In re Interest of T.W.
991 N.W.2d 280
Neb.2023Background
- T.W., an adult, was found by the district court under the Developmental Disabilities Court-Ordered Custody Act (DDCCA) to be developmentally disabled, a continuing threat to others, and in need of court-ordered custody and treatment. The court ordered DHHS to prepare a custody/treatment plan.
- DHHS recommended placement with a shared living provider (one-on-one staff in the provider’s home), 24/7 supervision, and direct supervision during all electronic/telephonic communications and internet access. DHHS did not propose a total internet ban or continuous GPS monitoring.
- T.W.’s expert (Mitchell) recommended remaining in his mother’s home with 24/7 supervision (supported family living); he noted uncertainty whether the mother could provide continuous supervision and that a more restrictive setting might be necessary if certain behaviors persisted.
- The district court adopted DHHS’s shared-living plan as the least restrictive alternative but added two conditions not in DHHS’s proposal: a ban on internet access on any device and an ankle‑fastened GPS monitor to be worn at all times unless modified by court order.
- T.W. appealed, arguing (1) the court approved a placement that was not the least restrictive alternative (Mitchell’s home-based plan was less restrictive) and (2) the court improperly added conditions beyond DHHS’s plan. The Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (T.W.) | Defendant's Argument (State/DHHS) | Held |
|---|---|---|---|
| Whether the court approved a plan that was not the least restrictive alternative | Mitchell’s plan (stay with mother, supported family living) is less restrictive and adequate with 24/7 supervision | DHHS and court: shared living provider is necessary to ensure true 24/7, documentable supervision and to prevent circumvention of safeguards | Court: competent evidence supported rejecting Mitchell’s plan; shared living provider (as ordered) was the least restrictive alternative to protect T.W. and society |
| Whether the court could impose conditions beyond DHHS’s proposed plan (GPS monitor and total internet ban) | Court exceeded DHHS’s plan and imposed additional restrictions not supported as necessary | Court may modify the department’s plan if record evidence (arguments + other evidence) shows by a preponderance that additional restrictions are necessary to achieve the least restrictive alternative | Court: statutory framework permits court to set the treatment plan; record supported inference that T.W. circumvented tech safeguards and that GPS monitoring had previously protected the public, so added conditions were supported by the greater weight of the evidence and were permissible |
Key Cases Cited
- Hill v. County Board of Mental Health, 203 Neb. 610 (1979) (describes appellate standard applied to MHCA orders and contrasts MHCA procedure with DDCCA)
- In re Interest of K.C., 313 Neb. 385 (2023) (discusses appealability and incorporation of civil appeal rules into DDCCA context)
- In re Interest of Jeremy U. et al., 304 Neb. 734 (2020) (explains the meaning of preponderance of the evidence)
- In re Adoption of Faith F., 313 Neb. 491 (2023) (states appellate inquiry for errors appearing on the record: conformity to law, competent evidence, and not arbitrary/capricious)
- Adams v. State, 293 Neb. 612 (2016) (addresses separation-of-powers concerns relevant to interpreting statutory allocation of executive vs. judicial functions)