In re Interest of Alan L., a child under 18 years of age. State of Nebraska, appellee.
Alan L., appellant.
Juvenile Courts: Appeal and Error. An
appellate court reviews juvenile cases de novo on the record
and reaches a conclusion independently of the juvenile
Judgments: Res Judicata. Whether the
doctrine of claim preclusion, or res judicata, bars
relitigation of a claim presents a question of law.
Constitutional Law: Due Process. Whether the
procedures given an individual comport with constitutional
requirements for procedural due process presents a question
Appeal and Error. An appellate court
independently reviews questions of law decided by a lower
Juvenile Courts: Probation and Parole. Under
Neb. Rev. Stat. § 43-286 (Cum. Supp. 2014), before a
juvenile court can order a juvenile's placement at a
youth rehabilitation and treatment center, the Office of
Probation Administration must review and consider thoroughly
what would be a reliable alternative to commitment at such a
center. It must also provide a report to the court that
supports one of the following conclusions: (1) there are
untried conditions of probation or community-based services
that have a reasonable possibility for success or (2) all
levels of probation and options for community-based services
have been studied thoroughly and none are feasible. The
review should consider the success or failure of prior
supervisory conditions, even if the conditions were imposed
by some other agency responsible for the child's care.
Juvenile Courts. In considering whether the
State has shown that a juvenile should be placed at a youth
rehabilitation and treatment center, [294 Neb. 262] a
juvenile court is not required to repeat measures that were
previously ineffective or unsuccessful.
Juvenile Courts: Probation and Parole: Time.
Under Neb. Rev. Stat. § 43-286(1) (Cum. Supp. 2014), the
State can file a motion to commit a juvenile to the Office of
Juvenile Services for placement at a youth rehabilitation and
treatment center at only three points in a delinquency
proceeding: (1) before a court enters an original
disposition, (2) before a court enters a new disposition
following a new adjudication, or (3) before a court enters a
new disposition following a motion to revoke probation or
Appeal and Error. Plain error is error
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.
Juvenile Courts: Probation and Parole: Time.
Prospectively, a revocation motion is concurrently required
even if the State is seeking a juvenile's commitment to
the Office of Juvenile Services for probation violations.
Judgments: Res Judicata. Claim preclusion
bars the relitigation of a claim that has been directly
addressed or necessarily included in a former adjudication if
(1) the former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both action.
Res Judicata. The doctrine of claim
preclusion bars relitigation not only of those matters
actually litigated, but also of those matters that a party
could have litigated in the prior action.
Juvenile Courts: Judgments: Time. A juvenile
court can compare the facts as they existed when it entered a
previous order to new facts arising after that order to
determine whether a change in circumstances warrants a
different decision. This general principle applies when the
State files successive motions to change a juvenile's
disposition under Neb. Rev. Stat. § 43-286 (Cum. Supp.
from the Separate Juvenile Court of Sarpy County: Robert B.
P. Marks, Deputy Sarpy County Public Defender, for appellant.
Brollier, Deputy Sarpy County Attorney, and Andrew T.
Erickson, Senior Certified Law Student, for appellee.
Neb. 263] Heavican, C.J., Wright, Connolly, Miller-Lerman,
Cassel, Stacy, and Kelch, JJ.
appeals from the juvenile court's August 2015 commitment
order. That order committed him to the Office of Juvenile
Services (OJS) for commitment at a youth rehabilitation and
treatment center (YRTC). The court held two commitment
hearings. In its first order, the court concluded that the
evidence failed to support a commitment order. About 2 months
later, the court found that the State had proved the
necessary conditions for the commitment.
argues that claim preclusion barred the State from presenting
any new evidence at the second commitment hearing that was
available to it before the first commitment hearing. He also
contends that the commitment hearing violated his right to
due process because he could not confront and cross-examine
persons who provided adverse information against him.
Finally, he contends that the State failed to produce
sufficient evidence to show that all levels of probation
supervision and community-based services had failed.
affirm. We conclude that despite the State's failure to
comply with our case law for seeking a new disposition or
commitment to OJS, Alan was not deprived of his right to due
process. We further conclude that new evidence at the second
commitment hearing, which became available after the first
hearing, showed a change of circumstances that justified the
court's commitment order.
Alan challenges the State's commitment procedures, it
would be helpful for future cases to clarify the proper
procedures under recent statutory amendments to the juvenile
code. So we set out the procedures here with some detail.
was born in September 1998. He was released from the YRTC on
parole in the summer of 2014. In January 2015, [294 Neb. 264]
when Alan was age 16 and on parole, the county attorney's
office filed a juvenile petition that alleged three counts of
conduct constituting a misdemeanor offense. Alan admitted to
being a minor in possession of alcohol, and the State
dismissed the other charges.
parole officer reported that Alan had refused to cooperate
with a chemical dependency evaluation, refused to charge his
electronic monitor, and failed to attend school. His parole
officer stated that she was authorized to seek a parole
revocation but preferred to seek a disposition order placing
him on probation. She believed that if Alan were sent back to
the YRTC on probation, the State would have more supervision
over him when he was released. After the hearing, the court
adjudicated Alan under Neb. Rev. Stat. § 43-247(1)
(Supp. 2013) (nontraffic misdemeanor or infraction), ordered
a psychiatric evaluation, and scheduled a disposition hearing
for March 26.
February 2015, new circumstances required the court to hold a
detention hearing-not a disposition hearing. Following an
altercation in his home, police officers took Alan into
custody. A probation officer then placed Alan in secured
detention at the Douglas County Youth Center because he posed
an extreme risk to the community.
detention hearing, a probation officer testified about the
altercation. Alan had demanded that his mother take him to
his girlfriend's house, but she refused. Alan pushed her
down and left the house angry but came back a few minutes
later with a gun, which he allegedly held to her head. He
then pointed the gun at his mother's boyfriend and
demanded transportation, but the boyfriend refused.
police officers took him into custody, he told a probation
officer that he was bipolar and was not taking his
medications. He also admitted to being involved with gangs
and "brought up at least two incidents where he pulled a
gun on another person." In addition, the probation
officer stated that Alan had said he had been using and
selling cocaine and using [294 Neb. 265] alcohol. The court
continued his secure detention pending the disposition
in March 2015, the county attorney's office filed a
supplemental petition with four new charges against Alan
stemming from the altercation at his home in February. It
alleged two additional counts of felonious conduct (making
terroristic threats and use of a weapon to commit a felony),
and two additional counts of misdemeanor conduct (third
degree assault and a separate count of criminal mischief).
month later, the court held a disposition hearing on the
original petition. (It had not yet held an adjudicated
hearing on the supplemental petition.) The court placed Alan
on probation and allowed him to move with his mother to
Colfax County, Nebraska. At the adjudication hearing,
Alan's mother had stated that she believed Alan needed
medication for his mood changes. So the court ordered him to
comply with three evaluations (psychological, psychiatric,
and chemical dependency) and to have no contact with gangs or
his mother's boyfriend.
2015, after Alan had returned to Sarpy County, his new
probation officer, Nicole Mercer, placed him in detention
again for noncooperation. Later that month, the county
attorney's office moved to commit Alan to OJS for
placement at a YRTC. The motion alleged that Alan had (1)
been previously committed to the YRTC and discharged in the
summer of 2014; (2) claimed to be a gang member; (3) failed
to cooperate with a predisposition interview and evaluation;
(4) failed to attend school; (5) failed to complete probation
or "Tracker"; and (6) expressed no desire to
cooperate with further testing or evaluations. Generally, the
motion alleged that Alan had exhausted all levels of
probation supervision and that there was an immediate and
urgent need to place him at the YRTC to protect him and the
public. The motion also alleged that the YRTC would offer him
treatment, schooling, and behavioral regimes, thus reducing
his access to drugs. The motion, however, did not contain
allegations about Alan's conduct in February.
Neb. 266] On the same day that the county attorney filed a
commitment motion, the court held a detention hearing. The
evidence showed that Mercer had detained Alan in May after a
home visit. Mercer had told Alan not to leave the house for a
week without an adult, apparently because he had not
cooperated with court-ordered evaluations. Alan told Mercer
to get off his property and used "colorful"
language. The record reflects that after the court
adjudicated Alan on the supplemental petition, Mercer
recommended the court continue Alan's detention and
schedule a hearing on his commitment to the YRTC. The court
continued Alan's detention and scheduled a combined
review hearing, an arraignment on the supplemental petition,
and a hearing on the commitment motion.
June 2015 hearing, Alan admitted to two counts of misdemeanor
conduct on February 14, 2015 (third degree assault and
criminal mischief). He admitted that he had threatened to
shoot his mother's boyfriend with an unloaded gun and had
kicked off his electronic monitor. The county attorney
dismissed the counts alleging felonious conduct. The court
adjudicated Alan under § 43-247(1) and continued the
commitment hearing to the next week.
later, the court held a combined disposition hearing on the
supplemental petition and a commitment hearing. The county
attorney stated that because he had moved for a YRTC
commitment before Alan admitted to the charges in the
supplemental petition, he did not know whether he needed to
amend the motion. The court recognized that the motion did
not reflect the allegations in the supplemental petition but
stated that it did not want to keep Alan in secure detention
any longer than necessary if he was ready to proceed.
Alan's attorney stated that he was ready.
testified that Alan initially walked away angry from the
psychiatric evaluation, but he later completed it. He had
not, however, complied with the recommendation that he take
medication. He told the psychiatrist that he did not want
treatment, and the psychiatrist did not think Alan would
cooperate [294 Neb. 267] with services. Furthermore, Alan had
missed his appointment for a chemical dependency evaluation
and had not been tested for drug use since returning to Sarpy
County. Mercer said Alan's mother could not control him.
Also, Mercer said that the previous year, she had supervised
Alan at the YRTC and that he was part of her high-risk
caseload. She did not believe there were any community-based
services or other programming that probation could provide to
Alan's attorney successfully objected that the court
could not question Mercer about services that Alan had
received during his previous parole. After an off-the-record
discussion with counsel, the court stated from the bench that
it was denying the commitment motion "for lack of
sufficient evidence presented at this hearing." In its
June 2015 journal entry, the court "determined that the
evidence was not sufficient at this time to meet the three
prong test." But it continued the disposition on the
supplemental petition to July.
2015, the county attorney filed an amended motion to commit
Alan to the YRTC. The allegations were the same. The court
continued the disposition hearing to give the county attorney
time to respond to Alan's argument that claim preclusion
barred any new evidence that the State could have presented
at the June commitment hearing. The court again continued the
disposition hearing to August.
August 2015, Alan filed a "motion to bar" any
evidence of his conduct before the court's June order
that found the evidence insufficient to support a commitment.
The county attorney's office filed a second amended
motion to commit. The only new allegations involved its
claims that Alan had sabotaged a placement by threatening to
run away or harm the staff there and that no other placement
options were available. Later in August, at the second
commitment hearing, the court received Mercer's affidavit
with new information about Alan's conduct. She stated
that Alan had sabotaged a placement in Arizona. The affidavit
had three attachments: Mercer's summary of the
State's supervision [294 Neb. 268] efforts, a chemical
dependency evaluation, and a psychiatric evaluation.
Alan's attorney then called Mercer as a witness. After
the hearing, the court found that the allegations of the
second amended motion for commitment were true, placed him on
intensive supervision probation, and committed him to OJS for
placement at the YRTC.
ASSIGNMENTS OF ERROR
assigns, restated, that the court erred in ordering his
commitment to ...