In re Interest of K.C.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/27/2023 09:04 AM CST
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313 Nebraska Reports
IN RE INTEREST OF K.C.
Cite as 313 Neb. 385In re Interest of K.C., alleged to be developmentally
disabled and a threat of harm to others.
State of Nebraska, appellee,
v. K.C., appellant.
___ N.W.2d ___
Filed January 27, 2023. No. S-22-425.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, and this is so even
where neither party has raised the issue.
3. Judgments: Jurisdiction. When a jurisdictional defect is neither noted
nor discussed in an opinion, it does not stand for the proposition that no
defect existed.
4. Constitutional Law: Jurisdiction: Appeal and Error. Except in
those cases wherein original jurisdiction is specifically conferred by
Neb. Const. art. V, § 2, the Nebraska Supreme Court exercises appel-
late jurisdiction.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
6. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
7. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
8. Judgments: Final Orders: Dismissal and Nonsuit: Appeal and Error.
Without a judgment or final order, an appellate court lacks jurisdiction
and must dismiss the appeal.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Appeal dismissed.
Thomas C. Riley, Douglas County Public Defender, and
Kyle M. Melia for appellant.
Ann C. Miller and Zachary Severson, Deputy Douglas
County Attorneys, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
The State of Nebraska filed a petition, pursuant to the
Developmental Disabilities Court-Ordered Custody Act
(DDCCA), 1 seeking court-ordered custody and treatment for
K.C. After the district court made the finding required by
statute 2 and ordered an evaluation of K.C. and preparation of
a plan, but without ordering involuntary custody and before
determining any custody and treatment that might be imposed,
K.C. purported to appeal. Because, under the circumstances
here, our statute 3 dictates that the order was not final or appeal-
able, we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Overview of DDCCA
In Nebraska, the DDCCA provides a speedy yet protective
procedure for court-ordered custody and treatment for a person
with developmental disabilities when he or she poses a threat
of harm to others. 4
1
See Neb. Rev. Stat. §§ 71-1101 to 71-1134 (Reissue 2018).
2
§ 71-1124 (“subject is a person in need of court-ordered custody and
treatment”).
3
See Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022).
4
See § 71-1103.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385The Legislature enacted this statutory scheme to protect
society when criminal proceedings are not possible. 5 For exam-
ple, if an individual is charged with a felony, but found incom-
petent to stand trial due to a developmental disability, the
DDCCA applies. 6
But the Legislature also imposed numerous procedural and
substantive safeguards designed to protect the liberty right of a
person with developmental disabilities. Particularly important
here is the accelerated schedule required between the initial
determination of risk and the imposition of any custody and
treatment. We summarize the statutory framework.
Under the DDCCA, a civil commitment proceeding ordi-
narily consists of three parts. First, the State files a petition
in the district court, alleging that the individual is a person in
need of court-ordered custody and treatment. 7 Next, within 90
days of the petition’s filing date, the court holds a “hearing
on the petition” 8 (which, for brevity, we call an adjudication)
to determine whether such a need exists. 9 If the court finds
that the need exists, then the court must order the Nebraska
Department of Health and Human Services (DHHS) to submit
a plan 10 for the individual’s custody and treatment within 30
days. 11 Finally, within 15 days of receiving the plan submit-
ted by DHHS, 12 the court holds a dispositional hearing, and it
issues an “order of disposition” placing custody of the subject
with DHHS and setting forth a plan for his or her treatment. 13
5
See Introducer’s Statement of Intent, L.B. 206, Judiciary Committee, 99th
Leg., 1st Sess. (Jan. 19, 2005).
6
See id.7
See § 71-1117.
8
See § 71-1122.
9
See §§ 71-1123 and 71-1124.
10
See § 71-1125.
11
See § 71-1124.
12
See id.
13
See § 71-1126.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385The duration of the initial custody and treatment cannot
exceed 1 year. 14 The DDCCA provides for annual review hear-
ings 15 after the initial order of disposition and contemplates a
review hearing “at any time it appears that the subject no lon-
ger poses a threat of harm to others.” 16
As relevant to this appeal, the DDCCA provides that the
subject of a petition has the right “to appeal a final decision of
the court.” 17
Petition and Initial Proceedings
This appeal originates from proceedings in the district court
for Douglas County in that court’s case No. CI22-2545. The
State filed a petition, pursuant to the DDCCA, in which it
alleged that K.C. was a person with a developmental disability
who posed a threat of harm to others and was in need of court-
ordered custody and treatment. The State filed the petition after
the same district court, in its case No. CR20-3738, a felony
criminal case, ordered an evaluation of K.C.’s competency to
stand trial.
In the DDCCA petition, the State asserted that K.C. suf-
fered from both a mental disease (schizophrenia) and a mental
defect (intellectual disability). It then alleged that K.C. was a
threat of harm to others due to the criminal charges pending
in case No. CR20-3738. The State asserted that the charges
arose from a disturbance at a hospital, in which K.C. “kicked
and punched” a security officer and “punched [a nurse] in
the face, then slapped her.” According to the State, K.C. was
charged with two counts of assault on an officer, emergency
responder, or health care professional, a Class IIIA felony, 18
following the incident. He was incarcerated in the criminal
14
See id.15
See § 71-1127.
16
See § 71-1128.
17
§ 71-1118(8).
18
See Neb. Rev. Stat. § 28-931 (Cum. Supp. 2022).
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385case, and housed at the Lincoln Regional Center (LRC), pend-
ing trial.
The district court held a hearing in both cases. In the
DDCCA case, the court recited that the State filed a petition
alleging that K.C. was a person with a developmental disabil-
ity who posed a threat of harm to others and was in need of
court-ordered custody and treatment. The court then advised
K.C. of his rights under the DDCCA, including his right to a
timely hearing on the merits of the petition and to appeal any
final decision of the court. Finding that K.C. denied the allega-
tions in the petition, the court ordered DHHS to complete an
examination and evaluation of K.C., and scheduled a hearing
for adjudication.
Turning to the criminal case, the court held an evidentiary
hearing regarding K.C.’s competency to stand trial. It received
as evidence a “letter report” authored by a clinical psychologist
at LRC, who opined that K.C. was not competent to stand trial
and that there was not a substantial likelihood that he would
be restored to competency in the foreseeable future. The court
stated that it would enter an order regarding K.C.’s competency
upon determining the status of the civil commitment proceed-
ing in case No. CI22-2545.
Hearing on Petition
After finding that K.C. was incompetent to stand trial in the
criminal case, the district court held the adjudication hearing
in the DDCCA case. At the hearing, the State offered the testi-
mony of three witnesses.
The first witness was a police officer who had responded
to the incident at the hospital that led to K.C.’s criminal
charges for assault. He testified regarding the extent of the vic-
tims’ injuries and described how those injuries were reportedly
inflicted by K.C.
Next, the State called a clinical psychologist at LRC, who
had conducted a baseline assessment of K.C. and completed
his competency evaluation for the court. She opined that K.C.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385was suffering from a combination of active psychosis and a
developmental disability, and described various indicators she
observed in making that determination.
Finally, the State’s third witness was a licensed psychologist
with DHHS, who testified that she completed an evaluation of
K.C., which she submitted to the court. Based upon her review
of K.C.’s records, she opined that K.C. was a person with a
“developmental disability” 19 and that he posed a “[t]hreat of
harm to others” 20 as defined by the DDCCA.
District Court’s Order
Following the adjudication hearing, the district court issued
an order adjudicating K.C. under the DDCCA. In the order,
the court specifically made the following findings of fact and
conclusions of law:
1) Having observed the witnesses and considered their
testimony, the [c]ourt credits the testimony of all three
witnesses.
2) The [State] has met its burden of proving by clear
and convincing evidence that [K.C.] is a person in need of
court-ordered custody and treatment.
3) [K.C.] is developmentally disabled as defined by
Neb. Rev. Stat. § 71-1107 (Reissue 2018).
4) [K.C.] is a threat of harm to others, i.e., “a signifi-
cant likelihood of substantial harm to others as evidenced
by” . . . “[h]aving inflicted or attempted to inflict seri-
ous bodily injury on another.” Neb. Rev. Stat. § 71-1115(Reissue 2018).
The court did not elaborate further on its findings. And, criti-
cally, the court’s order did not impose any custody or treatment
of K.C.
Next, following the procedure and strict time limits set forth
in the DDCCA, the court ordered DHHS to evaluate K.C. and
19
§ 71-1107.
20
§ 71-1115.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385submit a plan for his custody and treatment within 30 days. It
also scheduled a dispositional hearing, which would (accord-
ing to the adjudication order) take place within 15 days after
receipt of DHHS’ plan.
However, prior to submission of any plan or dispositional
hearing, K.C. filed an appeal. It was filed shortly after the
entry of the adjudication order. We moved the appeal to
our docket. 21
ASSIGNMENT OF ERROR
K.C.’s sole assignment of error, as corrected at oral argu-
ment, is that “[t]he district court’s [final order] is unsupported
by evidence which is clear an[d] convincing that [K.C.] was a
threat of harm to others and in need of court-ordered treatment.”
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides. 22
Because we conclude that this court lacks jurisdiction over
the appeal, we do not determine the appropriate standard of
appellate review for a final decision under the DDCCA.
ANALYSIS
[2] We begin by addressing the jurisdictional issue presented
by K.C.’s appeal. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it, and this is so even
where neither party has raised the issue. 23
[3] As a preliminary matter, we note that the Nebraska
appellate courts have had only one occasion to consider the
21
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
22
Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937 N.W.2d 487(2020).
23
Kingery Constr. Co. v. 6135 O St. Car Wash, 312 Neb. 502, 979 N.W.2d
762 (2022).
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385DDCCA. 24 Our review in that case was limited to the DDCCA’s
constitutionality—the sole issue raised by that appeal. We rec-
ognize that we decided that case without addressing appellate
jurisdiction. But that does not relieve us from addressing juris-
diction here. When a jurisdictional defect is neither noted nor
discussed in an opinion, it does not stand for the proposition
that no defect existed. 25
In the next section, we recall basic legal principles govern-
ing our appellate jurisdiction. We then apply those principles to
the facts of this case, which are not disputed.
Principles of Appellate Jurisdiction
[4,5] Except in those cases wherein original jurisdiction is
specifically conferred by Neb. Const. art. V, § 2, the Nebraska
Supreme Court exercises appellate jurisdiction. 26 For an appel-
late court to acquire jurisdiction of an appeal, the party must be
appealing from a final order or a judgment. 27
Under § 25-1902, the four types of final orders which may
be reviewed on appeal are (1) an order affecting a substantial
right in an action, when such order in effect determines the
action and prevents a judgment; (2) an order affecting a sub-
stantial right made during a special proceeding; (3) an order
affecting a substantial right made on summary application in
an action after a judgment is entered; and (4) an order denying
a motion for summary judgment when such motion is based
on the assertion of sovereign immunity or the immunity of a
government official.
24
See In re Interest of C.R., 281 Neb. 75, 793 N.W.2d 330 (2011) (upholding
DDCCA as constitutional).
25
Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).
26
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128(2022).
27
Ramaekers v. Creighton University, 312 Neb. 248, 978 N.W.2d 298(2022).
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385We read § 71-1118(8) of the DDCCA, which provides that
the subject of a petition has the right “to appeal a final decision
of the court,” as incorporating the rules of appealability in civil
matters, including § 25-1902.
Finality of District Court’s Order
[6] As a matter of first impression, this appeal seeks our
review of the merits of an order determining that an individual
is a person in need of court-ordered custody and treatment
under the DDCCA. The parties agree that the district court’s
order is a final, appealable order because, they assert, it is
an order affecting a substantial right made during a special
proceeding. 28 But as we have frequently stated, parties cannot
confer subject matter jurisdiction upon a judicial tribunal by
either acquiescence or consent, nor may subject matter jurisdic-
tion be created by waiver, estoppel, consent, or conduct of the
parties. 29 Thus, the parties’ agreement is not dispositive.
We turn to our precedent for guidance. The Nebraska appel-
late courts have previously recognized that a proceeding
involving involuntary commitment is a special proceeding for
appellate purposes. 30 Assuming without deciding that the dis-
trict court’s order under the DDCCA was made during a special
proceeding, we must next determine whether the order affected
a substantial right.
In the context of involuntary commitment proceed-
ings, the Nebraska appellate courts’ substantial right analy-
sis has long been consistent. We caution, however, that our
28
See § 25-1902(1)(b).
29
Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308 (2022).
30
See, In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011); In
re Interest of Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007); In re
Interest of Saville, 10 Neb. App. 194, 626 N.W.2d 644 (2001) (citing State
v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980)). See, also, Tegra Corp.
v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022) (discussing special
proceedings).
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385previous opinions have considered the Nebraska Mental Health
Commitment Act 31 and the Sex Offender Commitment Act, 32
which set forth specific appeal statutes that are not contained
in the DDCCA.
[7] Jurisdiction in our previous cases has turned on whether
the order appealed from deprived the individual of his or her
liberty for an indeterminate period of time. 33 In other words, it
is not enough that the right itself be substantial; the effect of
the order on that right must also be substantial. 34 With that in
mind, we turn to the parties’ arguments.
Echoing the language from our previous cases, K.C. asserts
that “[t]he district court found in its order that [K.C.] was
to be held in custody for an indeterminate period of time
during a special proceeding.” 35 Similarly, the State asserts
that the order “made findings . . . that [K.C.] is to remain
31
See Neb. Rev. Stat. §§ 71-901 to 71-963 (Reissue 2018).
32
See Neb. Rev. Stat. §§ 71-1201 to 71-1226 (Reissue 2018).
33
See, In re Interest of D.I., supra note 30, 281 Neb. at 924, 799 N.W.2d at
670 (concluding that order affected substantial right because it “deprived
[the individual] of his liberty for an indeterminate period of time”); In re
Interest of Michael U., supra note 30, 273 Neb. at 206, 728 N.W.2d at
122 (explaining that “[l]ike the order of adjudication in In re Interest of
Saville[, supra note 30], the amended order of adjudication in this case
ordering that [the individual] be retained for an indeterminate amount
of time deprived [the individual] of his liberty and this denial affects a
substantial right”); In re Interest of Saville, supra note 30, 10 Neb. App. at
198, 626 N.W.2d at 648 (holding that “an order adjudicating an individual
to be a mentally ill dangerous person and ordering him retained for an
indeterminate amount of time deprives a person of his liberty and that
this denial clearly affects a substantial right”). See, also, State v. Guatney,
supra note 30, 207 Neb. at 508, 299 N.W.2d at 543 (stating that because
order denied appellant right to speedy trial and “denied the appellant his
liberty for an undetermined time,” “[i]t is difficult, if not impossible, to
see how that order, therefore, does not affect a substantial right or is not
an order from which the appellant should be entitled to appeal”).
34
Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890(2022).
35
Brief for appellant at 10.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385in court-ordered custody and treatment for an indeterminate
amount of time.” 36 The record does not appear to support
these assertions.
As noted above, the district court’s order did four things. It
credited the testimony of the witnesses at the adjudication hear-
ing, it found that K.C. was a person in need of court-ordered
custody and treatment, it directed DHHS to evaluate K.C. and
submit a plan for his custody and treatment, and it scheduled
a dispositional hearing. It did not make findings related to
K.C.’s custody. It did not place him into custody or state that
he was to be retained in custody, as the parties suggest, for an
indeterminate period of time. It did not impose custody for any
period. Although we agree with K.C. that his liberty constitutes
a substantial right, 37 we cannot say that the effect of the district
court’s order on that right was substantial.
For the sake of completeness, we note that the record does
indicate that K.C. was committed to the Douglas County
Correctional Center and housed at LRC pending trial in the
criminal case. He was not ordered into custody or held in cus-
tody in the DDCCA proceeding. Nor does the record suggest,
in the DDCCA case, that K.C. had been held in emergency
custody 38 or that the State sought emergency custody of K.C.
And finally, we note that any future commitment that might be
imposed following a dispositional hearing is not before us on
appeal and cannot affect a substantial right regarding the order
that is before us.
36
Brief for appellee at 13.
37
See, In re Interest of D.I., supra note 30; In re Interest of Michael U.,
supra note 30; State v. Guatney, supra note 30; In re Interest of Saville,
supra note 30. See, also, Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804,
60 L. Ed. 2d 323 (1979) (citing Jackson v. Indiana, 406 U.S. 715, 92 S.
Ct. 1845, 32 L. Ed. 2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92
S. Ct. 1048, 31 L. Ed. 2d 394 (1972); In re Gault, 387 U.S. 1, 87 S. Ct.
1428, 18 L. Ed. 2d 527 (1967); and Specht v. Patterson, 386 U.S. 605, 87
S. Ct. 1209, 18 L. Ed. 2d 326 (1967)).
38
See §§ 71-1119 and 71-1120.
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IN RE INTEREST OF K.C.
Cite as 313 Neb. 385[8] For the foregoing reasons, we conclude that the district
court’s order adjudicating K.C. was not a judgment or final
order. Without a judgment or final order, an appellate court
lacks jurisdiction and must dismiss the appeal. 39 Therefore, we
must dismiss the appeal for lack of jurisdiction.
We emphasize that our characterization of the order before us
depends upon the specific facts and procedures employed here.
This is not to say that an order under § 71-1124 of the DDCCA
can never be a final order. The speedy procedural require-
ments, faithfully implemented without delay, would generally
prevent a substantial effect upon a subject’s substantial right to
liberty before disposition. But we decline to categorically rule
out the possibility of an appeal before disposition.
CONCLUSION
The mere determination that K.C. was a person in need of
court-ordered custody and treatment, without further action,
did not affect a substantial right. In other words, it did not
deprive K.C. of liberty; it merely authorized development of
a plan for custody and treatment and scheduled a hearing to
determine what custody and treatment should be ordered upon
disposition. Therefore, the order before us was not a final,
appealable order. Because we conclude that we lack jurisdic-
tion over the appeal, we cannot reach the merits of the adju-
dication or determine the appropriate standard of appellate
review for an adjudication under the DDCCA. We dismiss the
appeal for lack of jurisdiction.
Appeal dismissed.
39
See Shawn E. on behalf of Grace E. v. Diane S., 300 Neb. 289, 912
N.W.2d 920 (2018).