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In re Steven S.

Supreme Court of Nebraska

March 23, 2018

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

         1. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. An appellate court reviews a juvenile court's decision to transfer a juvenile offender's case to county court or district court de novo on the record for an abuse of discretion.

         2. Juvenile Courts: Appeal and Error. When the evidence is in conflict, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

         3. Courts: Juvenile Courts: Jurisdiction: Proof. When the prosecution seeks to transfer a juvenile offender's case to criminal court, the juvenile court must retain the matter unless a preponderance of the evidence shows that the proceeding should be transferred to the county court or district court. The prosecution has the burden by a preponderance of the evidence to show why such proceeding should be transferred.

         4. Courts: Juvenile Courts: Jurisdiction. In determining whether a case should be transferred to criminal court, a juvenile court should consider those factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016). In order to transfer the proceedings, the court need not resolve every factor against the juvenile, and there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile.

          Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Affirmed.

         [299 Neb. 448] Joe Nigro, Lancaster County Public Defender, and Sarah J. Safarik for appellant.

          Tara A. Parpart, Deputy Lancaster County Attorney, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Colborn and Samson, District Judges.

          Cassel, J.


         Steven S. appeals an order of the separate juvenile court transferring his case to county court. We begin by settling the standard of review, which is a matter of first impression. Because of the nature of juvenile courts and the statutory provisions governing such transfers, we determine that the appropriate standard of review is de novo on the record for an abuse of discretion. Having considered the evidence, upon our de novo review, we find no abuse of discretion in the transfer. We affirm the order of the juvenile court.


         Juvenile Petition

         In September 2017, Steven and another juvenile were being transported from juvenile detention facilities to the Youth Rehabilitation and Treatment Center (YRTC) in Kearney, Nebraska. While en route, the juveniles discussed not wanting to go to Kearney. Steven freed his hand from a wrist restraint and opened the passenger door, allowing both juveniles to escape from custody. Shortly thereafter, law enforcement took them into custody without incident.

         The State filed a petition in the separate juvenile court of Lancaster County charging Steven with escape. This is a Class IV felony offense.[1] The State simultaneously filed [299 Neb. 449] a motion to transfer Steven's case from juvenile court to county court.

         Transfer Hearing

         The juvenile court conducted a transfer hearing. Evidence showed that Steven's contacts with law enforcement dated back to 2011. He was placed on probation for disturbing the peace committed in 2011 and for criminal mischief committed in April 2012. In February 2013, a court adjudicated Steven on a charge of disturbing the peace and committed him to the Office of Juvenile Services. He received probation for criminal mischief committed in January 2015 and for an assault in April.

         Over the course of Steven's involvement with juvenile court, he had multiple out-of-home placements. Lancaster County Youth Services Center (YSC) housed him for approximately 1 month, before he was placed at a group home in Iowa at the end of March 2014. Steven successfully completed the program and returned home in November. But approximately 5 months later, he was detained at YSC for an assault. At that time, Steven was also being uncooperative with his electronic monitor and with services.

         In May 2015, Steven was placed at a psychiatric residential treatment facility. He ran away from that program after approximately 3 months and was "on run" for approximately 2 weeks. After being held at YSC for a few weeks, Steven was placed at a group home. After a little over 2 weeks, Steven ran away. Once detained, the State filed a motion to send Steven to the YRTC. Steven remained at the YRTC for about 7 months, until June 2016, and returned to his mother's home in Lincoln, Nebraska, after successfully completing the program.

         After being home for approximately 3 months, Steven cut off his electronic monitor. He allegedly took his mother's vehicle to Omaha, Nebraska, and was on run for about 3 days. After being detained, Steven had relatively short stays [299 Neb. 450] at YSC, "Cedars Shelter, " and a relative's home. In December 2016, Steven was placed at a different group home in Iowa. After approximately 3 months, he again went on run. After being on run for about 1 day, Steven was located with another youth in a stolen vehicle that was stuck in mud. He was detained for some time in "Sarpy County Detention" and then transferred to YSC.

         In April 2017, Steven returned to the YRTC. In August, he absconded with another youth and was on run for almost 3 weeks. He had been in detention since being apprehended, but he remained under a commitment to the YRTC.

         Emily Trotter, Steven's intensive supervision probation officer since November 2015, noted that Steven did not turn himself in on any of the times that he was on run. He had an electronic monitor on three occasions and was not compliant on any of those occasions. She could not think of any additional services that could be used to help Steven be successful in his home. She explained, "I think we've offered . . . the family everything that probation has available to us at this time and it doesn't seem like it's working." She testified that the YRTC was the most structured and secure environment that probation could offer.

         In September 2016, a co-occurring evaluation was performed to examine mental health and substance abuse symptoms. It stated in part:

Overall, Steven continues to struggle with impulsivity and low frustration tolerance, which has resulted in a history of oppositional behaviors, which have led to multiple arrests and out of home placements. If Steven is not able to find ways to better regulate his emotions these behaviors are likely to continue and even worsen.

Trotter discussed a couple of matters favorable to Steven. The only time that Steven tested positive on a drug screen was when he was taking prescribed painkillers. Trotter testified that Steven consistently attended high school when he was in [299 Neb. 451] the community, that he obtained good grades, and that teachers liked him. Unfortunately, due to all the times that Steven was on run, he was not on track to graduate.

         Trotter also testified regarding a couple of traumatic events in Steven's life. Steven's father passed away during Steven's first commitment at the YRTC. In July 2016, a firework injured Steven's hand, causing a loss of parts of his fingers and a hearing loss.

         Even after the instant escape charge, Steven continued to display problematic behavior. On September 9, 2017, he joined in a fight occurring in his housing unit. Four days later, he commented that he would continue the fight if allowed out with the youth. On September 17 and 18, Steven disobeyed staff orders. On the latter day, he received a "Major Rule Violation for Obstruction of Correctional Operations."

         In October 2017, Dr. Colleen A. Conoley performed a neu-ropsychological/psychological evaluation on Steven. Steven's attorney requested the evaluation and sought an expert opinion on whether the case should be transferred to adult court. Trotter testified that if probation had been aware of the evaluation, she would have provided the YRTC's intake and monthly updates, as well as Steven's entire school record.

         Conoley opined that Steven was amenable to treatment in the juvenile court. She stated that the correct clinical priority was treatment of Steven's post-traumatic stress disorder. She opined that it would be best to aggressively treat Steven's post-traumatic stress disorder before addressing anger and resentment issues and that "[t]he juvenile justice system has more flexibility and access to resources and medication than available through the adult system." Conoley also stated, "He continues to require resources that are better handled at the juvenile levels, including access to peers, special education, ...

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