State v. Nedhal A. (In re Nedhal A.)

856 N.W.2d 565

In re Interest of Nedhal A., a child under 18 years of age.

State of Nebraska, appellee

v.Nedhal A., appellant.

No. S–14–217

Supreme Court of Nebraska.

Filed December 12, 2014

Dennis R. Keefe, Lancaster County Public Defender, and Matthew Meyerle for appellant.

Lory Pasold, Deputy Lancaster County Attorney, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

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: Appeal and Error.Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

3. Statutes: Appeal and Error.When possible, an appellate court will try to avoid a statutory construction that would lead to an absurd result.

Wright, J.

NATURE OF CASE

Nedhal A. (Appellant) was charged with criminal mischief and disturbing the peace while residing at Cedars Teaching, Learning, & Connecting group home (Cedars Home). While the charges were pending final disposition, Appellant went “on [the] run” several times at other placements. Although another group home accepted Appellant at its location in Omaha, Nebraska, the juvenile court ordered intensive supervised probation at the Youth Rehabilitation and Treatment Center (YRTC) in Geneva, Nebraska, pursuant to Neb.Rev.Stat. § 43–286(1)(b)(ii) (Supp.2013). The court found that all levels of probation supervision and options for community-based services had been exhausted and further determined that placing Appellant at YRTC was a matter of immediate and urgent necessity.

This case involves the interpretation of § 43–286(1)(b)(ii). We must decide in the context of this statute what constitutes the exhaustion of “all levels of probation supervision and options for community-based services” before a court may order a juvenile committed to a YRTC. See id. For the reasons stated herein, we reverse the judgment of the juvenile court and remand the cause for further proceedings.

SCOPE OF REVIEW

We review juvenile cases de novo on the record and reach our conclusions independently of the juvenile court's findings. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013). Statutory interpretation is a question of law, which we resolve independently of the trial court. In re Interest of Marcella G., 287 Neb. 566, 847 N.W.2d 276 (2014).

FACTS

On September 19, 2013, a petition was filed in the Lancaster County Separate Juvenile Court alleging Appellant had committed criminal mischief causing damage less than $200 and had disturbed the peace. The petition alleged that Appellant had damaged the property of Cedars Home on June 6 while she was a participant in its program. The petition further alleged that she had knowingly disturbed the peace at a high school in Lincoln in 2013.

On December 10, 2013, Appellant appeared before the juvenile court and admitted to the charge of criminal mischief in exchange for a dismissal of the charge of disturbing the peace. Upon her admission, the court set disposition for February 4, 2014.

Following her discharge from Cedars Home, Appellant resided at Youth Care and Beyond, a group home in Omaha. On Friday, December 20, 2013, the Nebraska Department of Health and Human Services (DHHS) provided transportation for Appellant to visit her family. During the course of that visit, Appellant left and did not return. On December 25, Appellant was picked up by the Lincoln Police Department. DHHS arranged for Appellant to be returned to Youth Care and Beyond on December 27.

On December 28, 2013, Youth Care and Beyond reported that Appellant left the group home around 5:25 p.m., but she was returned by the Omaha Police Department around 9 p.m. Youth Care and Beyond further indicated that Appellant refused to follow instructions in reporting her whereabouts in order to take medications on both December 27 and 28. On December 29, Appellant again left Youth Care and Beyond. On January 9, 2014, while Appellant was missing, the Lancaster County Attorney filed a motion for a detention order because Appellant had left her placement at Youth Care and Beyond.

Appellant was not located by Omaha police until January 15, 2014. Once Appellant was located, she was transported to the Douglas County Youth Center and later to the Lancaster County Youth Services Center. Appellant was then discharged from Youth Care and Beyond.

A detention hearing was held on January 27, 2014, to determine whether a less restrictive alternative was available for Appellant. At the hearing, the parties produced testimony and evidence pertaining to Appellant's family and behavioral background. The evidence included testimony from Appellant's caseworker that Appellant had previously been placed at Cedars Home in Lincoln, Nebraska. Appellant had unsuccessful placements in foster homes and would leave those homes without reporting her whereabouts or activities.

Child and Family Services specialist Angela Miles, who had been Appellant's DHHS caseworker for the 3 years prior to the detainment hearing, testified that Appellant told her that while she was on the run, Appellant and her 17-year-old boyfriend stayed at a friend's parents' house. Miles indicated that Appellant associated with unapproved individuals and placed herself in potentially dangerous situations. At the conclusion of the detention hearing, the juvenile court determined that there was no less restrictive alternative to continued placement at the Lancaster County Youth Services Center and ordered a psychological evaluation of Appellant.

At the disposition hearing on the criminal charges, Mark Hickson, a probation officer who completed Appellant's predisposition report, testified that this was Appellant's first

adjudicated law violation and that Appellant had never been subjectedto conditions of liberty or other supervision. Hickson noted that Appellant had an extensive history of placements and services by DHHS, including at least 24 different placements. Hickson did not know whether Appellant had been subjected to electronic tracking or day reporting.

The juvenile court again heard testimony from Miles that after Youth Care and Beyond discharged Appellant, DHHS sent referrals to out-of-home placements that could meet Appellant's various placement history, behavioral problems, and educational and therapeutic needs. In response to the referral, Salvation Army Cares group home (Salvation Army Cares) informed DHHS that it would accept Appellant after reviewing Appellant's placement history, educational needs, and therapeutic needs. Salvation Army Cares offered a program similar to the program Appellant went through at Cedars Home. Miles testified that despite Appellant's acceptance into Salvation Army Cares, Miles believed a group home placement was inappropriate because of Appellant's history of running away from her placements.

Appellant argued that the evidence did not establish that she had exhausted all levels of probation supervision or options for community-based resources. Based on Appellant's psychological evaluation and behavioral history, the juvenile court found that intensive supervised probation was appropriate. It concluded that Appellant had exhausted all other levels of care available to the court within the meaning of § 43–286(1)(b)(ii) and ordered Appellant to be placed at YRTC, despite her acceptance into Salvation Army Cares.

ASSIGNMENTS OF ERROR

Appellant assigns as error the following: (1) The juvenile court erred in placing Appellant on intensive supervised probation at YRTC, because placement on intensive supervised probation was contrary to the statutory requirements of § 43–286(1)(b)(ii), and (2) there was insufficient evidence for the juvenile court to find that all levels of probation supervision and options for community-based resources

had been exhausted prior to placement on intensive supervised probation.

ANALYSIS

In reviewing questions of law arising under the Nebraska Juvenile Code, we review the cases de novo and reach conclusions independently of the lower court's ruling. See In re Interest of Marcella G., 287 Neb. 566, 847 N.W.2d 276 (2014). Statutory interpretation is a question of law, which we must resolve independently of the trial court. In re Interest of Violet T., 286 Neb. 949, 840 N.W.2d 459 (2013). When possible, an appellate court will try to avoid a statutory construction that would lead to an absurd result. In re Interest of Marcella G., supra.

At all times relevant, § 43–286(1)(b)(ii) provided:

Unless prohibited by section 43–251.01, the court may commit such juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center as a condition of an order of intensive supervised probation if all levels of probation supervision and options for community-based services have been exhausted and placement of such juvenile is a matter of immediate and urgent necessity for the protection of such juvenile or the person or

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