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In re Hla H.

Court of Appeals of Nebraska

October 10, 2017

In re Interest of Hla H., a child under 18 Years of Age.
v.
Hla H., appellant. State of Nebraska, Appellee.

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

         2. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question of law, which an appellate court resolves independently of the trial court.

         3. Juvenile Courts: Rules of Evidence. The Nebraska Evidence Rules control adduction of evidence at an adjudication hearing under the Nebraska Juvenile Code.

         4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

         5. Rules of Evidence: Hearsay: Words and Phrases. Neb. Evid. R. 801, Neb. Rev. Stat. § 27-801(3) (Reissue 2016), defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. One definition of "statement, " for the purposes of the Nebraska Evidence Rules, is an oral or written assertion.

         6. Hearsay. If an out-of-court statement is not offered for proving the truth of the facts asserted, it is not hearsay.

         7. Rules of Evidence: Hearsay. Apart from statements falling under the definitional exclusions and statutory exceptions, the admissibility of an out-of-court statement depends upon whether the statement is offered [25 Neb.App. 119] for one or more recognized nonhearsay purposes relevant to an issue in the case.

         8. Hearsay: Words and Phrases. A verbal act is a statement that has legal significance, i.e., it brings about a legal consequence simply because it was spoken. Words that constitute a verbal act are not hearsay even if they appear to be.

         9. Hearsay. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it.

         10. __ . A nonhearsay purpose for offering a statement does exist when a statement has legal significance because it was spoken, independent of the truth of the matter asserted.

         11. Rules of Evidence. Neb. Evid. R. 902, Neb. Rev. Stat. § 27-902 (Reissue 2016), states that certain documents are self-authenticating and extrinsic evidence of authenticity as a condition precedent to admissibil-ity is not required.

         12. Rules of Evidence: Proof. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901(1) (Reissue 2016), does not impose a high hurdle for authentication or identification. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of rule 901(1).

         13. Evidence: Testimony: Proof. Authentication of letters may be provided by testimony.

         14. Juvenile Courts: Public Officers and Employees: Minors. Neb. Rev. Stat. § 43-276(2) (Reissue 2016) requires that prior to filing a petition alleging that a juvenile is a juvenile as described in Neb. Rev. Stat. § 43-247(3)(b) (Supp. 2015), the county attorney shall make reasonable efforts to refer the juvenile and his or her family to community-based resources available to address the juvenile's behaviors, provide crisis intervention, and maintain the juvenile safely in the home.

         15. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         Appeal from the Separate Juvenile Court of Lancaster County: Toni G. Thorson, Judge. Affirmed.

          Joe Nigro, Lancaster County Public Defender, and James G. Sieben for appellant.

         [25 Neb.App. 120] Joe Kelly, Lancaster County Attorney, and Maureen E. Lamski for appellee.

          Pirtle, Bishop, and Arterburn, Judges.

          Bishop, Judge.

         I. INTRODUCTION

         Hla H. appeals the order of the separate juvenile court of Lancaster County adjudicating him as a juvenile within the meaning of Neb. Rev. Stat. § 43-247(3)(b) (Supp. 2015) for being habitually truant from school between August 12 and December 18, 2015. At issue in this case is whether the office of the Lancaster County Attorney (County Attorney) fulfilled the statutory duty to make reasonable efforts to refer Hla and his family to community-based resources prior to filing the juvenile petition. We conclude that the County Attorney did, and we therefore affirm the decision of the juvenile court.

         II. BACKGROUND

         On January 19, 2016, the State filed a petition alleging that Hla, born in July 2000, was a juvenile within the meaning of § 43-247(3)(b), because he was habitually truant from school between August 12 and December 18, 2015. The State alleged:

Further, a description of the efforts made by the County Attorney to refer the juvenile and family to community-based resources available to address the juvenile's behavior, provide crisis intervention, and maintain the juvenile safely in the home is as follows:
1. On or about October 26, 2015, a letter from the Lancaster County Attorney's office was provided to Eh [P.] [Hla's mother] which a) referred the family to a guide of available resources in Lancaster County; b) encouraged the family to work closely with the school to access those or other resources; and c) provided information about how to contact the county's Truancy Resource Specialist if the student/family needed assistance in [25 Neb.App. 121] accessing appropriate services to overcome any barriers to regular school attendance that the student/family [was] encountering.

         An adjudication hearing was held on June 20 and 23, 2016. Hla and his mother, Eh P., were present at the hearing. Because Eh's native language is Karen, an interpreter was also present.

         The State's only witness was Matthew Gerber, an instructional coordinator at Hla's school. Gerber works with students regarding behavioral concerns, attendance, scheduling, and "all the general responsibilities of the student's education." He worked with Hla during the 2015-16 school year.

         Exhibit 1, a "Conference Absence Report, " was received into evidence without objection. The report contained a number of codes such as "TR" and "TD." Gerber testified that "TR" means "truant" and indicates that the student was absent during that period of the day. "TD" means "tardy" and indicates that the student arrived late to that class period. The report showed that in the fall of 2015, Hla had numerous truancies and tar-dies in August, September, and October (and by December 18, he had anywhere from 22 to 38 unexcused absences for each class period).

         According to Gerber, the school worked with Hla to help him improve his attendance. One of the "primary interventions" the school used was a "collab[o]rative plan meeting" held on October 26, 2015. The meeting was attended by the school's attendance team leader, Hla, Eh, an interpreter, and Gerber. The purpose of the collaborative plan meeting was to determine if there was anything preventing Hla from attending school and to determine any "supports" that could be provided to help improve attendance.

         At the collaborative plan meeting, it was noted that Hla had already missed a significant amount of school and that if he continued to miss school, his grades would suffer and he would be referred to the County Attorney once he accumulated 20 days of absences. Hla's attendance record was provided [25 Neb.App. 122] and explained to Eh, outlining the number of absences Hla had by October 26, 2015. Exhibit 2, the "Collaborative Plan" for the meeting, was received into evidence over Hla's hearsay objection (not challenged on appeal). Gerber testified that exhibit 2 was the agenda for the meeting, and he outlined a series of questions that were asked of Hla and Eh to determine if there were any barriers to school attendance. Neither Hla nor Eh provided any explanation as to why Hla was missing school. The collaborative plan shows that the attendees considered the following to reduce barriers to improve attendance: illness, educational counseling, educational evaluation, referral to community agencies for economic services, family or individual counseling, and assisting the family ...


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