In re Interest of Victor L. ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/28/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21In re Interest of Victor L., a child
under 18 years of age.
State of Nebraska, appellant, v.
Victor L., appellee.
___ N.W.2d ___
Filed April 23, 2021. No. S-20-312.
1. Juvenile Courts: Appeal and Error. Ordinarily, an appellate court
reviews juvenile cases de novo on the record and reaches a conclusion
independent of the juvenile court’s findings.
2. Juvenile Courts: Mental Competency: Appeal and Error. A juve-
nile court’s determination that a juvenile petition should be dismissed
because the juvenile lacks competency to participate in the proceed-
ings involves the sort of discretion that warrants review de novo on the
record for an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, on which an appellate court is obligated to reach a conclusion
independent of the determination reached by the court below.
5. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
6. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to the appellant prior to the order
from which the appeal is taken.
7. Juvenile Courts: Minors: Final Orders: Jurisdiction. The State’s
right in juvenile proceedings is derived from its parens patriae interest.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21The State’s substantial right is affected when an order dismisses a juve-
nile proceeding in its entirety, with no leave to amend, and the State
is thus foreclosed from pursuing adjudication and disposition on the
grounds alleged.
8. Statutes: Legislature: Public Policy. It is the Legislature’s function
through the enactment of statutes to declare what is the law and pub-
lic policy.
9. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
10. Statutes. A court must give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
11. Juvenile Courts: Minors. The foremost purpose and objective of the
Nebraska Juvenile Code is to promote and protect the juvenile’s best
interests, and the Nebraska Juvenile Code must be liberally construed to
serve the best interests of juveniles who fall within it.
12. Juvenile Courts: Minors: Mental Competency: Public Policy. The
plain language of Neb. Rev. Stat. § 43-258 (Reissue 2016) recognizes,
as a matter of public policy, that juveniles accused of delinquency and
status offenses have a statutory right to be competent to participate in
adjudication proceedings.
13. Juvenile Courts: Minors: Mental Competency: Legislature: Intent.
Because the Legislature has established a juvenile’s statutory right to
be competent to participate in adjudication proceedings, but it has not
mandated a specific procedure for enforcing or protecting that right, it
intended to leave the procedure to the sound discretion of the juvenile
court, based on the best interests of the juvenile.
14. Juvenile Courts: Minors: Mental Competency. An appropriate judi-
cial procedure for determining whether preadjudication dismissal is
in the best interests of an incompetent juvenile will generally include
consideration of (1) the nature and extent of the juvenile’s incompe-
tency and the impact it may have on the juvenile’s meaningful exercise
of other adjudicatory rights, (2) the evaluation report required by Neb.
Rev. Stat. § 43-258(3) (Reissue 2016) and any other competent evidence
assessing the juvenile’s needs and making recommendations for the
juvenile’s continuous and long-term care, (3) the juvenile’s statutory
right to be competent while participating in adjudication proceedings,
and (4) the future treatment and rehabilitation of the juvenile in the
event of an adjudication. The benchmark of the determination is the
protection of the best interests of the incompetent juvenile.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21Appeal from the Separate Juvenile Court of Douglas County:
Chad M. Brown, Judge. Affirmed.
Natalie Killion, Deputy Douglas County Attorney, and
Rachel Lowe, Senior Certified Law Student, for appellant.
Thomas C. Riley, Douglas County Public Defender, and
Leigh A. Ellis for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
The State filed a petition in the separate juvenile court
of Douglas County, Nebraska, alleging Victor L. had been
habitually truant from school and fell within the meaning of
Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016). Victor moved
to dismiss the petition, alleging he was not competent to be
adjudicated. Following a court-ordered competency evalua-
tion, the juvenile court found Victor was not competent and
dismissed the petition. The State timely appealed, and we
moved this case to our docket on our own motion. 1 On this
record, we affirm.
BACKGROUND
Victor was born in December 2004 and resides with his
mother in Douglas County, Nebraska. During the 2018-19
school year, Victor was enrolled at a local middle school.
Truancy Petition
In April 2019, the State filed a petition against Victor in
the separate juvenile court of Douglas County, alleging he
had not attended school for more than 20 days during the cur-
rent school year and therefore was habitually truant within the
meaning of § 43-247(3)(b). The court appointed counsel to
represent Victor in the proceeding.
1
See Neb. Rev. Stat. § 24-1106 (Reissue 2014 & Cum. Supp. 2018).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21Motion to Dismiss and
Competency Evaluation
Prior to the adjudication hearing, Victor moved to dismiss
the truancy petition, alleging he was “incompetent to stand
trial.” Victor’s motion referred to a 2018 competency evalua­
tion which had concluded he was not competent “‘due to
cognitive deficits, limited legal understanding, and emotional
[lability].’” The 2018 competency evaluation is not in our
record, but other information in the record suggests it was
a court-ordered evaluation in an unrelated delinquency pro-
ceeding. In the instant proceeding, Victor’s motion to dismiss
alleged generally that adjudicative competency was one of the
“essential requirements of due process and fair treatment” to
which a juvenile is entitled and that “adjudication of an incom-
petent juvenile violates due process of law.”
The motion to dismiss was taken up at a hearing on
September 10, 2019. That hearing was not included in our bill
of exceptions, but the court’s written order indicates Victor
appeared for the hearing with his counsel and Victor’s mother
was present pro se. A single unidentified exhibit was offered,
which is not in our record. Based on the evidence adduced,
the court continued the scheduled adjudication hearing and
ordered Victor to undergo a new competency evaluation.
Probation was appointed on a preadjudicative basis to assist
with that evaluation. 2
At a competency review hearing on December 17, 2019,
the court received into evidence a “Juvenile Adjudicative
Competency Evaluation” report authored by Kari Perez, Ph.D.
In the report, Perez described Victor’s complicated mental
health history, which included prior hospitalizations for sui-
cidal ideation, medication noncompliance, and a long history
of “‘school avoidance.’” Testing revealed Victor’s full-scale
2
See Neb. Rev. Stat. § 43-258(2)(b) (Reissue 2016) (authorizing court
to order competency evaluation to be arranged by Office of Probation
Administration).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21IQ was 68, placing him in the second percentile of children
his age. Testing also revealed Victor had extremely low ver-
bal reasoning abilities, markedly impaired abstract reasoning
abilities, and substantial impairments in practical knowledge
and judgment. The report suggested all of these skills were
“directly related to [Victor’s] ability to assist his attorney and
to make decisions.” Results from testing to assess Victor’s
understanding of the juvenile legal process showed he under-
stood some aspects of the proceedings, but did not understand
others. Among other things, he did not understand the basis
for his current charges, how he could assist his counsel, what
it meant to deny the allegations of the petition, the role of the
juvenile court judge, the role of his defense attorney, or the
role of the juvenile probation officer. Ultimately, the report
concluded that “Victor does not have the capacities associated
with competence to stand trial in juvenile court.”
In a section of the report titled “Remediation Potential,”
Perez noted:
It may be possible for Victor’s adjudicative competency
to improve in the areas of understanding and appreciation
of pleas, penalties, and the roles of the courtroom partici-
pants; however, this will require repeated, graded expo-
sure to these concepts over time, substantially more than
is required for most individuals his age. Even if he is able
to improve in these areas, his ability to reason with that
information in the service of assisting his attorney and
making case decisions remains limited.
Perez suggested that Victor’s competency deficits were due
primarily to his developmental delays in reasoning and com-
munication and his mental health condition. She opined these
conditions were “likely to endure and to continue to negatively
impact his competency.”
No party disputed the findings or methodology of Perez,
and no additional evidence bearing on Victor’s competency
was offered. Based on the evidence adduced, Victor’s counsel
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21urged the court to find that Victor was not competent and to
dismiss the truancy petition on that basis.
The State did not dispute the report’s conclusion that Victor
was not competent; instead, it argued that a juvenile’s “lack of
competency, per se, is [not] grounds for dismissal.” The State’s
primary contention was that competency was not required
for adjudication of a status offense. Alternatively, the State
proposed the court should consider either proceeding with
the adjudication hearing after appointing a guardian ad litem
(GAL) for Victor or ordering Victor to “go to some facility in
order to regain competence.” The State offered no evidence
showing how the appointment of a GAL would allow Victor to
meaningfully participate in the proceedings despite his incom-
petency. And when the court asked the State’s counsel whether
Nebraska had a facility focused on competency restoration for
juveniles, the State responded that it would need to do some
research. The court took the matter under advisement, and our
record contains no information from the State regarding com-
petency restoration.
Order of Dismissal
In an order entered March 25, 2020, the court found that
Victor was not competent, and it dismissed the truancy pro-
ceeding on that basis. The order of dismissal directed that all
records relating to the matter be sealed 3 and recited that infor-
mation concerning the proceedings was deemed never to have
occurred. The State appeals.
ASSIGNMENTS OF ERROR
The State assigns, restated and renumbered, that the juvenile
court erred in dismissing the truancy petition because (1) com-
petency is not required in juvenile adjudications for a status
offense; (2) even if competency is required for status offense
adjudications, the court could have adequately protected the
3
See Neb. Rev. Stat. §§ 43-2,108.01 to 43-2,108.05 (Supp. 2019).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21juvenile’s competency right through other procedures; and (3)
the juvenile court should not have dismissed based on a find-
ing of incompetency before ordering appropriate treatment to
restore competency or making a judicial finding that compe-
tency could not be restored.
STANDARD OF REVIEW
[1] We have not previously articulated a standard of review
for appeals from a juvenile court’s preadjudication determina-
tion that a petition should be dismissed because the juvenile is
not competent. Ordinarily, an appellate court reviews juvenile
cases de novo on the record and reaches a conclusion indepen-
dent of the juvenile court’s findings. 4 But in some cases, we
have said the appropriate standard of review is de novo on the
record for an abuse of discretion. 5 We have applied the latter
standard of review when considering a juvenile court’s deci-
sion to transfer a juvenile delinquency case to county court or
district court, 6 when considering a juvenile court’s determina-
tion that a juvenile was denied the statutory right to a prompt
adjudication, 7 and when considering a juvenile court’s determi-
nation that a juvenile’s waiver of counsel was voluntary, know-
ing, and intelligent. 8
[2,3] We now conclude that a juvenile court’s determina-
tion that a juvenile petition should be dismissed because the
juvenile lacks competency to participate in the proceedings
involves the sort of discretion that warrants review de novo
on the record for an abuse of discretion. An abuse of discre-
tion occurs when a trial court’s decision is based upon reasons
4
In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
5
See, e.g., In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391(2018); In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501(2013); In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007);
In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).
6
In re Interest of Steven S., supra note 5.
7
In re Interest of Shaquille H., supra note 5.
8
In re Interest of Dalton S., supra note 5.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. 9
[4] Statutory interpretation presents a question of law, on
which an appellate court is obligated to reach a conclusion
independent of the determination reached by the court below. 10
ANALYSIS
Dismissal Order Is Final and Appealable
[5] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over the
matter before it. 11 Victor argues we lack jurisdiction because
the State has not appealed from a final order. We disagree.
Pursuant to Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016),
the county attorney is among those expressly authorized to
appeal from “[a]ny final order or judgment entered by a juve-
nile court . . . in the same manner as an appeal from [the]
district court to the Court of Appeals.” The county attorney’s
appeal process differs in delinquency cases once the juvenile
“has been placed legally in jeopardy,” 12 but that appeal process
has no application here. As such, the county attorney’s right to
appeal turns on whether the juvenile court’s dismissal was a
final order.
Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) authorizes
appeals from four types of final orders: (1) those affecting a
substantial right in an action that, in effect, determines the
action and prevents a judgment; (2) those affecting a substan-
tial right made during a special proceeding; (3) those affecting
a substantial right made on summary application in an action
after judgment is rendered; and (4) those denying a motion
9
Walker v. BNSF Railway Co., 306 Neb. 559, 946 N.W.2d 656 (2020).
10
TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908
N.W.2d 60 (2018).
11
In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).
12
See § 43-2,106.01(2)(d).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21for summary judgment when such motion is based on the asser-
tion of sovereign immunity or the immunity of a government
official. 13 We have consistently held that juvenile proceedings
are special proceedings. 14 So here, the jurisdictional question
turns on whether the order of dismissal affected a substantial
right of the State. We conclude it did.
[6,7] Under Nebraska law, a substantial right is affected if
“an order affects the subject matter of the litigation, such as
diminishing a claim or defense that was available to the appel-
lant prior to the order from which the appeal is taken.” 15 The
State’s right in juvenile proceedings is derived from its parens
patriae interest, 16 and in In re Interest of Noah B. et al., 17 we
held that the State’s substantial right is affected when an order
dismisses a juvenile proceeding in its entirety, with no leave to
amend, and the State is thus foreclosed from pursuing adjudi-
cation and disposition on the grounds alleged.
Victor suggests that dismissing the truancy petition did not
affect a substantial right of the State, because the State is not
precluded from seeking adjudication on different grounds, such
as alleging that Victor is within the meaning of § 43-247(3)(a)
due to the faults or habits of his parent(s). We express no
opinion about whether the State may be able to seek adjudica-
tion on alternative grounds, because the jurisdictional question
here is not answered by asking whether a different statutory
provision might also support adjudication. Instead, the juris-
dictional question turns on whether the juvenile court’s order
dismissed the truancy proceeding in its entirety, thereby fore-
closing the State from pursuing adjudication and disposition
13
In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949 N.W.2d 299(2020).
14
See, e.g., In re Interest of Noah B. et al., supra note 4.
15
In re Interest of Karlie D., 283 Neb. 581, 587, 811 N.W.2d 214, 221
(2012).
16
In re Interest of Noah B. et al., supra note 4.
17
See id.- 30 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21of Victor on the ground of truancy under § 43-247(3)(b). It
plainly did, and we therefore conclude the State has appealed
from a final order. We turn next to the merits of the State’s
assigned errors.
Competency in Juvenile Adjudications
On appeal, the State’s primary argument is that truancy is a
status offense and that a juvenile need not be competent to be
adjudicated for a status offense. In response, Victor argues that
regardless of the basis on which an adjudication is sought, it
offends constitutional due process principles to adjudicate a
juvenile who is not competent to participate in the proceedings.
This court has not yet addressed whether competency to par-
ticipate in juvenile adjudication proceedings is among the con-
stitutional due process rights to which juveniles are entitled.
The U.S. Supreme Court has not yet addressed the specific
question either. But most appellate courts to have considered
the question have generally concluded that accused juveniles
have a constitutional due process right not to be adjudicated of
a juvenile offense while incompetent. 18
18
See, e.g., In re Albert C., 3 Cal. 5th 483, 397 P.3d 240, 219 Cal. Rptr.
3d 897 (2017); SWM v. State, 299 P.3d 673 (Wyo. 2013); In re T.S., 798
N.W.2d 649 (N.D. 2011); In re K.G., 808 N.E.2d 631 (Ind. 2004); In re
J.M., 172 Vt. 61, 769 A.2d 656 (2001); Golden v. State, 341 Ark. 656, 21
S.W.3d 801 (2000); Matter of W.A.F., 573 A.2d 1264 (D.C. 1990); State
ex rel. Dandoy v. Superior Court, 127 Ariz. 184, 619 P.2d 12 (1980);
Matter of Welfare of S. W. T., 277 N.W.2d 507 (Minn. 1979); Matter of
Two Minor Children, 95 Nev. 225, 592 P.2d 166 (1979); State in Interest of
Causey, 363 So. 2d 472 (La. 1978); In re Carey, 241 Mich. App. 222, 615
N.W.2d 742 (2000); In re Williams, 116 Ohio App. 3d 237, 687 N.E.2d
507 (1997); State v. E.C., 83 Wash. App. 523, 922 P.2d 152 (1996); In
re Interest of S.H., 220 Ga. App. 569, 469 S.E.2d 810 (1996); James v.
Superior Court, 77 Cal. App. 3d 169, 143 Cal. Rptr. 398 (1978). See, also,
Restatement of the Law, Children and the Law § 15.30 (Tentative Draft
No. 2, 2019) (recognizing U.S. Supreme Court has not considered whether
accused juvenile’s adjudicative competence is constitutionally required,
but state courts and legislatures have almost uniformly concluded due
process requires that accused youth facing adjudication must be capable of
understanding proceedings and assisting counsel).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21We see no reason, in this case, to decide whether juve-
niles have a constitutional due process right not to be adjudi-
cated while incompetent, because the Nebraska Legislature has
already recognized an accused juvenile’s statutory right to be
competent to participate in adjudication proceedings. 19 In that
regard, § 43-258 provides:
(1) Pending the adjudication of any case under the
Nebraska Juvenile Code, the court may order the juve-
nile examined by a physician, surgeon, psychiatrist, duly
authorized community mental health service program, or
psychologist to aid the court in determining (a) a material
allegation in the petition relating to the juvenile’s physi-
cal or mental condition, (b) the juvenile’s competence to
participate in the proceedings, (c) the juvenile’s responsi-
bility for his or her acts, or (d) whether or not to provide
emergency medical treatment.
(2)(a) . . . .
(b) . . . [P]ending the adjudication of any case in which
a juvenile is alleged to be a juvenile as described in sub-
division (1), (2), (3)(b), or (4) of section 43-247 and after
a showing of probable cause that the juvenile is within
the court’s jurisdiction, for the purposes of subsection (1)
of this section, the court may order an evaluation to be
arranged by the Office of Probation Administration. Any
temporary placement of a juvenile made under this sec-
tion shall be in the least restrictive environment consistent
with the best interests of the juvenile and the safety of
the community.
(3) Upon completion of the evaluation, the juvenile
shall be returned to the court together with a written or
electronic report of the results of the evaluation. Such
report shall include an assessment of the basic needs
19
See In re Interest of Brandy M. et al., 250 Neb. 510, 550 N.W.2d 17(1996) (observing court need not decide unresolved constitutional speedy
trial issue because juvenile statute already confers statutory right to
prompt adjudication hearing).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21of the juvenile and recommendations for continuous and
long-term care and shall be made to effectuate the pur-
poses in subdivision (1) of section 43-246. The juvenile
shall appear before the court for a hearing on the report
of the evaluation results within ten days after the court
receives the evaluation.
(Emphasis supplied.)
As relevant here, § 43-258 authorizes the juvenile court,
before adjudicating “any case” under the juvenile code, to
order the examination of the juvenile “to aid the court in
determining . . . the juvenile’s competence to participate in
the proceedings.” The competency evaluation provisions of
§ 43-258 apply only to preadjudicated youth, 20 and the stat-
ute sets out the procedure for accomplishing such evalua-
tions, including authorizing temporary placement “in the least
restrictive environment consistent with the best interests of the
juvenile and the safety of the community.” 21 The statute also
addresses the content of the competency evaluation report,
requiring that it “shall include an assessment of the basic
needs of the juvenile and recommendations for continuous and
long-term care and shall be made to effectuate the purposes in
subdivision (1) of section 43-246.” 22 Once the juvenile court
receives the evaluation report, the court must hold “a hearing
on the report of the evaluation results within ten days.” 23 But
as we discuss later, § 43-258 does not mandate any particular
procedure which must be followed if a youth is determined
not to be competent.
[8-11] As we have often noted, it is the Legislature’s func-
tion through the enactment of statutes to declare what is
20
In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003)
(holding mental evaluations of juvenile authorized under § 43-258 are not
relevant to adjudicated youth).
21
§ 43-258(2)(b).
22
§ 43-258(3).
23
Id.- 33 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21the law and public policy. 24 In construing a statute, a court
must determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense. 25 A
court must give effect to all parts of a statute, and if it can be
avoided, no word, clause, or sentence will be rejected as super-
fluous or meaningless. 26 The foremost purpose and objective
of the Nebraska Juvenile Code is to promote and protect the
juvenile’s best interests, and the Nebraska Juvenile Code must
be liberally construed to serve the best interests of juveniles
who fall within it. 27
[12] Applying these principles, we construe the plain lan-
guage of § 43-258 to recognize, as a matter of public policy,
that juveniles accused of delinquency and status offenses have
a statutory right to be competent to participate in adjudication
proceedings. Surprisingly, the State’s appellate brief contains
no citation to, or discussion of, the competency provisions in
§ 43-258. Nevertheless, because the provisions of § 43-258
plainly apply to the adjudication of delinquency and status
offenses, we must reject, as contrary to the plain language of
§ 43-258, the State’s contention that juveniles who face adjudi-
cation for a status offense need not be competent to participate
in the proceedings. The State’s first assignment of error has
no merit.
Procedure When Juvenile
Not Competent
The State does not argue that preadjudication dismissal of
a juvenile petition is never appropriate after a determination
24
See In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747(2012).
25
In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).
26
Id.
27Id.- 34 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21that a youth is incompetent. 28 Instead, the thrust of the State’s
argument is that preadjudication dismissal for lack of compe-
tency should not be considered mandatory, as other options
may be available to safeguard a juvenile’s right to adjudica-
tive competency. The State’s appellate briefing focuses on
the same two options it mentioned below: either appointing a
GAL for Victor and proceeding with adjudication despite his
lack of competency or ordering reasonable efforts to restore
Victor’s competency.
Before we can address the State’s contention that preadjudi-
cation dismissal of an incompetent youth is not mandatory, we
must confront a statutory dilemma. While the Legislature has
recognized an accused juvenile’s statutory right to be compe-
tent to participate in adjudication proceedings, it has not man-
dated any particular procedure to enforce or protect that right
when a youth is found incompetent. In that respect, the statu-
tory competency rights under the juvenile code are distinctly
different from those under the criminal code. 29
Unlike the juvenile code, the criminal code mandates the
procedure to be followed once an accused is found not compe-
tent to stand trial. 30 Under that procedure:
If the district court determines that the accused is incom-
petent to stand trial, then the court must make a determi-
nation whether there is a substantial probability that the
accused will become competent within the foreseeable
future. If the district court determines that there is a sub-
stantial probability that the accused will become com-
petent within the foreseeable future, then § 29-1823(1)
28
See, e.g., In re Interest of LeVanta S., 295 Neb. 151, 154, 887 N.W.2d
502, 506 (2016) (noting delinquency and truancy petition was “dropped”
after 15-year-old twins with developmental disabilities were found
not competent).
29
Compare § 43-258 with Neb. Rev. Stat. § 29-1823 (Cum. Supp. 2020).
30
See, State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000) (noting
§ 29-1823 sets out decision tree district courts are obligated to follow once
accused is found incompetent).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21mandates that the court order the accused committed to a
state mental hospital or to some other appropriate state-
owned or state-operated facility for appropriate treat-
ment until such time as the disability may be removed.
Section 29-1823(2) provides for 6-month reviews of the
competency determination made by the district court. If,
however, the district court determines that there is not
a substantial probability that the accused will become
competent within the foreseeable future, § 29-1823(3)
specifies the appropriate procedure: the State shall either
commence civil commitment proceedings or release
the accused. 31
The State’s briefing generally suggests, without any analy-
sis, that juvenile courts should follow the same enforcement
procedure mandated under the criminal code. While this court
has, on occasion, looked to criminal statutes for general guid-
ance when considering similar juvenile statutes, 32 we are not
persuaded the Legislature intended juvenile courts to enforce
statutory competency rights using only the criminal procedure
set out in § 29-1823.
The juvenile code’s competency provisions neither ref-
erence nor incorporate the criminal code’s procedures for
enforcing a criminal defendant’s competency rights. And if
the Legislature had wanted the criminal competency proce-
dures to be imported into juvenile proceedings, it easily could
have done so, as it did when it incorporated Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) into the procedure for calculating
a juvenile’s statutory right to prompt adjudication. 33 Instead,
the Legislature has been conspicuously silent and has not
31
Id. at 701, 605 N.W.2d at 439 (emphasis omitted).
32
See, e.g., In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d
484 (2007) (referring to criminal restitution statute for guidance when
determining restitution factors in juvenile disposition).
33
See Neb. Rev. Stat. § 43-271 (Reissue 2016) (providing computation of
6-month prompt adjudication period “shall be made as provided in section
29-1207, as applicable”).
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Cite as 309 Neb. 21mandated any particular procedure for enforcing a juvenile’s
statutory right to competency in adjudication proceedings.
So what is a juvenile court to do once it determines that a
juvenile is not competent to participate in adjudication pro-
ceedings? Is dismissal mandatory? Are other options avail-
able? We asked similar questions in In re Interest of Brandy
M. et al. 34
There, the State appealed from orders of dismissal entered
in 10 separate juvenile adjudication proceedings; each dis-
missal was predicated on the juvenile court’s determination
that the youth’s statutory right to a prompt adjudication had
been violated. 35 We found it was readily apparent from the
plain language of the governing statutes that the Legislature
intended to provide juveniles with a statutory right to a prompt
adjudication hearing. But we also observed that, unlike the
speedy trial statutes for criminal defendants, 36 the prompt
adjudication statutes for juveniles did not specify the remedy
for noncompliance.
In re Interest of Brandy M. et al. did not, however, conclude
that the absence of a specific statutory enforcement procedure
left the juvenile court with no options. To the contrary, we
reasoned that since the Legislature had established the statu-
tory right to speedy adjudication without mandating a sanc-
tion for violating the right, it had enacted a statutory scheme
under which enforcement was directory rather than manda­
tory. 37 Under that circumstance, we held it was “within the
sound discretion of the juvenile court to determine whether
absolute discharge of a juvenile petition is in the best interests
of a juvenile.” 38
34
In re Interest of Brandy M. et al., supra note 19.
35
See, § 43-271 and Neb. Rev. Stat. §§ 43-277 and 43-278 (Reissue 2016)
(establishing juvenile’s prompt adjudication rights).
36
Compare §§ 43-271 and 43-278 with § 29-1207 and Neb. Rev. Stat.
§§ 29-1208 and 29-1209 (Reissue 2016).
37
In re Interest of Brandy M. et al., supra note 19.
38
Id. at 524, 550 N.W.2d at 26.
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Cite as 309 Neb. 21In In re Interest of Brandy M. et al., we found persuasive
cases from other jurisdictions in which the courts balanced a
juvenile’s statutory right to speedy adjudication with protec-
tion of the juvenile’s best interests. We observed that a “rigid
and legalistic interpretation of a juvenile’s statutory right to a
speedy delinquency adjudication would often be contrary to a
juvenile’s best interests and, ultimately, contrary to the public
interest.” 39 Conversely, we observed that it “is rarely in the best
interests of a juvenile to have his or her case languish unadju-
dicated in the juvenile court” 40 because delays in adjudication
can affect the quality of evidence, impair a juvenile’s defense,
prevent a fair hearing, and be detrimental to the youth’s reha-
bilitation in the event of adjudication. To help guide juvenile
courts in deciding whether absolute discharge is in a juvenile’s
best interests, we suggested courts should consider (1) the fac-
tors set out in the statutes establishing the juvenile’s right to a
prompt adjudication, (2) the juvenile’s right to a prompt and
fair adjudication, and (3) “the future treatment and rehabilita-
tion of the juvenile in the event of an adjudication.” 41 And
because of the discretion inherent in such a determination, we
held that our appellate review should be de novo on the record
for an abuse of discretion. 42
Applying that standard to our de novo review in In re
Interest of Brandy M. et al., we concluded the juvenile court
had not abused its discretion in granting absolute discharge. In
considering whether absolute discharge was in the juvenile’s
best interests, we observed the statutory adjudication period
had run in each of the 10 cases, and we noted the State had
adduced no evidence of excludable periods under the appli-
cable statute and had instead offered evidence which, at best,
showed only that the juvenile dockets were overcrowded and
39
Id. at 522, 550 N.W.2d at 25.
40
Id. at 524, 550 N.W.2d at 26.
41
Id.
42See In re Interest of Brandy M. et al., supra note 19.
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Cite as 309 Neb. 21more judges were needed. We also considered the nature of
the prompt adjudication right and evidence of how the delay
in adjudication had prejudiced the juveniles. Finally, we noted
the State had adduced no evidence at all concerning the reha-
bilitative needs, future treatment, or best interests of any of the
juveniles facing adjudication. On that record, we could find
no abuse of discretion in the juvenile court’s decision to grant
absolute discharge.
[13] We find the reasoning of In re Interest of Brandy M. et
al. instructive when reviewing the juvenile court’s dismissal
here. Like the prompt adjudication rights at issue in In re
Interest of Brandy M. et al., the Legislature has established
a juvenile’s statutory right to be competent to participate in
adjudication proceedings, but it has not mandated a specific
procedure for enforcing or protecting that right. The absence
of a compulsory or mandatory procedure for enforcing adju-
dicative competency rights under § 43-258 does not appear
to have been an oversight. Instead, it appears the Legislature
intended to leave the procedure to the sound discretion of the
juvenile court, based on the best interests of the juvenile. 43 Our
conclusion in this regard is entirely consistent with Neb. Rev.
Stat. § 43-246(7) (Cum. Supp. 2020), which directs that when
construing the juvenile code, courts should do so in a manner
that “provide[s] a judicial procedure through which [the] pur-
poses and goals [of the juvenile code] are accomplished and
enforced” and “in which the parties are assured a fair hearing
and their constitutional and other legal rights are recognized
and enforced.”
[14] An appropriate judicial procedure for determining
whether preadjudication dismissal is in the best interests of an
incompetent juvenile will generally include consideration of
(1) the nature and extent of the juvenile’s incompetency and
the impact it may have on the juvenile’s meaningful exercise
of other adjudicatory rights, (2) the evaluation report required
43
See id.- 39 -
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IN RE INTEREST OF VICTOR L.
Cite as 309 Neb. 21by § 43-258(3) and any other competent evidence assessing the
juvenile’s needs and making recommendations for the juve-
nile’s continuous and long-term care, (3) the juvenile’s statu-
tory right to be competent while participating in adjudication
proceedings, and (4) the future treatment and rehabilitation of
the juvenile in the event of an adjudication. 44 The benchmark
of this determination is the protection of the best interests of
the incompetent juvenile. 45
We consider these factors as part of our de novo review of
the record to determine whether the juvenile court abused its
discretion in dismissing the State’s petition. 46 An abuse of dis-
cretion occurs when a trial court’s decision is based upon rea-
sons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. 47
The only evidence in our record is the competency evalua­
tion report authored by Perez, which concludes that “Victor
does not have the capacities associated with competence to
stand trial in juvenile court.” The State has not contested the
methodology applied to determine competency, nor has it
contested the juvenile court’s determination of incompetency.
As such, this case does not afford the opportunity to address
the juvenile competency standard, and we express no opinion
in that regard. The competency evaluation report concluded
Victor has a full-scale IQ of 68, low verbal reasoning abilities,
impaired abstract reasoning abilities, and impaired practical
knowledge and judgment. He does not understand the basis for
his current charges, how to assist his counsel, what it means
to deny the allegations of the petition, the role of the juvenile
court judge, the role of his defense attorney, or the role of the
juvenile probation officer.
44
See, generally, In re Interest of Brandy M. et al., supra note 19.
45
Id.
46See, generally, id.
47Walker, supra note 9.
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Cite as 309 Neb. 21The State suggested to the juvenile court that it should con-
sider ordering competency restoration, but it neither expressly
requested such an order, nor did it provide any evidence to
support the conclusion that competency restoration was fea-
sible. The only evidence in that regard was the competency
evaluation report itself, which concluded that even if Victor’s
understanding of the juvenile court process could be improved,
his ability to make reasoned decisions and assist his attor-
ney would remain limited. Further, the report concluded that
Victor’s mental deficits and developmental delays in reasoning
and communication were “likely to endure and to continue to
negatively impact his competency.” On this record, we can
find no abuse of discretion in not ordering competency restora-
tion efforts.
Nor can we find that the juvenile court abused its discretion
by not appointing a GAL. First, the State has not specifically
assigned error to the failure to appoint a GAL, even though
its appellate briefing argues generally that the juvenile court
should have “considered” the State’s “proposal for such an
alternative.” 48 To be considered by an appellate court, the party
asserting the alleged error must both specifically assign and
specifically argue it in the party’s initial brief. 49
Second, while the State argues on appeal that the juvenile
court should have appointed a GAL and proceeded with the
adjudication hearing despite Victor’s incompetency, the State’s
proposal to the juvenile court did not expressly move for the
appointment of a GAL, nor did the State explain why a GAL
would be appropriate in Victor’s case. During the compe-
tency review hearing, when referring generally to incompe-
tent youth charged with status offenses, the State remarked:
“Furthermore, if the Court is inclined to do so, other states
have, in those instances, appointed a [GAL] to represent that
juvenile ­offender’s best interests.”
48
Brief for appellant at 15, 16.
49
Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
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Cite as 309 Neb. 21We strongly encourage the appointment of a GAL in cases
where an accused youth is found to be incompetent, in order
to provide the court with appropriate information regarding the
juvenile’s best interests and, in particular, whether preadjudi-
cation dismissal is in the juvenile’s best interests. But here,
the State argues the juvenile court should have considered
appointing a GAL for a different purpose: as an “alternative[]
for safeguarding competency issues” 50 during the adjudica-
tion hearing and “subsequent court proceedings.” 51 Not only
did the State fail to expressly move for the appointment of
a GAL, but it adduced no evidence tending to show how the
appointment of a GAL would protect Victor’s adjudicative
competency rights or remediate his inability to understand the
proceedings or consult with and assist his counsel. While there
may be circumstances under which the appointment of a GAL
can effectively address adjudicative incompetence, the State’s
failure to expressly request such an appointment or to present
any evidence on that issue left the juvenile court without any
meaningful basis for considering the appointment of a GAL for
the purpose of proceeding with the adjudication hearing.
Finally, the State presented no evidence at all of the pos-
sible future treatment and rehabilitation options for Victor in
the event of an adjudication. Consequently, our record does
not permit consideration of this factor when deciding whether
preadjudication dismissal was in Victor’s best interests given
his incompetency.
Although our discussion has necessarily been limited to the
options presented to the juvenile court once Victor was found
to be incompetent, undoubtedly there are other options avail-
able to a juvenile court judge tasked with determining whether
preadjudication dismissal, or some other procedure, is in the
best interests of an incompetent juvenile. In future cases, to
assist the juvenile court in identifying available options, we
50
Brief for appellant at 10.
51
Id. at 15.
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Cite as 309 Neb. 21encourage the appointment of a GAL for the juvenile, and we
encourage the parties to make specific suggestions and offer
appropriate supporting evidence, so the court has as much
information as possible when deciding which option would
be in the juvenile’s best interests. And to assist in meaningful
appellate review, we encourage judges to explain their reasons
for selecting one option over the others.
Here, after determining that Victor was not competent to
participate in adjudication proceedings, it was within the
sound discretion of the juvenile court to determine, based on
Victor’s best interests, how to proceed. While a juvenile court
may, depending on the circumstances, have viable options
other than preadjudication dismissal, our de novo review of
this record does not show an abuse of discretion in dismissing
the petition.
CONCLUSION
For the foregoing reasons, we affirm the juvenile court’s
preadjudication dismissal of the truancy petition based on the
juvenile’s lack of competency to participate in the proceedings.
Affirmed.