In re Interest of D.I. ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF D.I.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF D.I., ALLEGED TO BE A DANGEROUS SEX OFFENDER.
D.I., APPELLANT,
V.
MENTAL HEALTH BOARD OF THE FOURTH JUDICIAL DISTRICT, APPELLEE.
Filed December 31, 2018. No. A-18-237.
Appeal from the District Court for Douglas County: HORACIO J. WHEELOCK, Judge.
Affirmed.
D.I., pro se.
Eric W. Wells, Deputy Douglas County Attorney, for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
D.I., pro se, appeals from an order of the Douglas County District Court, affirming the
decision of the Mental Health Board of the Fourth Judicial District (Board), which had found that
D.I. remained a dangerous sex offender and that secure inpatient treatment continued to be the
least restrictive treatment alternative. We affirm.
II. BACKGROUND
D.I. was convicted of sexual assault of a child in 2004, and was committed to secure
inpatient sex offender treatment in December 2006. He was alleged to have sexually assaulted
male children between the ages of 8 and 14 with whom he had contact through his positions as
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counselor and director of a church-sponsored bible camp. See In re Interest of D.I., 281 Neb. 917,
799 N.W.2d 664 (2011). According to D.I.’s brief on appeal, he was charged with five counts of
sexual assault of a child, but was convicted of one count for which he was sentenced to 5 to 5
years’ imprisonment. While serving his sentence, the County Attorney’s Office for Douglas
County filed a petition before the Board alleging D.I. was a dangerous sex offender; the Board
ruled that he was. According to D.I., he has challenged his commitment by way of review hearings
in November 2009 and March 2016.
In the current proceedings, D.I. was initially represented by counsel. On June 21, 2017,
D.I. filed a motion for a review hearing before the Board; he sought an order of discharge or,
alternatively, a change in treatment. He also filed a motion in limine that same day seeking to
exclude certain evidence relied upon at his initial commitment hearing and the review hearing in
November 2009. He claimed certain evidence, including inadmissible hearsay, prejudiced him and
denied him of his right to confront and cross-examine witnesses against him.
At the review hearing on July 13, 2017, exhibit 4 (bill of exceptions for review hearing
held in November 2009) and exhibit 5 (bill of exceptions for original commitment hearing held in
December 2006) were received into evidence for the limited purpose of determining the motion in
limine. The Board initially overruled D.I.’s motion in limine, but later sustained D.I.’s renewed
motion in limine as to one paragraph located in exhibits 1 and 2 (D.I.’s treatment plans of April
and July 2017); otherwise those exhibits were received.
Dr. Jean Laing testified that as a psychologist on staff at the Norfolk Regional Center
(NRC), she was responsible for conducting individual and group therapies and psychological
evaluations involving setting up an initial treatment plan and directing treatment of patients. She
served on a treatment team that reviewed patient progress, updated patient treatment plans, and
dealt with “day-to-day” treatment issues. Her curriculum vitae cites experience since 2010 in
evaluating adult male sex offenders. She was familiar with D.I. because he was a patient in her
facility, having come to the facility in December 2006. Dr. Laing believed D.I. was committed
“following his release from prison of where he had served a sentence regarding sexual contact with
a child. And . . . it was determined that inpatient treatment was the least restrictive level of care.”
She recalled the diagnosis from the original commitment order was pedophilic disorder, a
nonexclusive type, sexually attracted to males. The record also indicates a separate diagnosis of
narcissistic personality disorder.
Dr. Laing had, among other things, reviewed psychological evaluations and worked with
D.I. in group therapy in the course of his treatment; as a result, she was aware of the facts of the
conviction from 2004. She recounted the facts as follows:
[D.I.] was accused of and convicted of contact with a prepubescence male’s buttocks:
Massaging, spanking. And there were actually multiple -- there were two children who
were involved with the allegations, only one of the allegations was convicted. They were
two brothers. There had been repeated interactions with the children over a period of time,
and the last incident was in his apartment when he gave a bare-bottom spanking to the child
when the boy wouldn’t go home when [D.I.] wanted him to.
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In 2015, Dr. Laing was assigned as D.I.’s individual therapist and met monthly with D.I. “until
last year” (2016), when “he indicated he did not want to meet any further and didn’t see any
purpose to that” after he had been “declining a number of sessions.”
According to Dr. Laing, NRC’s inpatient program consisted of four levels and was “part
of a larger program offered” by the Nebraska Department of Health and Human Services (DHHS),
with the other part of the program at the Lincoln Regional Center (LRC). She indicated NRC’s
focus was on people beginning to address thinking, emotions, and behaviors that were involved in
the sexual offense, and that LRC’s focus was more in depth and ultimately transitional back into
the community. To advance from NRC to LRC, “one has to be Level 3 or Level 4.” Dr. Laing said
D.I. had been at “Level 3” since late 2012. She believed that D.I. progressed slowly in treatment
“primarily because he denies having any sexual offenses. He doesn’t deny the behavior, he denies
that it’s sexually motivated. And he -- my understanding from him is that he wants to be released
through other legal channels than completing the program.” Dr. Laing expressed concern, based
on her work with D.I. and as part of his treatment team, about D.I. repeating the behaviors that put
him in the situation in the first place, and noted that D.I. had “not seen anything wrong with them.”
Explaining the most recent treatment plan from July 2017 (received as exhibit 2 at the
hearing), Dr. Laing indicated the treatment plan remained relatively unchanged for a period of time
and said D.I. had not obtained “Objective A” (following rules and being cooperative) or “Objective
B” (identifying how to prevent future allegations). She found “Objective B” was “a major concern
for [D.I.].” Dr. Laing opined to a reasonable degree of psychological certainty that (1) D.I.’s mental
illness had not been successfully treated or managed to the extent that he no longer posed a threat
to the public or society, (2) D.I. still suffered from a diagnosis of pedophilic disorder, nonexclusive
type, sexually attracted to males, and (3) inpatient treatment remained the least restrictive
alternative.
D.I. testified it was “clear” that “to get through the program, [he does] have to make an
admission of guilt,” but later agreed that “Objective B” was to identify behavioral changes he
could make to prevent future accusations of sexual assault behavior. And D.I. understood that the
question was not asking for an admission of guilt, but rather asking him to identify changes to
prevent accusations of sexual assault behavior. What was stopping him from identifying those
changes was that, to him, he was “falsely accused and wrongly convicted, meaning that [he] didn’t
display those behaviors in the first place.”
Following the review hearing, the Board entered a one-paragraph order stating:
[T]he Board finds that [D.I.] was committed to sex offender treatment on an order
dated December 21, 2006[,] as a dangerous sex offender. The Board finds by clear and
convincing evidence the subject continues to meet the definition of a dangerous sex
offender as defined under Nebraska law. The current diagnosis of a mental illness is
pedophilic disorder, non-exclusive type: sexually attracted to males; given by the current
mental health providers. The Board further finds by clear and convincing evidence that the
subject’s mental illness has not yet been successfully treated or managed to the extent that
the subject no longer poses a threat to the public. Although there was evidence that the
subject has progressed in treatment, there is additional treatment proposed for the subject
to reach a point where the subject may be considered successfully treated or managed.
Therefore[,] the Board finds that inpatient treatment is the least restrictive treatment
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alternative at this time, which is through the [DHHS]. The order of discharge requested in
the motion for review hearing is denied.
D.I. appealed the Board’s decision to the district court, which affirmed. D.I. now appeals
to this court.
III. ASSIGNMENTS OF ERROR
D.I. claims, reordered and restated, that the Board erred in (1) denying him the right to
challenge the original order of commitment and continuing the original order of commitment, (2)
failing to admit the bill of exceptions from the original commitment hearing, (3) permitting an
expert’s opinion which used inadmissible evidence, and (4) accepting treatment goals that would
require him to, in effect, accept guilt and which are outside the scope of the Sex Offender
Commitment Act. D.I. also claims the district court erred in affirming the Board’s ruling and using
factual assertions adopted in an earlier appeal to the Nebraska Supreme Court from a prior motion
to review.
IV. STANDARD OF REVIEW
The district court reviews the determination of a mental health board de novo on the record.
In re Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 (2012). In reviewing a district court’s
judgment, an appellate court will affirm unless it finds, as a matter of law, that clear and convincing
evidence does not support the judgment. Id.V. ANALYSIS
1. LEGAL FRAMEWORK OF SEX OFFENDER COMMITMENT ACT
Nebraska’s Sex Offender Commitment Act (SOCA) is encompassed in Neb. Rev. Stat.
§§ 71-1201 to 71-1226 (Reissue 2009). The purpose of the SOCA is “to provide for the
court-ordered treatment of sex offenders who have completed their sentences but continue to pose
a threat of harm to others.” § 71-1202. Neb. Rev. Stat. § 83-174.01(1) (Reissue 2014) defines a
“dangerous sex offender” as
(a) a person who suffers from a mental illness which makes the person likely to engage in
repeat acts of sexual violence, who has been convicted of one or more sex offenses, and
who is substantially unable to control his or her criminal behavior or (b) a person with a
personality disorder which makes the person likely to engage in repeat acts of sexual
violence, who has been convicted of two or more sex offenses, and who is substantially
unable to control his or her criminal behavior[.]
“Likely to engage in repeat acts of sexual violence means the person’s propensity to commit sex
offenses resulting in serious harm to others is of such a degree as to pose a menace to the health
and safety of the public.” § 83-174.01(2).
If dangerous sex offenders do not obtain voluntary treatment, they “shall be subject to
involuntary custody and treatment” following mental health board proceedings as provided by the
SOCA. § 71-1202. The SOCA states that if a “subject” (person at issue in SOCA proceeding, see
§ 71-1203(4)) admits to allegations of a petition or the mental health board finds that the subject
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is a dangerous sex offender and no other treatment alternatives less restrictive of the subject’s
liberty than inpatient or outpatient treatment are available or would suffice to prevent the harm
described in § 83-174.01(1), then the board shall, within 48 hours, order the subject to receive
inpatient or outpatient treatment. See § 71-1209(4). The subject is committed to the custody of
DHHS if inpatient treatment is ordered. See id.
A person designated by a mental health board to prepare and oversee a subject’s
individualized treatment plan must submit periodic reports to the mental health board regarding
the subject’s progress under the plan and any modifications to the plan. See § 71-1216. Section
71-1219(1) states that upon the filing of such a periodic report, the subject may request a review
hearing by the mental health board seeking an order of discharge from commitment or a change in
treatment. Section 71-1219(2) states:
The board shall immediately discharge the subject or enter a new treatment order
with respect to the subject whenever it is shown by any person or it appears upon the record
of the periodic reports filed under section 71-1216 to the satisfaction of the board that (a)
the subject’s mental illness or personality disorder has been successfully treated or
managed to the extent that the subject no longer poses a threat to the public or (b) a less
restrictive treatment alternative exists for the subject which does not increase the risk that
the subject will commit another sex offense. When discharge or a change in disposition is
in issue, due process protections afforded under [the SOCA] shall attach to the subject.
The State bears the burden to show by clear and convincing evidence that the subject remains
mentally ill and dangerous, and under the plain language of the statute, the board must determine
whether the subject’s mental illness or personality disorder has been successfully treated or
managed; this necessarily requires the board to review and rely upon the original reason for
commitment. See In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011). Once the subject
of a petition has exercised his or her right to a review hearing, and asserted that there are less
restrictive treatment alternatives available, the State is required to present clear and convincing
evidence that a less restrictive treatment alternative is inappropriate. Id. At that point, the subject
may further rebut the State’s evidence. Id.
2. BOARD’S DECISION
(a) Right to Challenge Original Commitment Order
D.I. claims that he has never been mentally ill and dangerous. He argues that (1) the State
has never presented evidence to prove by clear and convincing evidence that he is a dangerous sex
offender and (2) the original commitment order was unlawfully made, invalidating any subsequent
order. D.I. contends that he is “entitled to challenge his commitment at any time in order to have
an incorrect or unlawfully determined order overturned.” Brief for appellant at 13. Though he
concedes that “the intent of SOCA isn’t to re-try a case at each hearing,” he maintains that there
“is no procedural bar to overturning a previous Board order.” Brief for appellant at 19.
However, the SOCA does institute procedural time constraints on the right to appeal certain
orders. Under § 71-1214, the “subject of a petition or the county attorney may appeal a treatment
order of the mental health board under section 71-1209 to the district court.” Further, a “final order
of the district court may be appealed to the Court of Appeals in accordance with the procedure in
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criminal cases.” § 71-1214. The proper procedure to be followed when taking an appeal from a
final order of the district court under § 71-1214 is the general appeal procedure set forth in Neb.
Rev. Stat. § 25-1912 (Supp. 2017). See In re Interest of L.T., 295 Neb. 105, 886 N.W.2d 525(2016). To perfect an appeal under § 25-1912, a party must, within 30 days after entry of the order
from which the appeal is being taken, file a notice of appeal with the clerk of the district court and
deposit the required docket fee unless in forma pauperis status is granted. In re Interest of L.T.,
supra. See, also, § 25-1912.
D.I.’s original commitment order dated December 21, 2006, was a final appealable order
which had to be appealed within 30 days. See In re Interest of L.T., supra; § 25-1912. The record
does not indicate that D.I. appealed from that original commitment order, therefore, he cannot now
directly challenge the sufficiency of the evidence on which the Board relied for its initial decision
in that order. See In re Interest of Saville, 10 Neb. App. 194, 626 N.W.2d 644 (2001) (reaching a
similar conclusion in an individual’s action challenging commitment as a mentally ill dangerous
person under the Nebraska Mental Health Commitment Act (MHCA)). See, also, In re Interest of
D.I., supra (noting that procedural time constraints to appeal under MHCA mirror that of SOCA;
although two separate acts, MHCA and SOCA have similar procedures). It follows that D.I.’s
present appeal is limited to challenging the Board’s most recent denial of his motion for
reconsideration seeking an order of discharge or a change in treatment following the review
hearing of June 21, 2017, and the district court’s affirmance of that decision. See In re Interest of
D.I., supra (denial of motion for reconsideration under § 71-1219(1) is a final, appealable order).
(b) Bill of Exceptions of Original Commitment Hearing
D.I. claims the Board erred in not receiving the “transcripts” (referring to exhibit 5, the bill
of exceptions from the original commitment hearing held in December 2006). Brief for appellant
at 23. As mentioned previously, exhibit 5 was received into evidence for the limited purpose of
considering the motion in limine. Thereafter, the Board sustained, on relevancy grounds, the
State’s objection to D.I.’s reoffer of exhibit 5 for the purpose of the hearing.
D.I. submits that the bill of exceptions from the original hearing “would have revealed that
the 2006 Board had declared all of the State’s relevant evidence to be hearsay and inadmissible.”
Brief for appellant at 22. Citing to In re Interest of D.I., 281 Neb. at 925, 799 N.W.2d at 671, D.I.
asserts that under § 71-1219(2), the Board’s determination of whether the subject’s mental illness
or personality disorder has been successfully treated or managed, “necessarily requires the board
to review and rely upon the original reason for commitment.” He acknowledges that the Board
took judicial notice of the commitment order of 2006, but he contends that pursuant to the language
of In re Interest of D.I., supra, cited above, “[i]t is not enough to rely on the original final order,
the Board is required to review the reasons behind the order.” Brief for appellant at 22 (emphasis
in original).
In re Interest of D.I., supra, involved D.I.’s appeal from the denial of his 2009 motion for
reconsideration, wherein he claimed there was no basis to keep him in secure inpatient treatment.
Contrary to D.I.’s assertions in the present appeal, the Nebraska Supreme Court did not create a
requirement that a mental health board, as part of a review hearing, must review the bill of
exceptions from the original commitment hearing. See In re Interest of D.I., supra. Rather, the
pertinent analysis focused on the “plain language of the statute,” which required the board to
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determine whether a “subject’s mental illness or personality disorder has been ‘successfully treated
or managed,’ which necessarily requires the board to review and rely upon the original reason for
commitment.” Id. at 925, 799 N.W.2d at 671. Therefore, the Supreme Court considered D.I.’s
progress within the treatment program, plan for future behavior, view of culpability, and score on
a Static-99 test; an expert’s medical opinion as to whether D.I. had been successfully treated; and
its impression that the Board did not accept that D.I.’s diagnosis had been successfully treated or
managed based on a board member’s statement at the review hearing of 2009.
Thus, In re Interest of D.I., supra, refutes D.I.’s position that the Board erred by declining
to review the bill of exceptions from the original commitment hearing for the purpose of his review
hearing. The Board’s action in judicially noticing the original commitment order was sufficient for
purposes of the review hearing. The essence of D.I.’s argument on this alleged error relates to his
claim that the original commitment order was unreliable and unsupported by evidence; however,
as we have previously stated, D.I. may not now directly challenge that original commitment order.
The focus of the review hearing is to determine whether the subject has been successfully treated
or managed to the extent that the subject no longer poses a threat to the public or a less restrictive
treatment alternative exists which would not increase the risk that the subject would commit
another sex offense. See § 71-1219(2). We therefore next consider D.I.’s assigned error regarding
the admitted evidence in that context.
(c) Dr. Laing’s Opinion
D.I. claims the Board erred when it “overruled [his] Motion in Limine . . . and when it
allowed in the State’s unsupported expert witness testimony and treatment plans.” Brief for
appellant at 21. In his motion in limine, D.I. sought to prohibit the State from referring to a letter
written by Dr. Michael Luebbert, police reports from the underlying criminal case, statements of
a child protective services worker, the “timeframe allegation” contained in the criminal
information, and Dr. Skulsky’s report. D.I. asserts that Dr. Laing’s testimony “should have been
declared inadmissible due to lack of foundation,” reply brief for appellant at 5, that the treatment
plans (exhibits 1 and 2; referenced in Dr. Laing’s testimony) were prepared in reliance on
inadmissible allegations, and that the psychological evaluations referenced in Dr. Laing’s
testimony were inadmissible for lack of foundation and probative value. Based on those assertions,
D.I. claims inadmissible hearsay was introduced into evidence.
It is within the trial court’s discretion to determine whether there is sufficient foundation
for an expert witness to give his or her opinion about an issue in question. In re Interest of A.M.,
281 Neb. 482, 797 N.W.2d 233 (2011). Mental health boards must apply the rules of evidence. Id.See, also, § 71-1226 (rules of evidence applicable in civil proceedings shall apply at hearings held
under SOCA). Under Neb. Evid. R. 703, Neb. Rev. Stat. § 27-703 (Reissue 2016), facts or data an
expert relies upon may be “perceived by or made known to him at or before the hearing” and “need
not be admissible in evidence” if experts in the field reasonably rely on such facts or data in
forming opinions or inferences. But because a SOCA hearing may result in a serious deprivation
of the defendant’s interest in liberty, the State’s evidence must be sufficiently reliable to comply
with due process. In re Interest of A.M., supra.
Our analysis regarding the motion in limine is restricted. Our record does not contain any
of the documents referenced in the motion in limine. Regardless, aside from Dr. Skulsky’s
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psychological evaluation, Dr. Laing did not explicitly mention the noted documents in her
testimony. Our record also does not contain the other psychological evaluations that Dr. Laing
referenced. Even if we assume without deciding that Dr. Skulsky’s psychological evaluation was
inappropriately relied upon due to hearsay concerns, Dr. Laing relied upon three other
psychological evaluations completed by other doctors and her own experience in treating D.I. to
form her opinion. There is nothing in the record to indicate that the other three psychological
evaluations were rooted in any inadmissible information.
Dr. Laing testified that her opinion was based on a review of a presentence evaluation by
Dr. Mario Scalora, separate psychological evaluations by Dr. Skulsky (prior to D.I.’s
commitment), Dr. Van Winkle, and an intern (Jennifer Helkenn) under the supervision of Dr.
Sturgis, as well as her own (Dr. Laing’s) interactions with D.I. Dr. Laing was familiar with D.I.
because he was a patient in her facility and she had been part of his treatment team consistently
since 2011. Dr. Laing participated in the development of D.I.’s treatment plan. She worked with
D.I. in a psycho-educational group in 2012 or 2013, for several months, and was a facilitator of
his sex offender therapy group in 2014, which met 3 times a week for 90 minutes over the course
of a year. She met monthly with D.I. for individual therapy from 2015 until sometime in 2016.
We find that Dr. Laing’s testimony shows that she had worked extensively with D.I. since
2011, she had reviewed the recent treatment plans from 2017, and she was familiar with the facts
of D.I.’s conviction of 2004--not only from her review of the psychological evaluations, but also
from her own work with D.I. in group therapy. Dr. Laing had reviewed the evaluations “several
times over the course of [D.I.’s] treatment” and said that evaluations would help prepare a
treatment plan for D.I.; the members of the Board relied on her use of such sources. Dr. Laing’s
opinion was supported by facts and data reasonably relied upon by experts in the field and was
based on more than mere subjective belief or unsupported speculation. See, § 27-703; King v.
Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d 24 (2009) (expert’s opinion
must be based on good grounds, not mere subjective belief or unsupported speculation; yet courts
should not require absolute certainty). Thus, the admission of Dr. Laing’s testimony was not in
error.
Finally, with regard to the dispute during the review hearing about one paragraph within
each of the treatment plans (exhibits 1 and 2), labeled “Progress Update,” as containing
inadmissible historical allegations against D.I., we note that those paragraphs were excluded from
evidence following D.I.’s renewed motion in limine objection. The Board stated the stricken
paragraphs from exhibits 1 and 2 would not be used as evidence in making its determination, and
the district court’s order lacks any indication of reliance on those identical paragraphs. D.I.’s
insistence that the remainder of the treatment plans admitted into evidence nevertheless relied on
allegations from documents disputed under his motion in limine is an unsupported assertion. And
regardless, Dr. Laing’s testimony substantially covered the remainder of relevant portions of the
treatment plans to support her opinion such that any erroneous admission of the admitted portions
of exhibits 1 and 2 would have been harmless error. See State v. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017) (erroneous admission of evidence is generally harmless error and does not
require reversal if evidence is cumulative and other relevant evidence, properly admitted, supports
finding by trier of fact).
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(d) Treatment Goals
D.I. claims that the focus of “Objective B” of his treatment plan requires an admission of
guilt. However, at the review hearing Dr. Laing testified that “[s]everal years ago, we [NRC]
decided to stop going head on into the denial and look [instead] at how [D.I.] would prevent
allegations in the future.” She clarified that the goal of “Objective B,” “isn’t asking [D.I.] to
acknowledge sexual acts in the past or sexual motivation for the acts in the past, it’s asking him
what are you going to do to not find yourself accused in the future.” D.I. asserts that this change
in the goal means he “didn’t have to acknowledge wrongdoing, he only had to promise not to do
it again,” and labels the change as a “difference without distinction.” Brief for appellant at 23-24.
Notably, the “Discharge Criteria,” in the treatment plans say that to move to the next level
of care, D.I. would have to, among other things: accept responsibility for his sexual deviancy and
exonerate victims; acknowledge attractions, arousals, and grooming; become aware of significant
risk factors to reoffending; develop a written account of his sexual history and describe in detail
all of his sexual assaults (at least five if he has more); begin to describe the negative or harmful
consequences his assaults have had on victims and others and identify his core beliefs that are
important to his offending. Although the requirement of an admission of guilt may be inferred
from those stated discharge requirements, the record nevertheless shows that an admission of guilt
was not required for D.I. to move on to LRC. Dr. Laing testified the NRC program only requires
D.I. to “identify what he would do to avoid allegations in the future,” and she even stated that
“people [who] have denied sexual offenses have moved [on to] Lincoln [LRC].”
D.I. claims, in the alternative, that “the Board, then, is continuing [his] custody not to
protect others from harm, but to protect [him] from other’s accusations,” and that “[t]o merely seek
to prevent an accusation based on misinterpretation or misunderstanding falls outside the scope of
SOCA.” Brief for appellant at 24. We disagree with D.I.’s interpretation. NRC’s decision to change
from addressing a subject’s denial of past sexual acts or motivations to now requiring only
identification of behavioral changes to prevent future accusations of sexual assaults appears to
strike a balance between permitting the subject’s claim of innocence and the necessity of the
subject recognizing the types of behaviors which trigger the SOCA. This is especially so where
D.I.’s conviction alone evidences D.I.’s mental condition and casts light on potential future
behavior. See In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009) (prior convictions are
used for evidentiary purposes under the SOCA; specifically, requiring that the subject be convicted
of a sex offense provides evidence of the subject’s mental condition and helps predict future
behavior).
3. DISTRICT COURT’S DECISION
D.I. claims the district court erred in affirming the Board’s ruling. We will affirm unless
we find that, as a matter of law, clear and convincing evidence does not support the district court’s
judgment. See In re Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 (2012).
(a) D.I. Remains Dangerous Sex Offender;
Not Successfully Treated or Managed
The State must show by clear and convincing evidence that the subject remains mentally
ill and dangerous, and the Board must determine whether the subject’s mental illness or personality
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disorder has been successfully treated or managed taking into consideration the original reason for
commitment. See, In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011); § 71-1209(4);
§ 71-1219(2)(a); § 83-174.01.
Dr. Laing testified that D.I.’s conviction involved massaging and spanking of a
prepubescence male’s buttocks and that there had been repeated interactions with that child and
another child; D.I. testified that his conviction was for “fondling” not “spanking.” Dr. Laing was
concerned D.I. would repeat these behaviors. She referred to behaviors, which she said D.I.
described, that were similar behaviors of “[s]panking, massaging children’s buttocks, different
children. And he continued the behavior in spite of a fairly significant negative consequence”; her
reference was to behaviors prior to events that led to D.I.’s conviction (earlier charges in 1987,
upon which D.I. was not convicted). The treatment plans report that D.I.’s progress in treatment
remains unchanged, and Dr. Laing said it was “not common” for D.I. to remain at “Level 3” for
as long as he has and remain in the NRC program for about 10½ years. The treatment plan shows,
and Dr. Laing testified, that D.I. had reported that he would continue to use spanking “as a form
of discipline for children.” As the doctor stated, for the last several years, D.I. has resisted
addressing what he would do to not be accused of a sexual offense in the future.
While the treatment plan indicates D.I. denies that his behavior was for sexual gratification,
the treatment plan also reports (and Dr. Laing testified) that D.I. recognizes how others interpreted
his behavior underlying his conviction as inappropriate. At the review hearing, D.I. stated, “what
I’m supposed to admit to is not just that I had some sexual intent on spanking, which is what I
have admitted to doing, but that I also engaged in this other behavior that they feel that I’ve also
engaged in” (referring to other “allegations” or instances of behavior unrelated to the behavior
underlying his conviction).
Dr. Laing testified to a reasonable degree of psychological certainty that D.I.’s mental
illness had not been successfully treated or managed to the extent that he no longer posed a threat
to the public or society due to him not addressing behaviors that he would need to change and that
D.I. still suffered from a diagnosis of pedophilic disorder, nonexclusive type, sexually attracted to
males. She said that on a risk assessment instrument, the Static 99, D.I. scored in the moderate
high range of risk. Dr. Laing thought that D.I. believed he did not need the help of professionals
in sex offender treatment. Dr. Laing disagreed, saying, “I think that this pattern of behavior, which
resulted in a conviction for a sexual offense and involved repeated behavior over time, is not
something that he has at all adequately looked at. And I think that this is the treatment . . .
appropriate for looking at it.”
Given the foregoing, the district court did not err in determining that the State proved by
clear and convincing evidence that D.I. remains a dangerous sex offender and that his condition
had not been successfully treated or managed to the extent required.
(b) Inpatient Treatment Remains Least Restrictive Alternative
The State is also required to present clear and convincing evidence that a less restrictive
treatment alternative is not appropriate. See, In re Interest of D.I., supra; § 71-1219(2)(b).
D.I.’s most recent treatment plan states:
His risks to reoffend are related to his history of sexual deviancy with prepubescent,
unrelated boys, a limited history of stable romantic relationships, and his unwillingness to
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acknowledge the inappropriateness of his behaviors with his victims. He has the perception
that he does not need the help of professionals or peers, and he does not have a history of
sexual deviancy, but only a conviction of one single act. For these reasons, the treatment
team believes that inpatient treatment is the least restrictive form of care.
Dr. Laing testified to a reasonable degree of psychological certainty that inpatient treatment
remained the least restrictive alternative given the “repeated behavior of physical contact with
prepubescence boys’ buttocks,” the denial of anything problematic with the behavior, and the
refusal to address how he could change the behavior in the future. We find no error in the district
court’s determination that there was clear and convincing evidence before the Board to support
that inpatient treatment remained the least restrictive alternative.
D.I. argues, however, that the district court erred by “shifting the burden of proof to [him],”
saying it was evidenced by the district court’s order. Reply brief for appellant at 7. D.I. is referring
to the court’s statement: “The [district court] finds that the [State] presented clear and convincing
evidence that secure inpatient treatment remains the least restrictive treatment alternative and that
D.I. presented no evidence beyond denials of culpability and mere assertions to rebut the [State’s]
expert [Dr. Laing].” (Emphasis supplied.) The district court found that the State met its burden of
proof that a less restrictive treatment alternative was not appropriate; at that point, D.I. was
permitted to rebut the State’s evidence, but did not sufficiently do so. There was no improper
shifting of the burden of proof by the district court, and we find no clear error in the district court’s
conclusion that D.I. did not present sufficient rebuttal evidence to the State’s evidence which
established there was no less restrictive treatment alternative. See In re Interest of D.I., 281 Neb.
at 926, 799 N.W.2d at 672 (once subject has exercised his right to review hearing and asserted that
there are less restrictive treatment alternatives available, “the State is required to present clear and
convincing evidence that a less restrictive treatment alternative is inappropriate. At that point, the
subject may further rebut the State’s evidence”).
D.I. also argues that the district court “placed more weight on the word of the State than
on [him].” Reply brief for appellant at 7. The district court reviews the determination of a mental
health board de novo on the record, and this court will affirm the district court’s judgment unless
clear and convincing evidence does not support the judgment. See In re Interest of S.J., supra. As
already discussed, the evidence clearly and convincingly supports the district court’s judgment.
D.I. also asserts that the district court’s judicial notice of In re Interest of D.I., supra, in
which the Nebraska Supreme Court cited an unpublished memorandum opinion from this court,
“reintroduce[d] inadmissible evidence into the proceedings.” Brief for appellant at 30. There is no
merit to this argument. Once again, D.I. attempts to detract from the primary issue of whether he
has been successfully treated by suggesting that any reference to past determinations, whether in
reports or even in appellate opinions, somehow adversely impacts his ability to have a fair review
hearing. However, contrary to D.I.’s claims, there was clear and convincing evidence presented at
the Board hearing that he had not been successfully treated; all past reports and court opinions
have minimal persuasive value when considering the more significant aspects of Dr. Laing’s
testimony as to D.I.’s ongoing treatment progress or lack thereof. In particular, Dr. Laing raised
legitimate concerns regarding D.I.’s lack of progress in treatment and his attitude about
recommended services. It was Dr. Laing’s opinion that D.I. had progressed slowly in treatment
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because he denied having any sexual offenses even though he did not deny the behavior; rather,
he denied the behavior was sexually motivated. Dr. Laing expressed concern about D.I. repeating
the behaviors that put him in the situation in the first place, particularly since D.I. had “not seen
anything wrong with them.” This evidence supports the Board’s decision and the district court’s
affirmance of that decision. There is nothing in the record to support that the Board or the district
court relied on any inappropriate or inadmissible evidence in reaching a decision, and to the extent
they did, such consideration would have been harmless in light of the clear and convincing
evidence otherwise properly admitted.
VI. CONCLUSION
We affirm the judgment of the district court which affirmed the Board’s decision denying
D.I.’s request for an order of discharge or change in treatment.
AFFIRMED.
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