author: ZINTER, Justice.

text:
    2006 SD 17
    The PEOPLE of the State of South Dakota in the Interest of P.K., C.K., & K.K., Appellants and Minor Children, and concerning L.K., Respondent and Appellee.
    No. 23747.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided March 1, 2006.

      Kelly Marnette, Aberdeen, South Dakota, Attorney for appellants minor children.
    Ann M. Holzhauser, Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorney for appel-lee State of South Dakota.
    William D. Gerdes, Aberdeen, South Dakota, Attorney for appellee Father L.K.
   ZINTER, Justice.

[¶ 1.] Three children appeal the trial court’s refusal to terminate their father’s parental rights. We reverse and remand:

Facts and Procedural History

[¶ 2.] On February 16, 1993, L.K. (Father) was convicted of engaging in sexual intercourse without consent. He was sentenced to ten years imprisonment with five years suspended. After two and one-half years, Father was released on probation. During the next four years, Father and D.K. (Mother) had three children, P.K., C.K., and K.K. Following the birth of the children, Father’s probation was revoked, and he was re-incarcerated in the Montana State Prison.

[¶ 3.] While Father was incarcerated, Mother and the children moved to South Dakota. Mother began working with the South Dakota Department of Social Services (DSS) in August 2001, when the children were four years, two years, and nine months of age. In January 2002, Mother took the children to DSS asking that the children be put up for adoption because she did not want them anymore. Mother told DSS that she became so frustrated with the children that she was afraid she would throw them against the wall and cause physical harm. Consequently, DSS filed an abuse and neglect petition.

[¶ 4.] On May 13, 2002, an adjudicatory hearing was held. Father was still incarcerated and unable to attend the hearing, but he appeared through his attorney. Mother and Father admitted the allegations of the petition, and the trial court adjudicated the children abused and neglected. The trial court also gave legal and physical custody of the children to DSS. Subsequently, DSS placed physical custody with the maternal grandparents.

[¶ 5.] A review hearing was held on August 15, 2002. At the review hearing, the trial court continued custody with DSS, and the children’s physical placement remained with the maternal grandparents. Also, DSS notified Mother that they were going to request a termination of parental rights.

[¶ 6.] A dispositional hearing was scheduled for February 21, 2003. Mother appeared with her attorney and agreed to a termination of parental rights. Father’s attorney filed a motion for a continuance based on a lack of correspondence with Father due to his incarceration. The trial court terminated Mother’s parental rights and granted Father’s motion for a continuance.

[¶ 7.] A final dispositional hearing for Father began on April 25, 2003. Although Father was still incarcerated, he appeared via video conference. Father testified that he might be released on parole in June 2003. Father, however, admitted that he was unable to care for the children because of his incarceration. He further admitted that, even if released that day, he would be unable to take over custody of the children. Father finally admitted that the children were in a “good environment” with the maternal grandparents. After observing all of the evidence and testimony, the trial court found that the conditions that led to the removal of the children still existed. The trial court further found that there was little likelihood that those conditions would be remedied. However, the trial court declined to terminate Father’s parental rights, finding that DSS had failed to provide reasonable efforts to reunite the children with Father. The trial court then ordered a sixty day continuance to determine if Father would be released from prison, and if so, whether Father would be able to care for the children. The trial court did, however, express concern about the children being held “in limbo” if Father was not released in June. The trial court stated:

The Court at this time will continue the matter for 60 days to get that additional information. If, in fact, the father will be out and will be able to be worked with by the department, and the conditions which led to the children being removed from the home, part of which is the father’s absence, can be remedied, the Court would consider that. If he’s not going to be getting out and not going to be getting out for at least a year, well, the Court’s, got to consider whether or not at that point the conditions can be remedied so the children can be returned to the custody of the parent, and the Court will have to consider that in light of the need to have these decisions made in a timely way so that the children aren’t held in limbo for an extended period of time waiting for some parent to try to get their life back together.

(Emphasis added.)

[¶ 8.] Pursuant to the court’s decision, on August 15, 2003, DSS and Father entered into a case plan for potential reunification. Father agreed to contact DSS once a week. He also agreed to complete parenting classes, anger management classes, and the paperwork necessary to start working toward his GED, all of which were available at the prison. Although Father failed to contact DSS on a weekly basis and inform it of his progress, the record reflects that Father was attending the sexual offender program, was on course to complete his anger management classes, and was considered “treatment compliant” for chemical dependency. Furthermore, DSS began home studies of the paternal grandparents and a paternal aunt in Montana.

[¶ 9.] A continued dispositional hearing was held on September 15, 2003. Because Father still had not been released from prison, he again appeared via a video conference. Despite the trial court’s concern at the April 2003 hearing regarding the children being left in limbo if Father was not released that summer, and despite Father’s failure to contact DSS weekly as required in his ease plan, the court once again declined to terminate Father’s parental rights. Instead, the trial court ordered DSS to complete the home studies that were in progress to determine if placement with Father’s relatives in Montana would be possible. The trial court reasoned that this decision would increase DSS’s ability to provide reasonable efforts to reunite the children with Father and would provide an opportunity to determine if Father should be reunited with the children. The trial court also expressed concern that DSS had not provided enough time for Father to work on the requirements of his case plan.

[¶ 10.] Approximately six months later, in April 2004, Father was released from prison. Thereafter, on May 14, 2004, all parties reached an agreement under which maternal grandmother would take the children to Montana for a sixty day summer visitation with Father and the paternal aunt. In return, Father agreed to complete a psycho-sexual evaluation, obtain suitable housing, secure employment or disability benefits, attend anger management classes, sign releases of information, obtain therapy if needed, find an appropriate therapist and pediatrician for the children, and assist financially if possible. DSS provided Father with funding for the anger management classes, the psycho-sexual evaluation, visits at a visitation center, and motel and gas expenses for the maternal grandmother to take the children to Montana for the summer visitation.

[¶ 11.] Father did not, however, have much success in satisfying the prerequisites for reunification. Although Father completed the psycho-sexual evaluation, he never completed the sex offender program. He was also unwilling to attend further sex offender therapy. Father’s refusals caused his therapist to opine that he would never recommend full placement of the children with Father. Furthermore, the state of Montana refused to conduct the home study of Father because the results of the evaluation did not recommend ever placing the children with him. The children’s attorney was also concerned about the results of the psycho-sexual evaluation and presented the results to the trial court.

[¶ 12.] Nevertheless, the summer visitation was continued without Father satisfying the remaining requirements for reunification. Although Father completed an intake for anger management, he failed to follow through with the recommendations. Father also had difficulty finding suitable housing. Upon his release from the penitentiary, he moved in with his parents and then into his girlfriend’s home. A CASA worker visited that home, and although the worker did not note any dangers, she concluded that it was too small and did not have enough space for the children. Additionally, Father had a difficult time sustaining suitable employment, and he failed to complete home based services. But most significantly, Father only visited the children nine times during the sixty days they were in Montana for the summer visitation. Father attempted to justify this lack of interest, claiming that the supervisor at the visitation center made him feel like he abused his children and that he was afraid that being around" the supervisor would cause him to “lose his cool.”

[¶ 13.] Although Father did not take full advantage of the summer visitation, the children did have visitation with the aunt and her family. The home study of aunt’s family revealed that she and her husband had two children. However, they lived in a “fifth wheel trailer” in another relative’s yard. Nevertheless, the state of Montana initially approved aunt for placement with the understanding that final placement with aunt would occur only if a more appropriate home was not available. Ultimately, in February 2005, the state of Montana withdrew aunt’s foster care application because she had not maintained contact with the children, had not followed through with many of Montana’s requirements, and had not obtained adequate housing.

[¶ 14.] Following a number of further review and dispositional hearings in South Dakota, a final dispositional hearing was held on February 28, 2005. At this point, three years and six months had expired since DSS’s first involvement; the children were now seven, five, and four years of age, and Father had not had any contact with the children since they returned to South Dakota in September 2004. Furthermore, Father did not attend the hearing. Instead, his attorney informed the court that although Father was not requesting custody, he did not wish to give up his parental rights. Father requested that the children be placed with the Montana aunt. The children and DSS, however, requested that the trial court terminate Father’s parental rights.

[¶ 15.] During the dispositional hearing, the trial court acknowledged that Father was not suitable for the children to live with and that Father should never have custody of the children. The trial court also found that aunt had inappropriate housing for placement and had shown no long-term interest in the children. Although the record does not reflect that Father proffered any other options, the trial court again refused to terminate Father’s parental rights. The trial court reasoned that if Father’s parental rights were terminated there would be no guarantee that the adoptive family (presumably the maternal grandparents) would not leave with the children. Therefore, the trial court ordered a “permanent guardianship” with the maternal grandparents. The trial court reasoned that this disposition would provide the possibility of further contact with Father and his Montana family, which the court stated has its “pluses and minuses, but ... [is not] all bad.” However, the trial court also acknowledged that the children had been with the maternal grandparents “all these years” and that they “ought to be the ones that [the children] stay with.”

[¶ 16.] The children appeal questioning whether the trial court erred in refusing to terminate Father’s parental rights so a more permanent placement could be effectuated.

Standard of Review

[¶ 17.] Before termination of parental rights may be ordered, reasonable efforts to reunite the family are required. SDCL 26-8A-21. Furthermore, termination must be in the best interests of the children and the least restrictive alternative available. In re D.M., 2003 SD 49, ¶ 27, 661 N.W.2d 768, 775 (citing SDCL 26-8A-26). These three requirements, “[t]he ‘reasonable efforts’ and ‘best interest of the child’ and the ‘least restrictive alternative’ balancing process!,] are essentially issues of fact.” In re E.L. and R.L., 2005 SD 124, ¶ 10, 707 N.W.2d 841, 845 (citing In re K.C., 414 N.W.2d 616, 620 (S.D.1987)). “We review the trial court’s findings of fact under the clearly erroneous standard; therefore, they will not be set aside unless ‘we are left with a definite and firm conviction that a mistake has been made.’” In re S.A., 2005 SD 120, ¶ 11, 708 N.W.2d 673, 677 (citing People ex rel. J.S.B., Jr., 2005 SD 3, ¶ 12, 691 N.W.2d 611, 615 (citing In re T.H., 396 N.W.2d 145, 148 (S.D.1986))).

Analysis and Decision

Reasonable Efforts to Reunite and Likelihood That Conditions Would Be Remedied

[¶ 18.] In this case, the trial court found that reasonable efforts to rehabilitate the family were provided, that the conditions that led to the removal of the children still existed, and that there was little likelihood that those conditions would be remedied. Specifically, the court found:

IX. Reasonable efforts have been made to rehabilitate the family and to reunite the minor children with the Respondent father but such efforts have proved unavailing.
X. The conditions which led to the removal of the children still exist, in that the Respondent Father is a convicted sexual offender, who is not. following the treatment recommendations of the most recent psycho-sexual evaluation.
XI. There is little likelihood that these conditions will be remedied to allow the children to be returned to the custody of the children’s parent.

[¶ 19.] The record supports these findings. First, the record reflects that DSS made reasonable efforts to reunite Father with the children. DSS entered into a reunification plan with Father that contemplated a number of services that were needed to obtain necessary parenting skills. Furthermore, DSS paid for Father’s psycho-sexual evaluation, the costs of the visitation center, motel and gas expenses for the children’s summer visitation, and it obtained funding for Father’s anger management classes.

[¶ 20.] Nevertheless, the record reflects that the offered services did not eliminate the conditions that led to removal of the children because Father failed to follow through with those services. Father refused to follow through with the recommendations of his anger management evaluation, failed to obtain adequate housing and employment, and declined to take advantage of the home based services that were offered. Moreover, Father’s therapist was so concerned about the psycho-sexual evaluation results that he opined Father should never have custody of the children. Finally, Father only visited the children nine times during the sixty days they were in Montana. Thus, the conditions that led to the children’s removal remained with little likelihood that they would be remedied if the children were returned.

Best Interests of the Children

[¶ 21.] Under these circumstances, we are definitely and firmly convinced that the trial court’s decision not to terminate Father’s parental rights was not in the best interests of these children. In deciding not to terminate Father’s parental rights, the trial court reasoned that a permanent guardianship, as opposed to a termination, would be in the children’s best interest because it would provide the children with an opportunity to get to know Father and Father’s Montana family. However, “[t]he best interests of the children are viewed from the children’s, not the parents’, perspective.” In re D.M., 2003 SD 49, ¶ 27, 661 N.W.2d at 775 (citing In re E.D.J., 499 N.W.2d 130, 135 (S.D.1993)). Furthermore, “[w]hen it comes to something as important as the welfare of young children, promises of the parents to conform to the standard of care for their children which is expected in our society do not carry as much weight as their past actions of not properly caring for the children.” In re A.S., 2000 SD 94, ¶ 21, 614 N.W.2d 383, 386-87 (citations omitted).

[¶ 22.] Here, Father’s history of lack of interest in the long-term care and custody of the children is well documented in the record. Father had limited contact with the children throughout their lives; he only visited the children nine times during their sixty day summer visitation, and he did not have any contact with the children from the time they left Montana in September 2004 to the final dispositional hearing in February 2005. Furthermore, at the dispositional hearing, Father did not even request custody of the children but merely asked that they be placed with aunt. Finally, Father has declined to file a brief with this Court opposing the children’s request for the termination of his rights.

[¶ 23.] Similarly, aunt, the only paternal family member that expressed any interest in obtaining custody of the children, displayed an insufficient interest in getting to know them. While aunt did have visitation with the children during their summer visit, the visitation was only held on weekends. Aunt also failed to keep in contact with the children after they returned to South Dakota. It was only after DSS urged aunt to keep in contact with the children and offered her money to travel to South Dakota for a visit that she started to have some contact with the children over the telephone. Additionally, aunt and uncle already had two children, and they all lived in inadequate housing. Consequently, the state of Montana would not approve them for placement. Therefore, considering that neither Father nor aunt were interested in or available for the long-term care or custody of the children, it was not in the children’s best interests to leave open some theoretical possibility that the children might get to know that family. The trial court acknowledged as much stating:

... thinking about the best interests of the kids, having the father not a suitable person and [aunt’s family] sort of eliminated from the running as far as them showing any real long-term interest here, [maternal grandparents are] the only other suitable relative or plausible relative we have.

Least Restrictive Alternative

[¶ 24.] Additionally, termination of Father’s parental rights to facilitate a permanent relationship with the children’s only real family (the maternal grandparents) was the least restrictive alternative in this case. In examining this question, we often consider the parents’ efforts and cooperation in utilizing the services offered to them. See Interest of A.R.P., 519 N.W.2d 56, 61-62 (S.D.1994); Interest of S.R., 323 N.W.2d 885, 887-88 (S.D.1982). “When all Social Services attempts and assistance fail for lack of cooperation, no narrower or less restrictive alternative remains.” Matter of S.W., 398 N.W.2d 136, 140 (S.D.1986) (citation omitted). In this case, Father showed some interest in cooperating with DSS while he was incarcerated, but upon his release, Father failed to fulfill DSS’s requirements for reunification and refused to utilize the services offered to him. As a result of Father’s unwillingness to cooperate, he was unable to acquire the requisite parenting skills to care for his children. We have stated that “[a] child should not be required to wait for parents to acquire parenting skills that may never develop.” In Interest of A.D., 416 N.W.2d 264, 268 (S.D.1987) (citation omitted). In light of the efforts made by DSS as well as Father’s refusal to cooperate and his lack of interest in the long-term care of the children, termination was the least restrictive alternative.

[¶ 25.] Ultimately, termination was required under the trial court’s own findings. The trial court found that: 1) a permanent placement was necessary, 2) the children “should never go back to the father,” and 3) the children “should be permanently placed with a particular relative.” But, by refusing to terminate Father’s parental rights and opting for a guardianship, the trial court prohibited the commencement of that permanent adoption proceeding. See In re Adoption of H.L.C., 2005 SD 110, ¶ 25 n. 2, 706 N.W.2d 90, 94 n. 2 (stating that “termination of parental rights must occur before an adoption can take place”). Although the trial court relied on SDCL 26-8A-21.2, which contemplates permanent guardianships, that statute only applies to dispositions when “aggravating circumstances” are present and reunification efforts will not be undertaken. Thus, the trial court erred in relying on SDCL 26-8A-21.2 in ordering the guardianship in this case.

[¶ 26.] Furthermore, the trial court failed to adequately consider that guard-ianships, by their very nature, are temporary. In re T.L.R., 2002 SD 54, ¶ 18, 645 N.W.2d 246, 251. Therefore, the trial court’s disposition would merely subject the children to further years of insecurity and lack of stability at a time when the trial court was seeking a permanent disposition. Thus, the trial court’s dispositional order was inconsistent with its own recognition that permanent placement was necessary, and it was not in the best interests of the children. See Matter of C.L., 397 N.W.2d 81, 85 (S.D.1986) (stating that “[t]he best interests of the children require that some certitude and stability enter [these children’s] lives”) (citation omitted).

[¶ 27.] In sum, the reunification efforts provided by DSS failed due to Father’s lack of cooperation and interest. Furthermore, after years of being in the system, the trial court recognized that it was in these young children’s best interests to obtain security and stability with a permanent relative placement. However, it was not in their best interests for a disposition that was designed to leave open the possibility of getting to know a “family” that had repeatedly shown little interest in exercising parental responsibilities over the children. Finally, SDCL 26-8A-21.2 was not an applicable disposition statute. We, therefore, have a firm and definite conviction that a mistake was made in refusing to terminate Father’s parental rights.

[¶ 28.] Reversed and remanded for further proceedings.

[¶ 29.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Although Father did not request custody of the children at trial, he expressed a desire to retain his parental rights. However, on appeal, Father has not filed a brief'supporting the trial court's decision. The Department of Social Services has joined the children's brief. Mother voluntarily terminated her parental rights and is not involved in this appeal.

      . On October 25, 1991, Father, who was then eighteen years old, had sexual intercourse with two girls, who were eleven and twelve years old.

      .Testimony at the dispositional hearing held on April 25, 2003, indicated that Father's parole was revoked because he failed to attend group counseling and obtain employment. Furthermore, a psycho-sexual evaluation of Father, which was introduced into evidence as Exhibit 3, indicated that Father violated his parole by dating a woman that had children.

      . The trial court stated:
      The father has chosen not to show up and frankly, he's not a suitable person for the children to go live with in any event. The [aunt is] left in a position where the fifth-wheel isn’t an appropriate place to pack all those kids in....

      . The trial court stated:
      It appears to the Court that the department’s choice early on was termination of parental rights, even before services were offered to the father, and placement with the biological mother's mother. And that has been the underlying premise of just about everything else that’s happened, including the fact that the Court almost had to use dynamite to get the department to provide any services at all to the father and then they drug their feet. I mean, the department’s work here has been dismal, and their strategy has been to wear down the [aunt] and to wear down the father and they have succeeded in doing that.... However, if the Court terminates the father's parental rights, there's no guarantee that there wouldn't be some further double cross and those people will be gone and the children off to some place else. It's kind of hard to know who to trust here. If the Court grants the mother’s parents some sort of permanent placement, some sort of guardianship, that would preclude them, at least for now, from adopting the kids, that would not exclude the father from their life, which, you know, has its pluses and minuses, but would provide contact with the other side of the family, which isn't all bad.... [I]t's not appropriate to send the children back to the father's home.... [T]he family that the children have been with for all these years ought to be the ones that they stay with, so that will be the Court's order.

      . Aunt worked during the evenings, leaving the weekends for visitation. However, there were instances where aunt was unable to be present during the visitations. On one occasion, uncle had to rush his son to the emergency room. Rather than taking the children with them, he left them in the car with his eleven year old daughter for over an hour. On another occasion, aunt had to return the children to the maternal grandmother because she had to work that evening and uncle refused to watch them.

      . Aunt claims that her work schedule prevented her from traveling to South Dakota to visit the children.


source: Caselaw Access Project

license: Public Domain

text:
    2006 SD 19
    Cindy SCHAEFER, on behalf of S.S., C.S., and K.S., and Elda Scheller, on behalf of D.S., Petitioners and Appellees, v. Edward LIECHTI, Jr., Respondent and Appellant.
    No. 23670.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 9, 2006.
    Decided March 1, 2006.

      Rose Anne Wendell, Pierre, South Dakota, Attorney for petitioners and appel-lees.
    H.I. King of Tonner, Tobin and King, Aberdeen, South Dakota, Attorneys for respondent and appellant.
   ZINTER, Justice.

[¶ 1.] William Edward Liechti appeals the circuit court’s entry of a stalking protection order. Both parties seek appellate attorney’s fees. We affirm the circuit court’s entry of the protection order and deny both parties’ requests for appellate attorney’s fees.

Facts and Procedural History

[¶ 2.] Doug and Cindy Schaefer (the Schaefer parents) are the parents of S.S., C.S., and K.S., who were fifteen, thirteen, and eleven in the summer of 2004. The Schaefers lived on the edge of Seneca, South Dakota, and operated a farming business. Elda Scheller (Scheller) is the grandmother and guardian of D.S., who was seventeen in the summer of 2004. The Schellers also lived in Seneca. D.S. and the Schaefer children (collectively referred to as the children) are Mends.

[¶ 3.] These children drove “four-wheelers,” also known as ATV’s, which were not licensed. The children also drove the four-wheelers without driver’s licenses; however, D.S. and S.S. eventually obtained their licenses. D.S. used his four-wheeler to take care of horses on the edge of town, and he obtained “permission” from the Mayor of Seneca and the Faulk County Sheriff to drive on a prescribed route. The Schaefer children also received “permission” to drive their four-wheeler on a prescribed route to their property.

[¶ 4.] William Edward Liechti, Jr., a resident of Seneca since 1971, lived approximately two and a half blocks from the Schaefers. He owned and operated a vehicle repair business until he sold it in 2002. From approximately 2000 to 2004, Liechti had numerous confrontations with the children regarding their operation of the four-wheelers in the city and on the highway.

[¶ 5.] The confrontations escalated in the summer of 2004. Two of the confrontations caused the Schaefer parents and Scheller to seek stalking protection orders against Liechti. The first incident occurred in July when C.S. and S.S. drove a four-wheeler into town to pick up a Mend. On their way back to the Schaefer house, Liechti observed the children. When Liechti stopped his pickup, the children drove behind him and into a school lot. Liechti backed up and followed them. In order to get away from Liechti, the children had to drive their four-wheeler into a nearby wheat field.

[¶ 6.] The second incident occurred in August when Liechti contacted Timothy Bormann, the Faulk County State’s Attorney. Liechti reported that he had observed the children racing and “tearing around” Seneca on four-wheelers and motorcycles. Bormann informed Liechti that he would have to file a complaint with the Sheriffs office. Liechti filed a complaint, but upon investigation, it was determined that Liechti could not have observed what he alleged. Therefore, the Sheriff and Bormann agreed that Liechti’s complaint would not be prosecuted. Bormann testified that when Liechti was told they were not going to prosecute, Liechti “made a comment to the effect of, if this was all the help I was going to get, I could have just as well gotten a shotgun and taken care of it myself.”

[¶ 7.] Based on these and numerous other incidents, the Schaefer parents and Scheller filed for a protection order on behalf of the children. A temporary stalking order was entered against Liechti on August 27, 2004. Following a trial, the court entered a permanent order of protection against stalking or physical injury. On appeal we are asked to determine the following issues:

1) Whether the court’s findings of fact were clearly erroneous;
2) Whether the trial court erred in determining that Liechti stalked the children, which raises the following sub-issues:
a) Whether Liechti’s conduct amounted to a series of acts that established a course of conduct;
b) Whether Liechti’s actions were undertaken for a legitimate purpose;
c) Whether Liechti’s actions were performed maliciously;
d) Whether Liechti’s actions constituted a credible threat that placed the children in reasonable fear of great bodily injury;
3)Whether either party is entitled to appellate attorney’s fees.

Standard of Review

[¶ 8.] The trial court’s decision to grant or deny a protection order is reviewed under the same standard that is “used to review the grant or denial of an injunction.” Goeden v. Daum, 2003 SD 91, ¶ 5, 668 N.W.2d 108, 110 (citation omitted). First, we determine whether “the trial court’s findings of fact were clearly erroneous.” Id. (citation omitted). We will not set aside the trial court’s findings of fact unless, after reviewing all of the evidence, “we are left with a ‘definite and firm conviction that a mistake has been made.’ ” People ex rel. O.S., 2005 SD 86, ¶ 9, 701 N.W.2d 421, 425 (quoting In re T.A., 2003 SD 56, ¶ 5, 663 N.W.2d 225, 229 (citing Matter of A.M., 292 N.W.2d 103, 105 (S.D.1980))). Furthermore, “[t]he credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court’s opportunity to observe the witnesses and examine the evidence.” Baun v. Estate of Kramlich, 2003 SD 89, ¶ 21, 667 N.W.2d 672, 677 (citation omitted). If the trial court’s findings of fact are not clearly erroneous, we “must then determine whether the trial court abused its discretion in granting or denying the protection order.” Goeden, 2003 SD 91, ¶ 5, 668 N.W.2d at 110 (citation omitted).

Analysis and Decision

1) Were the trial court’s findings of fact clearly erroneous?

[¶ 9.] Throughout his briefs, Liechti disagrees with many of the trial court’s findings of fact. For example, Liechti contends that, contrary to the trial court’s findings: 1) he did not watch S.S. with binoculars while she was swimming; 2) he only used his binoculars to watch the children playing in their tree house on one occasion; 3) he did not attempt to stop the Schaefer children on numerous occasions; 4) he did observe the racing that he reported to law enforcement; and 5) he did not say anything about a shotgun after learning that charges would not be brought against the children. However, the evidence presented at trial supported the trial court’s contrary findings.

[¶ 10.] Most of the evidence presented at the trial was live witness testimony. The record reflects that while Liechti said one thing, the children, the Schaefer parents, Scheller, and State’s Attorney Bor-mann said another. Therefore, the trial court’s credibility determination played a crucial role in the resolution of these factual disputes. Ultimately, the trial court made specific findings that Liechti was not credible and that the children, the Schae-fer parents, and Scheller were credible. Because we give due regard to the trial court’s opportunity to observe witnesses and judge their credibility, and because the trial court expressly found that Liechti was not credible, we conclude that the trial court was not clearly erroneous in accepting the children’s, the Schaefer parents’, and Scheller’s version of the facts.

2) Whether the trial court erred in determining that Liechti stalked the children.

[¶ 11.] Liechti contends that the trial court erred in determining that his conduct amounted to stalking. SDCL 22-19A-1 defines stalking as:

Any person:

(1) Who willfully, maliciously, and repeatedly follows or harasses another person;
(2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication; is guilty of the crime of stalking.

This case involves harassment under SDCL 22-19A-l(l) and a credible threat under SDCL 22-19A-K2). Harass “means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.” SDCL 22-19A-4. “Course of conduct” is “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” SDCL 22-19A-5. A “credible threat” is “a threat made with the intent and the apparent ability to carry out the threat.” SDCL 22-19A-6.

[¶ 12.] Liechti argues that his conduct did not amount to “harassment” under SDCL 22-19A-l(l) because: 1) his actions did not comprise a series of acts that established a course of conduct and 2) he acted for a legitimate purpose. Liechti further argues that his conduct did not constitute stalking under SDCL 22-19A-1(1) because his actions were not performed maliciously. Finally, Liechti argues that he did not make credible threats that placed the children in reasonable fear of great bodily injury as required under SDCL 22-19A-l(2). However, the evidence does not support Liechti’s contentions.

Course of Conduct

[¶ 13.] Notwithstanding Liechti’s contention, his actions established a course of conduct. Liechti admitted that he watched C.S. and the other children through his binoculars while they were playing in a tree house on one occasion. However, Liechti actually “watched” C.S. and the other children on many occasions. C.S. testified that Liechti would “always watch us.” C.S. further revealed that Liechti would watch her and her friends with his binoculars while they were playing in a tree house and while they were swimming at a friend’s house. She indicated that Liechti has watched her “too many” times and that she was scared to go into town alone because of him. The record also reflects that Liechti chased C.S. and S.S. into the wheat field in July 2004, and made, what the sheriff and state’s attorney believed to be, a false complaint that S.S. was tearing around town and racing on a motorcycle in August 2004. While testifying, Liechti also admitted that he chased S.S. to his home on a separate occasion in 2000 or 2001. Finally, Liechti admitted in his briefs that he confronted S.S. on “numerous occasions.”

[¶ 14.] Liechti also engaged in a course of conduct with D.S. On one occasion, Liechti approached D.S. and told him that he was trespassing despite the fact D.S. was on Seheller’s private property. Liechti also followed D.S. while he was driving his four-wheeler and stopped him to discuss various traffic violations. Further, D.S. testified that he observed Liechti watching him with binoculars while D.S. was driving his four-wheeler.

[¶ 15.] The Schaefer parents and Schel-ler corroborated and amplified the children’s course of conduct testimony. Doug Schaefer described Lieehti’s conduct as “canvassing” the children. He also described one series of events when Liechti drove by the Schaefer home thirty-five times in one day. Similarly, Elda Scheller testified that Liechti followed D.S. “often enough to concern [her]” and that at one point, Liechti would call Scheller four to five times a day to discuss D.S.’s various faults. Considering all the evidence, we agree that Liechti engaged in a course of conduct toward the children.

Legitimate Purpose

[¶ 16.] Liechti, however, points out that the definition of “harass” also requires that the offending conduct serve no legitimate purpose. Liechti argues that his conduct served a legitimate purpose because he was concerned about the children driving four-wheelers in violation of the law. However, we believe that even if the children had violated the law, Liechti’s surveillance of the children through binoculars while they were swimming, while they were in a tree house, and on other occasions was not related to his purported concern of ensuring compliance with South Dakota’s motor vehicle laws. Moreover, he had no right to assume the role of law enforcement and create dangerous situations by chasing the children in his pickup. Rather, Liechti’s remedy was to take his concerns and complaints to the police or other public officials responsible for enforcement of the law.

Malice

[¶ 17.] Liechti contends that even if his actions did amount to a “course of conduct,” they were not performed maliciously. SDCL 22-1-2 defines maliciously as “a wish to intentionally vex, annoy, or injure another person, established either by proof or presumption of law.” SDCL 22-l-2(l)(a). Considering Liechti’s previously described conduct of “canvassing” the children, watching them through binoculars, driving by the Schaefer home thirty-five times in one day, confronting the children on numerous occasions, chasing them into a wheat field, and filing false complaints, we conclude that the trial court could have found that Liechti intentionally engaged in vexatious and annoying conduct.

Credible Threats

[¶ 18.] Liechti argues that the trial court erred in finding that he made credible threats to the children that placed them in reasonable fear of great bodily injury. Once again, however, the testimony of the children, the Schaefer parents, and Scheller supports the trial court’s findings. The record reflects that Liechti repeatedly followed the children in his pickup while they were driving their four-wheelers. This conduct created a dangerous situation that put the children in fear of great bodily injury as was demonstrated by the Schaefer children having to take evasive maneuvers through a wheat field. More significantly, Liechti stated that he should have used a shotgun to solve his problem with the children. Although this statement was initially made to the sheriff and state’s attorney, the sheriff believed the threat was credible enough to inform the Schaefers and Scheller of the comment. Furthermore, they were aware that Liechti owned firearms. Thus, Liechti’s conduct as well as the Schaefers’, Schel-ler’s, and the children’s knowledge of Liechti’s threatening statement was sufficient to establish a legitimate concern about the children’s physical safety. Therefore, we affirm the trial court’s finding that Liechti made credible threats that placed the petitioners in reasonable fear of great bodily injury.

[¶ 19.] Because Liechti’s harassment amounted to a course of conduct, and because those actions were preformed maliciously and constituted credible threats, the trial court did not abuse its discretion in concluding that Liechti violated SDCL 22-19A-l(l) and (2). For the same reasons, we conclude that the trial court did not abuse its discretion in granting the protection order against stalking or personal injury.

3) Appellate Attorney’s Fees

[¶ 20.] Schaefers and Scheller moved for appellate attorney’s fees pursuant to SDCL 15-26A-87.3. “SDCL 15-26A-87.3 permits an award of appellate attorney fees if they are otherwise allowable and if they are accompanied by a verified, itemized statement of the legal services rendered.” In re Writ of Certiorari as to Wrongful Payments of Attorney Fees Made by Brookings Sch. Dist. Sch. Bd., 2003 SD 101, ¶ 25, 668 N.W.2d 538, 547. Schaefers and Scheller contend that they may be entitled to attorney’s fees after this Court considers the “property owned by each party, their relative income, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.” However, Schae-fers’ and Seheller’s argument is an attempt to obtain attorney’s fees under the balancing test used “[t]o determine whether attorney fees are proper in domestic relation cases.” Dejong v. Dejong, 2003 SD 77, ¶ 30, 666 N.W.2d 464, 471. Because Schaefers and Scheller have failed to cite applicable authority entitling them to attorney’s fees under the stalking statutes, their request is denied. See Hentz v. City of Spearfish, 2002 SD 74, ¶ 13, 648 N.W.2d 338, 342 (denying appellate attorney’s fees for failure to provide statutory authority). Because Liechti has failed to prevail on his appeal, his motion is also denied.

21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . For example, Liechti disagreed with State’s Attorney Bormann’s testimony regarding the August racing incident. Liechti contended that he could identify the drivers and the vehicles, that he was never told the children would not be prosecuted, that he made the decision not to prosecute the children, and that he never mentioned anything about a shotgun. On the other hand, Bormann testified that Liechti’s complaint alleged that there were some four-wheelers and a motorcycle "tearing” around the town and that S.S. was driving the motorcycle. Upon further investigation, it was discovered that the motorcycle Liechti identified was disassembled and not operational at the time of the alleged incident. Furthermore, Bormann testified that it was his impression Liechti had not actually seen the incident and that he told Liechti not to move forward with the complaint at that time. Bormann stated that after he advised Liechti not to move forward with the complaint, Liechti made a comment to the effect that "if this was all the help I was going to get, I could have just as well gotten a shotgun and taken care of it myself.”
      Liechti also argued at trial and contends in his brief that he has only talked to S.S. two times in the last two years. However, three pages later in the same brief, Liechti admits that he has "confronted S.S. [on] numerous occasions because S.S., on numerous occasions, [had been] disturbing the peace ... and violating the law.”

      . The trial court’s findings of fact indicate that:
      12. Liechti’s testimony, including his denial of many of the events testified to by the Petitioners, is not credible.
      13. The testimony of the minor children, the Schaefer parents and Elda Scheller is credible and is corroborated by other testimony, including the testimony of State’s Attorney Timothy Bormann.

      . The following excerpt of Liechti’s testimony displays his inadvertent admission to chasing S.S. on an occasion prior to the incident in July 2004:
      Q. Have you ever chased or followed these Schaefer kids around?
      A. Just young [S.S.] that one time up to his place.
      Q. Well, let's talk about that. That would be July of last year?
      A. Oh, no. That was three years ago or more.

      . Liechti uses the Black’s Law Dictionary's definition of malicious. Black’s Law Dictionary (1990) defines "malicious” as "having, or done with, wicked, evil or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse or as a result of ill will." However, SDCL 22-1-2 provides the definitions for Title 22. Therefore, we must apply the definition of malice found in SDCL 22-1-2(1)(a).


author: TERNUS, Justice.

text:
    In re the DETENTION OF Anthony S. BETSWORTH. Anthony S. Betsworth, Appellant.
    No. 04-1373.
    Supreme Court of Iowa.
    March 17, 2006.

      Mark Smith, First Assistant State Public Defender, and Steven L. Addington, Assistant State Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Sharon K. Hall and Denise A. Timmins, Assistant Attorneys General, for appellee, State of Iowa.
   TERNUS, Justice.

The appellant, Anthony Betsworth, suffers from an organic brain disorder characterized by hypersomnolence (excessive sleeping), compulsive hyperphagia (excessive food' intake), and abnormally uninhibited sex drive. He appeals from his commitment as a sexually violent predator under Iowa Code chapter 229A (2003) on several grounds. Principally, he contends he is not amenable to sex offender treatment, and therefore, his commitment under chapter 229A is contrary to the terms of that statute and violates his right to due process of law. Finding no basis for reversal, we affirm the judgment of commitment.

I. Background Facts and Proceedings.

Until the summer of 2000, Anthony Betsworth displayed no significant mental problems. He was married, had a daughter, and participated in normal life activities. But in July 2000, a significant change abruptly came over Betsworth. He began experiencing hypersomnia, sleeping multiple days at a time. He also exhibited hyperphagia, eating excessively. And finally, he began showing a much heightened degree of sexual expression and sexual interest. After he began exposing himself in public, Betsworth was civilly committed in August 2000 as “seriously mentally impaired” under Iowa Code chapter 229, Iowa’s civil commitment statute for the mentally ill.

During his confinement in a secure facility, Betsworth became increasingly sexually aggressive, grabbing female staff, rubbing his groin against them, and grabbing at their breasts and crotch. Betsworth frequently masturbated in front of others and verbally assaulted them, asking questions of a sexual nature and asking for sexual favors. When told to stop these inappropriate behaviors, he showed little response, often laughing. In October 2001, Betsworth was convicted of simple assault as a result of his conduct on the locked ward.

Betsworth was placed in a transitional unlocked facility in 2002. In January of that year, a staff member found him having sexual intercourse with a female patient who lacked the ability to consent. This incident led to Betsworth’s conviction for assault with intent to commit sexual abuse. Although he spent some time in jail, he was eventually placed on probation.

Shortly after his release from jail, Bets-worth grabbed an employee in the Wood-bury County clerk of court office, pressing his genitalia into her buttocks. He then grabbed her buttocks and shoulders, pressing her into the counter so she could not move. Betsworth was charged and convicted of simple assault for this incident. His prior probation was revoked, and he was sent to prison.

The State subsequently filed a petition to have Betsworth committed as a sexually violent predator, which culminated in a jury trial on August 11, 2004. After the jury found him to be a sexually violent predator, the respondent was committed by the court to the custody of the department of human services (DHS) “for control, care, and treatment until such time as his mental abnormality has so changed that he is safe to be placed in a transitional release program or discharged.”

II. Issues on Appeal.

Betsworth raises several issues on appeal: (1) chapter 229A does not apply to a person who suffers from a physiological mental defect and who is not amenable to sex offender treatment; (2) chapter 229 provides the exclusive procedure for the involuntary commitment of mentally ill persons; (3) there was insufficient evidence to support the jury’s verdict that he was a sexually violent predator because his offenses were not “predatory”; and (4) his commitment under chapter 229A violates his statutory and due process rights to meaningful treatment. We will first address Betsworth’s arguments concerning the applicability of chapter 229A to a person in his condition, then his challenge to the sufficiency of the evidence, and finally his right-to-treatment claims.

III. Applicability of Chapters 229A and 229.

A. Standard of review. We review Betsworth’s claims regarding the interpretation of chapter 229A and chapter 229 for the correction of errors of law. See In re Detention of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003). In interpreting these statutes, our primary goal is to give effect to the intent of the legislature. See State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa 2000). That intent is gleaned from the language of “ ‘the statute as a whole, not from a particular part only.’ ” State v. Iowa Dist. Ct. for Monroe County, 630 N.W.2d 778, 781 (Iowa 2001) (citation omitted); accord In re Detention of Swanson, 668 N.W.2d 570, 574 (Iowa 2003). Because we presume the legislature intends “ ‘[a] just and reasonable result,’ ” we interpret statutes to avoid impractical or absurd results. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d at 578 (citation omitted); accord In re Detention of Swanson, 668 N.W.2d at 574.

B. Evidentiary record. Before we discuss the applicability of the civil commitment procedures set forth in chapters 229A and 229, we review the testimony at trial concerning the nature of Betsworth’s mental condition and the prospects for treatment.

The State presented the testimony of Dr. Dennis Doren, a licensed psychologist with extensive experience working with sex offenders. Based on a short interview with the respondent and a review of the respondent’s records, Dr. Doren concluded Betsworth suffered from an organically based problem, in other words, a physiological abnormality of the brain. Although Dr. Doren found it difficult to place a label on Betsworth’s condition, the doctor was certain it was real. The witness opined Betsworth’s condition was acquired or congenital or both.

Dr. Doren believed Betsworth’s symptoms revealed very, very significant volitional and emotional capacity problems. He explained the term “volitional capacity” has to do with the process of making decisions about one’s behavior. “Emotional capacity” refers to the ability to demonstrate a concern for others. Due to these problems, Betsworth would have serious difficulty controlling his behavior, according to this witness. Dr. Doren also believed Betsworth’s condition predisposed him to commit sexually violent offenses.

Finally, the doctor discussed his risk assessment of Betsworth. Dr. Doren employed three actuarial assessments in which Betsworth scored in the high-risk category on two and in the moderate-risk category on the third. The witness noted Betsworth had not participated in a sex offender treatment program, and the treatment the respondent had been receiving under his chapter 229 commitment had not been successful in lowering the risk of another offense. The final circumstance considered by the doctor was the fact that despite Betsworth’s institutionalization, the respondent continued to offend within a controlled environment. Based upon all these factors, Dr. Doren opined that Bets-worth was at a high risk to reoffend.

A staff member who had been assaulted twice by the respondent also testified. She said that on both occasions, Betsworth laughed and showed no remorse for his actions. A correctional counselor from the Newton Correctional Facility, where Bets-worth was confined at the time of trial, gave similar testimony. This witness testified the respondent could be disciplined every day for sexually inappropriate comments or for exposing himself, “but it’s gotten to the point where nobody takes any disciplinary action on him because it doesn’t mean anything.” Instead, Bets-worth has been placed in lock-up, and his contact with female staff members has been limited due to his inability to control himself.

Betsworth called Dr. Jason Smith, the administrator for the civil commitment unit for sexual offenders in Cherokee, to testify. Dr. Smith described the various treatment modalities available at the facility, including cognitive therapy, relapse prevention, individual therapy, and medication management. The witness acknowledged that, from the record, it appeared the respondent would probably not benefit greatly from traditional cognitive therapy. Therefore, he concluded, “[w]e would probably use more of the behavioral components” in treating Betsworth. Dr. Smith acknowledged it seemed the respondent would have difficulty in group therapy, but stated he could not say for sure until he actually saw how the respondent would manifest his symptoms in that setting. Finally, Dr. Smith stated that all treatment, including medication management, would be individualized for the respondent.

C. Applicability of chapter 229A. Betsworth claims chapter 229A does not apply to a person who suffers from a physiological mental defect and is not amenable to sex offender treatment. We begin with a brief review of the pertinent provisions of chapter 229A.

Iowa Code chapter 229A sets up “a civil commitment procedure for the long-term care and treatment of the sexually violent predator.” Iowa Code § 229A.1, para. 2. The statute defines a “sexually violent predator” as

a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Id. § 229A.2(11). A “mental abnormality” is “a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.” Id. § 229A.2(5). This definition places no limitation on the nature of the condition that may qualify as a “mental abnormality.” See In re Detention of Barnes, 689 N.W.2d 455, 458-59 (Iowa 2004) (holding “the types of conditions that can serve to establish a ‘mental abnormality’ are not limited to certain recognized diagnoses”). Thus, the term “mental abnormality” appears to include an organic condition such as that from which Betsworth suffers, provided the condition meets the other requirements of the statutory definition of “mental abnormality.” See id. (“What is important is that the statute requires the condition to be congenital or acquired and to affect the emotional or volitional capacity of the person subject to commitment.”).

Betsworth claims, however, that the definition of “mental abnormality” cannot be read so broadly. He relies on section 229A.1, which states in part:

The general assembly finds that a small but extremely dangerous group of sexually violent predators exists which is made up of persons who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment provisions for mentally ill persons under chapter 229, since that chapter is intended to provide short-term treatment to persons with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under chapter 229, sexually violent predators generally have antisocial personality features that are unamenable to existing mental illness treatment modalities and that render them likely to engage in sexually violent behavior.

Iowa Code § 229A.1, para. 1 (emphasis added). Based on these legislative findings, the respondent contends that persons who “have a mental disease or defect” that causes their behavior are appropriate for commitment under chapter 229, whereas offenders who have “antisocial personality features” and a “mental abnormality” that influence their behavior are appropriately committed under chapter 229A. The rationale for this distinction, according to Bets-worth, is that persons who have a mental disease or defect cannot appreciate the wrongfulness of their conduct, and consequently, cannot meaningfully participate in, or benefit from, cognitive behavioral therapy. In contrast, sexually violent predators, he claims, “are fully aware that what they have done is wrong, and can fully and meaningfully participate in and benefit from cognitive behavioral treatment.”

We are not persuaded the distinction suggested by the respondent was intended by the legislature. In adopting chapter 229A, the legislature was not concerned with “persons who do not have a mental disease or defect,” but with “persons who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to [chapter 229].” Id. § 229A.1, para. 1 (emphasis added). In other words, the sexually violent predator was viewed as a person who has a mental disease or defect but who could benefit from a more specialized treatment program than usually found in institutions treating the general population of mentally ill persons. Moreover, the legislature did not find that all sexually violent predators have a mental disorder with antisocial personality features; it said, “sexually violent predators generally have antisocial personality features.” Id. (emphasis added). Thus, the definition of “mental abnormality,” which does not exclude organic conditions and which does not require the condition to include antisocial personality features, is fully consistent with the legislative findings. Consequently, the district court did not err in relying on the plain meaning of the statutory definitions in concluding chapter 229A encompasses a condition such as that exhibited by the respondent.

We also disagree with the respondent’s thought that chapter 229A requires that the person committed be amenable to the long-term cognitive behavioral treatment principally used to treat sex offenders. It is true the legislative findings refer to the “treatment modalities” for the sexually violent predator being “very different from the traditional treatment modalities available ... for persons appropriate for commitment under chapter 229.” See id. § 229A.1, para. 2. The legislature also stated that “[t]he procedures ... should ... provid[e] treatment services designed to benefit sexually violent predators who are civilly committed [and][t]he procedures should ... encourage full, meaningful participation of sexually violent predators in treatment programs.” Id. But the legislature did not limit the types of treatment modalities or programs that should or could be provided to persons committed under chapter 229A. See id. § 229A.7(4) (stating “the respondent shall be committed to the custody of the director ... for control, care, and treatment”). Thus, the State is free to provide individualized treatment for sexually violent predators. Such treatment may or may not include cognitive behavioral therapy and may or may not include treatment that would also be available under chapter 229. We conclude, therefore, that chapter 229A encompasses sexually violent predators who, like Betsworth, will not benefit greatly from cognitive behavioral therapy and must instead be treated with other modalities.

D. Exclusivity of chapter 229. Betsworth also argues the civil commitment statute for the mentally ill, chapter 229, provides the exclusive procedure for the involuntary commitment of mentally ill persons. He relies on section 229.26, which states in pertinent part: “Sections 229.6 through 229.19 constitute the exclusive procedure for involuntary hospitalization of persons by reason of serious mental impairment in this state,” with certain exceptions not implicated here. Id. § 229.26 (emphasis added). Betsworth points out that although the legislature excluded certain proceedings from the procedural requirements of chapter 229, chapter 229A commitment proceedings were not among the exceptions.

Persons who are “seriously mentally impaired,” as defined in section 229.1(15), may be involuntarily hospitalized under chapter 229. Id. § 229.13(1). Sections 229.6 through 229.19 set forth the procedural steps that must be followed for an involuntary commitment under chapter 229. Thus, the statement in section 229.26 upon which the respondent relies simply means that these procedures must be followed, with certain exceptions, in order to involuntarily hospitalize a person based on the person’s “serious mental impairment.” But Betsworth is not being committed because he has a “serious mental impairment”; his commitment rests on a “mental abnormality” that predisposes him to commit sexually violent offenses, as defined in chapter 229A. Chapter 229A has its own procedures for commitment. Thus, the “exclusive” procedures of chapter 229 are simply not applicable to a commitment pursued under chapter 229A.

IV. Sufficiency of the Evidence.

A. Claim. Betsworth contends there was insufficient evidence to support the jury’s verdict that he was a sexually violent predator because his offenses were not “predatory,” as that term is defined in chapter 229A. This contention requires that we interpret the statutory definition, and then determine whether there was sufficient evidence to support the jury’s finding that the respondent was a sexually violent predator.

B. Standards of review. We have already set forth the principles that guide our interpretation of statutes. Our review of a challenge to the sufficiency of the evidence is for the correction of errors of law. See In re Detention of Swanson, 668 N.W.2d at 574. If there is substantial evidence upon which a rational trier of fact could find the respondent to be a sexually violent predator beyond a reasonable doubt, we are bound by the jury’s finding. Id.

“To determine whether the evidence was substantial, we consider the entirety of the evidence presented in a ‘light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record.’ Evidence is not substantial if it raises only suspicion, speculation, or conjecture.”

Id. (citations omitted).

C. Interpretation of statute. As noted above, a “sexually violent predator” is defined in relevant part as a person “who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses.” See Iowa Code § 229A.1(11) (emphasis added). The term “predatory” is defined as “acts directed toward a person with whom a relationship has been established or promoted for the primary purpose of victimization.” Id. § 229A.2(6). Betsworth claims the evidence does not establish that he is likely to commit “predatory acts” because (1) he does not form relationships with victims, and (2) he does not have the capacity to form the required “purpose of victimization” due to his mental condition.

1. Relationship requirement. Chapter 229A does not define the term “relationship.” The dictionary defines this word as “a state of affairs existing between those having relations or dealings.” Webster’s Third New International Dictionary 1916 (unabr. ed. rev.2002). This definition has no temporal requirement with respect to the length of the relations or dealings between the offender and his victim or with respect to the quality or quantity of interaction necessary to create a “relationship.” Therefore, we think the legislature, in using the term “relationship,” was simply referring to an offender’s engagement or dealing with the other person.

As noted above, we must interpret this statute in a manner consistent with legislative intent and with the goal of avoiding an absurd result. A primary purpose of this statute is the protection of the public. See Iowa Code § 229A.1. If this court were to adopt a narrow interpretation of the term “relationship,” as suggested by the respondent, sexual offenders whose victims were strangers would not fall within the reach of chapter 229A. This result would be illogical and absurd. We refuse to adopt an interpretation of the statute that would produce this outcome.

2. Purpose of victimization. We also reject the notion that some level of mental capacity for the formation of an intent to victimize is required by the “purpose of victimization” language of section 229A.2(6). A “purpose” is simply “an object, effect, or result aimed at, intended, or attained.” Webster’s Third New International Dictionary 1847. To interpret the act as requiring intent would unjustifiably narrow the scope of the statute, eliminating a group of sexual offenders — those whose mental abnormality precludes the formation of an intent to do a particular act for a specific purpose — who are just as dangerous to the public and just as much in need of treatment as those offenders capable of forming an intent. Thus, we interpret the statute to mean that an act is predatory if the respondent’s engagement or dealing with another person is primarily aimed at victimizing the person in a sexual manner.

D. Sufficiency of the evidence. Dr. Doren, the State’s expert, testified to his opinion that three of the four prior offenses by the respondent were predatory in nature. The non-predatory offense was not described in any detail in the record, but apparently involved Betsworth’s wife. In the other three cases involving the staff member, the fellow patient, and the clerk-of-court employee, the respondent had had very little interaction with or was a stranger to the victims when he preyed upon them. Dr. Doren opined that the offenses involving these victims were predatory.

The respondent took the stand and denied he had committed the offenses of which he had been convicted. He did, however, admit to thinking about sex all the time and to fantasizing about having sex with any woman he could. A staff member who testified said Betsworth referred to female staff members as “his bitches.”

Betsworth relies heavily upon a statement by Dr. Doren that the respondent’s “behaviors since July 2000 seem almost of an involuntary nature.” When this comment is considered in the context of the entire answer of which it is a part, it is apparent the doctor’s statement that Bets-worth’s conduct seemed almost involuntary was the doctor’s shorthand way of expressing the very significant problem Betsworth has with his volitional capacity. Therefore, we do not think this ambiguous comment stands for the proposition that Bets-worth’s actions lacked a purpose or goal.

After having reviewed the record, we conclude the evidence was sufficient to support the jury’s finding that Betsworth’s dealings with his victims were primarily aimed at using them for his own sexual purposes. Therefore, the evidence was also adequate to support the finding that the respondent was likely to engage in acts of a predatory nature beyond a reasonable doubt. The fact that the respondent may be moved to engage in such acts as a result of his brain disorder does not diminish the predatory nature of his conduct.

V. Right-to-Treatment Claims.

A. Claims. Betsworth asserts he has a statutory and constitutional due process right to effective treatment, or treatment that will cure or improve his mental condition such that commitment will no longer be needed. He alleges there is no effective treatment for his physiologically-based mental abnormality, and therefore, his commitment under chapter 229A violates his right to effective treatment.

B. Principles of review. We have previously stated the standards governing our review of statutory interpretation issues. Our review of the respondent’s constitutional claim is de novo in light of the totality of the circumstances. See In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001). Statutes are presumed to be constitutional, so a party claiming to the contrary has the burden to rebut this presumption. See In re Detention of Garren, 620 N.W.2d 275, 278 (Iowa 2000).

C. Statutory right to treatment. Section 229A.1 states, “The procedures regarding sexually violent predators should reflect legitimate public safety concerns, while providing treatment services designed to benefit sexually violent predators who are civilly committed.” Iowa Code § 229A.1, para. 2. The goal of treatment is echoed in section 229A.7(4), which provides that a person found to be a sexually violent predator must be committed for “control, care, and treatment until such time as the person’s mental abnormality has so changed that the person is safe to be placed in a transitional release program or discharged.” Id. § 229A.7(4) (emphasis added). The respondent claims these provisions afford him a right to specialized treatment appropriate to the condition that necessitates commitment. See Kansas v. Hendricks, 521 U.S. 346, 367, 117 S.Ct. 2072, 2084-85, 138 L.Ed.2d 501, 518 (1997) (interpreting language in Kansas act identical to that found in section 229A.7(4) as imposing “an obligation to provide treatment” to committed persons). He claims his commitment violates this statutory right to treatment because he will not be amenable to the treatment regimens offered in the sex offender program.

Betsworth’s claim is, at best, premature. The director of the sex offender program testified at trial that an individualized treatment program would be offered to Betsworth in an attempt to improve his ability to control his deviant behaviors. There is nothing in the record to show that treatment appropriate to the respondent’s particular condition will not be undertaken by DHS. Therefore, Betsworth has failed to demonstrate a violation of his right to treatment.

D. Substantive due process right to treatment.

“[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435, 451 (1972). Betsworth asserts his confinement bears no reasonable relationship to the purpose for his commitment — treatment — because his condition is not treatable. Therefore, he claims, his right to substantive due process is violated. Even if we accept Betsworth’s argument that his condition is untreatable, that circumstance would not violate his due process rights.

In Hendricks, the United States Supreme Court pointed out that it had never held that a State could not “civilly detain[ ] those for whom no treatment is available, but who nevertheless pose a danger to others.” Hendricks, 521 U.S. at 366, 117 S.Ct. at 2084, 138 L.Ed.2d at 517. The court observed, that

to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed ... would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions.

Id. at 366, 117 S.Ct. at 2084, 138 L.Ed.2d at 518. In a later case, the Court more directly stated dangerous persons with untreatable conditions could be constitutionally confined. See Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). In Seling, the Court interpreted its discussion in Hendricks as an explanation “that there [is] no federal constitutional bar to [the] civil confinement [of sexually violent predators with untreatable conditions], because the State [has] an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions.” Id. at 262, 121 S.Ct. at 734, 148 L.Ed.2d at 746. We hold, therefore, that Betsworth’s confinement on the basis of his dangerousness as a sexually violent predator does not violate his due process rights, notwithstanding the dismal prognosis for improvement in his mental condition. See In re Blodgett, 510 N.W.2d 910, 916 (Minn.1994) (holding sexual predator’s confinement did not violate due process even though treatment was “problematic”).

VI. Summary and Disposition.

The confinement of the respondent as a sexually violent predator is appropriate under chapter 229A. An organic brain disorder such as that from which the respondent suffers can constitute a “mental abnormality” under the statute even though such a condition is unlikely to be treatable by the cognitive behavioral therapy generally used for sexually violent predators. In addition, the record evidence was sufficient to support the jury’s finding that the respondent was likely to engage in predatory acts in the future.

The respondent’s claim that his right to treatment under chapter 229A is violated due to the difficulty in treating his condition has no merit in view of the evidence that an individualized treatment plan will be designed for his particular needs. Moreover, even if the respondent’s condition is untreatable, the State may constitutionally confine the respondent as a sexually violent predator.

AFFIRMED.


author: CARTER, Justice.

text:
    In the Matter of the ESTATE OF Mary H. SEROVY, Deceased. Allan J. Serovy and Pearl M. Serovy, Appellants.
    No. 04-0848.
    Supreme Court of Iowa.
    March 24, 2006.

      Robert N. Downer and Margaret T. Lainson of Meardon, Sueppel & Downer P.L.C., Iowa City, for appellants.
    Thomas J. Miller, Attorney General, and Barbara E.B. Galloway, Assistant Attorney General, for appellee Iowa Department of Human Services.
   CARTER, Justice.

Allan Serovy and Pearl Serovy, the son and daughter-in-law of Mary H. Serovy, deceased, appeal from an order of the probate court subjecting a joint-tenancy interest in real estate held by Mary at the time of her death to a claim of the Iowa Department of Human Services for the cost of medical assistance provided to Mary as a Medicaid recipient. Allan and Pearl are the surviving joint owners of the property. They urge that, to the extent Iowa Code section 249A.5(2) (2003) authorizes the ruling of the probate court, that statute is an unlawful impairment of the obligation of a contract between Mary and them, thus violating Article I, Section 10 of the Constitution of the United States and article I, section 21 of the Iowa Constitution. The district court rejected that contention, and so do we.

The property at issue was for many years Mary’s home. It was located in Solon. Prior to the death of her husband Frank in 1966, she and Frank owned the property in joint tenancy. Following Frank’s death, Mary owned the property in fee simple and continued to reside there. In the mid-1980s, Mary’s health began to deteriorate. Her son, Allan, and daughter-in-law, Pearl, who lived on a farm located seven miles from Solon, found it necessary to visit Mary several times each day in order to assist her in caring for herself.

Mary hoped to remain in her home as long as possible, and to aid in accomplishing that wish, she entered into an agreement with Allan and Pearl whereby they, at their own expense, would build an addition on Mary’s home in order to provide additional living space for themselves and their daughter, as well as for Mary. As part of the agreement, they would move into the home and provide Mary with care and assistance in her daily living. It was agreed that Mary would execute á warranty deed conveying her residence to herself, Allan, and Pearl, as joint tenants with right of survivorship.

Allan and Pearl did build an addition on Mary’s house at their own expense, with Allan and his sons doing much of the labor. On March 14, 1988, after the improvements had been substantially completed, Mary executed the warranty deed transferring title to the property to herself, Allan, and Pearl as joint tenants. Allan, Pearl, and their daughter moved into Mary’s home in 1989, at which time some of the remodeling was yet to be completed. Allan and Pearl eared for Mary in the family home until 1997, when Mary’s condition required her relocation to a nursing home. She remained in the nursing home until her death on October 11, 1998, during which time she received medical-assistance benefits under Title XIX of the Social Security Act.

On November 30, 1998, Allan filed a petition for probate of Mary’s will without present administration. On April 17, 2003, the Estate Recovery Program of Health Management Systems, an agent for the Iowa Department of Human Services, filed a claim in Mary’s estate for reimbursement of $28,707.54 plus accruing interest, which was alleged to be the cost of medical assistance provided to Mary under Medicaid in 1997 and 1998. On April 21, 2003, Ben Chatman, an agent of the Estate Recovery Program, petitioned for probate of Mary’s will with administration. That was granted. Chatman was appointed executor.

On December 11, 2003, a special executor was appointed to review the Medicaid-reimbursement claim presented by the Estate Recovery Program. The special executor filed a report recommending that the claim be allowed. On February 16, 2004, the executor filed a motion seeking an order granting him authority to sell Mary’s home to satisfy the Medicaid-reimbursement claim and other obligations of the estate. Allan and Pearl filed a formal resistance to the executor’s motion, raising the constitutional issues that they are urging on this appeal.

The probate court ruled that invoking Iowa Code section 249A.5(2) in order to subject Mary’s joint-tenancy interest to payment of the Medicaid-reimbursement claim did not result in an impairment of the obligation of any contract between Mary and her son and daughter-in-law. The court concluded that the contract between those parties had been fully performed prior to the time that Iowa Code section 249A.5(2)(c) and (d) was enacted in 1994.

I. Scope of Review.

We review the ruling of the probate court de novo because this is classified as an equitable proceeding pursuant to Iowa Code section 633.33. We give weight to the fact-findings of the district court, but are not bound by them. Iowa R.App. P. 6.14(6)(<7).

II. Impact of Medicaid Recovery Legislation on Mary Serovy’s Joint-Tenancy Interest.

A. The 1994. Medicaid recovery legislation. The controversy now before the court has arisen as the result of an amendment to Iowa Code section 249A.5 in 1994, which expanded the category of assets that can be reached by the Iowa Department of Human Services to satisfy claims filed in decedents’ estates for the cost of medical-assistance benefits provided to Medicaid recipients. That legislation contained the following provisions.

2. The provision of medical assistance to an individual who is fifty-five years of age or older, or who is a resident of a nursing facility, ... who cannot reasonably be expected to be discharged and return to the individual’s home, creates a debt due the department from the individual’s estate for all medical assistance provided on the individual’s behalf, upon the individual’s death.
c. For purposes of this section, the estate of a medical assistance recipient, surviving spouse, or surviving child includes any real property, personal property, or other asset in which the recipient, spouse, or child had any legal title or interest at the time of the recipient’s, spouse’s, or child’s death, to the extent of such interests in jointly held property, retained life estates, and interests in trusts.
d. For purposes of collection of a debt created by this subsection, all assets included in the estate of a medical assistance recipient, surviving spouse, or surviving child pursuant to paragraph “c” are subject to probate.

1994 Iowa Acts ch. 1120, § 10 (amending Iowa Code § 249A.5).

We have previously considered the effect of this legislation in In re Estate of Laughead, 696 N.W.2d 312 (Iowa 2005), and In re Barkema Trust, 690 N.W.2d 50 (Iowa 2004). Our decision in Longhead permitted the recapture of the value of a life estate for satisfaction of a Medicaid-reimbursement claim subsequent to the death of the recipient. Our decision in Barkema allowed a Medicaid recipient’s beneficial interest in a discretionary support trust to be subjected to a claim for the cost of Medicaid services, following the death of the recipient, although all interest in the trust was to pass to a named beneficiary upon the recipient’s death.

In discussing the right to reach the assets in the discretionary-support trust in Barkema, we considered and discussed the situation of joint-tenancy property. As to such property, we observed:

[Bjesides interests in trusts, the Medicaid recovery statute includes jointly held property in the definition of “estate.” Under property law, joint tenancy property passes by operation of law to the other joint tenant when one joint tenant dies. If “at the time of death” meant “at the moment of death,” the jointly-held property would already have passed to the decedent’s joint tenant at the time when the decedent’s “estate” is to be defined for purposes of the Medicaid recovery statute. This interpretation of “at the time of death” would render the legislature’s inclusion of jointly held property in the definition of “estate” meaningless.

Id. at 56.

Although the discussion of joint-tenancy property in the Barkema case was dictum, we are satisfied that it sets forth an accurate depiction of how the Medicaid recovery legislation affects joint-tenancy interests. The purpose of this legislation was to capture and make available for payment of Medicaid-reimbursement claims certain interests in property that are not ordinarily subject to the payment of a decedent’s debts. Because other types of jointly held property, such as tenancy in common, have always been available for the payment of claims in probate, the legislature must have intended the reference to “jointly held property” in section 249A.5(2)(c) to embrace joint-tenancy interests.

B. Whether the Medicaid recovery legislation impairs the obligation of a contract affecting Allan and Pearl’s interest. Allan and Pearl argue that the probate court erred in rejecting their constitutional challenge under the obligation-of-contract clauses of the federal and state constitutions. The federal constitutional provision on which they rely provides “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const. art. I, § 10. The Iowa constitutional provision they have invoked provides that “[n]o ... law impairing the obligation of contracts shall ever be passed.” Iowa Const. art. I, § 21.

In applying these constitutional provisions, we have recognized that the prohibition therein contained is not absolute and must yield to a reasonable exercise of the police power for the public good. Adair Benevolent Soc’y v. State Ins. Div., 489 N.W.2d 1, 5 (Iowa 1992); Amana Soc’y v. Colony Inn, Inc., 315 N.W.2d 101, 112 (Iowa 1982). In Federal Land Bank of Omaha v. Arnold, 426 N.W.2d 153 (Iowa 1988), we adopted a three-step analysis for dealing with constitutional claims alleging abrogation of the obligation of a contract. That analysis is:

(1) [I]f the state law operates as a substantial impairment of a contractual relationship, (2) the state must have a significant and legitimate public purpose behind the regulation, which (3) adjusts the contracting parties’ rights and responsibilities based on reasonable conditions appropriate to the public purpose.

Arnold, 426 N.W.2d at 159. In deciding the constitutional challenge lodged by Allan and Pearl, the probate court went no further than the first step outlined above and concluded that the legislation has caused no impairment of a contractual relationship. We agree with that conclusion and uphold the ruling on that ground.

The probate court found that the contract between Mary on the one hand and Allan and Pearl on the other required no more of Mary than her creation of a property interest in which these three individuals owned the property that had been Mary’s residence as joint tenants with right of survivorship. The probate court concluded that this obligation on Mary’s part was satisfied upon the execution and delivery of a warranty deed establishing the respective property interests on which the parties had agreed. The probate court’s interpretation of the agreement appears to us to be consistent with the evidence concerning the intention of the parties. We favor that interpretation of the contract on our de novo review and may affirm the probate court’s ruling on that basis. Under that interpretation of the contract, the statute being challenged did not alter what was agreed to among the parties, it simply affected the subject matter of the agreement after it had been fully performed.

Allan and Pearl contend that the agreement was not simply to create a joint-tenancy interest in the property for each of the three joint tenants named in the deed, but also included a promise on Mary’s part to have her joint interest in the property transferred to Allan and Pearl in fee simple upon her death without impairment or diminution. Even if we accept this interpretation of the agreement, that will not support a finding that the obligation of the parties’ agreement has been impaired by the statute. If Mary had contracted to transfer her joint interest in the property to Allan and Pearl in fee simple without encumbrance, the Medicaid recovery legislation did not discharge that obligation. It simply made it impossible for her to perform the contract, but under circumstances in which the impossibility would not discharge the obligation. A promisor is not discharged from a contractual duty on the theory of impossibility if the promisor brought about the occurrence that has prevented performance. Associated Grocers of Iowa Coop., Inc. v. West, 297 N.W.2d 103, 108 (Iowa 1980).

The circumstances that prevented Mary from transferring the agreed exchange to Allan and Pearl upon her death were of her own making as a result of her applying for and receiving Medicaid benefits subsequent to the enactment of section 249A.5(2)(c) and (d). The situation is the same as if a judgment creditor had levied on and sold her joint interest in the property during her lifetime. Consequently, even if the agreement was as it has been urged to be by Allan and Pearl, they have a breach-of-contract claim against Mary, the unimpaired obligation of which survived her death, pursuant to Iowa Code section 611.20. See Jackson Sawmill Co. v. United States, 580 F.2d 302, 311-12 (8th Cir.1978) (legislation diluting city’s ability to retire revenue bonds resulted in city’s breach of contract for acting pursuant to the legislation, but did not impair the obligation of contract in violation of the constitution).

III. Payment of Costs of Administration and Fees From Interest in Property Subjected to Probate Under Section 249A.5(2)(d).

In addition to allowing the Estate Recovery Program’s claim for Medicaid reimbursement to be satisfied in whole or in part from Mary’s interest in the property that she owned jointly with Allan and Pearl, the -district court authorized the payment of costs of administration, including fees for the personal representative and the special executor from the funds received from the sale of that interest. Allan and Pearl assert that this was not authorized because the property interests that are captured by section 249A.5(2)(e) and (d) may only be used for payment of Medicaid-reimbursement claims. We disagree. Under subparagraph (d) of the legislation, the jointly owned interest of the deceased Medicaid recipient is made part of the estate in probate. As such, it is available fox* payment of the costs of administration.

IV. The Extent of the Interest Subject to Administration in Probate.

The probate court’s order clearly identifies the interest that is subject to administration in pi'obate pursuant to section 249A. 5(2) (c¿) as Mary’s one-third interest in the subject property. Notwithstanding that finding on the court’s part, it proceeded to order the sale of the entire property with the provision that one-third of the proceeds after costs of sale were to be utilized for the payment of the medical-assistance claim under Medicaid and the costs of administering the estate. Although this disposition may have been prompted by the court’s desire to accelerate a possible future order for partition among the joint owners of the property, we are convinced that it was beyond the power of the court to order the sale of Allan and Pearl’s interests in the property at this stage.

It is axiomatic that a decedent’s personal representative is only empowered to sell the decedent’s interest in property owned at the time of death in order to satisfy claims. This rule has been expressed as follows:

A decedent’s personal representative’s authority to sell real property extends only to the decedent’s estate’s interest in the property; a personal representative is not empowered to exercise dominion over property that was never owned by the decedent or the estate. Thus, if the decedent held title to the property as a tenant in common, only that interest may be sold.

31 Am. Jur. 2d Executors & Administrators § 739, at 498 (2002). Similarly, in Green v. Gustafson, 482 N.W.2d 842 (N.D.1992), the court stated:

We agree ... that [the personal representative’s] authority to sell the property extended only to Marvin’s estate’s interest therein, which consisted of Marvin’s 1/3 interest and the 1/3 interest of George’s heirs which was quieted in Marvin’s estate in the action to quiet title.... It is axiomatic that the personal representative is not ... empowered to exercise dominion over property which was never owned by either the decedent or the estate.

Green, 482 N.W.2d at 846. We modify the district court’s order so as to limit the property that may be sold by the personal representative to the one-third joint interest owned by Mary immediately prior to her death.

As an alternative to a sale of property to satisfy the Medicaid-reimbursement claim, the probate court established a buyout figure. In describing that figure in their argument on appeal, Allan and Pearl suggest that the figure was the amount of the Medicaid-reimbursement claim plus accumulated interest. In reading the probate court’s order it appears to us that the figure was the court’s valuation of Mary’s one-third interest in the property immediately prior to her death. We are satisfied that any buyout figure that the Estate Recovery Program can be made to accept in lieu of a sale of the property must require payment of its claim plus all accumulated interest. Of course, the parties are free to negotiate an alternative buyout figure that would avoid the sale of Mary’s interest in the property.

We have considered all issues presented and conclude that the orders of the probate court should be affirmed as modified in our opinion. Costs on appeal are assessed to Allan and Pearl.

AFFIRMED AS MODIFIED.

      . The situation is not dissimilar from that presented in Laughead, 696 N.W.2d at 317-18, in which we rejected an impairment-of-obligation-of-contract challenge to the application of section 249A.5(2)(c) to recapture the value of a life estate established in a deed executed by a deceased Medicaid recipient during her lifetime.


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST James Earl SCHAEFER, a Minnesota Attorney, Registration No. 183039.
    No. A06-344.
    Supreme Court of Minnesota.
    March 21, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent James Earl Schaefer committed professional misconduct warranting public discipline, namely, neglect of a client matter and disobedience of court orders resulting in sanctions and entry of judgment against his client, in violation of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.16, 3.4(c), and 8.4(d).

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a six-month suspension followed by two years of supervised probation, subject to the following conditions:

(a)Reinstatement to active practice is conditioned upon: (1) compliance with the hearing requirements of Rule 18, RLPR; (2) payment of costs in the amount of $900 pursuant to Rule 24(d), RLPR; (3) compliance with the notice requirements of Rule 26, RLPR; (4) successful completion of the professional responsibility examination pursuant to Rule 18(e), RLPR; (5) satisfaction of all continuing legal education requirements pursuant to Rule 18(e), RLPR; (6) proof of malpractice insurance; and (7) proof that respondent is making a good faith effort to make restitution to Zafer Dyab.
(b) Upon reinstatement to active practice, respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date of this order. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (c) below. Respondent shall make active client files available to the Director upon request.
(c) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(d) Respondent shall initiate and maintain office procedures that ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters that respondent is handling, and that will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
(e) Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(f) Respondent shall abide by the Minnesota Rules of Professional Conduct.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent James Earl Schaefer is suspended from the practice of law for six months, effective 14 days from the date of this order, subject to the conditions set forth above.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice


author: /s/Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Albert A. GARCIA, Jr., a Minnesota Attorney, Registration No. 219472.
    No. A05-719.
    Supreme Court of Minnesota.
    March 23, 2006.
   ORDER

By order dated February 8, 2006, this Court suspended petitioner from the practice of law for a period of 30 days. Petitioner has filed an affidavit stating that he has complied with the terms of the suspension order for reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based on all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that petitioner Albert A. Garcia, Jr., is reinstated to the practice of law in the State of Minnesota, effective as of the date of this order, such reinstatement conditional upon petitioner successfully completing the professional responsibility portion of the bar examination within one year of the date of this order, as provided in this court’s February 8, 2006, order.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: /s/Lorie S. Gildea Associate Justice

text:
    Jeffrey WARD, Relator, v. CITY OF ST. LOUIS PARK, and Self-Insured/Sedgwick Claims Mgmt Services, Respondents, and Anesthesiology, P. A., North Memorial Hospital, and Medica Health Plan, Intervenors.
    No. A06-18.
    Supreme Court of Minnesota.
    March 28, 2006.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 7, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Lorie S. Gildea Associate Justice