In re Interest of Kochner
| Decision Date | 06 June 2003 |
| Docket Number | No. S-02-998.,S-02-998. |
| Citation | 266 Neb. 114,662 N.W.2d 195 |
| Parties | In re INTEREST OF Richard KOCHNER, alleged to be a mentally ill dangerous person. Richard Kochner, Appellant, v. Mental Health Board, Lancaster County, Appellee. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, Dorothy A. Walker, and Matthew G. Graff, Senior Certified Law Student, for appellant.
Gary E. Lacey, Lancaster County Attorney, and Barbara J. Armstead, for appellee.
The Lancaster County Mental Health Board (Board) determined that the appellant, Richard Kochner, is a mentally ill dangerous person under Neb.Rev.Stat. § 83-1001 et seq. (Reissue 1999 & Cum. Supp.2000), of the Nebraska Mental Health Commitment Act (Commitment Act). The Board ordered him committed for inpatient treatment. The district court, sitting as an appellate court under § 83-1043, affirmed the Board's decision, and Kochner appealed. We affirm.
Kochner assigns, restated, that the district court erred in concluding that (1) his statutory right to have a hearing within 7 days of being taken into protective custody was not denied; (2) there was sufficient evidence to support the Board's order of commitment; (3) inpatient treatment was the least restrictive treatment alternative available; and (4) the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (2000) did not require the State to provide the type of community-based program recommended by his expert as an alternative to inpatient treatment.
The district court reviews the determination of the mental health board de novo on the record. See, § 83-1043; In re Interest of Ely, 220 Neb. 731, 371 N.W.2d 724 (1985). In reviewing a district court's judgment under the Commitment Act, 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. In re Interest of S.B., 263 Neb. 175, 639 N.W.2d 78 (2002).
In 1991, Kochner sexually assaulted his 14-year-old daughter. He was convicted of sexual assault on a child as a result of the incident and was sentenced to probation for a period of 2 years.
In May 1999, the State charged Kochner with sexual assault of a child. The State alleged that he had sexually assaulted a girl for whom his wife was babysitting. He pled no contest to the charges, and the court sentenced him to 2 to 5 years' imprisonment.
Kochner, who was serving his sentence at the Omaha Correctional Center, was scheduled to be released on October 4, 2001. On August 14, Mark E. Weilage, Ph.D., a clinical psychologist at the Omaha Correctional Center, sent a letter to the Douglas County Attorney's office recommending that Kochner be referred to the Board for possible postincarceration commitment.
On September 13, 2001, the Douglas County Attorney filed a petition claiming that Kochner was a mentally ill dangerous person and that "mental-health-board-ordered treatment" was the least restrictive means for addressing the issue. The petition also claimed that "the immediate custody of [Kochner] is required to prevent the occurrence of the harm described by section [sic] § 83-1009." The parties agree that the Douglas County Mental Health Board ordered Weilage to take Kochner into protective custody on September 13. But, it is unclear how long Weilage held Kochner in protective custody.
Sometime on or after September 13, 2001, the case was transferred to Lancaster County. On October 1, the Lancaster County Attorney filed an amended petition. The county attorney alleged that "the immediate custody of [Kochner] is required to prevent the occurrence of the harm described by § 83-1009." Apparently on the same day, the Lancaster County Mental Health Board issued a summons on the amended petition and a warrant for Kochner's arrest. The summons set October 11 as the date for the hearing on whether to commit Kochner.
The record does not show the exact date that officials from Lancaster County took Kochner into protective custody. In its brief, the State claims that Kochner "was served with a warrant to appear before the Lancaster County Mental Health Board" on October 3, 2001, but that he was not taken into protective custody until October 4. Brief for appellee at 5. Kochner, however, claims he was taken into protective custody by officials from Lancaster County on October 3.
The Board held a hearing on October 11, 2001. At the hearing, Kochner moved to dismiss the amended petition because the summons failed to set a hearing within 7 days of the time he was taken into protective custody. See § 83-1027. The Board denied the motion to dismiss.
The Board held a hearing on the substantive issues on January 29, 2002. The State presented evidence from Weilage; John Nason; and Mary Paine, Ph.D. Weilage testified that Kochner failed to complete a treatment program for sexual offenders. Nason, a mental health technician with the Lancaster County correctional facility, testified about an incident that occurred in mid-October 2001 in which he had observed Kochner masturbating in the correctional facility's library.
Paine, a clinical psychologist, was the State's expert witness. She diagnosed Kochner as having "[p]edophilia ... non-exclusive, cognitive disorder NOS, ... personality disorder NOS, with prominent anti-social and prominent schizotypal features." When asked if she believed Kochner poses a risk to himself or others, Paine testified to a reasonable degree of psychological certainty that he is "at moderate to high risk with the emphasis being on the high risk of re-offending sexually against minor females."
Paine rejected the contention that because 4 years had passed since the last sexual assault, there was no evidence that Kochner posed an immediate threat. Paine pointed out that Kochner had been imprisoned for much of that period and that he had failed to complete treatment while incarcerated. Paine also stated that Kochner's inappropriate sexual behavior at the Lancaster County correctional facility indicated that he still had poor judgment and a lack of impulse control.
Paine also testified that the least restrictive treatment alternative which would successfully treat Kochner's mental illness was inpatient sex offender treatment at the Lincoln Regional Center.
A. Jocelyn Ritchie, Ph.D., a psychologist specializing in neuropsychology, testified for Kochner. She diagnosed him as having pedophilia and cognitive disorder, as well as personality disorder with antisocial and schizotypal features. She placed Kochner at moderate risk for recidivism. Ritchie also opined as to what was the least restrictive treatment option. She believed that a regimented outpatient treatment program would be successful if Kochner was kept away from children and he lived in a supervised community residence.
The Board determined that Kochner "suffers from pedophilia, opposite sex, nonexclusive; cognitive disorder, NOS; and personality disorder, NOS, with anti-social and schizotypal features." It also concluded that Kochner "presents a substantial risk to other persons within the near future as manifested by recent acts of violence toward other persons." The Board determined that "neither voluntary hospitalization nor other treatment alternatives less restrictive of [Kochner's] liberty are available to prevent the harm described in the petition by reason that [Kochner], in his present mental condition, requires inpatient treatment." Accordingly, the Board ordered Kochner committed for inpatient treatment.
Kochner appealed the Board's decision to the district court. The court affirmed the Board's decision.
TIMELINESS OF HEARING
In his first assignment of error, Kochner argues that § 83-1027 requires that a hearing be held within 7 days of the time that the person is taken into protective custody. He claims that his hearing was held more than 7 days after he was taken into protective custody and that thus, the Board should have dismissed the petition. We, however, decline to address the merits of this assignment of error, because the record presented is inadequate to show that Kochner was ever held under the authority of a mental health board for more than 7 consecutive days without a hearing.
The parties' briefs reveal a disagreement over which day Kochner was taken into protective custody. Kochner claims that he was taken into protective custody by Lancaster County on October 3, 2001, 8 days before the initial hearing. In its brief, however, the State claims that the Lancaster County sheriff served Kochner with "a warrant to appear before the Lancaster County Mental Health Board" on October 3, but that Lancaster County did not take Kochner into protective custody until October 4, 7 days before the initial hearing. Brief for appellee at 5. If the State's date is correct, then even if we adopted Kochner's interpretation of § 83-1027, the statute would not have been violated because the hearing would have been held within 7 days of the time that Lancaster County took Kochner into protective custody.
The record does not provide a basis by which we can resolve the dispute over which day Lancaster County took Kochner into protective custody. A summons and an arrest warrant, both issued by the Lancaster County Mental Health Board, appear in the...
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