43-286. Juvenile violator or juvenile in need of special supervision; disposition; violation of probation, supervision, or court order; procedure; discharge; procedure; notice; hearing; individualized reentry plan.
(1) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), or (4) of section 43-247:
(a) The court may continue the dispositional portion of the hearing, from time to time upon such terms and conditions as the court may prescribe, including an order of restitution of any property stolen or damaged or an order requiring the juvenile to participate in restorative justice programs or community service programs, if such order is in the interest of the juvenile's reformation or rehabilitation, and, subject to the further order of the court, may:
(i) Place the juvenile on probation subject to the supervision of a probation officer; or
(ii) Permit the juvenile to remain in his or her own home or be placed in a suitable family home or institution, subject to the supervision of the probation officer;
(b) When it is alleged that the juvenile has exhausted all levels of probation supervision and options for community-based services and section 43-251.01 has been satisfied, a motion for commitment to a youth rehabilitation and treatment center may be filed and proceedings held as follows:
(i) The motion shall set forth specific factual allegations that support the motion and a copy of such motion shall be served on all persons required to be served by sections 43-262 to 43-267;
(ii) The Office of Juvenile Services shall be served with a copy of such motion and shall be a party to the case for all matters related to the juvenile's commitment to, placement with, or discharge from the Office of Juvenile Services; and
(iii) 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 preponderance of the evidence to show that:
(A) All levels of probation supervision have been exhausted;
(B) All options for community-based services have been exhausted; and
(C) 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;
(c) After the hearing, the court may, as a condition of an order of intensive supervised probation, commit such juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center operated in compliance with state law. Upon commitment by the court to the Office of Juvenile Services, the court shall immediately notify the Office of Juvenile Services of the commitment. Intensive supervised probation for purposes of this subdivision means that the Office of Juvenile Services shall be responsible for the care and custody of the juvenile until the Office of Juvenile Services discharges the juvenile from commitment to the Office of Juvenile Services. Upon discharge of the juvenile, the court shall hold a review hearing on the conditions of probation and enter any order allowed under subdivision (1)(a) of this section;
(d) The Office of Juvenile Services shall notify those required to be served by sections 43-262 to 43-267, all interested parties, and the committing court of the pending discharge of a juvenile from the youth rehabilitation and treatment center sixty days prior to discharge and again in every case not less than thirty days prior to discharge. Upon notice of pending discharge by the Office of Juvenile Services, the court shall set a continued disposition hearing in anticipation of reentry. The Office of Juvenile Services shall work in collaboration with the Office of Probation Administration in developing an individualized reentry plan for the juvenile as provided in section 43-425. The Office of Juvenile Services shall provide a copy of the individualized reentry plan to the juvenile, the juvenile's attorney, and the county attorney or city attorney prior to the continued disposition hearing. At the continued disposition hearing, the court shall review and approve or modify the individualized reentry plan, place the juvenile under probation supervision, and enter any other order allowed by law. No hearing is required if all interested parties stipulate to the individualized reentry plan by signed motion. In such a case, the court shall approve the conditions of probation, approve the individualized reentry plan, and place the juvenile under probation supervision; and
(e) The Office of Juvenile Services is responsible for transportation of the juvenile to and from the youth rehabilitation and treatment center. The Office of Juvenile Services may contract for such services. A plan for a juvenile's transport to return to the community shall be a part of the individualized reentry plan. The Office of Juvenile Services may approve family to provide such transport when specified in the individualized reentry plan.
(2) When any juvenile is found by the court to be a juvenile described in subdivision (3)(b) of section 43-247, the court may enter such order as it is empowered to enter under subdivision (1)(a) of this section.
(3) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, the court may order the juvenile to be assessed for referral to participate in a restorative justice program. Factors that the judge may consider for such referral include, but are not limited to: The juvenile's age, intellectual capacity, and living environment; the ages of others who were part of the offense; the age and capacity of the victim; and the nature of the case.
(4) When a juvenile is placed on probation and a probation officer has reasonable cause to believe that such juvenile has committed a violation of a condition of his or her probation, the probation officer shall take appropriate measures as provided in section 43-286.01.
(5)(a) When a juvenile is placed on probation or under the supervision of the court and it is alleged that the juvenile is again a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, a petition may be filed and the same procedure followed and rights given at a hearing on the original petition. If an adjudication is made that the allegations of the petition are true, the court may make any disposition authorized by this section for such adjudications and the county attorney may file a motion to revoke the juvenile's probation.
(b) When a juvenile is placed on probation or under the supervision of the court for conduct under subdivision (1), (2), (3)(b), or (4) of section 43-247 and it is alleged that the juvenile has violated a term of probation or supervision or that the juvenile has violated an order of the court, a motion to revoke probation or supervision or to change the disposition may be filed and proceedings held as follows:
(i) The motion shall set forth specific factual allegations of the alleged violations and a copy of such motion shall be served on all persons required to be served by sections 43-262 to 43-267;
(ii) The juvenile shall be entitled to a hearing before the court to determine the validity of the allegations. At such hearing the juvenile shall be entitled to those rights relating to counsel provided by section 43-272 and those rights relating to detention provided by sections 43-254 to 43-256. The juvenile shall also be entitled to speak and present documents, witnesses, or other evidence on his or her own behalf. He or she may confront persons who have given adverse information concerning the alleged violations, may cross-examine such persons, and may show that he or she did not violate the conditions of his or her probation or supervision or an order of the court or, if he or she did, that mitigating circumstances suggest that the violation does not warrant revocation of probation or supervision or a change of disposition. The hearing shall be held within a reasonable time after the juvenile is taken into custody;
(iii) The hearing shall be conducted in an informal manner and shall be flexible enough to consider evidence, including letters, affidavits, and other material, that would not be admissible in an adversarial criminal trial;
(iv) The juvenile shall not be confined, detained, or otherwise significantly deprived of his or her liberty pursuant to the filing of a motion described in this section unless the requirements of subdivision (5) of section 43-251.01 and section 43-260.01 have been met. In all cases when the requirements of subdivision (5) of section 43-251.01 and section 43-260.01 have been met and the juvenile is confined, detained, or otherwise significantly deprived of his or her liberty as a result of his or her alleged violation of probation, supervision, or a court order, the juvenile shall be given a preliminary hearing. If, as a result of such preliminary hearing, probable cause is found to exist, the juvenile shall be entitled to a hearing before the court in accordance with this subsection;
(v) If the juvenile is found by the court to have violated the terms of his or her probation or supervision or an order of the court, the court may modify the terms and conditions of the probation, supervision, or other court order, extend the period of probation, supervision, or other court order, or enter any order of disposition that could have been made at the time the original order was entered; and
(vi) In cases when the court revokes probation, supervision, or other court order, it shall enter a written statement as to the evidence relied on and the reasons for revocation.
(6) Costs incurred on behalf of a juvenile under this section shall be paid as provided in section 43-290.01.
(7) When any juvenile is adjudicated to be a juvenile described in subdivision (4) of section 43-247, the juvenile court shall within thirty days of adjudication transmit to the Director of Motor Vehicles an abstract of the court record of adjudication.
Source
Cross References
Annotations
1. Probation
2. Youth rehabilitation and treatment center
3. Restitution
4. Equal protection
5. Miscellaneous
1. Probation
When the State withdrew its motion to revoke probation prior to the motion's being heard, the juvenile court lacked authority to extend the juvenile's probation and to supply an additional condition of probation. In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018).
A juvenile court retains the authority to place a juvenile on probation under this section even if that juvenile has been previously placed with the Office of Juvenile Services. In re Interest of Charlicia H., 283 Neb. 362, 809 N.W.2d 274 (2012).
This section does not authorize the juvenile court to impose confinement as a part of an order of probation. In re Interest of Dustin S., 276 Neb. 635, 756 N.W.2d 277 (2008).
Juvenile court may not place a juvenile on probation or exercise any of its other options for disposition and at the same time continue the dispositional hearing. In re Interest of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008).
In the absence of an order revoking probation, a juvenile court has no obligation to comply with former subsection (4)(f) of this section. In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).
This section does not allow the juvenile court to place a juvenile on probation or exercise any of its other options under the former subsections (1) and (2) and at the same time continue the dispositional hearing. Subsection (4) outlines the procedures which must be followed when a court revokes probation, revokes supervision, or otherwise changes the juvenile's disposition, and the former subsection (4)(f) describes more particularly the procedures which must be followed when a court revokes probation. In re Interest of Torrey B., 6 Neb. App. 658, 577 N.W.2d 310 (1998).
There is no provision in either this section or section 43-287 that grants the juvenile court the authority to place a juvenile on probation subject to the supervision of the Department of Social Services. In re Interest of Robin C., 3 Neb. App. 936, 535 N.W.2d 831 (1995).
The written statement requirement contained in former subsection (4)(f) of this section is satisfied if the judge's oral statements appearing in the bill of exceptions from the revocation hearing, as well as in the revocation order, when taken together, reveal the evidence relied upon and reasons for the revocation. In re Interest of Thomas W., 3 Neb. App. 704, 530 N.W.2d 291 (1995).
2. Youth rehabilitation and treatment center
Before a juvenile court can commit a juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center, the Office of Probation Administration must review and consider thoroughly any reliable alternatives to that commitment and provide the court with a report that supports one of two conclusions: (1) There are untried conditions of probation or community-based services that have a reasonable possibility for success or (2) all levels of probation and options for community-based services have been studied thoroughly and none are feasible. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
In considering whether the State has shown that a juvenile should be placed at a youth rehabilitation and treatment center, a juvenile court is not required to repeat measures that were previously unsuccessful. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
Under subsection (1) of this section, the State can file a motion to commit a juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center at only three points in a delinquency proceeding: (1) before a court enters an original disposition, (2) before a court enters a new disposition following a new adjudication, and (3) before a court enters a new disposition following a motion to revoke probation or court supervision. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
When a juvenile court has already entered a disposition under subdivision (1)(a) of this section, a commitment to the Office of Juvenile Services under subdivision (1)(b) of this section must be consistent with the procedures for a new disposition under subsection (5) of this section. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
A juvenile court need not ensure that every conceivable probationary condition has been tried and failed before it may place a juvenile at a youth rehabilitation and treatment center. Nor does this section require that supervisory conditions of a juvenile previously classified as a neglect case under section 43-247(3)(a) must "start over" when the matter becomes a delinquency case and subject to the Office of Juvenile Services. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
The Legislature intended the placement of a juvenile at a youth rehabilitation and treatment center to be a last resort. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
This section does not require repetition of ineffective measures or require the Office of Juvenile Services to provide services that have already proved to be unsuccessful. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
This section 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 a youth rehabilitation and treatment 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. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
A juvenile court does not have jurisdiction over the Office of Juvenile Services in placing, managing, or discharging a juvenile committed to a youth rehabilitation treatment center, even though the juvenile court retains jurisdiction of the juvenile. On a motion to revoke probation, the court must advise the juvenile and his or her parent or guardian of their right to retain counsel, inquire of the juvenile and his or her parent or guardian as to whether they desire to retain counsel, and inform the juvenile and his or her parent or guardian of the juvenile's right to counsel at county expense if none of them is able to afford counsel. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).
3. Restitution
A juvenile court may use any rational method of fixing the amount of restitution, so long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juvenile's ability to pay. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).
When a juvenile court enters an order of restitution under subsection (1)(a) of this section, the court should consider, among other factors, the juvenile's earning ability, employment status, financial resources, and other obligations. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).
4. Equal protection
Since juvenile offenders and adult offenders are not similarly situated, there is no deprivation of equal protection when a juvenile adjudged to be a juvenile within the meaning of section 43-247(1), (2), or (4) is, pursuant to this section, confined for a longer period than an adult convicted of the same offense could be incarcerated. In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989).
The dispositional statutes (sections 43-283 to 43-2,101) do not violate the equal protection provisions of either the U.S. Constitution or the Constitution of the State of Nebraska, because they validly classify status offenders, who do not violate the state's criminal law, on the one hand, and juvenile criminal offenders, on the other, who violate the state's criminal law by their own volitional acts. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).
5. Miscellaneous
Once a juvenile court has entered a delinquency disposition under this section, it is plain error for the court to change that disposition when the State has not complied with the procedural requirements under subsection (5) of this section⁚unless the record shows that the juvenile was not denied any of the statutory procedural protections that the juvenile would have received if the State had followed the proper procedures. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
When the State files successive motions to change a juvenile's disposition under this section, a juvenile court can compare the facts as they existed when it entered a previous order to new facts arising after that order to determine whether a change in circumstances warrants a different decision. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
As used in subsection (1)(a)(iii) of this section, the terms "supervision" and "custody" are not synonymous. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).
A juvenile adjudged to be a juvenile within the meaning of section 43-247(3)(b), i.e., a status offender, may not be committed to the Department of Correctional Services. In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989).
A juvenile court has broad discretion as to the disposition of a child found to be delinquent. In re Interest of Jones, 230 Neb. 462, 432 N.W.2d 46 (1988).
Disposition of juveniles adjudged within section 43-247 is pursuant to sections 43-283 to 43-2,101. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).
A juvenile court may not change a disposition unless the juvenile has violated a term of probation or supervision or the juvenile has violated an order of the court and the procedures established in subdivision (5)(b) of this section have been satisfied. In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018).
Subsection (5) of this section sets forth the procedures for changing an existing disposition. In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018).
This section sets out a juvenile court's disposition options for juveniles who have been adjudicated under subdivision (1), (2), or (4) of section 43-247. In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018).
In exercising its jurisdiction, a juvenile court cannot modify a disposition order without, at least, a motion, appropriate notice, and a hearing satisfying the requirements of due process. In addition to lacking the authority to order the Department of Health and Human Services to supervise a juvenile's probation, the juvenile court also lacks the authority to order the Department of Health and Human Services to supervise a juvenile's house arrest or to oversee a juvenile's payment of restitution. In re Interest of Juan L., 6 Neb. App. 683, 577 N.W.2d 319 (1998).