In re Interest of M.S.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
In re Interest of M.S., alleged to be a
mentally ill and dangerous person.
M.S., appellant, v. Mental Health Board of
the Fourth Judicial District, appellee.
___ N.W.3d ___
Filed December 5, 2025. 	No. S-25-046.
1. Mental Health: Judgments: Appeal and Error. The district court
reviews the determination of a mental health board de novo on the
record. In reviewing a district court’s judgment, an appellate court will
affirm unless it finds, as a matter of law, that clear and convincing evi-
dence does not support the judgment.
2. Judgments: Statutes: Appeal and Error. Whether a decision conforms
to law and the interpretation of statutes present questions of law, in con-
nection with which an appellate court reaches a conclusion independent
of that reached by the lower court.
3. Rules of Evidence: Appeal and Error. When judicial discretion is not
a factor, whether the underlying facts satisfy the legal rules governing
the admissibility of a proponent’s evidence is a question of law, subject
to de novo review.
4. Constitutional Law: Pretrial Procedure. Confrontation Clause rights
are trial rights that do not extend to pretrial hearings in state proceedings.
5. Constitutional Law: Mental Health: Pretrial Procedure. The con-
frontation rights set forth in Neb. Rev. Stat. § 71-954 (Reissue 2018)
are trial rights that do not extend to pretrial hearings in mental health
commitment proceedings.
6. Rules of Evidence: Hearsay. A declarant’s out-of-court statement
offered for the truth of the matter asserted is inadmissible unless it falls
within a definitional exclusion or statutory exception.
7. Criminal Law: Mental Health. In determining whether a person is
dangerous, the focus must be on the person’s condition at the time of
the hearing.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:58 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
8. Mental Health: Other Acts: Proof. Actions and statements of a per-
son alleged to be mentally ill and dangerous which occur before the
hearing are probative of the subject’s present mental condition. But,
for a past act to have evidentiary value, the past act must have some
foundation for a prediction of future dangerousness, thus being proba-
tive of that issue.
Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Emma J. Lindemeier for appellant.
Jameson D. Cantwell, Deputy Douglas County Attorney, for
appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Papik, J.
Following a hearing, the Mental Health Board of the Fourth
Judicial District (Board) ordered that M.S. be committed for
mental health treatment under the Nebraska Mental Health
Commitment Act. See Neb. Rev. Stat. §§ 71-901 to 71-963
(Reissue 2018). The district court affirmed that order, and
M.S. now appeals to us. M.S. claims that the Board violated
her confrontation rights under § 71-954 and received inadmis-
sible hearsay over her objections. She also contends that the
evidence was not sufficient to support commitment. Finding no
merit to the errors M.S. assigns, we affirm.
I. BACKGROUND
1. State Petitions Board for
Mental Health Commitment
In May 2024, the State, represented by the county attorney,
filed a petition alleging M.S. to be a mentally ill and danger-
ous person under § 71-908. Attached to and referenced in the
petition was intake information provided by M.S.’ daughter.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
According to that information, M.S. was a former law enforce-
ment officer and owned a handgun. M.S.’ daughter reported
that M.S. had a history of mental illness and was not taking
any medication. The daughter’s intake information recited that
M.S. had come to the daughter’s house unexpectedly one
morning. M.S. asked if everything was “okay” and said she had
a gun. The daughter assured M.S. that she was fine and left for
work. At about 10 a.m., the daughter received a notification
from her video doorbell camera that showed M.S. kicking at
the daughter’s back door. The daughter related that during her
interactions with M.S. that day, M.S. seemed “out of touch
with reality.” More details from the intake information are sup-
plied below.
Based on the information provided by M.S.’ daughter, the
State alleged that there were no alternatives less restrictive
than inpatient hospitalization to prevent the harm described in
§ 71-908. The Board later determined there was probable cause
to believe that M.S. was mentally ill and dangerous and ordered
that M.S. should have psychiatric care and treatment pending
further order of the Board. As a result, M.S. was admitted to a
psychiatric facility to await commitment proceedings, and she
was appointed counsel.
2. Board Overrules M.S.’
Motion to Continue
The Board initiated a hearing on the petition about 2 weeks
after it was filed, with three Board members present. M.S.
moved for a 90-day continuance, asserting that she had com-
plied with the treatment plan. Before proceeding to the hearing
on the petition, the Board conducted a hearing on M.S.’ motion
to continue.
Dr. Sidney Kauzlarich, a psychiatrist licensed to practice
medicine in Nebraska and the medical director at Douglas
County Community Health Center, testified for the State.
Prior to M.S.’ admission there in May 2024, Kauzlarich had
treated M.S. on an outpatient basis since 2022. In 2022,

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
she 	was 	diagnosed 	with 	major 	depressive 	disorder 	with
psychotic features.
Kauzlarich opined that a 90-day continuance would be
inconsistent with the level of care M.S. needed, even though
she was complying with treatment. He explained that based on
his experience treating M.S., he believed she could be com-
pliant but that when she would become “ill,” she lacked the
insight to voluntarily seek treatment.
In addition to the level of care, Kauzlarich testified to “other
issues” weighing against a continuance. He observed that M.S.
owned firearms, and a mental health commitment “would take
the gun out of her hand.”
When the State asked Kauzlarich about specific statements
made by M.S.’ family members, M.S. objected on hearsay
grounds. Without ruling on the hearsay objection, the chair-
person stated that the Board had “heard enough” and overruled
M.S.’ motion to continue. There is no indication on the record
that the Board voted on the motion to continue or that M.S.
was given the opportunity to cross-examine Kauzlarich.
The Board immediately proceeded with the hearing on the
State’s petition.
3. Board Holds Hearing on Petition
The hearing on the petition then commenced. The Board
heard testimony by Kauzlarich, M.S.’ daughter, and M.S.
Among other documents, the Board received the petition and
Kauzlarich’s treatment plan in evidence.
(a) Kauzlarich’s Testimony
Kauzlarich testified that he was M.S.’ attending physician
during her prior hospitalization in 2022, when she was first
diagnosed with major depressive disorder with psychotic fea-
tures. He stated that M.S. was very paranoid then and made
suicidal statements. Kauzlarich testified that at that time, M.S.
agreed to begin treatment with antidepressant and antipsychotic
medications, and he recalled that M.S. had improved. In
August 2022, M.S. told Kauzlarich that she had side effects

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
from the antipsychotic medication, and she stopped taking it.
Kauzlarich testified that for a time afterward, M.S. reported
she was doing fine, and that she was cooperative and attended
her appointments.
But in March 2024, Kauzlarich became “very concerned”
because M.S. had missed some appointments after losing her
insurance, and when she did come in for an appointment,
she told Kauzlarich that she was no longer taking her medi-
cation. Kauzlarich testified that he did not prescribe M.S.
medication at that point because she did not want to take it
and there was no evidence that she was an imminent danger
to herself or others. Kauzlarich advised M.S. to contact him if
she had any problems or concerns before her 3-month followup
appointment, but she did not.
In May 2024, after M.S. was hospitalized based on events
from the most recent petition, Kauzlarich met with her and
conducted a mental status examination. Kauzlarich observed
M.S. to be persistently irritable, argumentative, guarded with
information, and suspicious about the motives of her family.
After that evaluation, Kauzlarich met with M.S. every weekday
and observed that M.S. had acquiesced to taking medication
and was following a treatment plan, but Kauzlarich testified
that she remained guarded with information and minimized her
symptoms and paranoia.
To formulate a diagnosis and treatment plan, Kauzlarich
obtained 	additional 	information 	from 	M.S.’ children. 	He
explained that this was important because he could not always
get accurate details from a client who is psychotic or guarded,
and family members had valuable information because they
spent more time with the client than Kauzlarich did. Over
M.S.’ hearsay objection, Kauzlarich testified that M.S.’ chil-
dren expressed concerns that outside of the hospital, M.S.
had become more isolative and more paranoid, and that they
had become fearful of M.S. Kauzlarich further testified that
M.S.’ daughter 	provided 	information 	that 	was 	similar 	to
the information in the petition: that M.S. appeared at her

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
daughter’s home concerned for her daughter’s safety, that
M.S. said she had brought a gun, that her daughter said she
was fine, and that M.S. returned to her daughter’s home and
was kicking at the door and stating “[s]omething big” was
about to happen because “Kelso” was removed from the FBI.
Additionally, Kauzlarich testified that M.S.’ son was con-
cerned for his safety and feared retaliation and that the son
mentioned M.S. had been paranoid for quite some time and
was covering up her symptoms during the time Kauzlarich
worked with M.S.
Over M.S.’ foundation objection, Kauzlarich testified that
M.S. was diagnosed with bipolar I disorder, manic episode
with psychotic features, and that she has a history of general-
ized anxiety disorder and major depressive disorder. When
asked what behaviors M.S. exhibited that supported this diag-
nosis, Kauzlarich replied:
I think the persisting irritability, the constant irritabil-
ity, the low-frustration tolerance. And when you go back
and look at some of the notes she talks about when I get
anxious, I have increased energy, I have got to be doing
something. Increased activity levels. And then the para-
noia. Just flat out, you know, the paranoia. You know,
being mistrusting. Being argumentative. Being concerned
about the safety of others without any reason. Making
some statements that sound paranoid. You know, like
Kelso was removed from the FBI. Something big is going
to happen. And then her guardedness. Her unwillingness
to just come out and say what is going on, even on the
psych testing.
Kauzlarich 	explained, 	without 	objection, 	that 	objective
psychological testing confirmed that M.S. was concealing
her symptoms. Kauzlarich noted that “Dr. Gillespie,” who
Kauzlarich worked with as a “team member” in assessing and
treating M.S., performed testing on M.S. and that the test-
ing was part of M.S.’ medical records. When Kauzlarich was
asked about the results of the testing, M.S. objected based on

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
hearsay, and the objection was overruled. Kauzlarich testi-
fied that the results indicated that M.S. can “present very well
while still being very ill.” For example, the results showed
that M.S. “had significant difficulty admitting to minor faults
or foibles. Let alone acknowledging symptoms of significant
impairment.” Kauzlarich testified the “[v]ery high levels of
intentional defensiveness and denial” made “a firm diagnostic
conclusion impossible given these particular results.”
Kauzlarich opined that M.S. could be a danger to herself
and to others. He explained that risk factors included the inci-
dent of M.S.’ bringing a gun to her daughter’s home and M.S.’
failure to seek care when she “ended up more psychotic” after
the cessation of medication and therapy. But he denied that
during M.S.’ most recent hospitalization she had threatened
to harm herself or others. Kauzlarich acknowledged that M.S.
was amenable to giving up her firearms, but he advocated for a
commitment to ensure that she could not own any.
Kauzlarich testified that he was before the Board to recom-
mend a treatment plan. Without objection, the Board received
Kauzlarich’s treatment plan, which identified M.S.’ diagnosis
as bipolar I disorder, manic with psychosis. His treatment plan
for M.S. included inpatient and outpatient treatment, with
therapy and forced medication for psychosis in the form of
a 	long-acting 	injectable. 	Kauzlarich 	characterized 	this 	as
the least restrictive option based on M.S.’ history of miss-
ing scheduled appointments and discontinuing medication.
Kauzlarich acknowledged that this history may have stemmed
from M.S.’ illness or may have been due to her loss of insur-
ance. Kauzlarich stated that at the time of the hearing, M.S.
was voluntarily engaged in the treatment plan. He testified that
when he informed M.S. that the treatment plan included an
antipsychotic medication, she initially said she did not want to
take it due to previous side effects. However, after obtaining a
second opinion from a provider who agreed M.S. was bipolar,
manic, and psychotic, M.S. submitted to the medication and

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
had taken it orally for 2 weeks, followed by one dose in the
form of a monthly long-acting injectable.
Kauzlarich testified that for M.S. to be discharged, she
would need to give up her firearms and have an outpatient
provider in place to continue her care. Kauzlarich’s treatment
plan provided:
Hospital Treatment Plan[:]
1. Patient will continue to stabilize on inpatient unit.
2. Patient will take all medications as prescribed,
including 	short 	term 	and 	long 	term 	injectables, 	to
effectively manage psychiatric symptoms, and those may
be forced against patient’s will, if necessary, on both an
inpatient and outpatient basis.
3. Patient will be referred to wraparound psychiatric
outpatient services in the community . . . .
. . . .
Proposed post-hospitalization treatment plan in the
least restrictive environment:
1. Patient will follow up with outpatient provider,
attend all scheduled appointments and take all medications
as prescribed.
2. Patient will reside at a facility/shelter determined to
be appropriate at time of discharge.
(b) Testimony by M.S.’ Daughter
M.S.’ daughter described her relationship with M.S. as
“good.” She recalled that in the summer of 2022, she pursued
a mental health commitment of M.S. M.S. was hospitalized at
that time, but she was not committed because the petition was
denied. The daughter testified that after this hospitalization,
M.S. did “pretty well” at first. But during the next year or so,
M.S. alternated between spending time with family members
and acting distant and not answering or returning their calls.
In February 2024, M.S. called her daughter to say M.S. was
staying at a hotel because she felt her own house was evil.
The daughter testified that she offered for M.S. to stay at the

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
daughter’s house. M.S. initially said she would, but, the daugh-
ter testified, “One of our boundaries was she couldn’t bring her
firearm into our house. And she had stated, never mind. I’ll just
stay at home.”
The daughter also testified about her interactions with M.S.
that led to M.S.’ most recent hospitalization. She summarized
those interactions in the intake information, which was attached
to the petition and received in evidence. The daughter recalled
that one day in May 2024, at around 7:30 a.m., she was at her
house and getting ready for work when she heard the doorbell
ring. It was M.S., wearing a cross-body handbag. According to
the daughter, M.S. said that she had just tried to call the daugh-
ter and asked if someone was there. M.S. told the daughter
she had a gun with her and put her hand on the handbag. The
daughter assured M.S. that no one was in the home and that
she was fine. The daughter testified that M.S. eventually left
and the daughter went to work. At about 10 a.m., the daughter
received a notification from her video doorbell camera that
showed M.S. kicking at her back door. Video footage from the
doorbell camera then showed M.S. go to the front door and
yell, “Valerie [(the daughter’s neighbor)], where are my kids?
Where is my daughter and daughter-in-law?” The daughter
testified that she then called M.S. and that during the conversa-
tion, M.S. said something about the FBI and that “someone by
the name of Kelso was let go.” According to the daughter, M.S.
also said, “There’s something big going to happen. We need
to bust this thing wide open.” The daughter testified that M.S.
kicked at the door to her house and stated that she would kick
the door in if she had to.
The daughter testified that the incident in May 2024 made
her concerned about the safety of M.S. and of others around
M.S., especially the daughter’s neighbor and M.S.’ son, who
was “keeping” M.S.’ guns from her. In the intake information
recounting the May 2024 incident, the daughter reported that
M.S seemed “out of touch with reality” and “unpredict[able]”
and that the daughter was “very concerned [M.S.] has [a] gun

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
while under this state” and “went as far as to kick at our back
door.” The daughter’s intake information requested that M.S.
be admitted and evaluated “[f]or the safety of others.”
The daughter testified before the Board that in response to
the May 2024 incident, she tried to contact Kauzlarich, not law
enforcement. The daughter denied ever seeing a gun during the
two interactions that day; she also denied that M.S. threatened
to harm her or herself, and she denied that M.S. explicitly
threatened to harm anyone else.
When asked whether M.S. could mask her symptoms,
the daughter replied that in January and February 2024, the
daughter thought “something seemed off” or “things might
not be okay” with M.S., but she knew other family members
“were getting a different version of her tha[n the daughter]
was getting.”
(c) M.S.’ Testimony
M.S. testified that she had previously worked as a law
enforcement officer for about 21 years and was able to main-
tain housing and transportation with her income.
M.S. testified that she recognized she had a mental ill-
ness and that she needed to take medication. M.S. recounted
that she was taking her medication as directed by Kauzlarich
until January 2024 but stopped due to issues with her insur-
ance. M.S. further testified that she intended to continue see-
ing a psychiatrist and a therapist. Although M.S. opposed
mental health commitment and forced medication, she stated
that she agreed with the form of treatment recommended by
Kauzlarich’s treatment plan and that she had been taking medi-
cation as prescribed since her most recent hospitalization.
M.S. testified that she had explored seeing a psychiatrist in
her mental health facility other than Kauzlarich because she
and Kauzlarich had “knocked heads” and because she believed
Kauzlarich had provided her with “incorrect” information. As
a result, she was contemplating a medical malpractice law-
suit. M.S. expressed discontent with the progress toward an

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
outpatient treatment plan. She had made three phone calls to
outpatient psychiatrists, but they had waiting lists of approxi-
mately 8 months.
Regarding the events leading up to her most recent hospital-
ization, M.S. denied ever threatening herself or others with a
firearm. M.S. testified that she was willing to sell her firearms
because they were “causing a lot of turmoil and argument with
my kids.” When asked whether she intended to purchase a fire-
arm in the future, M.S. responded, “Not—well, at this point,
no. That’s all I can answer. At this point, no.”
4. Board Orders Commitment
and Forced Medication
After deliberating, the Board found by clear and convinc-
ing evidence that the allegations in the petition were true. It
determined that M.S. was suffering from a mental illness—
bipolar I manic with psychosis. The Board further found that
M.S. was a danger to herself and others and was unable to care
for her basic human needs, such as essential medical care. It
determined there was a history of noncompliance with taking
anti-psychotic medications and a history of owning firearms,
putting M.S. and her family in danger. The Board determined
the treatment plan received in evidence was the least restrictive
treatment and authorized forced medication.
5. M.S. Appeals; District Court
Affirms Board
M.S. appealed to the district court. She argued that the
Board violated her rights to confrontation and admitted inad-
missible hearsay. She also contended that the evidence was
insufficient to support committing her. The parties agreed that
the matter was not moot because M.S. remained under com-
mitment of the Board. The district court took judicial notice of
the Board’s transcript and bill of exceptions and received both
into evidence. In a written order, the district court affirmed the
Board’s decision.

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
The district court was unpersuaded by M.S.’ contention that
the Board had violated her rights to confrontation set forth in
§ 71-954. It reasoned that the statements M.S. identified were
for medical diagnosis and treatment, not testimonial state-
ments—statements intended for later use at trial—subject to
confrontation. The district court did agree that Kauzlarich’s
testimony about information relayed to him by M.S.’ family
was inadmissible hearsay and that the Board erred in allowing
Kauzlarich to read testing results into evidence that indicated
M.S. was masking her symptoms, but it found that these errors
were harmless because the facts they elicited were also in the
daughter’s testimony. In its de novo review, the district court
found clear and convincing evidence to support the statutory
prerequisites for mental health commitment.
II. ASSIGNMENTS OF ERROR
On appeal to this court, M.S. assigns that the district court
erred in (1) finding that the Board did not violate her right
to confront and cross-examine adverse witnesses; (2) finding
the Board’s admission and reliance on inadmissible hearsay
was harmless error; (3) finding clear and convincing evidence
to support a diagnosis of bipolar I disorder, manic with psy-
chosis, pursuant to § 71-907; (4) finding there was clear and
convincing evidence that M.S. presented a substantial risk
of serious harm to herself or others within the near future
pursuant to § 71-908; (5) finding there was clear and convinc-
ing evidence that the treatment plan proposed was the least
restrictive alternative pursuant to § 71-925(1); (6) finding that
the Board had considered all treatment alternatives before
ordering inpatient hospitalization pursuant to § 71-925(6);
and (7) finding there was clear and convincing evidence that
forced medication was appropriate and that no lesser alterna-
tive would suffice.
III. STANDARD OF REVIEW
[1] The district court reviews the determination of a men-
tal health board de novo on the record. In re Interest of S.J.,

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
283 Neb. 507, 810 N.W.2d 720 (2012). 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. Id.
Clear and convincing evidence means the amount of evidence
which produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proved; clear and convinc-
ing evidence is more than a preponderance of the evidence,
but less than proof beyond a reasonable doubt. Benjamin S. v.
Crystal S., 313 Neb. 799, 986 N.W.2d 492 (2023).
[2] Whether a decision conforms to law and the interpreta-
tion of statutes present questions of law, in connection with
which an appellate court reaches a conclusion independent of
that reached by the lower court. In re Interest of T.W., 314 Neb.
475, 991 N.W.2d 280 (2023).
[3] When judicial discretion is not a factor, whether the
underlying facts satisfy the legal rules governing the admis-
sibility of a proponent’s evidence is a question of law, subject
to de novo review. State v. Boswell, 316 Neb. 542, 5 N.W.3d
747 (2024).
IV. ANALYSIS
1. Continuance Hearing: Confrontation
M.S. contends that her rights to confrontation pursuant
to § 71-954 were violated at the hearing on her motion to
continue because she was not given the opportunity to cross-
examine Kauzlarich. We disagree.
At the time of the Board’s hearings in this matter, § 71-954
provided:
A subject 	shall 	have 	the 	right 	at 	a 	hearing 	held
under 	the 	Nebraska 	Mental 	Health 	Commitment Act
. . . to confront and cross-examine adverse witnesses
and evidence equivalent to the rights of confrontation
granted by Amendments VI and XIV of the United States
Constitution and Article I, section 11, of the Constitution
of Nebraska.

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IN RE INTEREST OF M.S.
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See, 	also, 	2025 	Neb. 	Laws, 	L.B. 	150, 	§ 	118 	(operative
September 3, 2025; amending § 71-954 to allow mental health
board to conduct hearings using videoconferencing). The Sixth
Amendment to the U.S. Constitution states that “the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” Similarly, Neb. Const. art. I, § 11, provides that
“the accused shall have the right . . . to meet the witnesses
against him face to face.” We have held that the analysis under
article I, § 11, is the same as that under the Sixth Amendment
to the U.S. Constitution. State v. Smith, 286 Neb. 856, 839
N.W.2d 333 (2013). See, also, In re Interest of S.B., 263 Neb.
175, 639 N.W.2d 78 (2002).
The rights to confrontation conferred by the U.S. and
Nebraska Constitutions typically apply “[i]n all criminal pros-
ecutions.” See, U.S. Const. amend. VI; Neb. Const. art. I, § 11.
But the language of § 71-954 extends “equivalent” rights to
subjects of “hearing[s] held under the Nebraska Mental Health
Commitment Act.” Indeed, in the past, we have applied the lan-
guage of § 71-954 to a commitment hearing, that is, a hearing
held to determine whether there is clear and convincing evi-
dence that the subject is mentally ill and dangerous as alleged
in the petition. See In re Interest of S.B., supra (determining
that same language, then codified in Neb. Rev. Stat. § 83-1058
(Cum. Supp. 2000), applied to place limits on telephonic tes-
timony at mental health commitment hearing). M.S. posits the
rights to confrontation in § 71-954 applied to the hearing on
her motion to continue. They do not.
[4,5] In State v. Daly, 278 Neb. 903, 923, 775 N.W.2d 47,
65 (2009), the appellant argued that he had been deprived
of his rights to confrontation at the “Daubert/Schafersman
hearing” that preceded his criminal trial. Although he did
not object on those grounds, we observed that “it is well
established that Confrontation Clause rights are trial rights
that do not extend to pretrial hearings in state proceedings.”
Daly, 278 Neb. at 924, 775 N.W.2d at 66, citing Kentucky
v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631

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IN RE INTEREST OF M.S.
Cite as 320 Neb. 451
(1987); Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989,
94 L. Ed. 2d 40 (1987); United States v. Matlock, 415 U.S.
164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). See, also, State v.
McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016) (reject-
ing criminal defendant’s argument on appeal that confronta-
tion rights applied at pretrial hearing on motion in limine).
Section 71-954 grants confrontation rights in mental health
commitment proceedings “equivalent” to those in criminal
cases. Accordingly, we conclude that the confrontation rights
set forth in § 71-954 are trial rights that do not extend to
pretrial hearings in mental health commitment proceedings.
Because those confrontation rights do not extend to pretrial
hearings, they did not apply to the hearing on the motion to
continue in this case.
Although we conclude that M.S.’ rights under § 71-954
were not violated at the hearing on the motion to continue,
we express no view on whether the Board’s decision to allow
only the State to call and question witnesses for purposes of
that motion was otherwise proper. We likewise do not address
M.S.’ argument that there was a violation of procedural due
process when the Board’s chairperson effectively ruled on
M.S.’ motion to continue without a majority vote of the Board
members present. Although mentioned in her brief, M.S. did
not assign this as error. See State v. Price, ante p. 1, 26
N.W.3d 70 (2025) (absent plain error, appellate court consid-
ers only those claimed errors both specifically assigned and
specifically argued).
2. Commitment Hearing: Confrontation
and Evidentiary Issues
We next address alleged errors concerning testimony at the
commitment hearing. Again, M.S. claims that her rights to
confrontation were violated, this time related to Kauzlarich’s
testimony about psychological testing conducted by Gillespie
and about information relayed to him by M.S.’ family. M.S.
also argues that portions of Kauzlarich’s testimony regarding

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testing by Gillespie and statements by M.S.’ family were inad-
missible hearsay. Certainly, rights to confrontation and the rules
of evidence apply to commitment hearings under the Nebraska
Mental Health Commitment Act. See, § 71-954 (subject of
petition under act shall have rights to confrontation equiva-
lent to those granted by U.S. and Nebraska Constitutions);
§ 71-955 (rules of evidence apply at all hearings under act;
no evidence will be considered that is inadmissible in criminal
proceedings). But as we will explain, we are not convinced
that those principles dictate reversal here.
(a) Psychological Testing Conducted by Gillespie
As recounted above, Kauzlarich testified at the commitment
hearing that Gillespie performed psychological testing on M.S.
When Kauzlarich was asked to state the results of the testing,
M.S. unsuccessfully objected on confrontation and hearsay
grounds. Kauzlarich then testified about the results. According
to Kauzlarich, they indicated that M.S. can “present very well
while still being very ill” and that she “had significant difficulty
admitting to minor faults or foibles. Let alone acknowledging
symptoms of significant impairment.” Kauzlarich also testified
that the “[v]ery high levels of intentional defensiveness and
denial” made “a firm diagnostic conclusion impossible given
these particular results.”
In this appeal, M.S. concedes that Kauzlarich could use the
psychological testing to form his own opinion. She claims,
however, that her objection to Kauzlarich’s testimony about the
test results ought to have been sustained on confrontation and
hearsay grounds. But whether M.S. is correct on this point is
immaterial: Even if the Board should have excluded the testi-
mony above, any such error was harmless.
We have applied the harmless error doctrine in criminal
cases involving the violation of the right to confrontation
and in criminal and civil cases involving evidentiary errors.
See, e.g., State v. Smith, 302 Neb. 154, 922 N.W.2d 444
(2019); State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016);

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Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
Although 	mental 	health 	commitments 	are 	civil 	proceed-
ings, some criminal principles apply in such proceedings. As
we have discussed, in mental health commitment hearings,
§ 71-954 incorporates the confrontation rights typically avail-
able to criminal defendants. And we have observed that the
standard of review in mental health commitment proceedings
was borrowed from criminal cases and adjusted from beyond
a reasonable doubt to clear and convincing evidence. See In
re Interest of T.W., 314 Neb. 475, 991 N.W.2d 280 (2023).
But whether a matter is civil or criminal, one means of
showing harmless error is the same: If the disputed evidence
is cumulative, any error in admitting evidence is harmless,
whether of constitutional magnitude or not. See, e.g., Worth
v. Kolbeck, supra (erroneous admission of evidence is harm-
less error and does not require reversal if evidence is cumula-
tive and other relevant evidence, properly admitted, supports
finding by trier of fact); State v. Bradley, 236 Neb. 371, 461
N.W.2d 524 (1990) (error in admitting or excluding evidence,
whether of constitutional magnitude or not, is harmless if evi-
dence is cumulative and there is other competent evidence to
support conviction).
Here, M.S. cannot prevail because Kauzlarich’s testimony
about Gillespie’s test results was cumulative of other evidence.
Before the testimony to which M.S. objected, Kauzlarich tes-
tified without objection that because he thought M.S. “may
have some doubts that she even has these problems,” his
team did objective testing. Kauzlarich went on, “[W]e did the
psychological testing, which confirms that [M.S.] is good at
covering up. [She] did what we call ‘fake good.’” Similarly,
Kauzlarich’s testimony demonstrated that there was a con-
trast between how M.S.’ family perceived her and how she
presented to Kauzlarich. Like the testimony to which M.S.
objected, this testimony conveyed that M.S. could cover up
the symptoms of her mental illness. Accordingly, we con-
clude that any erroneous admission of testimony about the

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results of psychological testing conducted by Gillespie was
harmless error.
(b) Information Relayed by M.S.’ Family
M.S. also contends that Kauzlarich’s testimony about infor-
mation her family provided violated her rights to confronta-
tion and was inadmissible hearsay. M.S. specifically cites
Kauzlarich’s testimony that the family members expressed
concerns about her behavior, which had become more isola-
tive and more paranoid, and that they felt fearful of her, as
well as his testimony recounting the facts of the petition as set
forth in the intake information provided by M.S.’ daugh-
ter. The district court admitted this testimony over M.S.’
hearsay objection.
Regarding confrontation, M.S. did not object to Kauzlarich’s
testimony 	on 	that 	basis; 	she 	objected 	based 	on 	hearsay.
Although confrontation and hearsay analyses overlap, they are
not the same, and preserving one issue will not preserve the
other. See State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012).
Because M.S. did not object to the testimony about the family’s
input on confrontation grounds, she did not preserve that issue
for our review. See State v. Childs, 309 Neb. 427, 960 N.W.2d
585 (2021) (objection, based on specific ground and properly
overruled, does not preserve question for appellate review on
any other ground).
[6] As to M.S.’ hearsay objection, we find the Board did not
err in overruling it. A declarant’s out-of-court statement offered
for the truth of the matter asserted is inadmissible unless it falls
within a definitional exclusion or statutory exception. In re
Interest of Xandria P., 311 Neb. 591, 973 N.W.2d 692 (2022).
Neb. Rev. Stat. § 27-803(4) (Cum. Supp. 2024) sets forth an
exception, regardless of the availability of the declarant, for
“[s]tatements made for purposes of medical diagnosis or treat-
ment and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general character
of the cause or external source thereof insofar as reasonably

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pertinent to diagnosis or treatment.” We have referred to this
as the medical purpose exception. See, e.g., Tilson v. Tilson,
307 Neb. 275, 948 N.W.2d 768 (2020); State v. Mora, 298
Neb. 185, 903 N.W.2d 244 (2017). We have applied this hear-
say exception to statements made for purposes of obtaining a
mental health diagnosis or mental health treatment. See Tilson
v. Tilson, supra.
M.S. argues that the medical purpose exception does not
apply to the hearsay statements in this case because the declar-
ants were her family members, who were not patients of
Kauzlarich’s. To be sure, we have observed that the hearsay
exception for statements made for the purpose of medical diag-
nosis or treatment is based on the notion that a person seeking
medical attention will give a truthful account of the history and
current status of his or her condition in order to ensure proper
treatment. See id. But we have also recognized that this hear-
say exception is broader than patient-physician communica-
tions. See Vacanti v. Master Electronics Corp., 245 Neb. 586,
514 N.W.2d 319 (1994).
In fact, we have specifically held that the fact that the
declarant is a family member of the patient does not preclude
admissibility under the medical purpose exception,
as long as the evidence satisfactorily demonstrates that
the circumstances under which the statements were made
were such that the declarant’s purpose in making the
statements was to assist in the provision of medical
diagnosis or treatment, that the declarant’s statements
were reasonably pertinent to such diagnosis or treat-
ment, and further, that a doctor would reasonably rely on
such statements.
In re Interest of B.R. et al., 270 Neb. 685, 691, 708 N.W.2d
586, 591 (2005). See, also, State v. Swartz, 318 Neb. 553, 17
N.W.3d 174 (2025) (applying language of § 27-803(4), then
codified as § 27-803(3), see 2021 Neb. Laws, L.B. 57, § 1
(effective August 28, 2021)). And the fundamental inquiry
under the language of § 27-803(4), when considering the

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appropriate state of mind of the declarant, may be reasonably
inferred from the circumstances; this determination is necessar-
ily fact specific. See State v. Swartz, supra.
Considering 	the 	circumstances 	here, 	we 	conclude 	that
Kauzlarich’s testimony regarding statements by M.S.’ family
was admissible under the medical purpose exception to the
hearsay rule. Kauzlarich testified that when he evaluated M.S.
in 2024, he spoke to her family members and relied on the
information they provided to diagnose and treat M.S. He tes-
tified that the information the family provided was important
because he could not always obtain accurate facts from a cli-
ent who is psychotic or guarded, and family members would
have valuable insights from more time spent with the client,
relative to Kauzlarich. These facts demonstrate that the fam-
ily members’ purpose in making the statements was to assist
Kauzlarich in providing medical diagnosis and treatment.
Their input that M.S. seemed paranoid and isolative was
pertinent to diagnosing her and treating her because, at that
time, she had a diagnosis of major depressive disorder with
psychotic features and because the information in the peti-
tion suggested that M.S. was acting on thoughts that did not
align with reality. Because the family members spent more
time with M.S. than Kauzlarich did, it was reasonable for him
to rely on their statements. Given all this, Kauzlarich’s testi-
mony about the family members’ statements was not inadmis-
sible hearsay.
3. Sufficiency of Evidence
In addition to the confrontation and hearsay arguments
addressed above, M.S. asserts that the evidence was insuffi-
cient to support the Board’s mental health commitment order.
Section 71-925 sets forth the State’s burden of proof when it
seeks a commitment and addresses the appropriate treatment:
(1) The state has the burden to prove by clear and
convincing evidence that (a) the subject is mentally ill
and dangerous and (b) neither voluntary hospitalization

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nor other treatment alternatives less restrictive of the
subject’s liberty than inpatient or outpatient treatment
ordered by the mental health board are available or would
suffice to prevent the harm described in section 71-908.
. . . .
(6) A treatment order by the mental health board under
this 	section 	shall 	represent 	the 	appropriate 	available
treatment 	alternative 	that 	imposes 	the 	least 	possible
restraint upon the liberty of the subject. The board
shall consider all treatment alternatives, including any
treatment program or conditions suggested by the subject,
the subject’s counsel, or other interested person. Inpatient
hospitalization or custody shall only be considered as a
treatment alternative of last resort.
M.S. specifically assigns that there was not clear and convinc-
ing evidence to support a diagnosis of bipolar I disorder, manic
with psychosis, or to support a finding that she was dangerous,
as that term is defined by statute. She also assigns that there
was not clear and convincing evidence that commitment was
the least restrictive treatment of all treatment alternatives, the
Board had considered all treatment options, and no lesser alter-
natives than forced medication would suffice.
Before addressing these issues, we reprise the governing
standards of review. The district court reviews the determi-
nation of a mental health board de novo on the record. In re
Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 (2012). In
reviewing a district court’s judgment, however, our review is
deferential—we will affirm unless we find, as a matter of law,
that clear and convincing evidence does not support the judg-
ment. See id. As we have observed, our standard of review
for mental health commitment cases was borrowed from the
standard of review in criminal cases but adjusted to a lower
quantum of proof, from beyond a reasonable doubt to clear and
convincing evidence. See In re Interest of T.W., 314 Neb. 475,
991 N.W.2d 280 (2023). In a criminal case, the relevant ques-
tion in a sufficiency of the evidence review is whether, after

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viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of a crime beyond a reasonable doubt. See, e.g., State
v. Falcon, 319 Neb. 911, 25 N.W.3d 462 (2025). In this case,
the relevant question for M.S.’ challenges to the sufficiency
of the evidence is thus whether, after viewing the evidence in
the light most favorable to the State, any rational trier of fact
could have found there was clear and convincing evidence of
the statutory prerequisites for commitment.
Analyzing the sufficiency of the evidence under this stan-
dard of review, we determine that we must affirm. The district
court, in its de novo review, found that the State had presented
the elements necessary for commitment, and we cannot say, as
a matter of law, that clear and convincing evidence does not
support that judgment.
(a) Mental Illness Diagnosis
For a subject to be committed, § 71-925(1) requires the
State to show, among other things, that he or she is men-
tally ill. Section 71-907 defines “[m]entally ill” as “having
a psychiatric disorder that involves a severe or substantial
impairment of a person’s thought processes, sensory input,
mood balance, memory, or ability to reason which substan-
tially interferes with such person’s ability to meet the ordinary
demands of living or interferes with the safety or well-being
of others.” Here, Kauzlarich testified that M.S. was diagnosed
with bipolar I disorder, manic episode with psychotic features,
and his treatment plan identified a diagnosis of bipolar I dis-
order, manic with psychosis. M.S. does not dispute that this
diagnosis meets the foregoing definition of mental illness, and
she concedes that she has a mental illness of some kind. Yet,
M.S. assigns that Kauzlarich’s testimony was not clear and
convincing evidence to support his diagnosis. M.S. does not
claim any inconsistency between Kauzlarich’s testimony and
the diagnosis he named in the treatment plan. But, accord-
ing to her, the diagnosis was based on a brief evaluation and

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there were no specific observations in the record to support it.
We disagree.
As a mental health professional, Kauzlarich was competent
to testify about M.S.’ condition. See In re Interest of Tweedy,
241 Neb. 348, 488 N.W.2d 528 (1992). See, also, § 71-906
(defining mental health professional). M.S. is essentially ask-
ing us to second-guess Kauzlarich’s diagnosis, but that is not
the province of this court. See Morris v. Dall, ante p. 122, 26
N.W.3d 304 (2025) (credibility of witness is question for trier
of fact, which can credit or reject testimony in whole or in
part). We conclude that Kauzlarich’s testimony and his treat-
ment plan that was received in evidence would allow a rational
trier of fact to find that M.S. was mentally ill. M.S.’ argument
is not a basis for reversal.
(b) Mentally Ill and Dangerous
M.S. next challenges the Board’s finding that the State had
made the required showing that she is “mentally ill and danger-
ous,” under § 71-925(1), as that phrase is defined by statute.
Section 71-908 provides:
Mentally ill and dangerous person means a person who
is mentally ill . . . and because of such mental illness . . .
presents:
(1) 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; or
(2) A substantial risk of serious harm to himself or
herself within the near future as manifested by evidence
of recent attempts at, or threats of, suicide or serious
bodily harm or evidence of inability to provide for his or
her basic human needs, including food, clothing, shelter,
essential medical care, or personal safety.
Again, M.S. does not deny that if the evidence supported the
diagnosis of bipolar I disorder, manic with psychosis, she
was mentally ill for commitment purposes. But she posits

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she was not “mentally ill and dangerous” by claiming there
was not clear and convincing evidence that she presented a
substantial risk of serious harm to herself or others within the
near future pursuant to § 71-908. This assignment of error
lacks merit.
We read § 71-908 to provide two alternative grounds to
find a person mentally ill and dangerous: subsection (1) “or”
subsection (2). See Mann v. Mann, 316 Neb. 910, 7 N.W.3d
845 (2024) (word “or” used in statute is disjunctive). In this
case, we understand the district court to have determined that
M.S. was mentally ill and dangerous under both subsections;
it emphasized Kauzlarich’s testimony that absent medication,
M.S. was a risk to herself and others. But we need not mir-
ror that finding to affirm the district court’s judgment. Our
standard of review directs us to affirm the district court’s
determination if we find, as a matter of law, that clear and con-
vincing evidence supports the judgment of commitment. See
In re Interest of S.J., 283 Neb. 507, 810 N.W.2d 720 (2012).
Our review of the record leads us to affirm the district court’s
determination that M.S. is mentally ill and dangerous because
we discern clear and convincing evidence demonstrating the
conditions set out in subsection (1) of § 71-908.
Subsection (1) of § 71-908 can be satisfied in more than
one way. It provides that a substantial risk of serious harm
to another person or persons within the near future may be
demonstrated “by evidence of recent violent acts or threats
of violence” or “by placing others in reasonable fear” of seri-
ous harm to a person or persons. If a person’s actions stem-
ming from a mental illness place others in reasonable fear
of harm, that is sufficient to show a person is mentally ill
and dangerous.
In this case, the State presented evidence that because of
M.S.’ mental illness, she presented a “substantial risk of seri-
ous harm to another person or persons within the near future
as manifested . . . by placing others in reasonable fear of
such harm.” § 71-908(1). Kauzlarich’s testimony indicated

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that M.S.’ mental illness caused her to behave in ways that
placed others in reasonable fear of a substantial risk of seri-
ous harm.
Kauzlarich testified that M.S.’ children expressed concerns
that during the months preceding her most recent hospitaliza-
tion, M.S. had become more isolative and more paranoid and
they had become fearful of her. Kauzlarich also recounted
the intake information in the petition—about 2 weeks before
the hearing, M.S. had appeared at her daughter’s home express-
ing concerns for her daughter’s safety; she had said she had
a gun; and even though the daughter assured M.S. she was
fine, M.S. returned to her daughter’s home, was kicking at
the daughter’s door, and made statements about an impending
“big” event related to the FBI. Additionally, Kauzlarich testi-
fied that M.S.’ son was concerned for his safety and that M.S.
would retaliate. Kauzlarich also noted that the son mentioned
M.S. had been paranoid for quite some time and was covering
up her symptoms during the time Kauzlarich worked with her.
Kauzlarich testified that in his opinion, M.S. could be a danger
to herself and to others. He based this opinion on the incident
of M.S.’ bringing a gun to her daughter’s home and on M.S.’
failure to seek care when she “ended up more psychotic” after
the cessation of medication and therapy.
Evidence provided through M.S.’ daughter further supported
a finding that behaviors arising out of M.S.’ mental illness
placed others in reasonable fear of a substantial risk of serious
harm. The daughter testified that the May 2024 incident made
her concerned about M.S.’ safety and the safety of others,
especially the daughter’s neighbor, who M.S. believed had her
children, and M.S.’ son, who was “keeping” M.S.’ guns from
her. The Board also received the daughter’s intake information
in which she reported that M.S. seemed “out of touch with
reality” and “unpredict[able]” and that the daughter was “very
concerned [M.S.] has [a] gun while under this state” and “went
as far as to kick at our back door.” She requested that M.S. be
admitted and evaluated “[f]or the safety of others.”

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[7,8] At the time of the hearing, M.S. was engaging in treat-
ment, her condition had improved, and she expressed some
willingness to sell her firearms. And we have said that in deter-
mining whether a person is dangerous, the focus must be on
the person’s condition at the time of the hearing. In re Interest
of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009). However,
actions and statements of a person alleged to be mentally ill
and dangerous which occur before the hearing are probative
of the subject’s present mental condition. Id. For a past act to
have evidentiary value, the past act must have some foundation
for a prediction of future dangerousness, thus being probative
of that issue. Id. In M.S.’ case, the Board heard evidence tend-
ing to prove that M.S.’ past actions showed she was mentally
ill and dangerous at the time of the hearing.
Because we find that the evidence adduced would allow
a rational trier of fact to conclude M.S. was mentally ill and
dangerous as defined in § 71-908, we find no merit to this
assignment of error.
(c) Least Restrictive Alternative; All Treatment
Alternatives Considered; No Lesser
Alternative Sufficed
Finally, we address M.S.’ last three assignments of error, all
pertaining to whether the treatment plan ordered by the Board
was the best fit for her situation. In commitment proceedings,
the State has the burden to prove by clear and convincing
evidence that there are no treatment alternatives less restric-
tive than inpatient or outpatient treatment to prevent the harm
described in § 71-908. See § 71-925(1)(b). The Board’s treat-
ment order must represent the appropriate level of treatment
that “imposes the least possible restraint upon the liberty of the
subject.” See § 71-925(6). The Board is required to consider
all treatment alternatives, including those suggested by the
subject and the subject’s counsel, and “[i]npatient hospitaliza-
tion . . . shall only be considered as a treatment alternative of
last resort.” Id.

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M.S. assigns that the district court erred in finding the evi-
dence sufficient to support the Board’s ruling that inpatient
hospitalization was the least restrictive alternative, in finding
that the Board had considered all treatment options, and in
finding that no lesser alternative than forced medication would
suffice. She emphasizes evidence that she was voluntarily
complying with the treatment plan at the time of the hearing,
including injectable medication. According to M.S., this dem-
onstrated that a commitment order was not necessary for her to
engage in treatment. We are unpersuaded.
Although M.S. gave testimony tending to support her posi-
tion that her voluntary compliance with treatment forecasted
future voluntary compliance, Kauzlarich gave a conflicting
opinion. Even though M.S. was voluntarily engaged in treat-
ment at the time of the hearing, Kauzlarich recommended a
treatment plan involving mandatory inpatient and outpatient
treatment, with therapy and forced medication for psychosis
in the form of a long-acting injectable medication. Kauzlarich
testified that this treatment plan was the least restrictive option
based on M.S.’ history of missing scheduled appointments and
discontinuing medication. After hearing the treatment alterna-
tives advocated by M.S. and by Kauzlarich, the Board issued
a commitment order aligned with Kauzlarich’s recommended
treatment plan. We conclude, as a matter of law, that clear
and convincing evidence supports the Board’s decision that
Kauzlarich’s treatment plan was the least restrictive alternative
and that none of the assignments of error relating to the treat-
ment plan have merit.
V. CONCLUSION
For the reasons above, we conclude that the district court did
not err, and we affirm the district court’s order.
Affirmed.