In re Interest of C.R.

questioned Banks’ motives, which should not have been an
issue before the court.
The district court stated, “Instead of contesting the evic-
tion proceeding in court, Banks chose to vacate the premises.”
Banks argues that this is a finding of fact that goes beyond the
hearing officer’s order. However, this finding had been made
by the hearing officer, who stated that Banks turned in his keys
prior to the court date, which resulted in OHA’s dismissal of
the court proceedings. The district court’s comment was merely
part of its analysis. It was not a new finding of fact or the result
of de novo review.
CONCLUSION
The decision of OHA to terminate Banks’ housing benefits
was not arbitrary or capricious. The evidence showed that he
had been involved in criminal activity, and federal regulations
provide that a public housing agency may deny or terminate
benefits on that basis. The judgment of the district court
is affirmed.
A ffirmed.
IN reINT ereSTO fC .r. 	75
Cite as 281 Neb. 75
in re interest of C.r., Alleged to be developmentAlly
disAbled And A threAt of hArm to others.
stAte of nebrAskA, Appellee , v.
C.r., AppellAnt.
793 N.W.2d 330
filed January 28, 2011. 	No. S-10-307.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to
be constitutional, and all reasonable doubts will be resolved in favor of its
constitutionality.
3. Mental Health: Proof. The Developmental Disabilities Court-Ordered Custody
Act requires that the State prove by clear and convincing evidence that the subject
is a person in need of court-ordered custody and treatment.
4. Mental Health: Public Health and Welfare: Proof: Words and Phrases. A
threat of harm to others, as contemplated by the Developmental Disabilities
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

Court-Ordered Custody Act, can be shown by proof that the subject committed an
act that would constitute a sexual assault or attempted sexual assault.
5. Mental Health: Public Health and Welfare: Proof. The Developmental
Disabilities Court-Ordered Custody Act does not require proof of future harm
before a court determines that the subject is in need of court-ordered custody
and treatment.
Appeal from the District Court for Lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
Jessica L. Milburn for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown for
appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk, and miller-lermAn, JJ.
Wright, J.
NATUre Of CASe
The State filed a petition pursuant to the Developmental
Disabilities Court-Ordered Custody Act (DDCCA), Neb.r ev.
Stat. § 71-1101 et seq. (reissue 2009), in which the State
alleged that C.r. is a person with a developmental disability
who poses a threat of harm to others and is in need of court-
ordered custody and treatment. C.r. filed a motion asking the
Lancaster County District Court to hold the DDCCA uncon-
stitutional. The court held the DDCCA to be constitutional
and determined that C.r. is a person in need of court-ordered
custody and treatment. C.r. appeals.
SCOPe Ofre VIeW
[1,2] Whether a statute is constitutional is a question of
law; accordingly, the Nebraska Supreme Court is obligated to
reach a conclusion independent of the decision reached by the
court below. In re Interest of J.R., 277 Neb. 362, 762 N.W.2d
305 (2009), cert. denied 558 U.S. 857, 130 S. Ct. 148, 175 L.
ed. 2d 96. A statute is presumed to be constitutional, and all
reasonable doubts will be resolved in favor of its constitution-
ality. Id.
76 	281N eBrASKA rePOrTS

fACTS
C.r. is an adult male who has a developmental disability
consistent with a diagnosis of mild mental retardation, as
defined by § 71-1110. He has significantly subaverage general
intellectual functioning which exists concurrently with deficits
in adaptive behavior.
In April 2007, C.r. subjected C.L. to sexual penetration
without her consent. C.r. admitted that he committed the
sexual act even though C.L. told him to stop.
On May 31, 2007, C.r. was charged with first degree sexual
assault. On November 15, the court determined that C.r. was
not mentally competent to stand trial. C.r. was committed
to the Lincolnr egional Center. After periodic review hear-
ings over the next 2 years, the court found that C.r. remained
incompetent to stand trial and continued his commitment to the
Lincolnr egional Center for treatment.
On October 6, 2009, the State, pursuant to the DDCCA,
requested a determination whether C.r. is a person with a
developmental disability who poses a threat of harm to others
and whether he is in need of court-ordered custody and treat-
ment. The district court found that C.r. remained incompetent
to stand trial and that there was not a substantial probability
that he would become competent to stand trial in the foresee-
able future.
C.r. moved the district court to declare the DDCCA uncon-
stitutional because it does not require the State to prove at
trial that a substantial likelihood exists that a person with
developmental disabilities will engage in dangerous behavior
in the future. C.r. also alleged the act violates substantive due
process by allowing the court to determine that a subject is
in need of court-ordered custody and treatment without first
finding that the subject poses a risk of future harm to others.
In addition, C.r. claimed the DDCCA violates his right to
due process because it does not require the State to prove at
trial a nexus between the developmental disability and the risk
of harm.
At a hearing on the State’s petition, Mario Scalora, Ph.D.,
testified that he evaluated C.r. in 2007 for competency to stand
IN reINT ereSTO fC .r. 	77
Cite as 281 Neb. 75

trial. His report stated that C.r. had an IQ of 62, which was
in the extremely low range of functioning and qualified for a
diagnosis of mild mental retardation.
There was no dispute that C.r. had sexual intercourse with
C.L. in April 2007, but the evidence was in conflict whether
the intercourse was consensual. The district court found that
C.r. is a person with developmental disabilities as defined by
the DDCCA; that in April 2007, he subjected C.L. to sexual
penetration without her consent; and that C.r. poses a threat
of harm to others. The court found no merit to C.r.’s con-
stitutional arguments. It ordered the Nebraska Department of
Health and Human Services (DHHS) to evaluate C.r. and sub-
mit within 30 days a plan for the custody and treatment of C.r.
in the least restrictive alternative. C.r. appeals.
ASSIGNMeNT Oferr Or
C.r. asserts that the district court erred in concluding that
the DDCCA is constitutional. He argues that it violates sub-
stantive due process in two respects: Under the DDCCA, (1)
the State is not required to prove that a person with develop-
mental disabilities poses a risk of future harm to others before
the court imposes involuntary custody or treatment and (2)
the State is not required to prove a nexus between a person’s
developmental disability and his prior actions that required
involuntary commitment.
ANALYSIS
This 	case 	presents 	our 	first 	opportunity 	to 	review 	the
DDCCA. The act was passed in 2005 to provide a procedure
for court-ordered custody and treatment for a person with
developmental disabilities when he or she poses a threat of
harm to others. § 71-1103. The Attorney General or a county
attorney may file a petition in the district court alleging that
the subject is a person in need of court-ordered custody and
treatment. § 71-1117. The petition shall state that the subject
has a developmental disability and poses a threat of harm to
others, and the petition shall include a factual basis to support
the allegations. Id.
The DDCCA defines a “[d]evelopmental disability” as “men-
tal retardation or a severe chronic cognitive impairment, other
78 	281N eBrASKA rePOrTS

than mental illness, that is manifested before the age of twenty-
two years and is likely to continue indefinitely.” § 71-1107.
“Mental retardation” is defined as “a state of significantly
subaverage general intellectual functioning existing concur-
rently with deficits in adaptive behavior which originates in the
developmental period.” § 71-1110.
“Threat of harm to others” is defined as
a significant likelihood of substantial harm to others
as evidenced by one or more of the following: Having
inflicted or attempted to inflict serious bodily injury on
another; having committed an act that would constitute a
sexual assault or attempted sexual assault; having com-
mitted lewd and lascivious conduct toward a child; having
set or attempted to set fire to another person or to any
property of another without the owner’s consent; or, by
the use of an explosive, having damaged or destroyed
property, put another person at risk of harm, or injured
another person.
§ 71-1115.
[3] The DDCCA requires that the State prove by clear and
convincing evidence that the subject is a person in need of
court-ordered custody and treatment. § 71-1124. Under the act,
the district court shall make specific findings of fact and state
its conclusions of law. Id. If the court finds that the subject is
in need of court-ordered custody and treatment, DHHS shall,
within 30 days of such finding, evaluate the subject and submit
a plan for custody and treatment in the least restrictive alterna-
tive. Id. A dispositional hearing shall be held within 15 days
after receipt of DHHS’ plan, unless continued for good cause
shown. Id.
C.r. asserts that the DDCCA violates his substantive due
process rights because it does not require the State to prove
that C.r. poses a future threat of harm to others before the
court imposes involuntary custody or treatment and it does not
require the State to prove a nexus between the disability and
the prior action subjecting C.r. to commitment. Whether a
statute is constitutional is a question of law; accordingly, this
court is obligated to reach a conclusion independent of the
decision reached by the court below. In re Interest of J.R., 277
IN reINT ereSTO fC .r. 	79
Cite as 281 Neb. 75

Neb. 362, 762 N.W.2d 305 (2009), cert. denied 558 U.S. 857,
130 S. Ct. 148, 175 L.e d. 2d 96. A statute is presumed to be
constitutional, and all reasonable doubts will be resolved in
favor of its constitutionality. Id.
C.r. contends that the DDCCA violates due process because
it does not require completion of the risk analysis of the
subject’s potential for future dangerous behavior toward others
until after the subject has been found to be in need of court-
ordered custody and treatment. We disagree.
[4,5] We examine the DDCCA in the language in which
it is presented, not as interpreted by C.r. The act places the
burden on the State to prove by clear and convincing evidence
that the subject is a person who has a developmental disability,
is in need of court-ordered custody and treatment, and “poses
a threat of harm to others.” See §§ 71-1103 and 71-1124. The
threat of harm to others can be shown by proof that the sub-
ject “committed an act that would constitute a sexual assault
or attempted sexual assault.” See § 71-1115. Thus, to meet its
burden of proof, the State must provide clear and convincing
evidence that a person with developmental disabilities demon-
strates a “significant likelihood of substantial harm to others”
if he or she commits one of the acts listed in § 71-1115. The
DDCCA does not require proof of future harm before the court
determines that the subject is in need of court-ordered custody
and treatment.
The parties stipulated that C.r. has a developmental disabil-
ity. C.r. does not dispute that he sexually assaulted C.L. Under
the DDCCA, sexual assault is one of the manners in which a
threat of harm to others can be shown.
As noted above, this court has not previously considered the
DDCCA and its constitutionality. However, we have addressed
a similar argument related to civil commitment under a prior
version of the Nebraska Mental Health Commitment Act
(MHCA), now codified at Neb.r ev. Stat. § 71-901 et seq.
(reissue 2009), in In re Interest of Blythman, 208 Neb. 51, 302
N.W.2d 666 (1981).
The purpose of the MHCA is to provide for the treatment of
persons who are mentally ill and dangerous, § 71-902, while
the DDCCA provides a procedure for court-ordered custody
80 	281N eBrASKA rePOrTS

and treatment for a person with developmental disabilities
when he or she poses a threat of harm to others, § 71-1103.
In In re Interest of Blythman, supra, the board of mental
health of Lincoln County (Board) found clear and convincing
evidence that the subject was a mentally ill dangerous person
and that the least restrictive treatment available was involuntary
commitment to the Lincolnr egional Center. The district court
affirmed the finding of the Board.
In considering the subject’s appeal in In re Interest of
Blythman, we stated: “In order for a subject to be civilly com-
mitted pursuant to the [MHCA], there must be both a finding
that the subject is mentally ill as well as a finding that he is
dangerous, either to himself or to others.” 208 Neb. at 55, 302
N.W.2d at 670. “for there to be compliance with the fourteenth
amendment’s due process clause, there must be an independent
finding of dangerousness.” Id., citing Jackson v. Indiana, 406
U.S. 715, 92 S. Ct. 1845, 32 L.e d. 2d 435 (1972). At the
time, the MHCA provided that dangerousness must be shown
by a recent act or threat, and the subject in In re Interest of
Blythman argued that the Board’s decision was based on his
actions from 5 years earlier, which were not “‘recent acts.’”
208 Neb. at 55, 302 N.W.2d at 670.
We stated, “The key to confinement of one who is mentally
ill lies in the finding that he is dangerous, i.e., that absent con-
finement, he is likely to engage in particular acts which will
result in substantial harm to himself or others.” Id. at 56, 302
N.W.2d at 670-71. We held:
To comply with due process, there must be a find-
ing that there is a substantial likelihood that dangerous
behavior will be engaged in unless restraints are applied.
“While the actual assessment of the likelihood of danger
calls for an exercise of medical judgment, the sufficiency
of the evidence to support such a determination is funda-
mentally a legal question. . . . To confine a citizen against
his will because he is likely to be dangerous in the future,
it must be shown that he has actually been dangerous in
the recent past and that such danger was manifested by
an overt act, attempt or threat to do substantial harm to
himself or to another.”
IN reINT ereSTO fC .r. 	81
Cite as 281 Neb. 75

Id. at 57, 302 N.W.2d at 671, quoting Lynch v. Baxley, 386f .
Supp. 378 (M.D. Ala. 1974).
“In order for a past act to have any evidentiary value it must
form some foundation for a prediction of future dangerous-
ness and be therefore probative of that issue.” In re Interest
of Blythman, 208 Neb. 51, 58, 302 N.W.2d 666, 671 (1981).
We determined there was sufficient evidence to support the
Board’s conclusion that the subject was a mentally ill danger-
ous person, and we held that proof of acts committed more
than 5 years prior to the filing of the mental health proceed-
ings did not contravene due process and equal protection
guarantees where there was sufficient evidence that the acts
were still probative of the subject’s present state of dangerous-
ness. Id.
The MHCA and the DDCCA both concern persons who
present a risk of serious harm to another person. See §§ 71-908
and 71-1103. The MHCA governs individuals who are men-
tally ill and dangerous, while the DDCCA provides custody
and treatment for persons with developmental disabilities. The
DDCCA does not specifically require a finding of future harm,
but it defines a threat of harm as a “significant likelihood” of
harm as evidenced by past conduct. See § 71-1115. Thus, the
two statutes serve similar purposes but are intended for persons
with different conditions.
In In re Interest of Blythman, supra, we held that due proc-
ess is satisfied if there is a finding that a person who is men-
tally ill is substantially likely to engage in dangerous behavior
unless restrained or confined. We determined that a dangerous
act in the recent past can demonstrate a likelihood to commit
a dangerous act in the future. Here, C.r. committed the sexual
assault in 2007. This act fits within the statutory definition of a
threat of harm to others. See § 71-1115.
C.r. refers us to our previous consideration of the constitu-
tionality of the Sex Offender Commitment Act (SOCA), Neb.
rev. Stat. § 71-1201 et seq. (reissue 2009), in In re Interest of
J.R., 277 Neb. 362, 762 N.W.2d 305 (2009), cert. denied 558
U.S. 857, 130 S. Ct. 148, 175 L.e d. 2d 96, and In re Interest
of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009), cert. denied
558 U.S. 857, 130 S. Ct. 148, 175 L.e d. 2d 96. However,
82 	281N eBrASKA rePOrTS

the constitutional challenges in those cases did not argue that
the statutes violated due process, but, instead, alleged that the
SOCA violated equal protection and double jeopardy guar-
antees and that it was an impermissible ex post facto law. In
addition, neither case concerned an individual with a develop-
mental disability. Therefore, the cases are of limited value in
our analysis here.
The SOCA is similar to the DDCCA in that it imposes a
high standard of proof upon the State. “To subject a danger-
ous sex offender to inpatient treatment, the State must prove
by clear and convincing evidence that involuntary treatment
is the least restrictive alternative.” In re Interest of J.R., 277
Neb. at 378-79, 762 N.W.2d at 320. The DDCCA also requires
the State to prove by clear and convincing evidence that the
subject is a person in need of court-ordered custody and treat-
ment, and the DHHS plan for custody and treatment must be
the least restrictive alternative. § 71-1124. We have noted that
“[p]ersons committed under [the] SOCA are suffering from a
mental disorder or personality disorder that prevents them from
exercising control over their actions.” In re Interest of J.R., 277
Neb. at 378, 762 N.W.2d at 320 (emphasis supplied). Persons
with a developmental disability may also have difficulty exer-
cising control over their actions.
In In re Interest of J.R., we stated that the focus in deter-
mining whether a person is dangerous must be on the person’s
condition at the time of the commitment hearing and that the
actions and statements of the person prior to the commitment
hearing are probative of the person’s present mental condition.
We did not decide whether the “recent act” requirement of the
MHCA was necessary for the subject in In re Interest of J.R.
to be adjudged a dangerous sex offender, but we concluded
that the evidence was sufficient to prove that he remained
a danger.
We addressed the “recent act” argument in In re Interest of
O.S., supra, in which we noted that the SOCA and the MHCA
both aim to confine and provide treatment to mentally ill per-
sons who pose a risk to society. However, those acts focus on
individuals with different profiles, providing critical distinc-
tions and differing conditions for commitment.
IN reINT ereSTO fC .r. 	83
Cite as 281 Neb. 75

Under the MHCA, a mentally ill and dangerous person is
defined as a person who is mentally ill or substance dependent
and whose condition presents “[a] substantial risk of serious
harm to another person or persons within the near future as
manifested by evidence of recent violent acts or threats of
violence or by placing others in reasonable fear of such harm
. . . .” § 71-908(1). The SOCA does not require proof of a
recent act of violence or threats. In re Interest of O.S., supra.
“[I]t satisfies due process by requiring the State to prove that a
substantial likelihood exists that the individual will engage in
dangerous behavior unless restraints are applied.” Id. at 584,
763 N.W.2d at 729.
The DDCCA requires that the State prove by clear and
convincing evidence that the subject is a person with a devel-
opmental disability, is in need of court-ordered custody and
treatment, and poses a threat of harm to others. It does not
require a finding of future harm prior to the entry of a court
order for custody and treatment. The DDCCA does not violate
due process.
C.r. also contends that the DDCCA violates substantive
due process because the State is not required to prove a nexus
between a person’s developmental disability and his prior
actions that required involuntary commitment.
“Although freedom from physical restraint ‘has always been
at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action,’ . . . that liberty inter-
est is not absolute.” Kansas v. Hendricks, 521 U.S. 346, 356,
117 S. Ct. 2072, 138 L.e d. 2d 501 (1997), quoting Foucha v.
Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L.e d. 2d 437
(1992). “[A]n individual’s constitutionally protected interest in
avoiding physical restraint may be overridden even in the civil
context.” Hendricks, 521 U.S. at 356. “States have in certain
narrow circumstances provided for the forcible civil detain-
ment of people who are unable to control their behavior and
who thereby pose a danger to the public health and safety.”
Id., 521 U.S. at 357. The Court has “consistently upheld such
involuntary commitment statutes provided the confinement
takes place pursuant to proper procedures and evidentiary stan-
dards.” Id.
84 	281N eBrASKA rePOrTS

In Hendricks, 521 U.S. at 350, the statutes under attack
allowed for involuntary confinement of persons found to have
a “‘mental abnormality’” or a “‘personality disorder’” and
likely to engage in “‘predatory acts of sexual violence.’” The
Court determined that the relevant act’s definition of “‘mental
abnormality’” satisfied substantive due process requirements.
Hendricks, 521 U.S. at 356.
The act at issue in the case at bar, the DDCCA, concerns
individuals with developmental disabilities. The U.S. Supreme
Court was asked to determine the constitutionality of Kentucky
statutes that provided separate procedures for involuntary civil
commitments of those alleged to be mentally ill and those
alleged to be mentally retarded. See Heller v. Doe, 509 U.S.
312, 113 S. Ct. 2637, 125 L.e d. 2d 257 (1993). The Court held
that a lower standard of proof is permissible in commitments
for mental retardation, which it concluded is “easier to diag-
nose than is mental illness.” Id., 509 U.S. at 322. The Kentucky
statutes also provided a second prerequisite to commitment:
that the person presented a danger or threat of danger to self,
family, or others. The Court stated that the finding of danger
is “established more easily, as a general rule, in the case of the
mentally retarded.” Heller, 509 U.S. at 323. “Mental retarda-
tion is a permanent, relatively static condition, . . . so a deter-
mination of dangerousness may be made with some accuracy
based on previous behavior.” Id., 509 U.S. at 323.
The Court also stated that “because confinement in prison is
punitive and hence more onerous than confinement in a mental
hospital, . . . the Due Process Clause subjects the former to
proof beyond a reasonable doubt, . . . whereas it requires in the
latter case only clear and convincing evidence . . . .” Heller,
509 U.S. at 325 (citations omitted). The Court noted that a
“large majority of States have separate involuntary commit-
ment laws” for individuals who are mentally retarded and those
who are mentally ill. Id., 509 U.S. at 327.
Under the DDCCA, the State must prove by clear and con-
vincing evidence that the subject is a person with a develop-
mental disability who is in need of court-ordered custody and
treatment and who poses a threat of harm to others. §§ 71-1117
and 71-1124. The DDCCA provides procedures and evidentiary
IN reINT ereSTO fC .r. 	85
Cite as 281 Neb. 75

standards which protect an individual’s constitutionally pro-
tected liberty interest. It does not violate the subject’s due
process rights.
CONCLUSION
The DDCCA is constitutional, and the decision of the dis-
trict court is affirmed.
A ffirmed.
86 	281N eBrASKA rePOrTS