In re Interest of Sarah L. et al.

CONCLUSION
We dismiss Hausmann’s appeal to this court for lack of juris-
diction. The district court lacked subject matter jurisdiction to
consider Hausmann’s motion for rehearing, and consequently,
the October 22, 2007, order from which she attempts to appeal
was null and void. Because she did not timely appeal from the
district court’s final order of September 10, we lack jurisdiction
of Hausmann’s appeal.
A ppeAl dismissed .
in re interest of sArAh l. et Al .,
children under 18 yeArs of Age .
stAte of nebrAskA, Appellee , v .
mitchell d., AppellAnt .
758 N.W.2d 48
Filed November 10, 2008. 	No. A-08-196.
1. Juvenile Courts. While Neb. Rev. Stat. § 43-285 (Reissue 2004) grants a
juvenile court discretionary power over a recommendation proposed by the
Department of Health and Human Services, it also grants preference in favor of
such proposal.
2. Juvenile Courts: Proof. In order for a court to disapprove of a plan proposed
by the Department of Health and Human Services, a party must prove by a
preponderance of the evidence that the department’s plan is not in the child’s
best interests.
Appeal from the Juvenile Review Panel, g. glenn cAmerer ,
michAel 	offner , 	and 	WAdie 	thomAs, 	Judges, 	on 	appeal
thereto from the Separate Juvenile Court of Lancaster County,
roger J. heidemAn, Judge. Judgment of Juvenile Review
Panel affirmed.
John C. Ball, of Pollack & Ball, L.L.C., for appellant.
Gary Lacey, Lancaster County Attorney, and Alicia B.
Henderson for appellee.
irWin , sievers, and cArlson, Judges.
IN Re INTeReST OF SARAH L. eT AL. 	203
Cite as 17 Neb. App. 203
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

irWin, Judge.
I. INTRODUCTION
Mitchell D. appeals an order of the juvenile court review
panel, which order reversed an order of the separate juvenile
court disapproving of the plan proposed by the Department
of Health and Human Services (DHHS). On appeal, Mitchell
asserts that the review panel erred in reversing the juvenile
court’s disapproval of the proposed plan. Mitchell failed to
present any evidence to rebut the preference given to DHHS’
proposed plan. Mitchell failed to prove by a preponderance of
the evidence that the proposed plan was not in the best inter-
ests of Mitchell’s child and stepchildren. The review panel did
not err in reversing the juvenile court’s order implementing
a plan different from that proposed by DHHS. Accordingly,
we affirm.
II. BACKGROUND
On October 20, 2006, the separate juvenile court of Lancaster
County, Nebraska, entered an adjudication order concern-
ing Mitchell and the minor children, Sarah L., Brandon D.,
and Caleb L. Mitchell entered an admission to allegations
in an amended petition which was not requested or provided
in the appellate record. The adjudication order sets forth
the following relevant factual background and basis for the
adjudication:
The allegations of the Amended Petition are true by the
preponderance of evidence. Sarah L[.], born October 11,
1994, Brandon D[.], born December 1, 1997, and Caleb
L[.], born December 24, 1992, are the children of Ms.
Janelle D[.] and child and step-children of Mr. Mitchell D[.]
Said children are found in Lancaster County, Nebraska, in
the custody of Ms. Janelle D[.], and Mr. Mitchell D[.]
While in the custody of Ms. Janelle D[.] and Mr. Mitchell
D[.], said children are without proper support through no
fault of their parents, Mitchell and Janelle D[.], in that:
in 1999 Mitchell D[.] attempted to have sexual contact,
with his adolescent niece. In 1999, Janelle D[.] was aware
of the allegation of attempted sexual contact by Mitchell
D[.] on his adolescent niece, and Janelle D[.] placed said
204 	17 NeBRASKA APPeLLATe RePORTS

children out of the home so that Mitchell D[.] could stay
at her residence without violating a no-contact provision
that was ordered by the county court. On or about June 1,
1999, Janelle D[.] became frustrated and angry about the
attempted sexual contact by Mitchell D[.] with his niece,
and spanked Caleb L[.], leaving bruises. On or about June
2, 1999, Janelle D[.] contacted [DHHS] and requested
that they remove the children from her home. Between
June and September of 2006, Sarah L[.] reported that
Mitchell D[.] had subjected her to inappropriate sexual
contact. On October 5, 2006, Sarah [L.] reported that she
had not told the truth about all of the allegations she had
made of inappropriate sexual contact, but still reported
that she was touched by Mitchell D[.] inappropriately on
her inner upper thigh on one occasion. On or about June
28, 2006, Janelle D[.] became aware that Sarah L[.] had
alleged that Mitchell D[.] had subjected Sarah L[.] to
inappropriate sexual contact. Due to a lack of confidence
in Sarah L[.]’s credibility, Janelle D[.] was not supportive
of Sarah L[.], and demonstrated that lack of support to
Sarah L[.] and others. The fact that Sarah L[.] made these
allegations of inappropriate sexual contact by Mitchell
D[.], and then recanted most of them, and the fact that
Janelle D[.] failed to believe Sarah L[.]’s original allega-
tions of inappropriate sexual contact made the entire fam-
ily in need of therapeutic intervention to address, among
other issues, the truth of the allegations, and to establish
appropriate safety plans and appropriate boundaries in
the family.
On August 10, 2007, the juvenile court held a review hear-
ing. At that hearing, the court received the court report pre-
pared by DHHS. The court report included DHHS’ plan and
recommendations toward the permanency plan of reunification,
which plan and recommendations included that Mitchell should
be ordered to follow the recommendations of an updated risk
assessment as arranged by DHHS.
The risk assessment, prepared by Dr. Mary Paine, specifi-
cally recommended that Mitchell undergo a penile plethysmo-
graph (PPG). According to Dr. Paine in the risk assessment,
IN Re INTeReST OF SARAH L. eT AL. 	205
Cite as 17 Neb. App. 203

the PPG would be the “single best predictor” of Mitchell’s
risk to recidivate and would provide solid physiological data
regarding the nature and strength of Mitchell’s arousal to a
variety of visual and auditory sexual stimuli. Dr. Paine further
indicated in the risk assessment that the specific PPG machine
available to her, the “Monarch 21,” is an “FDA approved
instrument” which is grounded in research with standard-
ized test procedures and uses “ethical stimuli that are not
pornographic.”
Mitchell objected to being ordered to undergo the PPG and
indicated to the court that he believed he had “a right to a
Daubert hearing on that,” because it was “a brand new test”
and there was not “any scientific, academic, any literature on
it at all.” Mitchell requested that the court “at the very least
. . . withhold its order ordering the PPG until [the court could
conduct a] Daubert hearing.” At the conclusion of the hear-
ing, the court indicated that it was “not clear on the Daubert
issue” and that it also believed that “there are due process
issues that may be raised . . . that would require additional
evidence . . . regarding . . . the PPG.” The court continued the
review hearing.
On October 12 and 26, 2007, the juvenile court completed
the review hearing and received live testimony from Dr. Paine
concerning the PPG. Initially, there was disagreement between
the parties regarding who should bear the burden concerning
the propriety of the court’s ordering of the PPG. The State
argued that the PPG was part of the DHHS plan and that
therefore Mitchell should bear the burden of proving that
the plan is not in the best interests of the children. Mitchell
argued that the State was the proponent of “evidence subject
to scientific and reliability and . . . general relevance prin-
ciples” and that the burden should be on the State to prove the
evidence admissible. The State noted that it was not actually
offering any evidence or results, but was seeking to have a
test included in a rehabilitation and treatment plan. The court
did not resolve the dispute, but directed the State to call and
question Dr. Paine.
Dr. Paine testified that she was recommending the PPG
for assessment purposes and as an adjunct to treatment. She
206 	17 NeBRASKA APPeLLATe RePORTS

testified that the PPG is the only test involving physiological
responses as opposed to psychological responses. With respect
to the Monarch 21 PPG machine, Dr. Paine testified that the
Monarch 21 had been “very widely researched” and developed
to address deficiencies in early PPG machines and that the
Monarch 21 is “an empirically based instrument, standardized
test, with very explicit scoring instructions that are empiri-
cally based.” Dr. Paine also testified that she had to complete
a weeklong intensive training program and be certified to
administer the Monarch 21 and that the standardization of the
administration and interpretation of test results should result
in the ability of anyone else who has been trained in its use to
reach the same conclusions when interpreting the test results.
Additionally, she testified that when she performs a test, she
sends the test results to the two doctors who developed the test
to confirm her findings and offer additional input.
Dr. Paine testified about studies done and technical sta-
tistical formulas developed to improve the reliability of the
Monarch 21 PPG test. She testified that the Monarch 21 incor-
porates additional safeguards to minimize false positives and
false negatives, including “a respiratory trace and a galvanic
skin response.”
Dr. Paine explained that the PPG is used to assess what
stimuli an individual has a sexual response to based on reac-
tions to images depicting people in various situations. The PPG
measures sexual responses and relates them to the age of the
subject depicted, the gender of the subject depicted, and the
type of situation depicted.
Dr. Paine testified that the PPG can be a useful tool because
it provides evidence of subconscious matters and can assist an
individual in understanding underlying physiological impulses
and in measuring progress, as well as in specifying clinical
needs. She stressed that the PPG test cannot be used in isola-
tion, but should be a part of a complete assessment and treat-
ment program. She also testified that she does not believe the
PPG should be used as substantive evidence of guilt or inno-
cence in a criminal setting or as substantive evidence in a civil
setting, but that it can be a significant factor in determining
appropriate treatment.
IN Re INTeReST OF SARAH L. eT AL. 	207
Cite as 17 Neb. App. 203

After the court finished receiving evidence and hearing tes-
timony at the October 26, 2007, hearing, Mitchell objected to
the recommendation that he undergo the PPG. Mitchell noted
that a number of state and federal courts have refused to allow
admission of PPG test results as evidence and argued that “[f]or
the absolute liberty interest, the privacy issues, I mean, this
test makes a body cavity search look like a Hallmark moment
here.” Mitchell argued that the State had failed to satisfy the
“Schafersman standard” to “get to admissible evidence” and
argued that there was not sufficient evidence of general accept-
ance within the scientific community or standardization. The
State, in response, again noted that it was not “asking that this
evidence come in to court to prove a fact to — or a non-fact”
and noted that the issue was “simply whether or not [Mitchell]
should be required to submit to this test as a condition of that
sex offender treatment” and “as a tool to aid the Court in deter-
mining what is in this child’s best interest.”
At the conclusion of the hearing, the juvenile court specifi-
cally disapproved of the plan of DHHS. The court specifically
indicated that it would not order Mitchell to participate in the
PPG. On October 29, 2007, the court entered a disposition
order that did not include a requirement that Mitchell partici-
pate in the PPG.
DHHS appealed the juvenile court’s disposition order to the
juvenile review panel pursuant to Neb. Rev. Stat. § 43-287.04
(Reissue 2004). On February 6, 2008, the review panel entered
an order finding that the juvenile court’s order not requiring
Mitchell to participate in the PPG was not in the best interests
of Sarah. The review panel remanded the case to the juvenile
court with directions to order Mitchell to participate in the
PPG. This appeal followed.
III. ASSIGNMeNT OF eRROR
The only assignment of error is that the review panel erred
in overturning the trial court’s decision.
IV. ANALYSIS
The issue raised in this appeal is whether the review panel
erred in reversing the juvenile court’s decision to implement
a plan which differed from the plan proposed by DHHS. Our
208 	17 NeBRASKA APPeLLATe RePORTS

review of the record indicates that Mitchell presented no evi-
dence to the juvenile court to prove by a preponderance of the
evidence that DHHS’ plan was not in the children’s best inter-
ests. We conclude that the review panel did not err in reversing
the juvenile court’s decision.
The purpose of the juvenile code is to assure the rights of
all juveniles to care and protection and a safe and stable liv-
ing environment and to development of their capacities for a
healthy personality, physical well-being, and useful citizenship
and to protect the public interest. Neb. Rev. Stat. § 43-246(1)
(Reissue 2004); In re Interest of Vincent P., 15 Neb. App. 437,
730 N.W.2d 403 (2007). The Nebraska Juvenile Code must be
liberally construed to accomplish its purpose of serving the
best interests of juveniles who fall within it. In re Interest of
Vincent P., supra.
[1,2] Neb. Rev. Stat. § 43-285(2) (Reissue 2004) allows the
court to order a proposed plan for the care, placement, and
services which are to be provided for a juvenile adjudged as
being within the ambit of Neb. Rev. Stat. § 43-247(3) (Cum.
Supp. 2006). In re Interest of Vincent P., supra. While § 43-285
grants a juvenile court discretionary power over a recommen-
dation proposed by DHHS, it also grants preference in favor
of such proposal. In re Interest of Tabatha R., 255 Neb. 818,
587 N.W.2d 109 (1998). In order for a court to disapprove of
DHHS’ proposed plan, a party must prove by a preponder-
ance of the evidence that DHHS’ plan is not in the child’s best
interests. Id.
In the present case, Mitchell presented no evidence at trial
that the proposed plan was not in the best interests of the
children. As detailed above in the background section, DHHS
presented evidence concerning the plan and why it was in the
best interests of the children. Mitchell objected to the PPG
portion of the plan, not on the basis of the best interests of
the children, but on the basis that the test results might not
be admissible as substantive evidence at some future hearing.
DHHS was not attempting to offer any test results as substan-
tive evidence, and Mitchell failed to satisfy his burden to dem-
onstrate that the plan proposed by DHHS was not in the best
interests of the children and should have been disapproved.
IN Re INTeReST OF SARAH L. eT AL. 	209
Cite as 17 Neb. App. 203

Additionally, the juvenile court made no specific findings to
indicate why it was disapproving of the plan.
We express no opinion on the PPG test, its reliability, or
the potential admissibility of PPG test results as substantive
evidence in a juvenile proceeding. Those issues are not before
us, because the issue raised in this appeal is more properly
limited to whether Mitchell satisfied his burden to support the
juvenile court’s disapproval of the plan proposed by DHHS
and implementation of a plan differing from that proposed by
DHHS. Despite Mitchell’s attempts to argue below that the
burden should have been on DHHS to prove admissibility of
the test results, the burden was on Mitchell to rebut the prefer-
ence given to the DHHS plan. In this case, Mitchell failed to
satisfy his burden and the review panel properly reversed the
juvenile court’s decision.
Finally, we note that Mitchell’s sole assignment of error on
appeal is that the review panel erred in reversing the juvenile
court’s decision. In addition to raising a number of evidentiary
objections to the PPG test, Mitchell also raises constitutional
objections based on substantive due process and the Fourth
Amendment. We conclude that these issues were not suffi-
ciently raised below to necessitate our further discussion on
appeal. See In re Interest of Anthony V., 12 Neb. App. 567, 680
N.W.2d 221 (2004) (appellate court will not consider consti-
tutional question on appeal that was not raised and properly
presented for disposition by trial court).
V. CONCLUSION
Mitchell failed to present any evidence to rebut the prefer-
ence given to DHHS’ proposed plan. Mitchell failed to prove
by a preponderance of the evidence that the proposed plan was
not in the best interests of the children. The review panel did
not err in reversing the juvenile court’s order implementing a
plan different from that proposed by DHHS. We affirm.
A ffirmed .
210 	17 NeBRASKA APPeLLATe RePORTS