In re Interest of Dalton S.

730 N.W.2d 816

273 Neb. 504

In re INTEREST OF DALTON S., a child under 18 years of age State of Nebraska, Appellee, v. Dalton S., Appellant.

No. S-06-742.

Supreme Court of Nebraska.

May 4, 2007.

Terry L. Haddock, of Raynor, Rensch & Pfeiffer, Omaha, and William J. Neiman, Columbus, for appellant.

Sandra Allen, Deputy Platte County Attorney, for appellee.

Jason D. Mielak, of Fehringer, Mielak & Fehringer, P.C., L.L.O., guardian ad litem for Dalton S.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Following a dispositional hearing, Dalton S., represented at the dispositional hearing by counsel and a guardian ad litem (GAL), was placed in the custody of the Nebraska Department of Health and Human Services, Office of Juvenile Services (OJS), in a treatment foster home. Dalton asserts that the court erred in placing him outside his uncle's home, where he had been residing, without a written determination expressly finding that continuation in the home would be contrary to Dalton's health, safety, or welfare and that reasonable efforts to preserve and unify the family had been made. Dalton's main contention, however, is that he did not intelligently, voluntarily, and understandingly waive his right to counsel in a previous adjudication hearing which placed Dalton under the juvenile court's jurisdiction pursuant to Neb.Rev.Stat. § 43-247(1) (Reissue 2004).

BACKGROUND

Dalton, born May 24, 1995, has been diagnosed as being mildly mentally handicapped and suffering from bipolar disorder, attention deficit disorder, and post-traumatic stress syndrome. On March 22, 2005, the Deputy Platte County Attorney filed a petition in the juvenile court alleging that Dalton had violated a city ordinance prohibiting disorderly conduct and was a juvenile within the meaning of § 43-247(1). The allegation stemmed from an incident at an elementary school in which Dalton allegedly hit another student and then knocked over some chairs. Although the county attorney had informed Dalton's parents that he would likely be eligible for diversion because he had no prior convictions or adjudications, this option was apparently not pursued.

A hearing on the petition was conducted on April 4, 2005. Dalton was present with his mother. He was not represented by an attorney or a GAL at that time. The court informed Dalton of what he was being charged with and explained that if the allegations were found to be true, then the juvenile court would have jurisdiction over him to enter any order in his best interests. The court explained that such an order could range from "just telling you don't do this again to placing you under some level of supervision by a probation officer." The court further explained:

There are certain cases where children can be removed from home and placed in public or private institutions for their care. That can include hospitals, treatment centers, group or foster homes, places like Girls and Boys Town of Omaha and the like. And if there aren't any other resources available to a juvenile court, a child can be placed in the custody of [OJS] for commitment to the Youth Rehabilitation and Treatment Center in Kearney, Nebraska for boys. The law further provides that rehabilitation of juveniles take place in their own home whenever possible and removal from home is only allowed in cases where a successful rehabilitation cannot be accomplished at home.

Dalton affirmed that he understood the possible consequences of being adjudicated to be under the jurisdiction of the juvenile court.

The court then continued to inform Dalton of his right that the charge against him be proved beyond a reasonable doubt. The court explained his right to confront witnesses, which the court explained meant "to see and hear and ask questions of any witness that the State calls." The court explained to Dalton that he had a right to present witnesses and to subpoena witnesses if they were unwilling to come voluntarily. The court explained that "a subpoena is nothing more than an order that's entered by a Court directed to a particular person and tells that person that they have to come to court and testify." The court informed Dalton of his right to remain silent and the consequences of choosing to testify or remain silent. The court explained Dalton's right to a speedy trial and his right to appeal if he was dissatisfied with the court's judgment. Dalton affirmed that he understood all these rights.

Finally, the court explained to Dalton his right to counsel:

[Y]ou have a right to be represented by an attorney at every stage of the proceedings. You and your family would be free to hire an attorney of your choice or if you wish to be represented by counsel, and your family doesn't have enough money to go out and hire an attorney right now, you can ask the Court to appoint an attorney for you at the public expense. To be considered for a court appointed attorney, your family would have to complete a financial affidavit so I can determine whether or not you meet the current guidelines of the Court for appointed counsel. On the other hand, you can waive or give up your right to have an attorney and just go ahead today with your mother. Did you want to have a lawyer represent you in this court?

Dalton's mother told Dalton, "You don't need a lawyer. Say no. Say it." Dalton responded, "No." The court again asked, "You understood that right and you're telling me that you just want to go ahead with your mom today and not have a lawyer here, is that right?" Dalton's mother and Dalton responded, in turn, affirmatively. The court then addressed Dalton's mother more directly, "Is that all right with you, ma'am, that we'd proceed today . . . without counsel?" Dalton's mother responded that it was.

The court found that "the child with the concurrence of his mother freely, voluntarily and knowingly waives his right to counsel." The court then explained the rules of pleading and explained in detail the meaning and consequences of pleading guilty. Dalton affirmed that he understood, and more questions were presented by the court to determine the voluntariness of Dalton's plea.

The court accepted Dalton's admission that he committed the offense of disorderly conduct on February 24, 2005. A factual basis for the petition was presented to the court, which the court accepted. The court adjudicated Dalton to be within § 43-247(1), but deferred disposition until a predisposition study could be conducted. In the meantime, Dalton was to continue living with his mother.

On June 13, 2005, Dalton and his mother again appeared before the juvenile court. Dalton still did not have an attorney at that time. After a short discussion with the mother and Dalton the court continued disposition until further assessments could be conducted.

On July 25, 2005, Dalton appeared before the court with his mother, his grandfather, and his uncle. Also present was an attorney who was appearing as Dalton's court-appointed GAL. The court again continued disposition in order to complete a psychological assessment that was underway.

Another hearing was conducted on October 31, 2005, in which disposition was again continued, this time at the request of Dalton, through the GAL. The GAL explained that Dalton had been living with his uncle, who was present at the hearing, and that although Dalton's mother was not present that day, it was expected that she would consent to the nomination of Dalton's uncle as his guardian. The evidence indicated that Dalton's mother had a live-in boyfriend who was physically abusive toward both Dalton and his mother but that at some point, she had discontinued the relationship. There was also evidence that Dalton's mother had a drinking problem. Dalton's mother voluntarily placed Dalton with his uncle because she was having trouble coping with Dalton's behaviors at home.

On December 12, 2005, the juvenile court held another hearing in which Dalton, the GAL, Dalton's mother, and Dalton's uncle were present. Pursuant to the GAL's request and with Dalton's mother's consent, the court issued a temporary order naming Dalton's uncle as his guardian. The matter of permanent guardianship and further disposition was set for hearing on February 6, 2006.

On February 6, 2006, a short hearing was held which was attended only by Dalton's uncle and the GAL. Dalton's father also appeared and stated his intent to object to the proposed dispositional order prepared by the GAL. Dalton's father explained that he was in the process of acquiring an attorney, and the court granted another continuance. Dalton's father did not appear before the court again.

A hearing was held on March 27, 2006, on the State's request for an OJS evaluation before final disposition. Dalton, his uncle, and the GAL were present at the hearing. The county attorney explained that some events had recently occurred which resulted in the State's no longer wanting to continue the guardianship of Dalton's uncle. The record indicates that concerns had arisen with respect to Dalton's placement with his uncle because Dalton admitted to two episodes of improper physical sexual contact with his 4-year-old female cousin, the daughter of Dalton's uncle. Dalton's uncle stated that he did not have any objections to the requested evaluation, and the court ordered the evaluation be conducted and continued disposition.

The next hearing before the juvenile court was on June 5, 2006. Dalton was present and, in addition to the GAL, was also represented for the first time by an attorney retained on Dalton's behalf by Dalton's uncle. The court granted a motion by Dalton's attorney for a continuance.

The dispositional hearing was finally conducted on June 19, 2006. Dalton and his uncle were present, as were Dalton's GAL and attorney. The State argued that the OJS evaluation supported its contention that out-of-home treatment would be in Dalton's best...