In re Interest of Josue G. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2018 01:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
In re I nterest of Josue G., a child
under 18 years of age.
State of Nebraska, appellee, v.
Josue G., appellant.
___ N.W.2d ___
Filed April 26, 2018. No. S-17-812.
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. Juvenile Courts: Statutes: Jurisdiction. A juvenile court is a statuto-
rily created court of limited and special jurisdiction, and it has only the
authority which the statutes confer on it.
3. Juvenile Courts: Probation and Parole: Pleadings. Neb. Rev. Stat.
§ 43-286(5) (Reissue 2016) authorizes a juvenile court to change an
existing disposition of probation, but its power to do so is premised
upon the existence of an appropriate motion and upon its compliance
with the specified procedures.
4. 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.
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth G. Crnkovich, Judge. Vacated and remanded.
Thomas C. Riley, Douglas County Public Defender, Ryan T.
Locke, and Katie L. Jadlowski for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Derr and Urbom, District Judges.
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IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
Cassel, J.
INTRODUCTION
After a juvenile on probation pursuant to a previous adjudi-
cation allegedly committed a new offense, the State moved to
revoke probation. But when the juvenile entered a denial to the
new charge, the State withdrew its motion. Nonetheless, the
separate juvenile court of Douglas County extended the term of
probation and imposed additional community service. Because
the court did not follow applicable statutory procedures and
thereby exceeded its statutory authority, we vacate the order,
and remand the cause to the juvenile court for further proceed-
ings consistent with this opinion.
BACKGROUND
The juvenile court adjudicated Josue G. under Neb. Rev.
Stat. § 43-247(1) (Reissue 2016). On September 27, 2016, the
court entered a dispositional order, placing Josue on probation
for 4 months. Among other things, it ordered Josue to complete
20 hours of community service.
On January 24, 2017, the State moved to revoke Josue’s
probation based on alleged violations of probationary terms.
The juvenile court found that the terms of Josue’s probation
should not automatically terminate. A February 28 order stated
that the State withdrew its motion to revoke probation and that
the parties agreed Josue would abide by the court’s previous
orders, except as therein modified. The court extended Josue’s
probation for 6 months.
On May 11, 2017, the State again moved to revoke Josue’s
probation. The motion alleged that Josue had incurred a new
law violation, used marijuana, and failed to attend educa-
tional programming.
On July 5, 2017, the juvenile court held a hearing on the
motion to revoke probation and an arraignment on a new
charge. After Josue entered a denial to the new charge, the
court asked how the State wished to proceed on its motion to
revoke. The following colloquy occurred:
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
[The State]: Your Honor, the State is going to withdraw
its motion.
THE COURT: You are. Even though we have a new
charge? You are not going to talk to [counsel for Josue]
or anything? Huh.
All right. It is your right. Motion withdrawn.
What do you wish to do next then? Did you wish to
have me review the matter?
[The State]: Yes, Your Honor.
THE COURT: I see. All right.
The court then heard from an individual associated with proba-
tion and ascertained that counsel for the parties agreed Josue
should continue with his therapy. The court also engaged in a
discussion with Josue during which it told him he needed to
perform volunteer work.
On July 7, 2017, the juvenile court entered an order titled
“Violation of Probation Hearing/Motion Is Withdrawn/Order.”
After reciting that the motion to revoke probation was with-
drawn, the order stated in part:
The Court finds that . . . Josue . . . must do com-
munity service until actively employed, AND IT IS SO
ORDERED.
IT IS FURTHER ORDERED that based on the filing
of the Motion to Revoke Probation and additional charges
pending pursuant to JV 17 892, the terms and conditions
of probation shall not automatically terminate on August
28, 2017 . . . .
IT IS FURTHER ORDERED that the previous orders
of this Court remain in full force and effect, except as
modified herein, AND IT IS SO ORDERED.
IT IS FURTHER ORDERED that the probation review
hearing will be held on December 5, 2017 at 9:45 a.m.
unless application is made for a hearing prior thereto.
Josue filed a timely appeal, and we moved the case to
our docket.1
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
ASSIGNMENT OF ERROR
Josue assigns that the juvenile court violated his due process
rights by extending his probation and making further disposi-
tional orders without a hearing.
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.2
ANALYSIS
[2] Josue argues that the juvenile court did not follow statu-
tory procedures when it extended his probation and ordered
community service. We first recall that a juvenile court is a
statutorily created court of limited and special jurisdiction, and
it has only the authority which the statutes confer on it.3 Thus,
we look to the authority conferred by statute. Josue relies upon
a specific statute, and because the State did not file a brief in
this appeal, there is no suggestion that any other statute autho-
rized the juvenile court’s order.
[3] Neb. Rev. Stat. § 43-286(5) (Reissue 2016) authorizes a
juvenile court to change an existing disposition of probation,
but its power to do so is premised upon the existence of an
appropriate motion and upon its compliance with the specified
procedures. We have previously emphasized the importance
of complying with the procedures under § 43-286(5), because
a juvenile is entitled to procedural protections, including the
right to confront and cross-examine adverse witnesses.4
Section 43-286(5)(b) provides:
When a juvenile is placed on probation or under the
supervision of the court for conduct under subdivision
(1), (2), (3)(b), or (4) of section 43-247 and it is alleged
2
In re Interest of Dana H., ante p. 197, 907 N.W.2d 730 (2018).
3
See In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d
413 (2015).
4
See In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
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IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
that the juvenile has violated a term of probation or super-
vision or that the juvenile has violated an order of the
court, a motion to revoke probation or supervision or to
change the disposition may be filed and proceedings held
as follows:
(i) The motion shall set forth specific factual allega-
tions of the alleged violations and a copy of such motion
shall be served on all persons required to be served by
sections 43-262 to 43-267;
(ii) The juvenile shall be entitled to a hearing before
the court to determine the validity of the allegations. At
such hearing the juvenile shall be entitled to those rights
relating to counsel provided by section 43-272 and those
rights relating to detention provided by sections 43-254
to 43-256. The juvenile shall also be entitled to speak and
present documents, witnesses, or other evidence on his or
her own behalf. He or she may confront persons who have
given adverse information concerning the alleged viola-
tions, may cross-examine such persons, and may show
that he or she did not violate the conditions of his or her
probation or supervision or an order of the court or, if
he or she did, that mitigating circumstances suggest that
the violation does not warrant revocation of probation
or supervision or a change of disposition. The hearing
shall be held within a reasonable time after the juvenile
is taken into custody;
(iii) [authorizing hearing to be conducted in an infor-
mal manner];
(iv) [providing for a preliminary hearing when the
juvenile is confined, detained, or otherwise significantly
deprived of his or her liberty];
(v) If the juvenile is found by the court to have violated
the terms of his or her probation or supervision or an
order of the court, the court may modify the terms and
conditions of the probation, supervision, or other court
order, extend the period of probation, supervision, or
other court order, or enter any order of disposition that
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IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
could have been made at the time the original order was
entered; and
(vi) In cases when the court revokes probation, super-
vision, or other court order, it shall enter a written
statement as to the evidence relied on and the reasons
for revocation.
(Emphasis supplied.)
Under § 43-286(5)(b), a juvenile’s disposition may not
be changed in the absence of a motion to revoke probation
or supervision or to change the disposition. Although the
State filed such a motion, it withdrew the motion before it
was heard. Thus, there was no hearing as contemplated in
§ 43-286(5)(b)(ii) to establish whether Josue violated a term of
his probation, supervision, or court order. And without such a
hearing, there could be no finding by the juvenile court under
§ 43-286(5)(b)(v) that Josue violated a term of his proba-
tion or an order of the court. Because there was no motion to
revoke probation, the juvenile court lacked authority to extend
Josue’s probation and order that he engage in community serv­
ice until employed.
For the sake of completeness, we note that § 43-286 was
amended with an effective date of August 24, 2017.5 However,
the amendments do not diminish the statutory prerequisites
to a juvenile court’s authority to modify the terms and condi-
tions of probation, extend the period of probation, or enter a
different order of disposition. And we are aware that another
statute was amended, with the same effective date, to autho-
rize a juvenile court at any time during probation to “reduce
or eliminate any of the conditions imposed on the juvenile.”6
But, obviously, that provision does not authorize an exten-
sion of the length of probation or an increase in the terms
of probation.
The conclusion that the statutory procedure in § 43-286
must be followed in order to change the terms of a juvenile’s
5
See Neb. Rev. Stat. § 43-286 (Supp. 2017).
6
Neb. Rev. Stat. § 43-286.01(10) (Supp. 2017).
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IN RE INTEREST OF JOSUE G.
Cite as 299 Neb. 784
existing disposition is amply supported by case law.7 The
Nebraska Court of Appeals recently discussed this case law
in detail,8 and we need not repeat that discussion here. Suffice
it to say, both this court and the Court of Appeals have held
that once a court has entered a disposition, it is plain error to
change that disposition in the absence of compliance with the
applicable statutory procedures.9
Because the juvenile court changed the preexisting disposi-
tion in the absence of an appropriate motion and without com-
plying with the applicable statutory procedures, it exceeded its
authority. We vacate the juvenile court’s July 7, 2017, order.
[4] Josue also argues that the juvenile court violated his
due process rights. We do not reach this argument. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.10 As
discussed above, the court changed Josue’s dispositional order
in the absence of a motion and without a hearing to determine
whether Josue violated a term of his probation or court order.
Because the juvenile court exceeded its statutory authority, no
further analysis is needed.
CONCLUSION
Because the juvenile court exceeded its statutory author-
ity in changing the terms of Josue’s probation, we vacate the
juvenile court’s July 7, 2017, order and remand the cause
to the juvenile court for further proceedings consistent with
this opinion.
Vacated and remanded.
7
See, In re Interest of Alan L., supra note 4; In re Interest of Markice M.,
275 Neb. 908, 750 N.W.2d 345 (2008); In re Interest of Iyana P., 25 Neb.
App. 439, 907 N.W.2d 333 (2018); In re Interest of Torrey B., 6 Neb. Ct. App.
658, 577 N.W.2d 310 (1998).
8
In re Interest of Iyana P., supra note 7.
9
See, In re Interest of Markice M., supra note 7; In re Interest of Torrey B.,
supra note 7.
10
In re Interest of Carmelo G., 296 Neb. 805, 896 N.W.2d 902 (2017).