In re Interest of Alan L. , 294 Neb. 261 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/22/2016 09:07 AM CDT
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IN RE INTEREST OF ALAN L.
Cite as 294 Neb. 261
In re I nterest of A lan L., a child
under 18 years of age.
State of Nebraska, appellee,
v. A lan L., appellant.
___ N.W.2d ___
Filed July 22, 2016. No. S-15-860.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Judgments: Res Judicata. Whether the doctrine of claim preclusion, or
res judicata, bars relitigation of a claim presents a question of law.
3. Constitutional Law: Due Process. Whether the procedures given an
individual comport with constitutional requirements for procedural due
process presents a question of law.
4. Appeal and Error. An appellate court independently reviews questions
of law decided by a lower court.
5. Juvenile Courts: Probation and Parole. Under Neb. Rev. Stat.
§ 43-286 (Cum. Supp. 2014), before a juvenile court can order a
juvenile’s placement at 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.
It must also provide a report to the court that supports one of the fol-
lowing 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. The review should
consider the success or failure of prior supervisory conditions, even if
the conditions were imposed by some other agency responsible for the
child’s care.
6. Juvenile Courts. In considering whether the State has shown that a
juvenile should be placed at a youth rehabilitation and treatment center,
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a juvenile court is not required to repeat measures that were previously
ineffective or unsuccessful.
7. Juvenile Courts: Probation and Parole: Time. Under Neb. Rev. Stat.
§ 43-286(1) (Cum. Supp. 2014), 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, or (3)
before a court enters a new disposition following a motion to revoke
probation or supervision.
8. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
9. Juvenile Courts: Probation and Parole: Time. Prospectively, a revo-
cation motion is concurrently required even if the State is seeking a
juvenile’s commitment to the Office of Juvenile Services for proba-
tion violations.
10. Judgments: Res Judicata. Claim preclusion bars the relitigation of a
claim that has been directly addressed or necessarily included in a for-
mer adjudication if (1) the former judgment was rendered by a court of
competent jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same parties or
their privies were involved in both action.
11. Res Judicata. The doctrine of claim preclusion bars relitigation not only
of those matters actually litigated, but also of those matters that a party
could have litigated in the prior action.
12. Juvenile Courts: Judgments: Time. A juvenile court can compare the
facts as they existed when it entered a previous order to new facts aris-
ing after that order to determine whether a change in circumstances war-
rants a different decision. This general principle applies when the State
files successive motions to change a juvenile’s disposition under Neb.
Rev. Stat. § 43-286 (Cum. Supp. 2014).
Appeal from the Separate Juvenile Court of Sarpy County:
Robert B. O’Neal, Judge. Affirmed.
Dennis P. Marks, Deputy Sarpy County Public Defender,
for appellant.
Gary Brollier, Deputy Sarpy County Attorney, and Andrew
T. Erickson, Senior Certified Law Student, for appellee.
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IN RE INTEREST OF ALAN L.
Cite as 294 Neb. 261
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Connolly, J.
I. SUMMARY
Alan L. appeals from the juvenile court’s August 2015
commitment order. That order committed him to the Office
of Juvenile Services (OJS) for commitment at a youth reha-
bilitation and treatment center (YRTC). The court held two
commitment hearings. In its first order, the court concluded
that the evidence failed to support a commitment order. About
2 months later, the court found that the State had proved the
necessary conditions for the commitment.
Alan argues that claim preclusion barred the State from pre-
senting any new evidence at the second commitment hearing
that was available to it before the first commitment hearing.
He also contends that the commitment hearing violated his
right to due process because he could not confront and cross-
examine persons who provided adverse information against
him. Finally, he contends that the State failed to produce suf-
ficient evidence to show that all levels of probation supervision
and community-based services had failed.
We affirm. We conclude that despite the State’s failure to
comply with our case law for seeking a new disposition or
commitment to OJS, Alan was not deprived of his right to due
process. We further conclude that new evidence at the second
commitment hearing, which became available after the first
hearing, showed a change of circumstances that justified the
court’s commitment order.
II. BACKGROUND
Because Alan challenges the State’s commitment proce-
dures, it would be helpful for future cases to clarify the proper
procedures under recent statutory amendments to the juvenile
code. So we set out the procedures here with some detail.
Alan was born in September 1998. He was released from
the YRTC on parole in the summer of 2014. In January 2015,
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when Alan was age 16 and on parole, the county attorney’s
office filed a juvenile petition that alleged three counts of
conduct constituting a misdemeanor offense. Alan admitted to
being a minor in possession of alcohol, and the State dismissed
the other charges.
Alan’s parole officer reported that Alan had refused to
cooperate with a chemical dependency evaluation, refused to
charge his electronic monitor, and failed to attend school. His
parole officer stated that she was authorized to seek a parole
revocation but preferred to seek a disposition order placing
him on probation. She believed that if Alan were sent back to
the YRTC on probation, the State would have more supervi-
sion over him when he was released. After the hearing, the
court adjudicated Alan under Neb. Rev. Stat. § 43-247(1)
(Supp. 2013) (nontraffic misdemeanor or infraction), ordered
a psychiatric evaluation, and scheduled a disposition hearing
for March 26.
But in February 2015, new circumstances required the
court to hold a detention hearing—not a disposition hearing.
Following an altercation in his home, police officers took Alan
into custody. A probation officer then placed Alan in secured
detention at the Douglas County Youth Center because he
posed an extreme risk to the community.
At the detention hearing, a probation officer testified about
the altercation. Alan had demanded that his mother take him
to his girlfriend’s house, but she refused. Alan pushed her
down and left the house angry but came back a few minutes
later with a gun, which he allegedly held to her head. He then
pointed the gun at his mother’s boyfriend and demanded trans-
portation, but the boyfriend refused.
After police officers took him into custody, he told a proba-
tion officer that he was bipolar and was not taking his medi-
cations. He also admitted to being involved with gangs and
“brought up at least two incidents where he pulled a gun on
another person.” In addition, the probation officer stated that
Alan had said he had been using and selling cocaine and using
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alcohol. The court continued his secure detention pending the
disposition hearing.
Later, in March 2015, the county attorney’s office filed
a supplemental petition with four new charges against Alan
stemming from the altercation at his home in February. It
alleged two additional counts of felonious conduct (making
terroristic threats and use of a weapon to commit a felony), and
two additional counts of misdemeanor conduct (third degree
assault and a separate count of criminal mischief).
About a month later, the court held a disposition hearing
on the original petition. (It had not yet held an adjudicated
hearing on the supplemental petition.) The court placed Alan
on probation and allowed him to move with his mother to
Colfax County, Nebraska. At the adjudication hearing, Alan’s
mother had stated that she believed Alan needed medication
for his mood changes. So the court ordered him to comply
with three evaluations (psychological, psychiatric, and chemi-
cal dependency) and to have no contact with gangs or his
mother’s boyfriend.
In May 2015, after Alan had returned to Sarpy County, his
new probation officer, Nicole Mercer, placed him in detention
again for noncooperation. Later that month, the county attor-
ney’s office moved to commit Alan to OJS for placement at a
YRTC. The motion alleged that Alan had (1) been previously
committed to the YRTC and discharged in the summer of 2014;
(2) claimed to be a gang member; (3) failed to cooperate with
a predisposition interview and evaluation; (4) failed to attend
school; (5) failed to complete probation or “Tracker”; and (6)
expressed no desire to cooperate with further testing or evalua-
tions. Generally, the motion alleged that Alan had exhausted all
levels of probation supervision and that there was an immedi-
ate and urgent need to place him at the YRTC to protect him
and the public. The motion also alleged that the YRTC would
offer him treatment, schooling, and behavioral regimes, thus
reducing his access to drugs. The motion, however, did not
contain allegations about Alan’s conduct in February.
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IN RE INTEREST OF ALAN L.
Cite as 294 Neb. 261
On the same day that the county attorney filed a commit-
ment motion, the court held a detention hearing. The evidence
showed that Mercer had detained Alan in May after a home
visit. Mercer had told Alan not to leave the house for a week
without an adult, apparently because he had not cooperated
with court-ordered evaluations. Alan told Mercer to get off his
property and used “colorful” language. The record reflects that
after the court adjudicated Alan on the supplemental petition,
Mercer recommended the court continue Alan’s detention and
schedule a hearing on his commitment to the YRTC. The court
continued Alan’s detention and scheduled a combined review
hearing, an arraignment on the supplemental petition, and a
hearing on the commitment motion.
At the June 2015 hearing, Alan admitted to two counts of
misdemeanor conduct on February 14, 2015 (third degree
assault and criminal mischief). He admitted that he had threat-
ened to shoot his mother’s boyfriend with an unloaded gun
and had kicked off his electronic monitor. The county attorney
dismissed the counts alleging felonious conduct. The court
adjudicated Alan under § 43-247(1) and continued the commit-
ment hearing to the next week.
A week later, the court held a combined disposition hear-
ing on the supplemental petition and a commitment hearing.
The county attorney stated that because he had moved for a
YRTC commitment before Alan admitted to the charges in the
supplemental petition, he did not know whether he needed to
amend the motion. The court recognized that the motion did
not reflect the allegations in the supplemental petition but
stated that it did not want to keep Alan in secure detention any
longer than necessary if he was ready to proceed. Alan’s attor-
ney stated that he was ready.
Mercer testified that Alan initially walked away angry from
the psychiatric evaluation, but he later completed it. He had
not, however, complied with the recommendation that he take
medication. He told the psychiatrist that he did not want treat-
ment, and the psychiatrist did not think Alan would cooperate
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with services. Furthermore, Alan had missed his appointment
for a chemical dependency evaluation and had not been tested
for drug use since returning to Sarpy County. Mercer said
Alan’s mother could not control him. Also, Mercer said that
the previous year, she had supervised Alan at the YRTC and
that he was part of her high-risk caseload. She did not believe
there were any community-based services or other program-
ming that probation could provide to help Alan.
But Alan’s attorney successfully objected that the court could
not question Mercer about services that Alan had received dur-
ing his previous parole. After an off-the-record discussion with
counsel, the court stated from the bench that it was denying
the commitment motion “for lack of sufficient evidence pre-
sented at this hearing.” In its June 2015 journal entry, the court
“determined that the evidence was not sufficient at this time to
meet the three prong test.” But it continued the disposition on
the supplemental petition to July.
In July 2015, the county attorney filed an amended motion
to commit Alan to the YRTC. The allegations were the same.
The court continued the disposition hearing to give the county
attorney time to respond to Alan’s argument that claim pre-
clusion barred any new evidence that the State could have
presented at the June commitment hearing. The court again
continued the disposition hearing to August.
In August 2015, Alan filed a “motion to bar” any evi-
dence of his conduct before the court’s June order that
found the evidence insufficient to support a commitment.
The county attorney’s office filed a second amended motion
to commit. The only new allegations involved its claims
that Alan had sabotaged a placement by threatening to run
away or harm the staff there and that no other placement
options were available. Later in August, at the second com-
mitment hearing, the court received Mercer’s affidavit with
new information about Alan’s conduct. She stated that Alan
had sabotaged a placement in Arizona. The affidavit had three
attachments: Mercer’s summary of the State’s supervision
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efforts, a chemical dependency evaluation, and a psychiatric
evaluation. Alan’s attorney then called Mercer as a witness.
After the hearing, the court found that the allegations of the
second amended motion for commitment were true, placed
him on intensive supervision probation, and committed him to
OJS for placement at the YRTC.
III. ASSIGNMENTS OF ERROR
Alan assigns, restated, that the court erred in ordering his
commitment to the YRTC for the following reasons:
(1) The State failed to show by a preponderance of the evi-
dence that all levels of probation supervision and community-
based services had been exhausted;
(2) the doctrine of res judicata barred the State from pre-
senting evidence at the August 2015 commitment hearing that
it had presented, or could have presented, before the court
entered its June order in which it declined to commit Alan to
the YRTC;
(3) the “change of circumstances” principle did not apply to
the court’s August 2015 commitment order because in its June
order, the court failed to make specific findings that would
show what circumstances had changed; and
(4) the August 2015 commitment hearing deprived him
of his due process right to confront and cross-examine his
accusers.
IV. STANDARD OF REVIEW
[1-4] An appellate court reviews juvenile cases de novo
on the record and reaches a conclusion independently of the
juvenile court’s findings.1 Whether the doctrine of claim pre-
clusion, or res judicata, bars relitigation of a claim presents
a question of law.2 Whether the procedures given an indi-
vidual comport with constitutional requirements for procedural
1
In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
2
See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
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due process presents a question of law.3 And an appellate
court independently reviews questions of law decided by a
lower court.4
V. ANALYSIS
1. A lan Was Not Denied Due Process
Alan contends that the State denied him due process at
the August 24, 2015, commitment hearing because it did not
call as witnesses the persons who authored the reports that
supported Mercer’s affidavit. He argues that if the State had
filed a motion to revoke his probation, he would have had a
statutory right to confront and cross-examine witnesses against
him. He contends that he was denied these rights at the com-
mitment hearing and that the defect was not cured by his
attorney’s ability to call his probation officer as a witness. He
argues that he could only ask Mercer open-ended questions on
direct examination instead of cross-examining her.
As discussed later, we agree that the commitment proce-
dures did not comply with our previous requirements under
Neb. Rev. Stat. § 43-286 (Cum. Supp. 2012). This statute
sets out a juvenile court’s disposition options for juveniles
who have been adjudicated under § 43-247(1), (2), or (4).
Section 43-286 also governs revocation hearings for such juve-
niles. In 2013 and 2014, however, the Legislature substantially
amended § 43-286. But we have not yet determined how our
previous requirements interplay with the new statutory proce-
dures for a YRTC placement when a court has already entered
a disposition. As explained later, despite procedural flaws, the
court’s procedures did not deny Alan an opportunity to chal-
lenge the State’s recommendations for the commitment. So he
was not denied due process. But for future cases, we explain
the effect of the statutory amendments.
3
See In re Interest of Landon H., 287 Neb. 105, 841 N.W.2d 369 (2013).
4
See Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 875 N.W.2d 421
(2016).
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(a) Legislature Imposed New Requirements
for Commitments to OJS
Before 2013, § 43-286 did not constrain a juvenile court’s
discretion in a disposition order to commit a juvenile age 12
or older to OJS for placement at a YRTC. But a court could
not place a juvenile under age 12 at a YRTC “unless he or
she has violated the terms of probation or has committed an
additional offense and the court finds that the interests of the
juvenile and the welfare of the community demand his or
her commitment.”5
In 2013, the Legislature amended § 43-286 for all disposi-
tions entered on or after July 1, 2013. After that date, a court
could commit juveniles age 14 or older to OJS for placement
at a YRTC as a condition of intensive supervision probation,
but only if it made specific findings of fact. It had to find the
existence of three conditions for a commitment: (1) all levels
of probation supervision had been exhausted; (2) all options
for community-based services have been exhausted; and (3)
placement of such juvenile is a matter of immediate and urgent
necessity for the protection of such juvenile or the person or
property of another, or it appears that such juvenile is likely
to flee the jurisdiction of the court.6 Additionally, the com-
mitment could not conflict with Neb. Rev. Stat. § 43-251.01
(Supp. 2013).7 The 2013 bill amended § 43-251.01 to prohibit
placing a juvenile under age 14 at a YRTC.8
A year later, the Legislature again amended § 43-286 to
require the State to file a commitment motion and a juvenile
court to conduct a hearing on that motion before the court
could commit a juvenile to OJS for placement at a YRTC.
Like the 2013 requirements, the 2014 requirements apply to
5
2011 Neb. Laws, L.B. 463, § 4.
6
2013 Neb. Laws, L.B. 561, § 23.
7
See id.
8
See id., § 10.
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all dispositions entered on or after July 1, 2013.9 The amended
§ 43-286 requires the State’s motion to set forth “specific fac-
tual allegations” that support the specified general allegations
necessary for the commitment. It provides that at the hearing,
the county attorney must prove the three conditions for a com-
mitment by a preponderance of the evidence: (1) all levels of
probation supervision have been exhausted; (2) all options for
community-based services have been exhausted; and (3) the
juvenile’s placement at a YRTC is a “matter of immediate and
urgent necessity for the protection of the juvenile or the per-
son or property of another” or “it appears that such juvenile is
likely to flee the jurisdiction of the court.”10
But before these amendments, we had interpreted § 43-286
to require the State to comply with the procedural requirements
for a new disposition when a juvenile court has already entered
a disposition.
(b) A Court Cannot Change a Disposition Under
§ 43-286(1)(a) Unless the State Complies With
Procedures for a New Disposition
[5,6] We have previously considered the 2013 amendment
of § 43-286, which required a court to find the three statu-
tory conditions existed before committing a juvenile to OJS
for placement at a YRTC. In In re Interest of Nedhal A.,11 we
explained that by imposing these conditions, the Legislature
intended to make a juvenile’s placement at a YRTC the place-
ment of last resort. We held that before a juvenile court can
order this placement, the “Office of Probation Administration
must review and consider thoroughly what would be a reliable
alternative to commitment at YRTC.”12 It must also ­provide
9
See 2014 Neb. Laws, L.B. 464, § 20 (codified at § 43-286(1)(b)(ii) (Cum.
Supp. 2014)).
10
See § 43-286(1)(b)(ii)(B)(III).
11
In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
12
Id. at 716, 856 N.W.2d at 569.
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a report to the court that supports one of the following con-
clusions: (1) there are “untried conditions of probation or
community-based services [that] have a reasonable possibil-
ity for success” or (2) “all levels of probation and options for
community-based services have been studied thoroughly and
. . . none are feasible.”13 And the “review should consider the
success or failure of prior supervisory conditions, even if the
conditions were imposed by some other agency responsible for
the child’s care, such as [the Department of Health and Human
Services].”14 For example, the office could consider a juve-
nile’s previous supervision under an adjudication in a neglect
and dependency case.15 In considering whether the State has
shown that a juvenile should be placed at a YRTC, we spe-
cifically declined to require a juvenile court to repeat measures
that were previously ineffective or unsuccessful.16
The juvenile in In re Interest of Nedhal A. had not previ-
ously been placed on probation for a law violation.17 But we
did not interpret the exhaustion requirement for probation
supervision to mean that the juvenile must have previously
been on probation and failed to comply with probation condi-
tions. Instead, we required a report showing whether untried
conditions of probation or community-based services had a
reasonable possibility for success or were unfeasible.18 But that
case is distinguishable. We did not have to consider the proper
procedures when a juvenile court has previously entered a
disposition.
Notably, the 2013 and 2014 amendments did not change the
dispositions authorized under § 43-286(1)(a). And both this
13
Id.
14
Id.
15
See id.
16
See id.
17
See In re Interest of Nedhal A., supra note 11.
18
Id.
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court and the Nebraska Court of Appeals have held that once
a court has entered a disposition, it is plain error to change
that disposition when the State has not complied with the
applicable statutory procedures.19 The procedures for chang-
ing an existing disposition are now codified at § 43-286(5).20
Section 43-286(5)(b) governs the procedure for revoking a
juvenile’s probation or court supervision and changing the
disposition. Section 43-286(5)(a) allows a court to enter a
new disposition when there are new allegations that “the juve-
nile is again a juvenile described in” § 43-247(1), (2), (3)(b),
or (4). Complying with the procedures under § 43-286(5)
is important because in a new adjudication proceeding or a
revocation proceeding, the juvenile is entitled to procedural
protections, including the right to confront and cross-examine
adverse witnesses.21
[7] Of course, the Legislature would have been aware of
our holdings regarding changes to an existing disposition
before it enacted the 2013 and 2014 amendments to § 43-286.
Yet, it did not create a freestanding commitment hearing.
Instead, it specifically required a commitment to OJS to be
part of a juvenile court’s disposition. We must construe the
provisions of § 43-286 so that they are consistent and har-
monious.22 So when a juvenile court has already entered a
disposition under § 43-286(1)(a), the commitment to OJS
under § 43-286(1)(b) must be consistent with the procedures
for a new disposition under § 43-286(5). Summed up, under
§ 43-286(1), the State can file a motion to commit a juvenile
19
See, In re Interest of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008);
In re Interest of Torrey B., 6 Neb. Ct. App. 658, 577 N.W.2d 310 (1998).
20
See L.B. 463, § 4.
21
See Neb. Rev. Stat. § 43-279 (Reissue 2008) and § 43-286(5)(b)(ii).
22
See, e.g., Credit Mgmt. Servs. v. Jefferson, 290 Neb. 664, 861 N.W.2d
432 (2015), quoting Fisher v. PayFlex Systems USA, 285 Neb. 808, 829
N.W.2d 703 (2013); Hoppens v. Nebraska Dept. of Motor Vehicles, 288
Neb. 857, 852 N.W.2d 331 (2014).
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to OJS for placement at a YRTC at only three points in a
delinquency proceeding: (1) before a court enters an origi-
nal disposition, (2) before a court enters a new disposition
following a new adjudication, or (3) before a court enters
a new disposition following a motion to revoke probation
or supervision.
(c) State’s Commitment Motion Did
Not Comply With Procedures
for a New Disposition
Here, in the court’s disposition order following the first adju-
dication, the court placed Alan on probation and allowed him
to live with his mother. Before the court entered that disposi-
tion, the county attorney’s office had filed a supplemental peti-
tion with new allegations of conduct governed by § 43-247(1)
and (2). But the State did not file a commitment motion before
the court entered the first disposition that ordered probation
and allowed Alan to live with his mother.
Later, after Alan’s probation officer placed him in detention
for noncooperation, the county attorney’s office filed a com-
mitment motion. The allegations focused solely on Alan’s fail-
ure to comply with the terms of his probation. Yet, the county
attorney did not move to revoke Alan’s probation. Similarly,
the allegations in the county attorney’s two later commit-
ment motions were related to Alan’s noncooperation with his
probation terms. But the State never filed a motion to revoke
his probation.
These procedures did not comply with our case law regard-
ing changes to a disposition. The commitment motion did not
rest on new allegations under § 43-247. Because the motion
rested on probation violations, the State should have filed a
motion to revoke probation to support its requested change
in the disposition. Although Nebraska appellate courts have
previously reversed orders changing a disposition because of
procedural flaws, we do not find plain error here.
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(d) Commitment Hearing Did Not Deprive
Alan of Any Procedural Rights
[8] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process.23 It is true that we found plain error in In re Interest
of Markice M.24 There, the State claimed that its motion for
an evaluation hearing was a continuation of the disposition
phase, after which the juvenile court could change the dispo-
sition. We rejected that argument. We stated that the motion
contained no factual allegations that the juvenile had violated
a term of his probation or a court order. The probation offi-
cer asked for a placement change because of concerns about
the juvenile’s safety, not his probation violations. We held
that “[w]hen the State contends that a juvenile placed on
probation has violated a term of probation or an order of the
court, it is required to file a motion to revoke or change the
disposition.”25 We found plain error because it failed to do so.
Similarly, the Court of Appeals has held that a juvenile court
committed plain error in committing a juvenile to OJS for
placement at a YRTC when the State had not filed a pleading,
motion, or notice that claimed the juvenile had violated the
terms of his probation.26
[9] It is true that the State did not comply with our hold-
ing that it must move to revoke a juvenile’s probation when
it claims that a change in the disposition is required for pro-
bation violations. And we emphasize that prospectively, a
revocation motion is concurrently required even if the State
is seeking a juvenile’s commitment to OJS for probation
23
In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509
(2014).
24
In re Interest of Markice M., supra note 19.
25
Id. at 912-13, 750 N.W.2d at 349.
26
In re Interest of Torrey B., supra note 19.
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violations. But we have not previously held this. And the
State’s motion did put Alan on notice that it was seeking a
commitment to OJS because of his probation violations. Alan
did not contend that he did not have notice of its claim. And
he has not shown that the State denied him any protections
that he would have received had the State filed a revoca-
tion motion.
For probation revocations, § 43-286(5)(b)(ii) requires that
juveniles have specified procedural protections, such as the
rights to an attorney and to present evidence refuting the
State’s claims or showing mitigating circumstances. In par-
ticular here, a juvenile has the right to “confront persons
who have given adverse information concerning the alleged
violations [and] cross-examine such persons.”27 Alan was rep-
resented by counsel and not precluded from presenting evi-
dence. He argues that he could not confront or cross-examine
any persons “who authored the exhibit or who were identified
as sources in the exhibit.”28 But the record fails to show that
he attempted to subpoena the authors of the two evaluations
attached to Mercer’s affidavit.
As discussed above, in In re Interest of Nedhal A.,29 we
specifically held that the Office of Probation Administration
must provide a report to the court showing that it has thor-
oughly considered whether untried probation conditions or
community-based services have a reasonable probability for
­
success or are not feasible. And the office must consider the
success or failure of previous supervisory conditions, even
if they were imposed by a different state agency.30 Mercer
prepared that summary, and Alan’s attorney called her as a
witness. But Alan argues that because the State did not call
27
§ 43-286(5)(b)(ii).
28
Brief for appellant at 17.
29
In re Interest of Nedhal A., supra note 11.
30
See id.
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Mercer, he could not cross-examine her. He argues that his
attorney could ask Mercer only open-ended questions on direct
examination. We reject that argument. Nothing prevented his
attorney from asking Mercer leading questions.31
We conclude that Alan was not denied any procedural due
process rights at the commitment hearing. We turn to his argu-
ment that the doctrine of res judicata precluded the court’s
consideration of the State’s evidence at the August 24, 2015,
commitment hearing.
2. State’s Evidence That A lan H ad Sabotaged
a Placement Was Not Barred by the
Doctrine of Claim Preclusion
On August 24, 2015, the court heard the county attorney’s
amended commitment motion and Alan’s motion to bar any
new evidence of his conduct before June 18. The court took
judicial notice of the June 18 transcript. Relying on In re
Interest of V.B. and Z.B.,32 the court concluded it was not
limited to considering new evidence that had arisen after the
June 18 commitment hearing. The court reasoned that this case
showed a juvenile court can consider new evidence with evi-
dence previously presented in a juvenile case.
Alan argues that in the second amended commitment motion,
the only new allegations were the claims that (1) he had sabo-
taged a placement at an Arizona residential treatment facility
and (2) no other suitable placements were available. He con-
tends that res judicata, i.e., the doctrine of claim preclusion,33
barred any evidence that the State could have presented at the
June 18 commitment hearing. He also contends that the court
could not consider evidence showing a change of circum-
stances. He argues that because the court’s first order failed to
31
See Neb. Rev. Stat. § 27-611 (Reissue 2008).
32
In re Interest of V.B. and Z.B., 220 Neb. 369, 370 N.W.2d 119 (1985).
33
See Hara, supra note 2.
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set out findings of fact, the record fails to show what changed
circumstances the court could have relied on in committing
Alan. We disagree.
As stated, our review of this case is de novo on the record
and we reach our conclusions independently of the juve-
nile court’s findings.34 Under this review, we conclude that
the record did show changed circumstances that justified the
commitment.
(a) Claim Preclusion Bars Relitigation
of Claims That Were Available
in Previous Litigation
We agree with Alan that the State could have presented most
of the evidence it presented at the August 24, 2015, commit-
ment hearing at the earlier June 18 hearing. We recognize that
the State attempted to present evidence of its previous super-
visory efforts through Mercer’s testimony on June 18. Part
of the procedural problem in this case stems from the court’s
failure to overrule Alan’s incorrect objection to that evidence.
But our decision in In re Interest of Nedhal A.35 was issued in
December 2014, 6 months before the court’s first commitment
hearing. And the Office of Probation Administration failed to
present the required report showing the State’s previous super-
visory efforts and the office’s thorough consideration of other
probation or supervisory options. So at the August 24 hearing,
the court was limited to considering evidence that showed
changed circumstances.
[10,11] Claim preclusion bars the relitigation of a claim that
has been directly addressed or necessarily included in a former
adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits,
34
In re Interest of Isabel P. et al., supra note 1.
35
In re Interest of Nedhal A., supra note 11.
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and (4) the same parties or their privies were involved in both
actions.36 The doctrine bars relitigation not only of those mat-
ters actually litigated, but also of those matters that a party
could have litigated in the prior action.37 The doctrine rests
on the necessity to terminate litigation and on the belief that
a person should not be vexed twice for the same cause.38
(b) Claim Preclusion Does
Not Bar Consideration of
Changed Circumstances
In In re Interest of V.B. and Z.B., the case the court relied
on, we discussed the effect of claim preclusion in consider-
ing successive motions to terminate parental rights.39 After
the first hearing, the juvenile court declined to terminate the
parents’ rights. After the State filed a supplemental petition to
terminate, the court found the evidence sufficient to terminate
both parents’ rights. On appeal, the parents argued that claim
preclusion barred reconsideration of evidence presented at the
previous hearing which did not result in a termination order.
We disagreed that “the only relevant time period in this case
is from the date of the court’s previous order.”40 We quoted
the following statement from a case involving a child cus-
tody dispute:
“A custodial order is conclusive as to all matters prior
to its promulgation. But the doctrine of res judicata can-
not settle a question of a child’s welfare for all time to
come; it cannot prevent a court at a subsequent time
from determining what is best for the children at that
time. The usual way of expressing this rule is to say
36
Hara, supra note 2.
37
See id.
38
Id.
39
In re Interest of V.B. and Z.B., supra note 32.
40
Id. at 371, 370 N.W.2d at 121.
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that ‘circumstances have changed’ when the order is no
­longer in the children’s interest.”41
We concluded that the same reasoning applied to succes-
sive parental termination proceedings:
In determining whether a change of circumstances
exists so as to modify a juvenile court’s previous order
to a decision terminating parental rights, the court can
use the time period prior to the previous order in con-
junction with the time period after the previous order to
determine whether there is a requisite change of circum-
stances since the original disposition order. . . . When
a second termination proceeding is not itself barred,
the proof is not limited by res judicata or collateral
estoppel principles to facts or evidence which was not
considered in, or which came into being after, the first
proceeding. . . . The court would have been barred in
the instant case from using evidence prior to the [first]
order as the sole basis for terminating parental rights.
However, the court correctly used evidence from the
time period prior to the [first] order in conjunction with
evidence from the time period after the [first] order
in determining that there was the requisite change of
circumstances or stagnation of conditions to terminate
parental rights . . . .42
[12] In In re Interest of V.B. and Z.B., we held that a juve-
nile court can compare the facts as they existed when it entered
a previous order to new facts arising after that order to deter-
mine whether a change in circumstances warrants a different
decision. We conclude that this general principle applies when
the State files successive motions to change a juvenile’s dispo-
sition under § 43-286.
41
Id. at 372, 370 N.W.2d at 121 (citations omitted).
42
Id. at 372, 370 N.W.2d at 122.
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3. Change in Circumstances Was
Sufficient to Support the
Court’s Commitment Order
At the first commitment hearing on June 18, 2015, Alan
had still not completed the court-ordered chemical depen-
dency evaluation. The evaluation was not completed until
June 29. This mental health provider stated that Alan had
superficially cooperated in the evaluation and had provided
information that conflicted with facts the provider knew about
from other sources. She concluded that if the court placed
him in his mother’s home, he would present a risk to the
community because of low supervision in the home and his
history of aggression. She concluded that finding a placement
in a group home with a treatment program would also be dif-
ficult because he was unlikely to comply with a structured
environment. She cited his high-risk and aggressive behav-
iors, gang involvement, low response to psychiatric treatment,
and refusal to take medications or engage in probation. She
suggested a placement in “a boot camp program” or at the
Arizona residential treatment facility, which was impliedly a
highly structured program also.
But Mercer stated in her affidavit that after she obtained a
placement for Alan at the Arizona facility, he sabotaged that
placement during a telephone interview with the facility’s rep-
resentative. Alan “expressed that he did not want to go there
and indicated that he would assault staff or other youths or
run away.” In Mercer’s summary of supervision efforts, she
reported that Alan told the representative that he would not
cooperate with any programs and would never give up his
gang ties.
We conclude that this evidence was sufficient to show a
change in circumstances warranting Alan’s commitment to
OJS for placement at a YRTC. The evidence at the June 18,
2015, hearing showed that Alan had not cooperated with pro-
bation and psychiatric treatment while placed in his home.
But the new evidence showed that Alan was also unlikely to
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cooperate with any out-of-home treatment programs even after
the State had made substantial efforts for his rehabilitation.
And even if treatment at the Arizona facility did not constitute
community-based services, Alan’s conduct in response to that
potential placement showed that he would not cooperate with a
highly structured treatment placement that would provide more
security than a typical group home treatment program. This
evidence effectively tied the court’s hands. It could only rea-
sonably conclude that placing Alan in his home, a group home,
or even a more structured treatment program would result in
the endangerment of himself or others. It did not err in finding
that all options for probation supervision and community-based
serv­ices had been exhausted and that Alan’s placement at a
YRTC was a matter of urgent necessity for his own protection
or the protection of others.
We conclude that the court did not err in placing Alan on
intensive supervision probation and committing him to OJS
for placement at the YRTC in Kearney, Nebraska.
A ffirmed.