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In re Alan L.

Supreme Court of Nebraska

July 22, 2016

In re Interest of Alan L., a child under 18 years of age. State of Nebraska, appellee.
Alan L., appellant.

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings.

         2. Judgments: Res Judicata. Whether the doctrine of claim preclusion, or res judicata, bars relitigation of a claim presents a question of law.

         3. Constitutional Law: Due Process. Whether the procedures given an individual comport with constitutional requirements for procedural due process presents a question of law.

         4. Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         5. 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.

         6. 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.

         7. 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 supervision.

         8. 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.

         9. 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.

         10. 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.

         11. 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.

         12. 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. 2014).

         Appeal from the Separate Juvenile Court of Sarpy County: Robert B. O'Neal, Judge.

          Dennis P. Marks, Deputy Sarpy County Public Defender, for appellant.

          Gary Brollier, Deputy Sarpy County Attorney, and Andrew T. Erickson, Senior Certified Law Student, for appellee.

         [294 Neb. 263] Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Connolly, J.

         I. SUMMARY

         Alan L. 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.

         Alan 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.

         We 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.


         Because 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.

         Alan 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.

         Alan's 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.

         But in 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.

         At the 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.

         After 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 hearing.

         Later, 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).

         About a 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.

         In May 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.

         [294 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.

         At the 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.

         A 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.

         Mercer 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 help Alan.

         But 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.

         In 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.

         In 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.


         Alan assigns, restated, that the court erred in ordering his commitment to ...

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