In re Interest of D.I.

No one contests that, in this case, the juvenile court crafted its
dispositional order so as to serve Katrina’s best interests. We
therefore affirm.
A ffirmed.
Wright, J., not participating.
in re interest of d.i., Alleged to be
A dAngerous sex offender .
d.i., AppellAnt, v. mentAl heAlth boArd of the
fourth JudiciAl district, Appellee .
799 N.W.2d 664
Filed July 15, 2011. 	No. S-10-717.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does
not involve a factual dispute presents a question of law, which an appellate court
independently decides.
2. Statutes. The interpretation of a statute is a question of law.
3. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
4. Judgments: Appeal and Error. In reviewing a district court’s judgment, an
appellate court will affirm unless it finds, as a matter of law, that clear and con-
vincing evidence does not support the judgment.
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.
6. Mental Health: Convicted Sex Offender. The Sex Offender Commitment Act
provides a separate legal standard for sex offenders, which allows dangerous sex
offenders to meet the standards of a mentally ill, dangerous sex offender who
would not meet the traditional standards of mentally ill and dangerous under the
Nebraska Mental Health Commitment Act.
7. Mental Health: Convicted Sex Offender: Appeal and Error. While the Sex
Offender Commitment Act and the Nebraska Mental Health Commitment Act
have similar procedures for commitment and appeals, they represent two sepa-
rate acts.
8. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), an order affecting a substantial right in an action, when such order in
effect determines the action and prevents a judgment, and an order affecting a
substantial right made in a special proceeding, or upon a summary application
in an action after judgment, is a final order which may be vacated, modified,
or reversed.
9. Actions: Statutes. Special proceedings include every special civil statutory rem-
edy not encompassed in civil procedure statutes which is not in itself an action.
IN Re INTeReST OF d.I. 	917
Cite as 281 Neb. 917
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

10. Actions: Statutes: Words and Phrases. An action is any proceeding in a court
by which a party prosecutes another for enforcement, protection, or determina-
tion of a right or the redress or prevention of a wrong involving and requiring the
pleadings, process, and procedure provided by the statute and ending in a final
judgment. every other legal proceeding by which a remedy is sought by original
application to a court is a special proceeding.
11. Actions: Statutes. Where the law confers a right, and authorizes a special
application to a court to enforce it, the proceeding is special, within the ordinary
meaning of the term “special proceeding.”
12. Mental Health: Evidence: Proof. Under the Nebraska Mental Health Commitment
Act, the State bears the burden to show by clear and convincing evidence that an
individual remains mentally ill and dangerous.
13. Convicted Sex Offender: Proof: Rebuttal Evidence. Once the subject of a
petition seeking to have him or her adjudged to be a dangerous sex offender has
exercised his or her right to a review hearing, the State is required to present clear
and convincing evidence that a less restrictive treatment option is inappropriate.
At that point, the subject may rebut the State’s evidence.
Appeal from the district Court for douglas County: J.
michAel coffey, Judge. Affirmed.
Thomas C. Riley, douglas County Public defender, and
Travis L. Wampler for appellant.
Jon Bruning, Attorney General, and Michael B. Guinan
for appellee.
heAvicAn, c.J., connolly, gerrArd, stephAn, mccormAck ,
and miller-lermAn, JJ.
heAvicAn, c.J.
I. INTROdUCTION
d.I. appeals the decision of the douglas County district
Court affirming the order of the Mental Health Board of the
Fourth Judicial district. The board found that d.I. remains
a dangerous sex offender and that secure inpatient treatment
remains the least restrictive treatment alternative. We affirm the
judgment of the district court.
II. BACKGROUNd
d.I. was convicted of sexual assault of a child in 2004
and was adjudged to be a dangerous sex offender. He was
committed to secure inpatient treatment in 2006. According
to a classification study, d.I. was alleged to have sexually
918 	281 NeBRASKA RePORTS

assaulted seven male children between the ages of 8 and 14
with whom he had had contact through his positions as coun-
selor and director of a church-sponsored Bible camp. d.I. was
diagnosed as having two mental illnesses: “pedophilia, sex-
ually attracted to males, nonexclusive type,” and “narcissistic
personality disorder.” We note that the record in this case
contains very little information regarding the factual basis for
d.I.’s original conviction. However, we take judicial notice
of an unpublished memorandum opinion from the Nebraska
Court of Appeals, in case No. A-04-711, filed February 11,
2005, which indicates that d.I. had been convicted after he
administered bare-bottom spankings and back and buttocks
massages to a child.
Pursuant to Neb. Rev. Stat. § 71-1219 (Reissue 2009), d.I.
filed a motion for reconsideration before the mental health
board on June 12, 2009, alleging that cause no longer existed
to keep him in secure inpatient treatment. A hearing was held
during which the State’s psychiatrist and clinical director of
the Norfolk Regional Center, dr. Stephen J. O’Neill, testified.
O’Neill has been d.I.’s psychiatrist since his commitment in
2006. O’Neill testified that the inpatient treatment program
consists of three phases, with three levels per phase, and that
d.I. had not yet completed the first level of the first phase.
When asked why d.I. had not progressed, O’Neill stated that
d.I. refused to admit that he had done anything wrong. d.I.
also insisted that he would repeat problematic behavior such as
bare-bottom spankings for children.
O’Neill stated that it was his medical opinion that d.I. had
not successfully been treated and still remained a danger to the
public. O’Neill also stated that there was not a less restrictive
treatment option that would meet d.I.’s needs. d.I. scored in
the medium- to high-risk category on the “Static-99,” a test
which measures the likelihood that someone will reoffend.
O’Neill also stated that d.I. denied any wrongdoing, but that
the treatment program generally required an admission of guilt
in order for treatment to be considered successful.
At the hearing, d.I. argued that because he maintains he did
nothing wrong, he cannot advance in the treatment program
and should be released to an outpatient program. d.I. also
IN Re INTeReST OF d.I. 	919
Cite as 281 Neb. 917

argues that inpatient treatment is solely punitive at this point.
d.I. claimed there was not sufficient evidence of pedophilia,
because there was no evidence that he engaged in these behav-
iors for purposes of sexual gratification. However, one of the
board members pointed out that the basis for d.I.’s conviction
had been sexual contact with a child under 14 years of age over
the period of a year.
The mental health board denied d.I.’s motion for recon-
sideration, and he filed a petition in error with the douglas
County district Court. The district court denied d.I.’s petition
in error and affirmed the order of the mental health board. d.I.
has appealed from that order.
III. ASSIGNMeNTS OF eRROR
d.I. assigns that the board erred in finding that (1) he
is a dangerous sex offender as defined by Neb. Rev. Stat.
§ 83-174.01 (Reissue 2009) and (2) there was not a viable, less
restrictive treatment other than secure inpatient treatment.
IV. STANdARd OF ReVIeW
[1] A jurisdictional issue that does not involve a fac-
tual dispute presents a question of law, which we indepen-
dently decide.1
[2] The interpretation of a statute is a question of law.2
[3,4] The district court reviews the determination of a men-
tal health board de novo on the record.3 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.4
V. ANALYSIS
1. Jurisdiction over d.i.’s A ppeAl
[5] The State claims we do not have jurisdiction to hear d.I.’s
appeal because the Sex Offender Commitment Act (SOCA)
1 Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
(2010).
2 D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010).
3 In re Interest of D.V., 277 Neb. 586, 763 N.W.2d 717 (2009).
4 Id.
920 	281 NeBRASKA RePORTS

does not give d.I. the right to appeal from a denial of a motion
for reconsideration. 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.5
d.I. 	sought 	a 	review 	hearing 	under 	§ 	71-1219, 	which
provides:
(1) Upon the filing of a periodic report under section
71-1216, the subject, the subject’s counsel, or the sub-
ject’s legal guardian or conservator, if any, may request
and shall be entitled to a review hearing by the mental
health board and to seek from the board an order of dis-
charge from commitment or a change in treatment ordered
by the board. . . .
(2) The board shall immediately discharge the subject
or enter a new treatment order with respect to the subject
whenever it is shown by any person or it appears upon the
record of the periodic reports filed under section 71-1216
to the satisfaction of the board that (a) the subject’s
mental illness or personality disorder has been success-
fully treated or managed to the extent that the subject no
longer poses a threat to the public or (b) a less restrictive
treatment alternative exists for the subject which does not
increase the risk that the subject will commit another sex
offense. When discharge or a change in disposition is in
issue, due process protections afforded under [SOCA]
shall attach to the subject.
Neb. Rev. Stat. § 71-1209 (Reissue 2009) sets out the burden
of proof required for a treatment order as well as the procedure
for commitment, but makes no mention of an appeals process.
Neb. Rev. Stat. § 71-1214 (Reissue 2009) provides that the
subject of a petition has the right to appeal a treatment order of
a mental health board.
[6,7] d.I. filed his petition in error before the district court
pursuant to Neb. Rev. Stat. § 71-930 (Reissue 2009), which is
part of the Nebraska Mental Health Commitment Act (MHCA).
In his current appeal, however, d.I. alleged that we have juris-
diction over this appeal under § 71-1214 and Neb. Rev. Stat.
5 Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
IN Re INTeReST OF d.I. 	921
Cite as 281 Neb. 917

§§ 25-1901 and 25-1902 (Reissue 2008). However, we note
that the language of § 71-930 mirrors that of § 71-1214, and
we address d.I.’s argument under § 71-1214. “SOCA provides
a separate legal standard for sex offenders, which allows dan-
gerous sex offenders to meet the standards of a mentally ill,
dangerous sex offender who would not meet the traditional
standards of mentally ill and dangerous under the [MHCA].”6
And while SOCA and the MHCA have similar procedures for
commitment and appeals, they represent two separate acts.
We agree with the State that SOCA does not explicitly
provide for an appeal from § 71-1219. Section 71-1214 pro-
vides that a subject committed under SOCA may appeal to the
district court from a treatment order entered under § 71-1209.
Therefore, the question is whether the decision of the mental
health board denying d.I.’s motion for reconsideration was a
final, appealable order under §§ 25-1901 and 25-1902.
[8] Under § 25-1902,
[a]n order affecting a substantial right in an action,
when such order in effect determines the action and pre-
vents a judgment, and an order affecting a substantial
right made in a special proceeding, or upon a summary
application in an action after judgment, is a final order
which may be vacated, modified or reversed, as provided
in this chapter.
In In re Interest of Michael U.,7 we previously addressed
whether an order adjudicating someone as dangerous and men-
tally ill under the MHCA is a final, appealable order. We
found that an order of commitment under the MHCA is a final,
appealable order within the meaning of § 25-1902.
(a) Special Proceeding
[9-11] We first address whether this order was made in a
special proceeding. Special proceedings include every special
civil statutory remedy not encompassed in civil procedure
statutes which is not in itself an action.8 An action is any
6 In re Interest of J.R., 277 Neb. 362, 369, 762 N.W.2d 305, 314 (2009).
7 In re Interest of Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007).
8 Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
922 	281 NeBRASKA RePORTS

proceeding in a court by which a party prosecutes another
for enforcement, protection, or determination of a right or the
redress or prevention of a wrong involving and requiring the
pleadings, process, and procedure provided by the statute and
ending in a final judgment. every other legal proceeding by
which a remedy is sought by original application to a court
is a special proceeding.9 Where the law confers a right, and
authorizes a special application to a court to enforce it, the
proceeding is special, within the ordinary meaning of the term
“special proceeding.”10
Under § 71-1219(1), the subject of a commitment order may
request, and shall be entitled to, a review hearing upon the
filing of a periodic report. The hearing must be held no later
than 14 calendar days after receipt of the request. At that time,
the board must determine whether the subject’s mental illness
or personality disorder has been successfully treated or man-
aged and whether a less restrictive treatment alternative exists.
If the board determines that treatment has been successful or
that a less restrictive treatment alternative exists, the subject
is to be immediately discharged. Therefore, a hearing under
§ 71-1219(1) is a special proceeding within the ordinary mean-
ing of the term.
(b) Substantial Right
Having determined that a hearing under § 71-1219(1) is a
special proceeding, we next turn to the question of whether it
affects a substantial right as understood under § 25-1902. We
recognized in In re Interest of Michael U. that an order which
deprived a subject of liberty for an indeterminate amount of
time was an order affecting a substantial right.11 And we also
recognized that if a committed subject wanted to question the
sufficiency of the board’s findings in issuing an order, he had
to appeal that order.12
9 Id.
10 State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
11 In re Interest of Michael U., supra note 7.
12 Id.
IN Re INTeReST OF d.I. 	923
Cite as 281 Neb. 917

The order in this case may have continued a previous treat-
ment order which was entered under § 71-1209, but it also
deprived d.I. of his liberty for an indeterminate period of time.
Section 71-1219(2) requires that the mental health board make
a determination as to whether the subject has been success-
fully treated or whether a less restrictive treatment alternative
existed. Such a determination will result in either the subject’s
continued commitment or his or her release. We therefore find
that denial of a motion for reconsideration under § 71-1219(1)
is a final, appealable order and that this court has jurisdiction
to address d.I.’s claims.
2. mentAl heAlth boArd did not err
When it found d.i. WAs still
dAngerous sex offender
Turning now to d.I.’s assignments of error, d.I. first argues
that the board erred in determining that he was a dangerous sex
offender. We have not yet made a determination regarding what
standard of review is to be used for a motion for reconsidera-
tion under § 71-1219. Nor are there any cases addressing the
burden of proof and who bears the burden to show that treat-
ment has been successful or whether a less restrictive treatment
alternative ought to be pursued.
[12] We previously stated in In re Interest of Dickson13 that
the State bears the burden to prove by clear and convincing
evidence that the individual remains mentally ill and danger-
ous under the MHCA. Although that decision was made under
the old MHCA, the same language is used in Neb. Rev. Stat.
§ 71-935 (Reissue 2009). And we note that § 71-1219 mir-
rors the language in § 71-935 of the MHCA. We stated in
that case:
When the State petitions to have an individual declared
mentally ill and dangerous . . . it must prove by clear and
convincing evidence that the individual poses a substan-
tial risk of harm to others or to himself. It follows that
upon review of the commitment . . . the State must also
prove by clear and convincing evidence that the individual
13 See In re Interest of Dickson, 238 Neb. 148, 469 N.W.2d 357 (1991).
924 	281 NeBRASKA RePORTS

remains mentally ill and dangerous. We interpret the “any
person” language [in the MHCA] to require the State to
show cause why the subject of the petition should remain
incarcerated under the act.14
Therefore, we agree that the State bears the burden to show
by clear and convincing evidence that the subject remains men-
tally ill and dangerous. Although d.I. argues that the State had
the burden to establish that he was currently dangerous and that
a prior commitment has no bearing on a present diagnosis, we
disagree. Section 71-1219(2) states:
The board shall immediately discharge the subject or
enter a new treatment order with respect to the subject
whenever it is shown by any person or it appears upon the
record of the periodic reports filed under section 71-1216
to the satisfaction of the board that (a) the subject’s
mental illness or personality disorder has been success-
fully treated or managed to the extent that the subject no
longer poses a threat to the public or (b) a less restrictive
treatment alternative exists for the subject which does
not increase the risk that the subject will commit another
sex offense.
(emphasis supplied.)
Under the plain language of the statute, the board must
determine whether the subject’s mental illness or personality
disorder has been “successfully treated or managed,” which
necessarily requires the board to review and rely upon the
original reason for commitment.
The evidence at the hearing established that in 3 years, d.I.
had made little progress in the treatment program. O’Neill
testified that d.I. was still in the first level of the first phase
of a three-phase program. While in treatment, d.I. maintained
that if he were released, he would continue to engage in prob-
lematic behaviors, such as bare-bottom spankings for children,
even after being challenged as to the appropriateness of that
kind of discipline. d.I. also continued to claim he had done
nothing wrong.
14 Id. at 150, 469 N.W.2d at 359.
IN Re INTeReST OF d.I. 	925
Cite as 281 Neb. 917

O’Neill stated that it was his medical opinion that d.I. had
not successfully been treated and that d.I. still remained a
danger to the public. d.I. scored in the medium- to high-risk
category on the Static-99 test. O’Neill also stated that d.I.
denied any wrongdoing, but that the treatment program gener-
ally required an admission of guilt in order for treatment to
be considered successful. And when d.I. claimed there was
no longer any evidence to support a diagnosis of pedophilia,
a board member responded that pedophilia “doesn’t come and
go.” Clearly, the mental health board did not accept that d.I.’s
condition had been successfully treated or managed, and we
find no error in that conclusion.
The mental health board did not err when it determined that
d.I.’s mental illness and personality disorder had not been suc-
cessfully treated or managed.
3. mentAl heAlth boArd did not err When it
determined there WAs no less restrictive
treAtment A lternAtive
[13] d.I.’s second assignment of error is that the board
did not consider less restrictive treatment alternatives. As we
have already noted, § 71-1219(2) requires that the subject, or
another person, establish to the satisfaction of the board that
a less restrictive treatment alternative exists. In keeping with
our prior case law and the language of § 71-1219(2), we find
that once the subject of a petition has exercised his or her right
to a review hearing, and asserted that there are less restrictive
treatment alternatives available, the State is required to present
clear and convincing evidence that a less restrictive treatment
alternative is inappropriate.15 At that point, the subject may fur-
ther rebut the State’s evidence.
d.I. relies heavily on In re Interest of O.S.16 in his contention
that the State did not present sufficient evidence that secure
inpatient treatment remains the least restrictive alternative. In
that case, we determined that the State had not presented any
evidence of alternative treatment options and noted that the
15 See In re Interest of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009).
16 Id.
926 	281 NeBRASKA RePORTS

testifying psychiatrist had not been asked to give an opinion as
to what other treatment options might be available.17
But in this case, O’Neill stated that “it [sic] would be
hard pressed to find an outpatient provider wanting to work
with [d.I.] when he’s not in a stage of change.” O’Neill also
stated that to be considered as a candidate for outpatient treat-
ment, d.I. would need to be “farther [sic] into the . . . change
mode.” He also stated that there was not a less restrictive
treatment option that would meet d.I.’s needs. The mental
health board found that secure inpatient treatment was the
least restrictive alternative, although the board also invited d.I.
and the Norfolk Regional Center to consider and present other
treatment options. We therefore find that the State presented
clear and convincing evidence that secure inpatient treatment
remains the least restrictive treatment alternative and that d.I.
presented no evidence beyond mere assertions to rebut the
State’s expert witness.
VI. CONCLUSION
Because the denial of a motion for reconsideration is a final,
appealable order under § 25-1902, we have jurisdiction to hear
d.I.’s appeal. We find, however, that the State presented clear
and convincing evidence that d.I. remains a dangerous sex
offender and that secure inpatient treatment remains the least
restrictive treatment alternative.
A ffirmed.
Wright, J., not participating.
17 Id.
IN Re INTeReST OF d.I. 	927
Cite as 281 Neb. 917