STATE OF NEBRASKA V. BRIAN M. WILLIAMS

Lincoln, NE - Criminal defense attorney represented Brian M. Williams with appeals from an order entered by the district court for Lancaster County, following a mental health commitment review hearing .

On October 30, 2015, Williams was charged by information with operating a motor vehicle

to avoid arrest, refusal to submit to a chemical test, and resisting arrest. Following a bench trial in

July 2016, the district court entered an order finding that Williams suffered from schizophrenia

and was "hallucinating and paranoid” at the time of his offenses, therefore finding him not

responsible by reason of insanity on all three counts. See State v. Williams, No. A-17-060, 2017

WL 4005607 (Neb. App. Sept. 12, 2017) (selected for posting to court website). An evidentiary

hearing was held on December 20, 2016. At the hearing, a report from the Lincoln Regional Center

(LRC) was admitted into evidence, which reported that commitment at LRC was the least

restrictive treatment consistent with public safety available. LRC noted that inpatient placement

was necessary due to concerns that Williams would refuse to continue taking his schizophrenia

medication if released. On December 23, 2016, Williams was committed to the Lincoln Regional

Center (LRC) for appropriate treatment, after the court found that Williams was a danger to himself

or others due to his mental illness and that the danger would continue in the foreseeable future

absent continuing participation in the appropriate treatment. Id. Williams appealed the order,

arguing that the district court did not properly weigh the evidence and thus erred in placing his

legal custody with LRC instead of instituting a less restrictive outpatient commitment. See State

v. Williams, supra. This court affirmed the order of the district court, finding that there was clear

and convincing evidence that Williams was a danger to himself and others and would continue to

be such a danger for the foreseeable future. Id.

On August 29, 2017, a review hearing was held during which LRC submitted another

report that noted Williams' condition had improved, and recommended treatment at an inpatient

facility with additional privileges to determine how he would handle his treatment needs and

leisure time. Williams was discharged to Center Pointe for dual-diagnosis inpatient treatment.

On January 23, 2018, another review hearing was held during which it was determined that

outpatient treatment at LRC was appropriate. The court made this decision based on a letter from

Center Pointe, stating that Williams was ready for discharge and that outpatient treatment would

be sufficient to monitor Williams' medication and substance abuse long term. At this hearing, a

letter from LRC recommended that Williams be discharged to a community placement with

appropriate services. On February 13, the court entered an order discharging Williams to outpatient

treatment at LRC and required him to continue taking his schizophrenia medication.

On March 13, 2019, another review hearing was held during which it was determined that

outpatient treatment at LBHC Clinic was appropriate. As part of this hearing, the court reviewed

a letter from LRC that said Williams was compliant with his treatment, appeared to be free from

hallucinations, and continued to abstain from substance use. The letter recommended that Williams

continue with the current treatment plan and court supervision. Another letter from LRC was

reviewed, in which it is noted that absent treatment, Williams "remains dangerous to himself or

others.” The court entered an order on April 9 ordering Williams to receive outpatient treatment

from LBHC, including taking all medications as prescribed.

Williams' most recent review hearing was held on May 27, 2020. At the hearing, Williams

offered into evidence various reports from mental health professionals who have treated him since

April 2016, many of which are described above. Williams' current therapist, Donald Holmquist, - 3 -

noted in a letter dated February 14, 2020, that Williams has attended weekly psychotherapy

sessions at LBHC since February 1, 2018, where he focuses on symptom management for

schizophrenia as well as relapse prevention related to his past substance abuse. Holmquist also

noted that Williams is ambivalent about his diagnosis and believes that his schizophrenia might

actually be "spiritual psychosis,” but that Williams has recently acknowledged his diagnosis in

comments during his therapy sessions. In a second later dated March 20, 2020, Holmquist repeated

that Williams attends weekly therapy sessions, and noticed that he "appears to be doing well in the

community while on his prescribed medications, has not had any instances with the law and has

not found himself in any dangerous predicaments.” Holmquist stated that Williams "questions the

need for the medication, but nonetheless has been extremely dedicated to receiving them.”

Holmquist noted that although Williams questions his diagnosis, he "has engaged in sustained

diligent work and continues to be interested in his self-worth, helping others, and is looking

forward to a happy and healthy future.” Holmquist ultimately concluded that Williams would not

be dangerous to himself or others in the foreseeable future, so long as he continues with his

medication and therapy treatment.

Holmquist also testified at the review hearing. Holmquist testified that based on his

experience, it is unlikely for someone to be cured from schizophrenia, but that symptoms can be

minimalized through pharmacotherapy and psychotherapy. Holmquist noted that Williams

questions his need for his schizophrenia medication, but that he takes it due to the court order, and

that he has reported that he would likely not continue to take it without a court order in place.

Holmquist testified that if Williams were to discontinue treatment, his health and wellness would

decline, and that it is likely that he could present a danger to himself or others. Specifically,

Holmquist opined that it is possible that Williams could present a danger similar to the original

offense if he were to discontinue medication.

Williams also testified and stated that if the court were to terminate jurisdiction, the only

thing he would change would be to meet with Holmquist every other week instead of weekly.

Williams denied that he would make any changes to the medication he currently takes.

On June 11, 2020, the court entered an order continuing jurisdiction over Williams and

finding that he remains a danger to himself or others in the foreseeable future, absent court

mandated treatment. The court continued Williams' outpatient treatment at LBHC, including

ordering that Williams take all medication as prescribed. Williams now appeals.

ASSIGNMENTS OF ERROR

Williams asserts, consolidated and restated, that the district court did not properly weigh

the evidence and thus erred in placing his legal custody with LBHC on an outpatient basis instead

of discharging him from the jurisdiction of the court, as he is no longer a danger to himself or

others in the foreseeable future.

STANDARD OF REVIEW

An appellate court will not interfere with a final order made by the district court in a mental

health commitment proceeding unless the court can say as a matter of law that the order is not

supported by clear and convincing proof. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006).- 4 -

ANALYSIS

Section 29-3702 requires the district court to place a person who is a danger to himself or

others due to mental illness in the least restrictive available treatment program that is consistent

with the person's needs and the safety of the public. Neb. Rev. Stat. § 29-3703(2) (Reissue 2016)

provides that the treatment program may involve any public or private facility or program which

offers treatment for mental illness and may include an inpatient, residential, day, or outpatient

setting. Section 29-3703 also provides that "[u]pon motion of the prosecuting attorney or upon its

own motion, but at least annually, the court shall hold a hearing to determine whether the person

is complying with the conditions set by the court.” Further, if, after a hearing, the district court

determines the person remains dangerous to himself or others and will be so dangerous in the

foreseeable future, it shall order the person to participate in an appropriate treatment program

consistent with the treatment needs of the person and the safety of the public. See § 29-3703(2).

In determining 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). 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. Although assessment of whether a person

will be dangerous calls for a medical decision, the sufficiency of the evidence required to support

such a decision presents a legal question. Id.

In this case, the court found by clear and convincing evidence that Williams was a danger

to himself and others, and would continue to be such a danger for the foreseeable future, absent

his current treatment. Holmquist opined that although Williams would otherwise not be a danger

to himself or others in the foreseeable future if he continues with his current treatment, he also

noted that Williams had indicated during therapy that he would discontinue taking his

schizophrenia medication if it were not court ordered. Therefore, Holmquist opined that absent

current treatment, Williams could likely become a danger to himself or others in the foreseeable

future. Although Williams testified at trial that he would not make any changes to his medication

regimen if the court were to discontinue jurisdiction, multiple reports from various mental health

providers indicate that Williams questions his diagnosis and need for medication. Therefore, the

court continued Williams' outpatient treatment at LBHC, finding that there was a concern that

Williams would discontinue his medication regimen without continued court supervision.

Upon review of this record, we conclude that there was clear and convincing evidence to

support the district court's findings with regard to Williams' need for continued mental health

commitment and treatment. State v. Schinzel, supra.

After reviewing the record, we cannot conclude as a matter of law that the district court erred in placing his legal custody with LBHC on an outpatient basis instead of discharging him from the jurisdiction of the court. Therefore, we affirm