In re Interest of T.W.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/09/2023 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
IN RE INTEREST OF T.W.
Cite as 314 Neb. 475In re Interest of T.W., alleged to be
developmentally disabled and a
threat of harm to others.
State of Nebraska, appellee,
v. T.W., appellant.
___ N.W.2d ___
Filed June 9, 2023. No. S-22-652.
1. Mental Health: Judgments: Final Orders: Appeal and Error. In an
appeal under the Developmental Disabilities Court-Ordered Custody
Act, an appellate court reviews a district court’s final order or judgment
for errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Judgments: Statutes: Appeal and Error. Whether a decision conforms
to law and the interpretation of statutes present questions of law, in con-
nection with which an appellate court reaches a conclusion independent
of that reached by the lower court.
4. Judgments: Appeal and Error. An appellate court, in reviewing a
district court judgment for errors appearing on the record, will not sub-
stitute its factual findings for those of the district court where competent
evidence supports those findings.
5. 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.
6. 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.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 4757. Mental Health: Final Orders: Appeal and Error. A proceeding
involving involuntary commitment is a special proceeding for appel-
late purposes.
8. Mental Health: Final Orders. An order of disposition under the
Developmental Disabilities Court-Ordered Custody Act that deprives a
subject of his or her liberty for an indeterminate period of time affects
a substantial right.
9. Proof: Evidence: Words and Phrases. A “preponderance of the evi-
dence” is the equivalent of the greater weight of the evidence. The
greater weight of the evidence means evidence sufficient to make a
claim more likely true than not true.
10. Expert Witnesses: Witnesses: Testimony. Testimony of expert wit-
nesses is not treated any differently in the factfinding process than that
of witnesses generally when it comes to determining the weight and
credibility of the testimony.
11. Trial: Expert Witnesses. A trier of fact is not bound to accept expert
opinion testimony.
12. Witnesses: Testimony. The credibility of a witness is a question for the
trier of fact, and it is within its province to credit the whole of the wit-
ness’ testimony, or any part of it, which seemed to it to be convincing,
and reject so much of it as in its judgment is not entitled to credit.
13. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
14. Statutes. Statutes pertaining to the same subject matter should be con-
strued together; such statutes, being in pari materia, must be construed
as if they were one law and effect given to every provision.
15. Statutes: Legislature: Intent. In construing a statute, the legislative
intention is to be determined from a general consideration of the whole
act with reference to the subject matter to which it applies and the
particular topic under which the language in question is found, and the
intent as deduced from the whole will prevail over that of a particular
part considered separately.
16. Constitutional Law. Nebraska’s separation of powers clause prohibits
the three governmental branches from exercising the duties and preroga-
tives of another branch.
17. Constitutional Law: Statutes. Where a statute is susceptible of two
constructions, under one of which the statute is valid while under the
other it is unconstitutional or of doubtful validity, that construction
which gives it validity should be adopted.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475Kenneth Jacobs, of Hug & Jacobs, L.L.C., for appellant.
Rachel M. Greifenkamp, Deputy Dodge County Attorney,
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
In this Developmental Disabilities Court-Ordered Custody
Act (DDCCA) 1 appeal, the subject challenges the district
court’s order of disposition on two grounds—both based upon
the court’s determination of the “[l]east restrictive alternative.” 2
He claims that an alternative plan was less restrictive and that
the court improperly added conditions to the department’s
plan. After establishing the standard of review, we find no
error appearing on the record in the court’s approval of the
department’s treatment plan with the additional restrictions.
We affirm.
BACKGROUND
Initial Determination
The State filed a petition under the DDCCA for court-
ordered custody of T.W., an adult male. It had the burden to
prove by clear and convincing evidence that T.W. was a person
in need of court-ordered custody and treatment. 3 Following a
hearing, the district court found by clear and convincing evi-
dence that T.W. was a person with a developmental disability,
that he presented an ongoing threat of harm to others, and that
he needed court-ordered custody and treatment. Those determi-
nations are not at issue on appeal.
1
See Neb. Rev. Stat. §§ 71-1101 to 71-1134 (Reissue 2018).
2
See § 71-1109.
3
See § 71-1124.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475After finding that T.W. was a person in need of court-ordered
custody and treatment and in accordance with § 71-1124, the
court ordered the Nebraska Department of Health and Human
Services (DHHS) to prepare a written custody and treatment
plan. Section 71-1124 specifies that the plan for custody and
treatment submitted by DHHS should be in the least restrictive
alternative. After receipt of DHHS’ plan, the court set the mat-
ter for a dispositional hearing. 4
Dispositional Hearing
At the dispositional hearing, two licensed psychologists who
evaluated T.W. testified. Dr. Tessa Svoboda evaluated T.W. on
behalf of DHHS, and Dr. David Mitchell performed an evalu-
ation at the request of T.W.’s attorney. The court received their
respective evaluations into evidence.
Testimony established that there are essentially three place-
ment options for developmentally disabled individuals in
Nebraska. One is “supported family,” which involves intermit-
tent staffing in the family home. Staff can be present for no
more than 70 hours per week and only when the subject is
awake. DHHS would not be able to accurately monitor subjects
provided with intermittent family support staff.
Another option is a group home setting. With that option,
three or four subjects needing services live together in a home
and staff work rotating shifts. There is 24-hour supervision.
The third option is a “shared living provider.” In that set-
ting, the subject moves into the home of a staff member. There
are consistent staff members who are able to monitor and
track behaviors and habilitation. Because of the “one-on-one
supervision,” staff can monitor any usage or restrictions set by
the court.
Svoboda explained that a shared living provider has certain
certifications and licenses and receives training in several
areas. Such a provider also has access to a computer system
4
Id.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475used by the State to document all records for individuals
receiving developmental disability services. With access to
that system, DHHS can monitor and enforce court orders in a
shared living provider environment. A shared living provider
is required to enter medication entries, significant medical or
behavioral events, programming, and how the provider is try-
ing to consistently respond to problematic behavior. T.W.’s
mother would not be required to document such information.
The report Svoboda prepared on DHHS’ behalf stated that
the least restrictive alternative would be in a shared living
provider environment with no other participants residing in
the home. DHHS’ plan recommended “24/7” supervision at all
times. It further recommended that T.W. be directly supervised
during all electronic or telephonic communications and while
accessing the internet. At the hearing, the State did not advo-
cate for additional restrictions.
Svoboda determined that without supervision, T.W. could
be a high risk for reoffending. She believed that T.W. would
have a fairly high probability of reoffending if he remained in
his home with the same level of supervision. Svoboda did not
believe that intermittent family living support would be suffi-
cient to protect the community from reoffense by T.W.
In preparing DHHS’ plan for T.W., Svoboda was aware that
T.W. had resided in his mother’s home for approximately 1
year after the allegations in this case were made. To Svoboda’s
knowledge, no further wrongful act had occurred during that
year. But Svoboda pointed out that safeguards were imple-
mented. The safeguards included visual supervision, especially
outside the home, and an ankle monitor to track movements.
Svoboda learned that T.W. figured out how to bypass safe-
guards that were put on his cell phone to prohibit access to
certain websites.
Svoboda did not believe a group home setting would be
appropriate for T.W. One problem was that other vulnerable
individuals may be in the home. Another drawback was that
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475varying staff made it more difficult “to maintain consistency in
running behavior or habilitation programs with a staff.”
Mitchell opined that T.W. could continue living at home with
his mother, but Mitchell recommended “24/7” supervision.
Mitchell was unsure if T.W.’s mother was available at home
24/7, and he cautioned that the 24/7 supervision needed by
T.W. may become difficult to maintain. To Mitchell’s knowl-
edge, T.W. had been “cooperative with his ankle monitor.”
According to Mitchell, the “bottom line” was that someone
needed to watch T.W. He explained: “[I]f that can be done in
the home environment, I think that that’s okay. If that’s not
able to be done, then, probably a living environment where
there’s staff around that can certainly provide 24 hour — 24/7
supervision would also be appropriate.” Mitchell testified that
he was “not totally familiar with what [a shared living pro-
vider] might offer.” But he testified that if a shared living
provider where T.W. was the only person receiving services
in the home were available, that setting would be appropriate
for T.W.
Mitchell’s evaluation provided additional insight. It stated
that if T.W. “demonstrated additional behaviors related to
sexual interest in children, a more supervised and restrictive
setting, such as a therapeutic group home, would be appropri-
ate.” It further stated that T.W. “should continue to comply
with any and all restrictions/guidelines given to him by the
court and/or probation.”
Order of Disposition
Following a hearing, the court entered an order of disposi-
tion (styled as a placement order). It adopted DHHS’ treat-
ment plan, finding that it was the least restrictive option to
protect T.W.’s rights and to protect society. Thus, the court
placed T.W. with a shared living provider to provide one-to-
one supervision.
The court added restrictions not included in DHHS’ rec-
ommendations. The court’s order stated that T.W. “is not to
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475have internet access on any device, including but not limited to
a cell phone, desktop computer, laptop computer, television, or
gaming system.” It further directed the sheriff’s department “to
place an ankle-fastened Global Positioning System monitor on
[T.W.] to be worn at all times unless modified by Court Order.”
The court placed T.W. in DHHS’ custody and set the matter for
an annual review in August 2023.
T.W. filed a timely appeal, which we moved to our docket. 5
ASSIGNMENTS OF ERROR
T.W. assigns that the court erred (1) by approving a plan that
was not the least restrictive alternative and (2) by adding con-
ditions to his placement that were not part of the plan offered
by the State.
STANDARD OF REVIEW
The standard of appellate review for a district court’s final
decision under the DDCCA presents an issue of first impres-
sion. Appeals involving the DDCCA have come before this
court twice. 6 Because in one case we determined that we
lacked jurisdiction 7 and in the other case we addressed only a
question of constitutionality, 8 we did not articulate the standard
of review that applies when analyzing the merits of a district
court’s judgment or final order under the DDCCA. Here, we
must do so.
T.W. urges a particular standard of review. T.W. suggests
that because the statutes in the DDCCA are similar to those in
the Nebraska Mental Health Commitment Act (MHCA), 9 this
court should review the matter similar to the way a district
5
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
6
See, In re Interest of K.C., 313 Neb. 385, 984 N.W.2d 277 (2023); In re
Interest of C.R., 281 Neb. 75, 793 N.W.2d 330 (2011).
7
In re Interest of K.C., supra note 6.
8
In re Interest of C.R., supra note 6.
9
See Neb. Rev. Stat. §§ 71-901 to 71-963 (Reissue 2018).
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475court reviews a determination by a mental health board. The
district court reviews the determination of a mental health
board de novo on the record. 10 Citing this standard, T.W.
believes that we should review the district court’s determina-
tion de novo on the record. The State’s brief did not propose
a scope of appellate court review; at oral argument, counsel
advocated for a clearly erroneous standard.
But we are not persuaded that the MHCA’s standard applies
to the DDCCA. At the outset, it is important to point out that
the MHCA is a separate statutory scheme with its own pro-
cedure, including a specific standard of appellate review. The
hearing to determine whether there is clear and convincing
evidence that a subject is mentally ill and dangerous takes
place before a mental health board. 11 The board determines
the appropriate treatment order. 12 The treatment order may
be appealed, and a district court reviews the appeal de novo
on the record. 13 Section 71-930 specifically provides that
“[a] final order of the district court may be appealed to the
Court of Appeals in accordance with the procedure in crimi-
nal cases.”
We used the language of § 71-930 to determine the stan-
dard of appellate review for a district court’s order under the
MHCA in Hill v. County Board of Mental Health. 14 There,
we looked to our standard of review in a recent criminal case
where we stated that “[t]his court will not interfere on appeal
with a conviction based upon evidence unless it is so lack-
ing in probative force that the court can say as a matter of
law that it is insufficient to support a verdict of guilt beyond
10
In re Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 (2012).
11
§ 71-924.
12
§ 71-925.
13
§ 71-930.
14
Hill v. County Board of Mental Health, 203 Neb. 610, 279 N.W.2d 838(1979).
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475a reasonable doubt.” 15 In Hill, we borrowed that standard
but adjusted the burden of proof from beyond a reasonable
doubt—the standard of proof in a criminal case 16—to clear
and convincing evidence—the standard of proof required by
the MHCA. 17 We announced, “[T]his court will not interfere
on appeal with a final order made by the District Court in
a mental health commitment proceeding as provided by [the
MHCA], unless this court can say as a matter of law that it is
not supported by clear and convincing proof.” 18
In determining whether the MHCA standard of review
should apply here, we are mindful that the MHCA differs from
the DDCCA in significant ways. The MHCA has a mental
health board to make initial determinations; the DDCCA has
no similar tribunal inferior to the district court. Under the
MHCA, an appeal from the mental health board’s decision
may be taken to the district court, which reviews the case de
novo on the record. But under the DDCCA, the district court
makes the initial determinations; it does not act in a reviewing
capacity. And unlike the MHCA, the DDCCA does not pre-
scribe a standard of appellate review or rely on the procedure
for appeals in criminal cases. Instead, the DDCCA simply
states that the subject of a petition has the right “to appeal a
final decision of the court.” 19 These differences make it inap-
propriate to engraft the MHCA’s standard of review into a
DDCCA appeal.
We recognize that two statutes in chapter 25, article 19,
of the Nebraska Revised Statutes set forth a scope of review
15
State v. Sommers, 201 Neb. 809, 818, 272 N.W.2d 367, 372 (1978),
disapproved on other grounds, State v. Irish, 292 Neb. 513, 873 N.W.2d
161 (2016).
16
See State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).
17
See §§ 71-924, 71-925, 71-938, 71-956, and 71-963.
18
Hill v. County Board of Mental Health, supra note 14, 203 Neb. at 612,
279 N.W.2d at 839.
19
§ 71-1118(8).
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475for an appeal from the district court in a civil case. One, Neb.
Rev. Stat. § 25-1911 (Reissue 2016), states that “[a] judg-
ment rendered or final order made by the district court may
be reversed, vacated, or modified for errors appearing on the
record.” The other, Neb. Rev. Stat. § 25-1925 (Reissue 2016),
provides that “[i]n all appeals from the district court in suits
in equity,” the appellate court shall “retry the issue or issues
of fact involved in the finding or findings of fact complained
of upon the evidence preserved in the bill of exceptions and,
upon trial de novo of such question or questions of fact, reach
an independent conclusion.”
Because the DDCCA does not specify a particular standard
of appellate review, we consider the potential applicability
of the scope in either § 25-1911 or § 25-1925. A proceeding
for civil commitment of a person by reason of developmen-
tal disability was not historically understood to be a suit in
equity, but, rather, was statutory in nature. 20 Thus, the de novo
standard in § 25-1925 for appeals in suits in equity is not
applicable. That leaves only the general standard of review for
an appeal from a judgment or final order made by the district
court, which is prescribed by § 25-1911.
[1,2] We hold that in an appeal under the DDCCA, an
appellate court reviews a district court’s judgment or final
order for errors appearing on the record. When reviewing
a judgment for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. 21
20
See, generally, 56 C.J.S. Mental Health §§ 45 and 49 (2018); Valerie L.
Collins, Camouflaged Legitimacy: Civil Commitment, Property Rights,
and Legal Isolation, 52 How. L.J. 407 (2009); Ronnie Hall, In the
Shadowlands: Fisher and the Outpatient Civil Commitment of “Sexually
Violent Predators” in Texas, 13 Tex. Wesleyan L. Rev. 175 (2006).
21
In re Adoption of Faith F., 313 Neb. 491, 984 N.W.2d 640 (2023);
Schaefer Shapiro v. Ball, 305 Neb. 669, 941 N.W.2d 755 (2020).
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475[3] Whether a decision conforms to law and the interpreta-
tion of statutes present questions of law, in connection with
which an appellate court reaches a conclusion independent of
that reached by the lower court. 22
[4] An appellate court, in reviewing a district court judg-
ment for errors appearing on the record, will not substitute its
factual findings for those of the district court where competent
evidence supports those findings. 23
ANALYSIS
Having settled the standard of review, we briefly discuss
appellate jurisdiction before turning to the merits.
Appellate Jurisdiction
[5] 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. 24 Although the par-
ties do not contest our appellate jurisdiction, the appealability
of a dispositional order under the DDCCA is an issue of first
impression and deserves discussion.
[6] The DDCCA provides that the subject of a petition
has the right “to appeal a final decision of the court.” 25 We
recently read this provision “as incorporating the rules of
appealability in civil matters, including § 25-1902.” 26 One
rule of appealability in civil matters is that for an appellate
court to acquire jurisdiction of an appeal, the party must be
appealing from a final order or a judgment. 27 And under Neb.
22
Gelco Fleet Trust v. Nebraska Dept. of Rev., 312 Neb. 49, 978 N.W.2d 12(2022).
23
Pinnacle Bancorp v. Moritz, 313 Neb. 906, 987 N.W.2d 277 (2023).
24
In re Interest of K.C., supra note 6.
25
§ 71-1118(8).
26
In re Interest of K.C., supra note 6, 313 Neb. at 393, 984 N.W.2d at 282.
27
In re Interest of K.C., supra note 6.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475Rev. Stat. § 25-1902 (Cum. Supp. 2022), 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 substantial right made during a special pro-
ceeding; (3) an order affecting a substantial right made on sum-
mary 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. 28
[7] Here, T.W. appealed from the order of disposition.
Because we have previously stated that a proceeding involving
involuntary commitment is a special proceeding for appellate
purposes, 29 we turn our focus to whether the order affected a
substantial right.
According to our jurisprudence in the context of involuntary
commitment proceedings under different legislative acts, juris-
diction turned on whether the order appealed from deprived
the individual of his or her liberty for an indeterminate period
of time. 30 We believe a similar result should follow under
the DDCCA.
[8] We hold that an order of disposition under the DDCCA
that deprives a subject of his or her liberty for an indetermi-
nate period of time affects a substantial right. Because the
order of disposition deprived T.W. of his liberty for an inde-
terminate period of time, it affected a substantial right. And
because the order was made during a special proceeding, it is
a final order that may be appealed.
Having established the appropriate standard of review and
that jurisdiction is proper, we turn to the merits of T.W.’s two
assigned errors.
28
Id.
29
See id.
30
See id.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475Least Restrictive Alternative
First, T.W. argues that to the extent the court approved
DHHS’ plan, it erred by approving a plan that was not the
least restrictive alternative. In this regard, he contends that
Mitchell’s alternative plan was the appropriate least restrictive
alternative and that thus, the shared living provider arrange-
ment in DHHS’ plan was unnecessarily restrictive. Before con-
sidering the appropriateness of Mitchell’s plan, we discuss the
DDCCA’s least restrictive alternative requirement.
In the DDCCA, the Legislature explicitly recognized the
right of individuals with developmental disabilities to enjoy
personal liberty and freedom. 31 But it also acknowledged that
in some instances, a court needs to balance that right with the
interests of society and place the individual’s care and custody
with the State for appropriate treatment and services. 32
In balancing these interests, the concept of the least restric-
tive alternative is key. The DDCCA defines “[l]east restrictive
alternative” to mean “a placement and services provided in a
manner no more restrictive of a subject’s liberty and no more
intrusive than necessary to provide appropriate treatment and
protect society.” 33 The DDCCA directs that DHHS’ plan for
custody and treatment be in the least restrictive alternative. 34
It also specifies that DHHS’ plan shall include “appropri-
ate terms and conditions to provide custody and treatment of
the subject in the least restrictive alternative.” 35 And under
§ 71-1126, the court shall approve DHHS’ plan “unless it is
shown by a preponderance of the evidence that the plan is not
the least restrictive alternative for the subject.”
[9] The issue here is whether a preponderance of the evi-
dence showed that DHHS’ plan for a shared living provider
31
§ 71-1102.
32
Id.
33
§ 71-1109.
34
§ 71-1124.
35
§ 71-1125.
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475was not the least restrictive alternative. A “preponderance of
the evidence” is the equivalent of the greater weight of the
evidence. 36 The greater weight of the evidence means evidence
sufficient to make a claim more likely true than not true. 37
T.W. contends that the plan prepared by Mitchell—which rec-
ommended that T.W. remain in his mother’s home—was less
restrictive than DHHS’ plan.
Although Mitchell’s plan was less restrictive, the district
court implicitly found that Mitchell’s plan did not provide the
necessary treatment and did not adequately protect society.
Under our standard of review, we will not substitute our own
factual findings where competent evidence supports the district
court’s findings.
In this regard, competent evidence supported those find-
ings. According to testimony during the initial hearing, T.W.
was supposed to have “100-percent supervision.” His mother
paid an individual to watch him so she could work. But when
that individual failed to provide supervision, T.W. sexually
assaulted a child. Testimony during the disposition hearing
established that if T.W. remained in his mother’s home, DHHS
would not know, outside of the 70 hours per week when it
could provide supported family living service, if T.W. were
using the internet, viewing pornography, attempting to have
contact with children, or doing anything that a court ordered
him not to do.
Also problematic was the level of supervision that T.W.
needed. Svoboda and Mitchell agreed that T.W. needed 24/7
supervision, and Mitchell called it the “bottom line.” But
Mitchell’s testimony cast doubt on whether that was pos-
sible in T.W.’s home. He was unsure if T.W.’s mother could
provide such supervision. And Mitchell testified that if some-
one were not available in the home to watch T.W., then T.W.
36
See In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733(2020).
37
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475would need a living environment where staff could provide
24/7 supervision. Such supervision is available with a shared
living provider.
[10-12] The district court, as the finder of fact, was empow-
ered to accept or reject competing expert testimony. Testimony
of expert witnesses is not treated any differently in the fact-
finding process than that of witnesses generally when it comes
to determining the weight and credibility of the testimony. 38 A
trier of fact is not bound to accept expert opinion testimony. 39
The credibility of a witness is a question for the trier of fact,
and it is within its province to credit the whole of the witness’
testimony, or any part of it, which seemed to it to be convinc-
ing, and reject so much of it as in its judgment is not entitled
to credit. 40
Under § 71-1126, the court shall approve DHHS’ plan
“unless it is shown by [the greater weight] of the evidence that
the plan is not the least restrictive alternative for the subject.”
Here, the court implicitly found that as to T.W.’s evidence for
supported family placement, T.W. failed to meet that burden.
Competent evidence supported that finding. The court explic-
itly found DHHS’ plan was the “least restrictive option to
protect [T.W.’s] rights and to protect society.” Once again, the
record contained competent supporting evidence.
To the extent the court’s order rejected Mitchell’s plan and
instead approved DHHS’ plan, the order conformed to the law,
was supported by competent evidence, and was neither arbi-
trary, capricious, nor unreasonable. T.W.’s first assignment of
error lacks merit.
Additional Conditions
Second, T.W. claims that the court improperly imposed two
particular conditions above and beyond those recommended
38
Doyle v. Union Ins. Co., 202 Neb. 599, 277 N.W.2d 36 (1979).
39
Benjamin v. Bierman, 305 Neb. 879, 943 N.W.2d 283 (2020).
40
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IN RE INTEREST OF T.W.
Cite as 314 Neb. 475by DHHS. DHHS’ plan recommended such conditions as 24/7
supervision, alarms or chimes on all doors and windows to
alert staff to elopement attempts, and direct supervision of
T.W. while he accessed the internet. Though not part of DHHS’
plan that the court adopted, the court sua sponte added con-
ditions of “Global Positioning System” monitoring and no
internet access. In determining whether the plan submitted by
DHHS can be changed to make it more restrictive, we turn to
principles of statutory interpretation.
[13-15] The fundamental objective of statutory interpreta-
tion is to ascertain and carry out the Legislature’s intent. 41
Statutes pertaining to the same subject matter should be con-
strued together; such statutes, being in pari materia, must be
construed as if they were one law and effect given to every
provision. 42 In construing a statute, the legislative intention is
to be determined from a general consideration of the whole act
with reference to the subject matter to which it applies and the
particular topic under which the language in question is found,
and the intent as deduced from the whole will prevail over that
of a particular part considered separately. 43
The DDCCA’s statutory framework does not explicitly con-
template that a district court might need to make DHHS’ plan
more restrictive. A common theme in the DDCCA is that
DHHS’ plan be the least restrictive alternative. 44 If evidence
shows that it is not, the court shall not approve the plan. 45
Thus, the statutory scheme seems to envision that the State’s
interests normally would be fully reflected by the State’s evalu-
ation and proposed treatment plan.
41
Porter v. Knife River, Inc., 310 Neb. 946, 970 N.W.2d 104 (2022).
42
Wahlers v. Frye, 205 Neb. 399, 288 N.W.2d 29 (1980).
43
132 Ventures v. Active Spine Physical Therapy, 313 Neb. 45, 982 N.W.2d
778 (2022).
44
See §§ 71-1124, 71-1125, and 71-1126.
45
See § 71-1126.
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Cite as 314 Neb. 475[16,17] But we do not read the statute to designate DHHS’
plan as a “ceiling” in all circumstances and to preclude the
State from proving that greater restrictions were necessary
to establish the least restrictive alternative. Such a reading
would impose upon the judicial department an opinion of
an expert representing the executive department. Nebraska’s
separation of powers clause prohibits the three governmental
branches from exercising the duties and prerogatives of another
branch. 46 Where a statute is susceptible of two constructions,
under one of which the statute is valid while under the other
it is unconstitutional or of doubtful validity, that construction
which gives it validity should be adopted. 47
Here, an alternative reading avoids this problem. Under
§ 71-1126, the court is to consider not just the plan, but
also “the arguments of the parties, and any other relevant
evidence,” and to approve the plan “unless it is shown by a
preponderance of the evidence that the plan is not the least
restrictive alternative for the subject.” In addition, § 71-1126
mandates that the order of disposition “set[] forth the treat-
ment plan for the subject.” (Emphasis supplied.) This language
distinguishes the court’s treatment plan from the department’s
proposed plan. We read these provisions to mean that the
State could show, or the district court could otherwise inde-
pendently conclude, by the greater weight of the evidence that
more restrictions were necessary to achieve the least restric-
tive alternative. Whether the evidence does so is entrusted
initially to the district court. We review the court’s decision
under our standard for errors appearing on the record.
We consider the two ways in which the court’s order dif-
fered from the plan.
First, the court had evidence of T.W.’s circumvention of
technological restrictions. Svoboda testified that T.W. was
46
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
47
Nebraska Pub. Serv. Comm. v. Nebraska Pub. Power Dist., 256 Neb. 479,
590 N.W.2d 840 (1999).
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Cite as 314 Neb. 475able to bypass safeguards that had been put on his cell phone
to keep him from accessing certain websites. From this evi-
dence, the court could reasonably infer that mere supervision
may not be sufficient to prevent harm to the public and that
only a ban on internet usage would suffice.
Second, while DHHS’ plan called for 24/7 supervision
outside the shared living provider’s residence, the court had
evidence that T.W. had been living with his mother for approx-
imately 1 year since the allegations of sexual assault, that he
had been wearing an ankle monitor to track his movements,
and that no further acts had occurred. From this evidence, the
court could reasonably infer that the ankle monitor required at
the earlier stage had protected the public where other attempts
of supervision had failed.
Based on this evidence and these inferences, the district
court could reasonably conclude that the greater weight of
the evidence showed that the additional restrictions were
necessary to achieve the least restrictive alternative. The
court implicitly found that without the additional restric-
tions, DHHS’ plan was not the least restrictive alternative. We
recognize that the court could have rendered an order with
greater specificity regarding its findings. But a fair reading of
the order dictates that it must have concluded that the State
met its burden to show, by the greater weight of the evidence,
DHHS’ plan, as modified by the court, was the least restric-
tive alternative.
Therefore, we find no merit to T.W.’s second assignment of
error. In other words, we find no error appearing on the record
regarding the imposition of additional conditions in the court’s
order of disposition.
CONCLUSION
In this appeal under the DDCCA, we review the district
court’s judgment or final order for errors appearing on the
record. T.W. attacked two aspects of the district court’s order
of disposition—rejection of his plan for home supervision
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Cite as 314 Neb. 475and imposition of additional conditions. We conclude that the
court’s order, including the two added conditions, conformed
to the law, was supported by competent evidence, and was
neither arbitrary, capricious, nor unreasonable. We therefore
affirm the court’s final order.
Affirmed.
Miller-Lerman, J., concurring.
I agree with the majority that the appellate standard of
review is for errors appearing on the record. I further agree
that under the relevant statutes, Neb. Rev. Stat. §§ 71-1101to 71-1134 (Reissue 2018), the district court is not limited to
the plan submitted by the Department of Health and Human
Services and can modify the terms of the treatment plan.
However, the additional terms need to be supported by suf-
ficient evidence.
In this case, the opinion of the majority that the district
court’s total ban on usage of the internet and the requirement
of an ankle monitor were inferentially necessary to achieve
the least restrictive conditions. However laudatory these addi-
tional conditions may be, I do not believe they are supported
by competent evidence that the conditions are necessary to
implement the least restrictive alternative. And it necessar-
ily follows that the imposition of greater restrictions without
sufficient supporting evidence does not conform to the law.
Accordingly, I would modify the condition that prohibits all
internet access for any purpose and would replace it with
DHHS’ recommendation that T.W. must “be directly super-
vised during all electronic and/or telephonic communications,
as well as while he is accessing the internet.” And I would
remove altogether the requirement that T.W. wear an ankle
monitor at all times. As so modified, I would affirm the order
of the district court.
Stacy and Papik, JJ., join in this concurrence.