identified certain factors for a trial court to consider when dividing marital property. Billion v. Billion, 1996 SD 101, ¶ 18, 553 N.W.2d 226, 231. The factors also apply to the trial court’s determination of whether to include inherited property in the marital estate. Id. ¶21, 553 N.W.2d at 232. The factors to be considered are: (1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties’ assets. Id.

[¶ 5.] Only where one spouse has made no or de minimis contributions to the acquisition or maintenance of an item of property and has no need for support, should a court set it aside as “non-marital” property. Id. Consequently, inherited property “is not ipso facto excluded from consideration in the overall division of property.” Id. ¶20, 553 N.W.2d at 232 (citations omitted). Likewise, a donor’s intent is not determinative. Godfrey, 2005 SD 101, ¶ 19, 705 N.W.2d at 81.

[¶ 6.] Brandon claims that the trial court did not adequately address the seven factors before including the farm in the marital estate. He claims that it was his great uncle’s intent that the farm remain in the family and that the history of the family farm should weigh in favor of excluding it from the marital estate. The history of the farm involves over one hundred years of ownership by Brandon’s mother’s family. At some point the ownership vested in the great uncle. Because the great uncle had no children, the uncle relied on Brandon to help him with the farm work. While working together, the two developed a close relationship, described by Brandon as a “father-son” relationship. It is this relationship, along with the great uncle’s intention of keeping the farm in the family, which Brandon asserts prompted his uncle to leave the land to him, rather than other members of Brandon’s family such as the great uncle’s niece (Brandon’s mother). Additionally, Brandon claims that Shelley had little, if any, involvement in or control of the farm and that she made no contribution to its accumulation or improvement. Thus, Brandon argues that the trial court abused its discretion by awarding Shelley one-half of the farm inherited by Brandon.

[¶ 7.] Consequently, our task is to determine whether it was an abuse of discretion for the trial court to include the farm, valued at close to $200,000, in the marital estate. The couple’s total assets, including the farm, were valued at $266,741; their indebtedness was $70,696. Thus, the farm was the major asset in the marital estate. Had the court set aside the farm as inherited property belonging only to Brandon, the marital debt would have exceeded the assets, and Shelley would have been left with no assets while Brandon would have retained an asset valued at approximately $200,000.

[¶ 8.] The trial court was faced with deciding what was equitable under the circumstances. In making the decision, the court took evidence concerning all of the seven relevant factors. At the time of trial, Shelley was 36 and Brandon was 37. The couple had been married for over 16 years and had five children, the oldest born in 1989 and the youngest born in 1996. Both parties received post-high school education — -Brandon a two-year auto mechanic program and Shelley a four-year criminal justice program. During the marriage; Shelley worked several jobs before attending school, after which she worked as a jail officer. Brandon worked in manufacturing, as a postal carrier, and for the National Guard. Brandon’s monthly gross income was $3,298, while Shelley’s monthly gross income was $1,235. Neither claimed any health problems, and therefore both were competent to earn a living.

[¶ 9.] The only asset which produced income was the farm. As the trial court stated when announcing his decision, “[t]he primary consideration here as everyone knows is the farmstead, or the farm.” The court acknowledged that the great uncle transferred title to Brandon and that the intent was to keep the farm in the family. Nevertheless, other evidence persuaded the court to consider it as marital property and award one-half to Shelley. The trial court entered findings of fact as follows:

46. The primary asset for division in this divorce action is the Nebraska real estate.
50. The Nebraska real estate was transferred to [Brandon]’s name.
51. The stated intent of the transfer was to keep the real estate in [BrandonJ’s name.
52. At the time of the transfer, the parties’ had been married ten (10) years.
53. [Brandon]’s great uncle gave [Shelley] $10,000.00 even though no monies were given to any of the other in-laws with the exception of [Bran-dónos father, Larry Novak.
54. The gift of the monies to [Shelley] by [Brandon]’s great uncle reflects that [Brandon]’s great uncle thought highly of the Plaintiff.
55. The Court also looks at the operation of the Nebraska real estate.
56. This is not a situation where the real estate is all suitable for row crops.
57. Part of the real estate is an acreage, part of the real estate is crop ground, part of the real estate is hay land and part of the real estate is pasture.
58. The money from the Nebraska real estate was not kept separate.
59. No attempt was made by [Brandon] to segregate the money.
60. The money received from the Nebraska real estate was used for various things including purchasing items used in the marriage.
61. The Court has adopted the Defendant’s valuation of the Nebraska real estate in the amount of $200,000.00.
62. When the Court is dealing with a long term marriage, all of the parties’ assets are to be considered.
63. The parties have been married over sixteen (16) years.
64. The Nebraska real estate is not an asset of recent origin, and thus, is not an asset which would not be subject to distribution.
65. [Brandon]’s inheritance was received in 1998 during the course of the parties’ marriage and the Court believes that [Brandon]’s great uncle believed that the parties’ marriage would continue.

[¶ 10.] Weighing in Shelley’s favor was the timing of the inheritance, that is, ten years into a sixteen year marriage. The court also noted the great uncle’s relationship with Shelley and the couple’s use of farm assets for marital needs. Further, the court considered evidence of Shelley’s involvement with the farm, which consisted of more than de minimis involvement.

[¶ 11.] Without the inclusion of the inherited property, Shelley would have received nothing but debt from the marriage. Because the trial court divided the inherited property, he denied Shelley any alimony. The trial court explained:

I am not awarding alimony. The court looks at it in two ways: One, the court has divided the debt equally. That debt includes the education debt. The court believes that by requiring Mr. Novak to pay for part of that education debt, he is in effect paying an alimony because it’s — she’s already had the education. He in effect has to help provide her with that by paying half of the debt. In addition, the court by dividing the inheritance, believes that it’s probably more than any alimony would ever be considered by this court.

Sympathetic to Brandon’s desire to keep the farm in the family, the trial court gave Brandon six months from the date of the divorce decree to purchase Shelley’s interest in the farm for $93,801.

[¶ 12.] As we said in Billion, “Only in the case where one spouse has made no or de minimis contributions to the acquisition or maintenance of an item of property and has no need for support, should a court set it aside as ‘non-marital’ property.” 1996 SD 101, ¶ 21, 553 N.W.2d at 232. In order to reverse the trial court here, we would have to find that the court exercised its discretion “to an end or purpose not justified by, and clearly against, reason and evidence.” Godfrey, 2005 SD 101, ¶ 11, 705 N.W.2d ¿t 80. Based upon the record, we are unable to reach that conclusion. Therefore, the court’s judgment is affirmed, and Shelley is awarded appellate attorney’s fees as requested in the amount of $1,625.

[¶ 13.] Affirmed.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Brandon's proposed property distribution divided the assets $34,409 to Shelley and $222,102 to him. His proposal did not indicate how the indebtedness should be divided, but at trial Brandon offered to assume the majority of the debt.