In re Interest of R.T.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/30/2021 08:08 AM CST
- 405 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405In re Interest of R.T., alleged to be a
mentally ill and dangerous person.
State of Nebraska, appellee,
v. R.T., appellant.
___ N.W.2d ___
Filed November 23, 2021. No. A-21-089.
1. Mental Health: Judgments: Appeal and Error. The district court
reviews the determination of a mental health board de novo on the
record. In reviewing a district court’s judgment, an appellate court will
affirm unless it finds, as a matter of law, that clear and convincing evi-
dence does not support the judgment.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, an appellate court must determine whether it has
jurisdiction.
3. ____: ____. Notwithstanding whether the parties raise the issue of juris-
diction, an appellate court has a duty to raise and determine the issue of
jurisdiction sua sponte.
4. Statutes: Appeal and Error. The right of appeal in this state is purely
statutory; unless a statute provides for an appeal from the decision of a
quasi-judicial tribunal, such right does not exist.
5. Judgments: Final Orders: Jurisdiction: Appeal and Error.
Proceedings in error under Neb. Rev. Stat. §§ 25-1901 to 25-1908
(Reissue 2016 & Cum. Supp. 2020) provide a means of judicial review
of the judgments and final orders of tribunals exercising judicial func-
tions and inferior in jurisdiction to the district court.
6. Judgments: Final Orders: Appeal and Error. A petition in error in the
district court to review a judgment or final order of an inferior tribunal
is in its nature an independent proceeding having for its purpose the
removal of the record from an inferior to a superior tribunal to deter-
mine whether the judgment or final order entered is in accordance with
the law.
- 406 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 4057. Appeal and Error. Rather than a “review on appeal” under Neb. Rev.
Stat. §§ 25-1911 to 25-1937 (Reissue 2016 & Cum. Supp. 2020), a peti-
tion in error is in the nature of a new action, in that a petition in error is
required to be perfected, with a summons required to be issued upon the
written praecipe of the petitioner in error.
8. Appeal and Error: Words and Phrases. A petition in error is the
removal of proceedings from one court or tribunal to another for review.
9. Judgments: Appeal and Error. A petition in error is designed to review
the decision of the inferior tribunal and is not to act as a super legisla-
tive or administrative agency to come to an independent conclusion.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Order vacated and appeal dismissed.
Stephanie L. Clark, of Nelson, Clark & Timan, P.C., L.L.O.,
and Jonathan A. Eller, of Lepant Law Office, P.C., L.L.O., for
appellant.
Roger L. Harris, Gage County Attorney, and Michael W.
Wehling for appellee.
Pirtle, Chief Judge, and Moore and Welch, Judges.
Welch, Judge.
INTRODUCTION
R.T. appeals the Gage County District Court’s order affirm-
ing the determination of the Mental Health Board of the First
Judicial District that he was mentally ill and dangerous and
continuing his custody with the “Nebraska Department of
Health and Human Services/Nebraska Mental Health Centers”
for appropriate outpatient treatment. For the reasons set forth
herein, we find that both the district court and this court lack
jurisdiction, and therefore, we vacate the district court’s order
and dismiss this appeal.
STATEMENT OF FACTS
On June 2, 2019, in Beatrice, Nebraska, a police officer
responded to a report of a man who had parked his vehicle
in the reporting parties’ driveway. The man was acting dis-
traught, was lying down in front of a lawnmower, and would
- 407 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405not leave the property when asked. When the officer contacted
R.T., whom she identified from previous contacts with law
enforcement, he was displaying “irate behaviors,” screaming
at area residents, and “walking around in the middle of the
street.” The officer had difficulty communicating or reasoning
with R.T., who was talking at a very high rate of speed, was not
making sense, could not answer her questions, and attempted
to engage in a fight with another individual. The officer placed
R.T. into emergency protective custody.
On June 4, 2019, the State filed a petition with the mental
health board, alleging that R.T. was mentally ill and danger-
ous pursuant to the Nebraska Mental Health Commitment Act
(MHCA). See Neb. Rev. Stat. §§ 71-901 to 71-963 (Reissue
2018). A hearing thereon was held on June 7. Evidence was
adduced as previously set forth. Additionally, Dr. Vickie
Bulling testified that she conducted a psychological evaluation
on R.T. on June 4. She described R.T.’s demeanor during that
evaluation as “easily agitated, grandiose, [and] disorganized
in speech and behaviors,” and she stated that “[h]e had dif-
ficulty with his grasp of reality [and] made a lot of illogi-
cal delusional statements” which evidenced the presence of
a psychotic disorder. She further testified that R.T. does not
have any insight into his mental illness and that he refused his
medications on the previous night. Bulling reviewed some of
R.T.’s medical records which indicated that he had been diag-
nosed with schizoaffective disorder. Bulling diagnosed R.T.
with “unspecified schizophrenia spectrum or other psychotic
disorder,” which diagnosis was consistent with R.T.’s earlier
diagnosis. According to Bulling, R.T.’s diagnosis was mani-
festing in his behavior in the following ways:
[R.T.] is unable to formulate any kind of logical state-
ments. He’s unable to track statements made by other
people and come up with any kind of decision-making
ability. He is delusional. He makes statements that are
delusional in nature. He is grandiose. He is hyper and
manic. He makes threatening sexual statements to the
- 408 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405staff and does not seem to recognize the impact of those
statements.
Bulling opined, within a reasonable degree of psychologi-
cal certainty, that R.T. was a danger to himself and could be
a potential danger to others based upon the following factors:
[R.T.’s] ability to be able to care for himself in a setting
outside of the hospital would be very difficult. He would
not be able to communicate to others about his needs in a
rational manner or get his needs met. He becomes easily
agitated and threatening and . . . outside of the hospital
setting, he could pose a danger to others, because of his
misinterpretation of comments made to him or whatever is
going on in terms of his delusional thinking, . . . whether
somebody says something appropriate and he misinter-
prets based on his own disorganization of thought, what
the intent of the person he is encountering might be.
As a result of her evaluation of R.T., Bulling recommended
inpatient treatment and care as the least restrictive treatment
option for R.T.
That same day, the mental health board found, by clear and
convincing evidence, that R.T. was mentally ill and dangerous
and that neither voluntary hospitalization nor other treatment
alternatives less restrictive of R.T.’s liberty than a board-
ordered treatment disposition would be sufficient to prevent
a substantial risk of harm. Specifically, the board found that
R.T. evidenced “a severe psychotic disorder that can only be
treated by Board ordered inpatient treatment. Any treatment
plan shall include the taking of mandated medications, if deter-
mined to be necessary by any treating physician.” The board
ordered R.T. to be placed in the custody of the Department of
Health and Human Services (hereinafter DHHS) for appropri-
ate treatment and ordered DHHS to prepare and implement an
individualized treatment plan for R.T.
Following a hearing on June 24, 2019, the mental health
board found by clear and convincing evidence that R.T. con-
tinued to be a mentally ill and dangerous person. However,
- 409 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405the board released R.T. from board-ordered inpatient treatment
and ordered that R.T.’s custody be continued with DHHS for
appropriate outpatient treatment. The order included a find-
ing that R.T. shall receive injectable medication on a monthly
basis and that written verification shall be filed with the clerk
of the Gage County District Court on a monthly basis. Another
review hearing was held in October, after which the board
continued R.T.’s custody with DHHS for outpatient treatment
based upon its finding that R.T. was still a mentally ill and dan-
gerous person and continued the requirements that R.T. shall
receive injectable medication and file written verification with
the clerk of the district court on a monthly basis.
Another review hearing was held in September 2020. During
this hearing, R.T. adduced evidence that he has received his
monthly injections as required. Following the hearing, the
mental health board found, by clear and convincing evidence,
that R.T. remained a mentally ill and dangerous person and
continued R.T.’s custody with DHHS for appropriate outpatient
treatment, continuing the requirements that R.T. shall receive
injectable medication and file written verification with the
clerk of the district court on a monthly basis. The board spe-
cifically stated:
We have nothing telling us what [R.T.’s] condition is,
what the diagnosed future condition to be, how long he
needs to be on further medication, what that medication
might be. We are in total lack of any direction for this
Board. Because, of course, under the statute is that we
don’t want him to be on board-ordered commitment if
he doesn’t need to be. We have nothing telling us that is
the case.
So by clear and convincing proof, we have nothing
telling us he should be released from board-ordered com-
mitment. We have nothing telling us how long it should
be continued if that is the case in the future. And it’s not
our role — we’re not the psychiatric physicians or per-
sonnel to make that determination or pull something out
- 410 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405of the air as to what should be done, and frankly, we are
not willing to suddenly make some type of medical diag-
nosis or psychiatric diagnosis as to what that should be.
So the sum and substance is that we are going to leave
[R.T.] on the continued orders that have been currently in
place . . . .
The court’s written order provided that a review hearing
would take place in 3 months.
R.T. appealed the mental health board’s decision to the Gage
County District Court, which affirmed the board’s decision.
R.T. has now timely appealed to this court.
ASSIGNMENTS OF ERROR
On appeal, R.T. contends that the district court erred in (1)
finding that the State provided evidence that he was dangerous
and (2) affirming the mental health board’s decision that he
remained dangerous upon review.
STANDARD OF REVIEW
[1] The district court reviews the determination of a men-
tal 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.ANALYSIS
[2,3] Before reaching the assignments of error asserted by
R.T., this court must first determine whether it has jurisdiction
over this appeal. Before reaching the legal issues presented for
review, an appellate court must determine whether it has juris-
diction. McEwen v. Nebraska State College Sys., 303 Neb. 552,
931 N.W.2d 120 (2019). Notwithstanding whether the parties
raise the issue of jurisdiction, an appellate court has a duty to
raise and determine the issue of jurisdiction sua sponte. State v.
Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002).
- 411 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405Our jurisdictional analysis here is similar to the Nebraska
Supreme Court’s analysis in In re Interest of D.I., 281 Neb.
917, 799 N.W.2d 664 (2011). In that case, the court exam-
ined whether the mental health board’s denial of a motion
for reconsideration was an appealable order that conferred
jurisdiction with the appellate court. More specifically, D.I.
had previously been committed as a dangerous sex offender
under the Sex Offender Commitment Act (SOCA). See Neb.
Rev. Stat. §§ 71-1201 to 71-1226 (Reissue 2018). He later
filed for a review hearing under § 71-1219 of SOCA styled
as a motion for reconsideration seeking a discharge from that
commitment. Once the board denied D.I.’s motion and the
district court affirmed the board’s decision, D.I. appealed to
the Nebraska Supreme Court. The court, in addressing whether
it had jurisdiction over that type of order, noted the hearing
and order arose under § 71-1219, which generally entitled
the committed person or board to request a review hearing to
determine whether the subject’s mental illness had been suc-
cessfully treated or managed to the extent the subject no longer
posed a threat to the public or that a less restrictive treatment
alternative existed. As it related to orders under § 71-1219,
the court noted that, although § 71-1214 contemplated the
right to directly appeal from a “treatment order” entered under
§ 71-1209 of SOCA, the same could not be said to review
orders under § 71-1219. Instead, the court held that “the ques-
tion [becomes] whether the decision of the mental health board
denying D.I.’s motion for reconsideration was a final, appeal-
able order under §§ 25-1901 and 25-1902.” In re Interest of
D.I., 281 Neb. at 922, 799 N.W.2d at 669.
Here, although the case at bar represents an appeal from
provisions of the MHCA, not SOCA, as the Nebraska Supreme
Court noted in In re Interest of D.I., “SOCA and the MHCA
have similar procedures for commitment and appeals,” not-
withstanding the substantive difference in legal standards
between dangerous sex offenders under SOCA and mentally
ill and dangerous persons under MHCA. 281 Neb. at 922, 799
- 412 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405N.W.2d at 669. As it relates to procedural similarities—as the
Nebraska Supreme Court further noted in In re Interest of D.I.,
supra—§ 71-930 of the MHCA mirrors that of § 71-1214.
And § 71-1219 is patterned after § 71-935. Because the instant
appeal is taken from an order entered following a § 71-935
review hearing, it logically follows that R.T.’s appeal rights
herein were likewise grounded in Neb. Rev. Stat. §§ 25-1901
(Reissue 2016) and 25-1902 (Cum. Supp. 2020).
But unlike the appellant in In re Interest of D.I., 281 Neb.
917, 799 N.W.2d 664 (2011), R.T. did not file a petition in
error in order to seek review of the mental health board’s deci-
sion in the district court. Instead, R.T. filed a notice of appeal
and attempted to confer jurisdiction for review by the district
court under procedures dictated by Neb. Rev. Stat. §§ 25-1911
to 25-1937 (Reissue 2016 & Cum. Supp. 2020), and not those
dictated by Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue
2016 & Cum. Supp. 2020).
[4-9] As the Nebraska Supreme Court recently held in
Champion v. Hall County, 309 Neb. 55, 70-71, 958 N.W.2d
396, 408-09 (2021):
The right of appeal in this state is purely statutory;
unless a statute provides for an appeal from the decision
of a quasi-judicial tribunal, such right does not exist.
Proceedings in error under Neb. Rev. Stat. §§ 25-1901
to 25-1908 (Reissue 2016 & Cum. Supp. 2020) provide
a means of judicial review of the judgments and final
orders of tribunals exercising judicial functions and infe-
rior in jurisdiction to the district court.
A petition in error in the district court to review a
judgment or final order of an inferior tribunal is in its
nature an independent proceeding having for its purpose
the removal of the record from an inferior to a superior
tribunal to determine whether the judgment or final order
entered is in accordance with the law. Rather than a
“review on appeal” under Neb. Rev. Stat. §§ 25-1911 to
25-1937 (Reissue 2016 & Cum. Supp. 2020), a petition
- 413 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405in error is in the nature of a new action, in that a peti-
tion in error is required to be perfected, with a summons
required to be issued upon the written praecipe of the
petitioner in error. The subjects of a review on petition in
error and an appeal are so distinctively different and dis-
similar that the provisions of the statute relating to each
question cannot be taken together and construed as if they
were one law and effect given to every provision.
At the same time, a petition in error is not a right of
action and does not exist at common law. It is a legisla-
tively created method of review. Thus, a petition in error
is in a broader sense an appeal, because it is the removal
of proceedings from one court or tribunal to another
for review. The reviewing court may reverse, vacate, or
modify the lower judicial tribunal’s judgment or final
order for error on the record. In an error proceeding in
the district court, that court must look to the transcript
of the proceedings of the inferior tribunal filed with the
petition in error to ascertain what happened there. Such a
proceeding is ordinarily tried on the appropriate and rel-
evant questions of law, set out in the petition in error and
appearing in the transcript. A petition in error is designed
to review the decision of the inferior tribunal and is not to
act as a super legislative or administrative agency to come
to an independent conclusion.
By ruling in In re Interest of D.I., 281 Neb. 917, 799 N.W.2d
664 (2011), that the right of appeal from an order denying
a motion for reconsideration under § 71-1219 of SOCA was
grounded in §§ 25-1901 and 25-1902, the Nebraska Supreme
Court determined that the requisite appeal procedure from an
order arising from that statute was grounded in petition in error
procedural statutes.
Moreover, as the Supreme Court recognized in In re Interest
of D.I., supra, although there are substantive differences
between SOCA and MHCA, they have similar procedures for
commitment and appeals. Because § 71-930 does not provide
- 414 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF R.T.
Cite as 30 Neb. App. 405a direct right of appeal from an order issued in connection
with § 71-935, R.T.’s right to appeal here was grounded in
§§ 25-1901 to 25-1908. And because R.T. attempted to appeal
the decision of the mental health board utilizing procedures
set forth in §§ 25-1911 to 25-1937, the district court never
acquired jurisdiction over R.T.’s appeal.
We conclude that the district court lacked jurisdiction to
consider R.T.’s direct appeal and that this court likewise lacks
jurisdiction over this appeal. In light of that conclusion, it is
unnecessary to address R.T’s assignments of error. See Seldin
v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020)
(appellate court not obligated to engage in analysis not neces-
sary to adjudicate case and controversy before it). Accordingly,
the order of the district court is vacated and this appeal
is dismissed.
CONCLUSION
Having determined that both the district court and this court
lack jurisdiction over R.T.’s appeal, we vacate the district
court’s order and dismiss this appeal.
Order vacated and appeal dismissed.