In Re Bv

2006 ND 22, 708 N.W.2d 877, 2006 WL 224428
CourtNorth Dakota Supreme Court
DecidedJanuary 31, 2006
Docket20050300
StatusPublished
Cited by1 cases

This text of 2006 ND 22 (In Re Bv) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Bv, 2006 ND 22, 708 N.W.2d 877, 2006 WL 224428 (N.D. 2006).

Opinion

708 N.W.2d 877 (2006)
2006 ND 22

In the Interest of B.V.
Cynthia M. Feland, Petitioner and Appellee
v.
B.V., Respondent and Appellant.

No. 20050300.

Supreme Court of North Dakota.

January 31, 2006.

*880 Cynthia M. Feland, Assistant State's Attorney, Bismarck, ND, for petitioner and appellee.

Kent M. Morrow, Bismarck, ND, for respondent and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] B.V. appealed a district court order finding B.V. is a sexually dangerous individual as defined in N.D.C.C. § 25-03.3-01(8) and committing B.V. to the care, custody, and control of the Executive Director of the Department of Human Services until the Executive Director determines B.V. is safe to be at large and has received the maximum benefit of treatment. We affirm.

I

[¶ 2] On October 27, 2004, the Burleigh County State's Attorney's Office filed a Petition for Commitment of a Sexually Dangerous Person under N.D.C.C. ch. 25-03.3, seeking to commit B.V. as a sexually dangerous person. The petition for commitment was based upon B.V.'s convictions for gross sexual imposition involving a victim who was unaware that a sexual act was being committed upon him, gross sexual imposition involving a two to three-year-old female child, indecent exposure in front of children, a lewd act involving a six to seven-year-old female child, and indecent exposure in a public phone booth. A preliminary hearing on the State's petition was held on November 1, 2004 with the district court ordering an evaluation of B.V. at the North Dakota State Hospital. On December 2, 2005, Joseph Belanger, Ph.D., filed a psychological evaluation of B.V.

[¶ 3] In a letter dated December 9, 2004, B.V., through his attorney, requested the appointment of an independent evaluator. B.V.'s request was granted. In a second letter dated December 9, 2004, B.V., through his attorney, requested that the district court wait on his request for an independent evaluator until after Dr. Etherington's report was received. Dr. Etherington's report was received later that same day.

[¶ 4] Both Dr. Belanger and Dr. Etherington found B.V. suffers from four conditions that are relevant to the determination of his likelihood of re-offending. Both reports listed the following four conditions: pedophilia, sexually attracted to females, non-exclusive type; paraphilia, not otherwise specified, polymorphous, including nonconsenting persons, exhibitionism, and voyeurism; personality disorder, not otherwise specified, with antisocial and borderline traits; and alcohol dependence with physiological dependence, in a controlled environment. Both reports concluded B.V. is an individual with a number of mental disorders or a congenital or acquired condition that makes him likely to engage in future acts of sexually predatory conduct.

[¶ 5] In a letter dated December 14, 2005, B.V.'s attorney informed the district court that B.V. now wanted to have an independent evaluation. At the same time, B.V. requested that the commitment hearing, scheduled for December 16, 2005, be continued. B.V.'s requests were granted and the commitment hearing was rescheduled for February 9, 2005.

[¶ 6] On January 20, 2005, B.V.'s attorney requested another continuance of the commitment hearing stating B.V. had been unable to find an independent evaluator. The district court granted B.V.'s request for continuance on January 24, 2005.

[¶ 7] On January 27, 2005, at B.V.'s request, the district court appointed Dr. Cynthia Brooks to perform the independent *881 evaluation. In a letter dated February 4, 2005, B.V.'s attorney informed the district court B.V. did not want a female evaluator and would refuse to cooperate with Dr. Brooks. On March 3, 2005, B.V.'s attorney sent the district court a proposed amended order appointing Dr. M.C. Brown to perform the evaluation and the district court signed an amended order appointing Dr. Brown.

[¶ 8] On April 27, 2005, B.V.'s attorney sent the district court a second amended order requesting the appointment of Dr. Peter C. Peterson to perform the evaluation. B.V.'s request contained no reason for his request to change evaluators again. On April 28, 2005, the district court signed a second amended order appointing Dr. Peterson to perform the evaluation.

[¶ 9] On June 2, 2005, B.V.'s attorney requested another change of the independent evaluator. B.V. sought to replace Dr. Peterson with Stacy Benson. The State responded to this request arguing B.V. was now requesting the appointment of a fourth independent evaluator without giving a justification for the request. The State also pointed out Stacy Benson was apparently female and B.V.'s reason for having the first appointed independent evaluator removed was because the first appointed independent evaluator was female. The State argued B.V. appeared to be stalling and no further appointments should be made. The district court stated it was apparent B.V. was attempting to delay resolution of the matter as long as possible and did not approve this requested change in evaluators. The district court stated Dr. Peterson would complete the independent evaluation.

[¶ 10] On June 15, 2005, B.V.'s attorney sent a letter to the district court stating B.V. was refusing to meet with Dr. Peterson. On June 16, the State notified the district court and B.V.'s attorney that the Burleigh County Sheriff's Department attempted to transport B.V. to his appointment with Dr. Peterson but B.V. refused to go and was not transported to his appointment. The district court notified B.V.'s attorney N.D.C.C. § 25-03.3-12 did not give B.V. the right to an independent evaluation by an expert of his choice and the district court made multiple attempts to accede to B.V.'s requests but no further modifications would be made. No independent evaluation was conducted.

[¶ 11] On August 4, 2005, B.V. filed a motion to dismiss the case stating the commitment hearing had not been held within 60 days after the preliminary hearing as required by N.D.C.C. § 25-03.3-13. The State responded to this motion arguing the delay in scheduling the hearing was due solely to B.V.'s actions, most specifically B.V.'s multiple requests for different independent evaluators. The district court denied this motion.

[¶ 12] On August 11, 2005, B.V.'s attorney filed a motion to continue his August 22, 2005 commitment hearing stating medical reasons were giving B.V. concern about his ability to concentrate and participate in the treatment hearing. The district court judge responded to the motion stating the only way he would grant the continuance was if a doctor provided information indicating a continuance was medically necessary. The judge also stated he was willing to hold the commitment hearing in Jamestown if travel was difficult for B.V.

[¶ 13] B.V.'s commitment hearing was held on August 22, 2005. The district court found B.V. to be a sexually dangerous individual as defined in N.D.C.C. ch. 25-03.3. The district court ordered B.V. committed to the care, custody, and control of the Executive Director of the Department of Human Services until, in the opinion of the Executive Director, B.V. is safe to be at large and has received the *882 maximum benefit of treatment. The district court further granted the Executive Director the authority to place B.V. in an appropriate treatment facility or program at which treatment is available. The district court also ordered B.V. to have an examination of his mental condition at least once a year and to provide the report of his examination to the district court.

II

[¶ 14] B.V.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Interest of E.S.
2006 ND 7 (North Dakota Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 22, 708 N.W.2d 877, 2006 WL 224428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bv-nd-2006.