In re Interest of EM, A-04-484.

• Decision Date: 18 January 2005
• Docket Number: No. A-04-484.,A-04-484.
• Citation: 13 Neb. App. 287,691 N.W.2d 550
• Parties: In re INTEREST OF E.M., alleged to be a mentally ill dangerous person. State of Nebraska, appellee, v. E.M., appellant.
• Court: Nebraska Court of Appeals

691 N.W.2d 550

13 Neb. App. 287

In re INTEREST OF E.M., alleged to be a mentally ill dangerous person.

State of Nebraska, appellee, v. E.M., appellant.

No. A-04-484.

Court of Appeals of Nebraska.

January 18, 2005.

Dennis R. Keefe, Lancaster County Public Defender, Dorothy A. Walker, and Sarah P. Newell, Senior Certified Law Student, for appellant.

Gary Lacey, Lancaster County Attorney, Krista Hendrick, and Julie Agena, Senior Certified Law Student, for appellee.

INBODY, Chief Judge, and IRWIN and CARLSON, Judges.

IRWIN, Judge.

I. INTRODUCTION

E.M. appeals from an order of the district court in which the court found him to be a mentally ill dangerous person and found that inpatient treatment is the least restrictive treatment alternative for him. On appeal, E.M. asserts that he was denied his statutory right to have a hearing within 7 days of being taken into custody, see Neb.Rev.Stat. § 83-1045.02 (Reissue 1999), and that there was insufficient evidence to support the court's findings. We find that the statutory language governing the time for hearings is directory, not mandatory, and that there was sufficient evidence to support the court's findings. As such, we affirm.

II. BACKGROUND

E.M. was convicted of sexually assaulting a child in 1996. E.M. was sentenced to inpatient treatment and was in inpatient treatment between May 1996 and November 2001. After completing that inpatient treatment, E.M. voluntarily signed himself into a voluntary transition program in which he received further inpatient treatment between November 2001 and October 2002. E.M. was then discharged into the community and admitted into an outpatient "aftercare" program. In December 2002, E.M. discontinued his involvement with the outpatient aftercare program, contrary to the recommendations of the program facilitators.

On April 8, 2003, the Lancaster County Attorney filed a petition before the Lancaster County Mental Health Board (the board) alleging that E.M. was a mentally ill dangerous person presenting a substantial risk of serious harm to himself or another person. The petition further alleged that a "mental-health-board-ordered treatment disposition" would be the least restrictive treatment alternative for E.M. Attached to the petition was an affidavit from Dr. Steven B. Blum, the consulting psychologist from the outpatient aftercare program. Dr. Blum indicated that E.M. had reported he had previously victimized numerous children by sexual assault (which had led to his confinement beginning in 2001), that E.M. had reported a return to various behaviors which were part of his prior pattern of child sexual assault, that E.M. had discontinued attending the aftercare program without the approval of the aftercare program workers, and that E.M. was at high risk to reoffend.

On April 17, 2003, the board entered an order of commitment. E.M. had appeared before the board and admitted the allegations of the petition. E.M. stipulated that he was a mentally ill dangerous person and that he posed a substantial risk of harm to others. The court found that at that time, the least restrictive treatment alternative for E.M. was commitment to an outpatient program. As such, the board ordered E.M. committed to an outpatient aftercare program for sex offenders. The terms of the outpatient treatment plan included requirements that E.M. attend aftercare meetings every Saturday, that E.M. attend either Alcoholics Anonymous or Narcotics Anonymous meetings once per week, that E.M. abstain from the use of alcohol or drugs, and that E.M. have no contact with minors. The treatment plan further indicated that E.M.'s failure to comply with the terms of the plan would result in a request for inpatient treatment for him.

The record reveals that within 2 weeks of the April 17, 2003, outpatient commitment order, E.M. reported using methamphetamine, having minors in his residence, and only sporadically attending Alcoholics Anonymous or Narcotics Anonymous meetings. E.M.'s last attendance at an aftercare meeting occurred in July 2003. At some point, E.M. left Lancaster County and moved to Hayes Center, Nebraska, to be closer to other family members. The record indicates that there are no outpatient services for E.M. in the geographic area of Hayes Center.

On September 17, 2003, the Lancaster County Attorney filed a motion before the board asking the board to reexamine E.M.'s outpatient commitment. The motion contained allegations that E.M. was not complying with the terms of the April 17 commitment order and that the least restrictive treatment alternative for him was inpatient treatment. Attached to the motion was an affidavit from Dr. Blum in which he indicated that E.M. had missed 2 weekly aftercare meetings in July and had attended no aftercare meetings since July; that E.M. had had no contact with group facilitators since July; that E.M. had reported using methamphetamine, having minors in his apartment, and inconsistently attending Alcoholics Anonymous or Narcotics Anonymous meetings; that E.M. was no longer living at his registered residence; and that E.M. was at significant risk to reoffend.

E.M. was taken into custody on September 17, 2003, pursuant to an emergency protective custody order (EPC). The record is not clear about the genesis of the EPC. The Lancaster County sheriff took custody of E.M. in Hayes Center on September 18 and transferred E.M. to Lancaster County.

On September 25, 2003, the board held a hearing on the motion to reexamine E.M.'s outpatient commitment order. At that hearing, E.M. sought to have the proceedings dismissed, alleging that he had been held in custody for more than 7 days without a hearing and that such violated § 83-1045.02. The board overruled E.M.'s motion.

The board received evidence, including testimony concerning E.M.'s failure to comply with the outpatient commitment order. The board heard testimony that since E.M.'s release from inpatient treatment, he had violated most of the coping skills and relapse prevention techniques taught in the inpatient program, and that he was at high risk to relapse and reoffend. The board also heard testimony that inpatient treatment was necessary because E.M. had been afforded numerous opportunities and guidance for outpatient treatment, but that his refusal to comply with terms of voluntary and board-ordered treatment necessitated inpatient treatment. Further, the board heard testimony that E.M. posed a continued danger to minors and that there was a risk that he would reoffend "in the near future." E.M. argued to the board that the outpatient treatment had been effective because he had not actually reoffended since being released from inpatient treatment.

On September 26, 2003, the board entered an order of commitment. The board found that E.M. had failed to comply with the terms of the previous outpatient commitment order, that he remained a mentally ill dangerous person, and that he posed a substantial likelihood of danger to others. The board specifically found that the hearing was conducted within 7 days of E.M.'s being taken into custody. The board ordered that E.M. be committed to inpatient treatment.

E.M. appealed the board's order to the district court. On March 23, 2004, the district court entered an order, finding no merit to E.M.'s argument concerning the timing of his hearing. The district court also found clear and convincing evidence to support the board's finding that E.M. is a mentally ill dangerous person, that he suffers from pedophilia, and that he poses a substantial risk of harm to others. The district court further noted that E.M. had stipulated to being a mentally ill dangerous person who poses a substantial risk of harm to others. The district court affirmed the board's finding that inpatient treatment is the least restrictive treatment alternative for E.M. This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, E.M. has assigned two errors. First, E.M. asserts that the district court erred in finding that he was not denied his statutory right to a hearing within 7 days of being taken into custody. Second, E.M. asserts that the district court erred in finding sufficient evidence to support the board's findings.

IV. ANALYSIS

1. STANDARD OF REVIEW

The district court reviews the determination of a mental health board de novo on the record. In re Interest of Kochner, 266 Neb. 114, 662 N.W.2d 195 (2003). In reviewing a district court's judgment in mental health commitment proceedings, appellate courts will affirm the district court's judgment unless, as a matter of law, the judgment is unsupported by evidence which is clear and convincing. See, id.; In re Interest of S.B., 263 Neb. 175, 639 N.W.2d 78 (2002)

.

2. HEARING WITHIN 7 DAYS

E.M. first asserts that he was confined for more than 7 days before being afforded a hearing and that such confinement violated the statutory mandate of § 83-1045.02. At trial, E.M. sought to have the proceedings dismissed because of this alleged violation, but the board overruled his motion. The district court found that the statutory provision had not been violated. We conclude that the statutory language at issue in § 83-1045.02 is directory, not mandatory, because of the purposes of the provision and the lack of a remedy for violation of the provision, and that we therefore need not determine whether the provision was violated on the facts of this case. We note, however, that this is a case of first impression concerning whether the language in § 83-1045.02 is directory or mandatory.

Section 83-1045.02 authorizes a mental health board to conduct a hearing to review whether a patient previously committed to outpatient treatment can be adequately served by the outpatient plan or whether outpatient treatment needs to be continued, modified, or ended. Section 83-1045.02 also authorizes a mental health board to issue a warrant directing any law enforcement officer to take the subject into custody...