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In re Antonio J.

Supreme Court of Nebraska

October 28, 2016

In re Interest of Antonio J. et al., CHILDREN UNDER 18 YEARS OF AGE. State of Nebraska, appellant,
v.
Arturo H. AND NOEMI M., APPELLEES.

         Appeal from the Separate Juvenile Court of Douglas County: Elizabeth Crnkovich, Judge. Affirmed as modified.

          Donald W. Kleine, Douglas County Attorney, and Anthony Hernandez for appellant.

          Mariette C. Achigbu for appellee Arturo H. Lynnette Z. Boyle, of Tietjen, Simon & Boyle, guardian ad litem.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.

         INTRODUCTION

         At the beginning of a juvenile adjudication hearing, the State moved to dismiss without prejudice two factual allegations of the petition. Instead, the juvenile court ordered those allegations dismissed with prejudice. Because the State was entitled to dismiss the allegations as a matter of right, the allegations should have been dismissed without prejudice. We modify the order accordingly.

         BACKGROUND

         On August 25, 2015, the State filed an amended petition seeking to adjudicate five children under Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014). Count I contained five allegations concerning the fault or habits of the mother, while the four allegations under count II regarded the fault or habits of the father.

         Six months after the filing of the amended petition, the juvenile court held an adjudication hearing. At the beginning of the hearing, the State moved to dismiss without prejudice two paragraphs, which alleged that the father had subjected a juvenile to inappropriate sexual contact and that the mother knew or should have known of such contact. The following colloquy ensued:

THE COURT: No. I'm not going to do that without prejudice. Why are you dismissing it?
[The State]: Because the State is not going - doesn't have evidence to prove those allegations, Your Honor. THE COURT: Why did you file it then? [The State]: Because the evidence I had at that time didn't pan out, Your Honor.
THE COURT: Well, I'm not dismissing it without prejudice.
[The State]: So just for the State's clarification, this Court is going to dismiss it with ...

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