In re Interest of Robert W. , 27 Neb. Ct. App. 11 ( 2019 )

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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11In re I nterest of
Robert W., a child
under 18 years of age.
State of Nebraska, appellee,
v. Robert W., appellant.
___ N.W.2d ___
Filed March 12, 2019. No. A-18-166.
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. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
3. Jurisdiction. An actual case or controversy is necessary for the exercise
of judicial power.
4. Moot Question: Words and Phrases. A case becomes moot when
the issues initially presented in the litigation cease to exist, when the
litigants lack a legally cognizable interest in the outcome of litiga-
tion, or when the litigants seek to determine a question which does not
rest upon existing facts or rights, in which the issues presented are no
longer alive.
5. Courts: Judgments. In the absence of an actual case or controversy
requiring judicial resolution, it is not the function of the courts to render
a judgment that is merely advisory.
6. Moot Question. As a general rule, a moot case is subject to summary
dismissal.
7. Moot Question: Appeal and Error. Under certain circumstances, an
appellate court may entertain the issues presented by a moot case when
the claims presented involve a matter of great public interest or when
other rights or liabilities may be affected by the case’s determination.
8. Moot Question: Words and Phrases. In determining whether the
public interest exception should be invoked, the court considers the
public or private nature of the question presented, the desirability of an
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11authoritative adjudication for future guidance of public officials, and the
likelihood of future recurrence of the same or a similar problem.
9. Minors: Proof. The exhaustion requirement of Neb. Rev. Stat.
§ 43-251.01(7)(a) (Reissue 2016) demands evidence establishing that
no other community-based resources have a reasonable possibility for
success or that all options for community-based services have been
thoroughly considered and none are feasible.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and James G.
Sieben for appellant.
Patrick F. Condon, Lancaster County Attorney, and Julie
Mruz for appellee.
Pirtle, Bishop, and A rterburn, Judges.
Pirtle, Judge.
INTRODUCTION
Robert W. appeals from two orders of the separate juvenile
court of Lancaster County finding that all community-based
resources to assist him and his family in keeping Robert
in the family home had been exhausted and ordering him
placed outside of the home. Based on the reasons that follow,
we affirm.
BACKGROUND
On November 6, 2017, a petition to adjudicate Robert was
filed, alleging that he had committed two felony offenses:
terroristic threats and use of a deadly weapon to commit a
felony. The charges stemmed from an incident in which Robert
pointed a handgun at the back of another juvenile’s head. An
order for immediate custody was attached to the petition. A
supplemental petition was filed on November 9, alleging three
additional misdemeanor charges. On November 17, Robert
entered a no contest plea to the use of the deadly weapon to
commit a felony offense and he was adjudicated under Neb.
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11Rev. Stat. § 43-247(2) (Reissue 2016). The remaining charges
were dismissed.
Following his adjudication, the court ordered him to be
“detained at the Lancaster County Juvenile Detention Center
[and to] cooperate with a co-occurring evaluation” with psy-
chological testing. Dr. Leland Zlomke, a licensed psychologist,
conducted an evaluation on December 4, 2017, and an updated
evaluation on December 21.
Four continued disposition hearings were held between
December 8, 2017, and February 16, 2018. During this time,
Robert remained at the detention center. The evidence pre-
sented at the disposition hearings showed that when police
officers went to Robert’s home on November 3, 2017, to
retrieve the gun used in the offense, officers noticed a “strong
odor of marijuana” throughout the home, “as if marijuana
is smoked within the house on a consistent basis.” Robert’s
mother, Kelley B., had a boyfriend, Jamil W., who lived with
Robert and Kelley. Jamil has a criminal history involving mari-
juana. Probation reports showed that there had been repeated
burgla­ries at Robert’s home, and the police indicated that the
break-ins were related to the belief that there were large quanti-
ties of illegal substances in the home.
At the first disposition hearing on December 8, 2017,
Robert’s probation officer, Allison Rusler, stated that Robert
and Kelley wanted him to return to his home. Rusler dis-
cussed the safety plan recommended for Robert if he were to
be placed in Kelley’s home. Rusler testified that Kelley had
indicated she was willing to follow the safety plan. The plan
included a requirement that Robert be supervised by an adult
at all times. Kelley indicated that Jamil would be one adult
that could supervise Robert, and she indicated they coparent
together. In addition to Jamil’s criminal history of drug use,
Jamil has a history of assaultive behavior, including domestic
violence against Kelley. Most recently, in October 2017, Jamil
was charged with assault in the second degree for “assaulting
an individual with a baseball bat.”
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11Kelley also provided the names of other individuals who
could assist her in continuously supervising Robert, including
Desiree H., who had a criminal history that included citations
for marijuana possession as recently as August 2017 and whose
own children have been adjudicated and removed from her
home. Other names listed as potential supports for Robert’s
at-home placement included Desiree’s mother, who was cited
for “child abuse/neglect” in 2001; an individual who lives out-
side of the state and who could not assist with implementing
the safety plan; and an individual who struggles with mental
health disorders.
Rusler also discussed the first psychological evaluation per-
formed by Zlomke. In the initial evaluation, Zlomke noted that
Robert had a moderate to high risk of recidivism. Zlomke’s
recommendations included weekly outpatient psychotherapy,
cognitive behavioral therapy and “moral decision making”
therapy, in-home family therapy and skill building, random
drug screenings, and a stable school placement. According to
Rusler, Zlomke did “not necessarily recommend[] himself that
[Robert] be released” to live in Kelley’s home, but did rec-
ommend that a “strict safety plan” would need to be put into
place if Robert were placed in Kelley’s home. Rusler indicated
that there would be significantly less risk to the community if
Robert were to be placed “in a group home setting” as opposed
to in-home placement.
Rusler informed the court that Zlomke did not have impor-
tant collateral information available at the time he completed
the first evaluation. Therefore, the court allowed the proba-
tion office to provide Zlomke with supplemental information,
which led to an updated evaluation report.
Zlomke’s updated evaluation, dated December 21, 2017, was
discussed at the continued disposition hearing on December
28. The evaluation stated that Robert has a long-term history
of “impulsive, disrespectful and aggressive behavior,” starting
around age 10. Robert had received special education sup-
ports for several years and had been educated in schools with
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11additional supports for youth with behavioral disturbances on
and off over the years.
The updated evaluation noted that Robert’s school attend­
ance worsened significantly between 2013 and 2016. In the
most recent school year at the time of the evaluation, he was
tardy to first period approximately 90 percent of the time. In
2017, Robert was suspended from school three times between
September and November. The suspensions resulted from inci-
dents involving disrespect of authority, verbal threats (including
threats to bring a weapon to school on September 9), assault of
another student on October 4, and actual possession of a gun
and threats on November 3. Outside of school, Robert’s crimi-
nal activity escalated over the course of 20l7. The incidents
included an assault in April, a minor in possession charge in
May, shoplifting and a second assault in October, and finally
the incident with the loaded firearm in November.
Zlomke’s updated evaluation noted that Robert had par-
ticipated in a diversion program for the minor in possession
charge, but Robert had reoffended before completion of the
program. Robert was charged with shoplifting and assault
while in the diversion program. Robert was told that if he
finished diversion successfully, he would not be referred to
the county attorney for the shoplifting and assault charges.
However, Robert was subsequently discharged from the diver-
sion program after the November 2017 gun incident in the
present case.
Zlomke diagnosed Robert with childhood-onset conduct
disorder, a condition that manifests as “defiance, anger and
disruptive” behaviors when challenged by authority figures,
and “[o]ther specified impulse control problems.” Zlomke
maintained that Robert posed a “moderate to high” risk for
recidivism without appropriate supports, supervision, and
treatment.
Zlomke’s updated evaluation made several recommenda-
tions as to how to handle Robert’s case going forward. First,
Zlomke recommended that due to Robert’s risk level and the
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11seriousness of his offense, Robert would need “a coordinated
nearly continuously supervised safety plan [which] will need
outside supports to the family in-home and community with
close collaboration between home and school. Outside sup-
ports may include evening reporting, tracker/community sup-
port and in-home treatment nearly every day initially. Possibly
electronic monitoring as well.” Zlomke also recommended
“[i]ntense special educational supports,” including collabo-
ration with parents or trackers to “‘pass’” Robert from one
adult who is sure he has no weapons to the next adult. He also
continued his recommendations from his initial report for indi-
vidual therapy, “moral decision making” therapy, and random
drug screens.
At the December 28, 2017, disposition hearing, Jody Busse,
Rusler’s supervisor, testified that Yankee Hill School, a highly
supervised and highly structured high school in Lincoln,
Nebraska, was being considered as the school Robert would
attend. She testified that she believed the school would meet
Robert’s educational needs. She also indicated that Yankee
Hill School could at least in part meet the recommendation
for intense special education supports. Busse also testified that
the probation office was recommending an intensive in-home
service such as “Multisystemic Therapy” or “Intensive Family
Preservation.” Busse also testified that there was difficulty in
finding therapy providers to treat Robert in his home, as there
were concerns about the severity of his offense and the com-
munity safety risk.
Kelley testified that if Robert were to be placed in his home,
she would take Robert to school in the morning and pick him
up after school and she would take him to work with her dur-
ing times when school was not in session.
Regarding out-of-home placements, as of the December 28,
2017, hearing, Robert had been accepted by Clarinda Academy
in Clarinda, Iowa, and his case was under review by several
group homes. The court determined that disposition should be
continued because it wanted to hear back from other residential
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11placements before entering final disposition and because it
wanted more information about what type of safety plan could
be developed that did not have “gaps.”
The next disposition hearing was held on January 16, 2018.
Rusler explained the safety plan that was developed by the pro-
bation office which included either “Multisystemic Therapy” or
“Intensive Family Preservation” services in the home; Robert’s
attending Yankee Hill School; Kelley’s taking him to and from
school and taking him with her to work when necessary; an
electronic monitor; and individual and family therapy. The
safety plan also recommended that Robert have no contact with
certain individuals and submit to random drug tests. Rusler
testified that a “tracker” could also be used, which is someone
who would meet with Robert multiple times per week, as well
as day and/or evening reporting if needed. Rusler also testified
that the safety plan required that Robert have constant supervi-
sion, which involved a risk that there would not be someone
available to supervise him 100 percent of the time.
Rusler also testified at the January 16, 2018, hearing that
it was unlikely that Yankee Hill School would be able to
provide one-on-one monitoring of Robert; rather, supervision
would be by teachers that are assigned to classes just like any
other school. She further explained that she believed Yankee
Hill School would do its best to comply with the safety
plan, but she did not believe that there would be someone to
walk Robert from classroom to classroom or that the school
would provide extra supervision for Robert as compared to
other students.
Rusler noted that Robert had been accepted for placement
at the Omaha Home for Boys (OHB) and Clarinda Academy,
pending an opening. She testified that Robert would be able to
immediately begin the therapy services Zlomke recommended
at either of these placements. She also stated that OHB and
Clarinda Academy both have their own on-campus schools.
At the same hearing, Kelley again testified that she would
follow the safety plan and was willing to cooperate with any
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11services put in place. She also confirmed her intent to rely on
help from Desiree, Desiree’s mother, and an individual who
struggles with mental health disorders during times she was
unable to supervise Robert.
On January 24, 2017, the court entered an “Order Continuing
Dispositional Hearing on the Second Amended Petition” not-
ing that Zlomke recommended a coordinated “‘nearly con-
tinuously supervised’” safety plan and the probation office had
made an effort to develop such a plan. The court found that the
supports and safety plan that could be developed in the com-
munity were inadequate to provide the level of supervision that
Robert required to be able to remain in the family home. The
court stated that Robert presented
a serious risk to the community and himself. Given the
high level of risk and inadequate safety plan available
in the home, even with supports provided by proba-
tion, the Court finds: all available community-based
resources have been exhausted to assist the juvenile and
his family; and maintaining the juvenile in the home
presents a significant risk of harm to the juvenile and
the community.
The court continued the disposition hearing pending an open-
ing at OHB.
Following a disposition hearing on February 16, 2018, the
court entered an order titled “Reasonable Effort Determination;
Order Continuing Detention; Notice of Review Hearing,” find-
ing that reasonable efforts had been made and all available
community resources had been exhausted to assist Robert
and his family in maintaining him in the family home. The
court stated that the efforts considered and attempted included
the probation office’s efforts to develop an adequate safety
plan, contact with in-home therapeutic services, background
checks of possible safety monitors, evaluation, and updated
evaluation. The court further found that maintaining Robert
in the home presented a significant risk of harm to him and
the community.
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11The court also entered an “Agreement and Order of
Probation,” placing Robert on probation for the duration of
his minority, with a review in 6 months, and ordering him to
reside at OHB.
Robert filed a timely appeal. Subsequently, the State filed a
“Suggestion of Mootness and Motion to Dismiss,” along with
a motion to file a supplemental transcript. The State alleged
that following a probation review hearing in the juvenile court
on August 20, 2018, Robert was allowed to transition back to
Kelley’s home, and that as of August 28, he was residing there
full time. As a result, the State alleged Robert’s appeal was
now moot. Robert filed an objection to the State’s “Suggestion
of Mootness and Motion to Dismiss.” He does not dispute that
he is back in Kelley’s home, but argues that such fact alone
does not make the case moot. We denied the State’s motion
at the time “with arguments preserved for final submission to
the court.”
ASSIGNMENT OF ERROR
Robert assigns that the juvenile court erred in finding that
all community-based resources to assist him and his family had
been exhausted prior to the court entering an order removing
Robert from his family home.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Dana H., 299 Neb. 197, 907
N.W.2d 730 (2018).
ANALYSIS
Mootness.
[2,3] Before reaching the legal issues presented, we must
first address the State’s argument that this appeal has become
moot. An appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it. Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d
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IN RE INTEREST OF ROBERT W.
Cite as 27 Neb. App. 11868 (2018). An actual case or controversy is necessary for the
exercise of judicial power. Id.[4-6] A case becomes moot when the issues initially pre-
sented in the litigation cease to exist, when the litigants lack a
legally cognizable interest in the outcome of litigation, or when
the litigants seek to determine a question which does not rest
upon existing facts or rights, in which the issues presented are
no longer alive. Id. Usually, in the absence of an actual case or
controversy requiring judicial resolution, it is not the function
of the courts to render a judgment that is merely advisory. Id.Therefore, as a general rule, a moot case is subject to summary
dismissal. Id.In this appeal, Robert challenges his placement outside his
home. At this point in time, Robert is no longer in out-of-home
placement—he is living with his mother, Kelley. We conclude
that this case is moot because the parties no longer have a cog-
nizable interest in the outcome of the determination of whether
the court erred in finding that all community-based resources
had been exhausted and in placing Robert outside the home as
a dispositional order.
[7,8] Nonetheless, under certain circumstances, an appellate
court may entertain the issues presented by a moot case when
the claims presented involve a matter of great public interest
or when other rights or liabilities may be affected by the case’s
determination. Weatherly v. Cochran, supra. In determining
whether the public interest exception should be invoked, the
court considers the public or private nature of the question
presented, the desirability of an authoritative adjudication for
future guidance of public officials, and the likelihood of future
recurrence of the same or a similar problem. Id.Although the appeal is moot, we choose to address,
under the public interest exception, the issue of whether all
­community-based resources had been exhausted when the court
determined to place Robert outside his home. Authoritative
guidance on the matter is desirable because it is likely to
reoccur in the future. We note, however, that the issue of
­
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fact specific and must be determined based on the circum-
stances of each case. Because we conclude that the public
interest exception to the mootness doctrine applies, we next
address the merits of the issue presented.
Out-of-Home Placement.
Robert assigns that the juvenile court erred in finding that
all community-based resources to assist him and his family
had been exhausted prior to the court’s entering an order plac-
ing him out of the home. The controlling statute applicable
to this case is Neb. Rev. Stat. § 43-251.01(7) (Reissue 2016),
which provides:
A juvenile alleged to be a juvenile as described in subdi-
vision (1), (2), (3)(b), or (4) of section 43-247 shall not
be placed out of his or her home as a dispositional order
of the court unless:
(a) All available community-based resources have been
exhausted to assist the juvenile and his or her family; and
(b) Maintaining the juvenile in the home presents a sig-
nificant risk of harm to the juvenile or community.
[9] The exhaustion requirement of § 43-251.01(7)(a)
demands evidence establishing that no other community-based
resources have a reasonable possibility for success or that all
options for community-based services have been thoroughly
considered and none are feasible. In re Interest of Keyanna R.,
299 Neb. 356, 908 N.W.2d 82 (2018); In re Interest of Dana
H., 299 Neb. 197, 907 N.W.2d 730 (2018).
The evidence showed that the probation office tried to
develop an adequate safety plan that would allow Robert to
stay in his home. However, the plan required that Robert be
supervised by an adult at all times. There was obvious risk to
this plan in that it would be difficult to enforce 100 percent
of the time. The safety plan also included in-home therapy,
an electronic monitor, no contact with certain individuals, and
random drug tests. Probation also considered use of a tracker,
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Cite as 27 Neb. App. 11who could meet with Robert up to five times per week, as
well as day and/or evening reporting if needed. The proba-
tion office also performed background checks on the indi-
viduals Kelley identified as those she would rely on for help
in supervising Robert. The individuals included Jamil, Kelley’s
live-in boyfriend who has a criminal history of assault, includ-
ing assault of Kelley, as well as a criminal history involving
marijuana. The other individuals Kelley identified to help
supervise Robert all have various issues making them less
than ideal candidates for supervising Robert. Also, Yankee Hill
School, the school that Robert was going to attend, could not
provide the level of supervision Robert required. The evidence
also showed that Robert was unsuccessfully discharged from a
diversion program in regard to a previous crime. He also posed
a moderate to high risk factor of recidivism without appropri-
ate supports, supervision, and treatment.
The record establishes that other options for community-
based resources were thoroughly considered but deemed
inappropriate or unnecessary. We conclude that the evidence
supports the juvenile court’s determination that all available
community-based resources had been exhausted to assist
Robert and his family in maintaining him in the family home,
as required by § 43-251.01(7)(a).
In regard to the risk analysis required under § 43-251.01(7)(b),
Robert does not allege error in the court’s finding that this
requirement was met. He alleges only that the court found that
this factor was met and then improperly relied on that finding
to conclude all community-based resources were exhausted.
We conclude that this factor is clearly met, and we need not
address it further.
CONCLUSION
For the reasons set forth above, we affirm the orders of the
juvenile court finding that all community-based resources were
exhausted and placing Robert outside his home.
A ffirmed.