In re Interest of Kylie P. ( 2016 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/07/2016 12:09 PM CDT
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    IN RE INTEREST OF KYLIE P.
    Cite as 
    23 Neb. Ct. App. 805
    In   re I nterest of    Kylie P.,    a child
    under    18   years of age.
    State    of Nebraska, appellee, v.
    Kylie P., appellant.
    ___ N.W.2d ___
    Filed March 15, 2016.    No. A-15-707.
    1.	 Juvenile Courts: Appeal and Error. An appellate court reviews juve-
    nile cases de novo on the record and reaches its conclusions indepen-
    dently of the juvenile court’s findings.
    2.	 Statutes: Appeal and Error. Statutory interpretation is a question
    of law, which the appellate court must resolve independently of the
    trial court.
    3.	 Juvenile Courts: Probation and Parole. Neb. Rev. Stat. § 43-286
    (Cum. Supp. 2014), governing placement of a juvenile at a youth
    rehabilitation and treatment center as a condition of an order of inten-
    sive supervised probation, requires that before a juvenile is placed in
    a youth rehabilitation and treatment center, the Office of Probation
    Administration must review and consider thoroughly what would be
    a reliable alternative to commitment at such a center. Upon reviewing
    the juvenile’s file and record, the Office of Probation Administration
    shall provide the court with a report stating whether any such untried
    conditions of probation or community-based services have a reasonable
    possibility for success or that all levels of probation and options for
    community-based services have been studied thoroughly and that none
    are feasible.
    4.	 ____: ____. Neb. Rev. Stat. § 43-286 (Cum. Supp. 2014), govern-
    ing placement of a juvenile at a youth rehabilitation and treatment
    center, does not require that every conceivable probation condition
    has been tried and failed, nor does it require repetition of ineffective
    measures or the provision of services that have already proved to be
    unsuccessful.
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    IN RE INTEREST OF KYLIE P.
    Cite as 
    23 Neb. Ct. App. 805
    5.	 ____: ____. The record must establish that all levels of probation and
    options for community-based services have been thoroughly considered
    before the court may commit a juvenile to a youth rehabilitation and
    treatment center.
    Appeal from the Separate Juvenile Court of Sarpy County:
    Lawrence D. Gendler, Judge. Reversed and remanded for fur-
    ther proceedings.
    Patrick J. Boylan, Chief Deputy Sarpy County Public
    Defender, and Hannah McFall, Senior Certified Law Student,
    for appellant.
    Carolyn A. Rothery, Deputy Sarpy County Attorney, and
    Andrew T. Erickson, Senior Certified Law Student, for
    appellee.
    Irwin, Pirtle, and R iedmann, Judges.
    Pirtle, Judge.
    INTRODUCTION
    Kylie P., a minor, was committed to the Office of Juvenile
    Services for placement at the Youth Rehabilitation and
    Treatment Center (YRTC) in Geneva, Nebraska. She appeals,
    asserting the juvenile court erred by not following the statu-
    tory procedure for a commitment and erred in finding she had
    exhausted all levels of probation supervision and options for
    community-based services. For the reasons that follow, we
    reverse, and remand for further proceedings consistent with
    this opinion.
    BACKGROUND
    On February 3, 2015, a juvenile petition was filed alleging
    multiple counts against Kylie, a child as described in Neb.
    Rev. Stat. § 43-247(1), (2), or (4) (Cum. Supp. 2014). The
    allegations included theft by shoplifting; violation of a city
    curfew; truancy; and being a wayward, habitually disobedient,
    or uncontrollable child.
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    IN RE INTEREST OF KYLIE P.
    Cite as 
    23 Neb. Ct. App. 805
    On February 23, 2015, Kylie appeared for her arraignment
    in the separate juvenile court of Sarpy County, Nebraska, and
    was advised of her rights. She agreed to a bond contract and a
    mental health evaluation with the understanding that she was
    being placed on a supervisory status with the juvenile proba-
    tion office.
    At a review hearing on March 2, 2015, probation officer CJ
    Zimmerer submitted a supervision summary to the court. The
    summary described Kylie as uncooperative and argumenta-
    tive, and stated that it was clear she was not going to abide
    by the conditions of the bond contract, including curfew,
    school attendance, and making progress in her school courses.
    The summary stated that Kylie admitted to having a “mental
    health affliction,” but that she was not taking the medications
    prescribed to her. Instead, Zimmerer stated that it appeared
    Kylie was self-medicating with marijuana. Zimmerer reported
    that Kylie did not attend the sessions she was scheduled to at
    an alternative education program. Zimmerer explored other
    options, but “SCEP or the Daily Reporting Center” were not
    available at that time because each program had a waiting list.
    The summary stated, “Kylie has completely disregarded major
    portions of the bond contract, and shows no signs of changing
    her behaviors. This officer lacks the sufficient power to sanc-
    tion Kylie to address the issues that are occurring.”
    A supplemental juvenile petition was filed on March 13,
    2015, alleging an additional count of possession of mari-
    juana, 1 ounce or less. The factual basis for this count was
    that friends brought the drug into Kylie’s home and that they
    were preparing to use it when a court officer made an unan-
    nounced visit.
    Kylie’s attorney filed a motion for hearing on April 3, 2015,
    and a hearing took place on April 7. A memorandum prepared
    by the Sarpy County sheriff’s office, Juvenile Justice Center,
    noted that Kylie had been placed on “lockdown” because
    she had not complied with the Juvenile Justice Center’s
    “CARE” program, a structured supervision program. Zimmerer
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    IN RE INTEREST OF KYLIE P.
    Cite as 
    23 Neb. Ct. App. 805
    indicated that Kylie’s efforts in school had improved, but that
    she felt “trapped” and anxious when wearing an ankle moni-
    tor used by the CARE program. The court vacated the CARE
    program and ordered Kylie to be placed on “tracker services”
    under the supervision of the juvenile probation office, which
    allowed her to be tracked and supervised without a monitor
    attached to her.
    An application for a capias arrest warrant was submitted
    on April 23, 2015, because Kylie had run from her home. On
    April 27, Kylie’s mother indicated her belief that it would be
    best if Kylie did not return to her home.
    On May 4, 2015, the juvenile court reviewed Kylie’s place-
    ment, per her request. On May 15, Kylie sought permission
    for individual therapy because she was having difficulty
    with the group setting of her drug treatment program. The
    court authorized “applications for placement, including shel-
    ter care.”
    On May 29, 2015, placement was discussed again, includ-
    ing possible group homes, foster care, and independent liv-
    ing. The court entertained the option to place Kylie with her
    grandparents in Mead, Nebraska, and scheduled a disposition
    hearing on June 4 to provide time to investigate the place-
    ment options.
    On June 4, 2015, per an agreement between the par-
    ties, the court placed Kylie in the custody of her paternal
    grandparents subject to the continued supervision by proba-
    tion. Arrangements had to be made for school, drug testing,
    and monitoring, because the grandparents lived outside of
    Sarpy County.
    On June 24, 2015, the State filed a motion for expedited
    hearing, because Kylie had violated the terms of her place-
    ment. An application was filed for a capias arrest warrant on
    June 29, because Kylie left her home and had removed her
    electronic monitor tracking device.
    At a hearing held on July 2, 2015, the court found that all
    efforts for probation and placement had been exhausted. The
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    IN RE INTEREST OF KYLIE P.
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    court reviewed Kylie’s history, specifically her lack of suc-
    cess in the CARE program, the unsuccessful placements with
    her mother and paternal grandparents, and the necessity to
    issue a capias arrest warrant twice in a short period of time.
    The court found that probation was “no longer an option.”
    Kylie requested to be released and unsuccessfully terminated
    from her probation. Instead, the court ordered Kylie to be
    placed on intensive supervision probation and committed to
    the Office of Juvenile Services for placement at the YRTC
    in Geneva.
    ASSIGNMENTS OF ERROR
    Kylie asserts the juvenile court erred in committing her to
    YRTC in Geneva because the statutory procedure for mak-
    ing such a commitment was not followed. She also asserts
    her commitment was in error because all levels of probation
    supervision and options for community-based services had not
    been exhausted.
    STANDARD OF REVIEW
    [1,2] An appellate court reviews juvenile cases de novo
    on the record and reaches its conclusions independently of
    the juvenile court’s findings. In re Interest of Nedhal A., 
    289 Neb. 711
    , 
    856 N.W.2d 565
    (2014). Statutory interpretation is
    a question of law, which we resolve independently of the trial
    court. 
    Id. ANALYSIS Kylie
    asserts the juvenile court erred in committing her
    to YRTC because the statutory procedure set forth in Neb.
    Rev. Stat. § 43-286 (Cum. Supp. 2014) was not followed.
    At all times relevant to this case, § 43-286(1)(b)(ii) applied
    to all juveniles committed to the Office of Juvenile Services
    for placement at the YRTC on or after July 1, 2013. Section
    43-286(1)(b)(ii) provides:
    When it is alleged that the juvenile has exhausted
    all levels of probation supervision and options for
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    IN RE INTEREST OF KYLIE P.
    Cite as 
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    community-based services and section 43-251.01 has
    been satisfied, a motion for commitment to a youth reha-
    bilitation and treatment center may be filed and proceed-
    ings held as follows:
    (A) The motion shall set forth specific factual allega-
    tions that support the motion and a copy of such motion
    shall be served on all persons required to be served by
    sections 43-262 and 43-267; and
    (B) The juvenile shall be entitled to a hearing before
    the court to determine the validity of the allegations. At
    such hearing the burden is upon the state by a preponder-
    ance of the evidence to show that:
    (I) All levels of probation supervision have been
    exhausted;
    (II) All options for community-based services have
    been exhausted; and
    (III) Placement at a youth rehabilitation and treatment
    center is a matter of immediate and urgent necessity for
    the protection of the juvenile or the person or property of
    another or if it appears that such juvenile is likely to flee
    the jurisdiction of the court.
    [3,4] In In re Interest of Nedhal 
    A., supra
    , the Nebraska
    Supreme Court considered the question of what is required
    to “exhaust” all levels of probation supervision and options
    for community-based services in the context of § 43-286. The
    court found that the Legislature intended the placement of
    a juvenile at YRTC to be a “last resort” and concluded that
    “before a juvenile is placed in YRTC, the Office of Probation
    Administration must review and consider thoroughly what
    would be a reliable alternative to commitment at YRTC.” In
    re Interest of Nedhal 
    A., 289 Neb. at 715
    , 
    716, 856 N.W.2d at 569
    . The court determined that upon a review of the juve-
    nile’s file and record, the Office of Probation Administration
    “shall provide the court with a report stating whether any such
    untried conditions of probation or community-based services
    have a reasonable probability for success or that all levels of
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    probation and options for community-based services have been
    studied thoroughly and that none are feasible.” Id. at 
    716, 856 N.W.2d at 569
    . The court noted this was not meant to imply
    that “every conceivable probation condition has been tried
    and failed” or that the statute requires repetition of ineffective
    meas­ures or the provision of services that have already proved
    to be unsuccessful. 
    Id. In In
    re Interest of Nedhal A., 
    289 Neb. 711
    , 717, 
    856 N.W.2d 565
    , 569 (2014), the Nebraska Supreme Court also stated, “In
    its determination whether all levels of probation supervision
    had been exhausted, the juvenile court should have required
    a review by the Office of Probation Administration concern-
    ing what levels of probation and options for community-based
    services, if any, could have been used in [the juvenile’s] case.”
    The Supreme Court held that the procedure followed in that
    case did not conform to the requirements of § 43-286 and
    that without a report, the court could not determine which
    possible probationary conditions, if any, could be successful.
    The Supreme Court concluded that “[a] review by the Office
    of Probation Administration may determine that there are no
    less restrictive alternatives to confinement at YRTC, but until
    this has been established, all levels of probation pursuant to
    § 43-286 have not been exhausted.” In re Interest of Nedhal 
    A., 289 Neb. at 717
    , 856 N.W.2d at 570.
    In this case, Kylie was subjected to multiple levels of
    probation supervision and community-based services, and
    although she made sporadic progress, none were successful.
    It is not clear from the decision in In re Interest of Nedhal 
    A., supra
    , whether the report from probation must be written or
    whether it may be orally presented to the court. What is clear,
    however, is that in this case there was no specific motion for
    commitment or report of any kind presented by the Office of
    Probation Administration stating whether any “untried condi-
    tions of probation or community-based services have a rea-
    sonable possibility for success or that all levels of probation
    and options for community-based services have been studied
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    IN RE INTEREST OF KYLIE P.
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    thoroughly and that none are feasible.” See id. at 
    716, 856 N.W.2d at 569
    .
    An individual from the Office of Probation Administration
    was present at each of the hearings and discussed Kylie’s prog-
    ress, but there was no written or oral recommendation specifi-
    cally requesting commitment to YRTC, or a representation that
    Kylie had exhausted the options which were less restrictive
    than commitment to YRTC. The only written report that proba-
    tion submitted to the court, and is included in the record before
    us, is a supervision summary dated February 27, 2015. The
    report noted that Kylie was not cooperative with the programs
    in place, but it makes no reference to other options which may
    have been available and makes no specific recommendation
    regarding the disposition of Kylie’s case.
    At the hearing on May 8, 2015, the court ordered a predis-
    position report from probation. Probation officer Zimmerer was
    present at the hearing on May 27 and indicated a report was
    “in the process of being completed,” but there is no indication
    that it was provided to the court and it is not included in the
    record before us. On May 29, Zimmerer stated that applica-
    tions for group homes, foster homes, and independent living
    were being submitted and that interviews with two group home
    programs were possible. At that time, Zimmerer recommended
    that Kylie be detained until “we can figure out a solid option”
    and noted that placement with Kylie’s paternal grandparents
    was a possibility.
    [5] The court set forth the case history at the hearing on
    July 2, 2015, and ultimately determined that Kylie had “run
    out of options.” It is evident that multiple probationary condi-
    tions and community-based services had been unsuccessful.
    However, the Nebraska Supreme Court has held that “the
    record must establish that all levels of probation and options
    for ­community-based services have been thoroughly consid-
    ered before the court may commit [the juvenile] to YRTC.”
    See In re Interest of Nedhal A., 
    289 Neb. 711
    , 717, 
    856 N.W.2d 565
    , 570 (2014). There was no report from the Office of
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    Probation Administration detailing whether any further serv­
    ices were available to Kylie or were likely to be successful.
    Accordingly, we find that the juvenile court erred in determin-
    ing all levels of supervision and options for community-based
    services had been exhausted and that it was an error to commit
    Kylie to YRTC at that time.
    Because we conclude that the juvenile court erred in com-
    mitting Kylie to YRTC at the July 2, 2015, hearing, we do
    not reach her remaining assertion that the court erred in find-
    ing that the State met its burden of proof to show that com-
    mitment to YRTC was necessary. See Facilities Cost Mgmt.
    Group v. Otoe Cty. Sch. Dist., 
    291 Neb. 642
    , 
    868 N.W.2d 67
    (2015) (appellate court is not obligated to engage in analy-
    sis that is not necessary to adjudicate case and controversy
    before it).
    CONCLUSION
    For the reasons stated above, we reverse the judgment of the
    juvenile court placing Kylie at YRTC and remand the cause for
    further proceedings consistent with this opinion.
    R eversed and remanded for
    further proceedings.
    

Document Info

Docket Number: A-15-707

Filed Date: 3/15/2016

Precedential Status: Precedential

Modified Date: 4/17/2021