In re Interest of Steven S.

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
In re I nterest of
Steven S., a child
under18 years of age.
State of Nebraska, appellee,
v. Steven S., appellant.
___ N.W.2d ___
Filed March 23, 2018. No. S-17-1155.
1. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. An appel-
late court reviews a juvenile court’s decision to transfer a juvenile
offender’s case to county court or district court de novo on the record
for an abuse of discretion.
2. Juvenile Courts: Appeal and Error. When the evidence is in conflict,
an appellate court may give weight to the fact that the lower court
observed the witnesses and accepted one version of the facts over
the other.
3. Courts: Juvenile Courts: Jurisdiction: Proof. When the prosecution
seeks to transfer a juvenile offender’s case to criminal court, the juve-
nile court must retain the matter unless a preponderance of the evidence
shows that the proceeding should be transferred to the county court or
district court. The prosecution has the burden by a preponderance of the
evidence to show why such proceeding should be transferred.
4. Courts: Juvenile Courts: Jurisdiction. In determining whether a case
should be transferred to criminal court, a juvenile court should consider
those factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016). In
order to transfer the proceedings, the court need not resolve every factor
against the juvenile, and there are no weighted factors and no prescribed
method by which more or less weight is assigned to a specific factor.
It is a balancing test by which public protection and societal security
are weighed against the practical and nonproblematical rehabilitation of
the juvenile.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Affirmed.
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
Joe Nigro, Lancaster County Public Defender, and Sarah J.
Safarik for appellant.
Tara A. Parpart, Deputy Lancaster County Attorney, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Colborn and Samson, District Judges.
Cassel, J.
INTRODUCTION
Steven S. appeals an order of the separate juvenile court
transferring his case to county court. We begin by settling
the standard of review, which is a matter of first impression.
Because of the nature of juvenile courts and the statutory
provisions governing such transfers, we determine that the
appropriate standard of review is de novo on the record for an
abuse of discretion. Having considered the evidence, upon our
de novo review, we find no abuse of discretion in the transfer.
We affirm the order of the juvenile court.
BACKGROUND
Juvenile Petition
In September 2017, Steven and another juvenile were being
transported from juvenile detention facilities to the Youth
Rehabilitation and Treatment Center (YRTC) in Kearney,
Nebraska. While en route, the juveniles discussed not wanting
to go to Kearney. Steven freed his hand from a wrist restraint
and opened the passenger door, allowing both juveniles to
escape from custody. Shortly thereafter, law enforcement took
them into custody without incident.
The State filed a petition in the separate juvenile court
of Lancaster County charging Steven with escape. This is
a Class IV felony offense.1 The State simultaneously filed
1
Neb. Rev. Stat. § 28-912(4) (Reissue 2016).
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
a motion to transfer Steven’s case from juvenile court to
county court.
Transfer Hearing
The juvenile court conducted a transfer hearing. Evidence
showed that Steven’s contacts with law enforcement dated
back to 2011. He was placed on probation for disturbing the
peace committed in 2011 and for criminal mischief committed
in April 2012. In February 2013, a court adjudicated Steven
on a charge of disturbing the peace and committed him to the
Office of Juvenile Services. He received probation for crimi-
nal mischief committed in January 2015 and for an assault
in April.
Over the course of Steven’s involvement with juvenile court,
he had multiple out-of-home placements. Lancaster County
Youth Services Center (YSC) housed him for approximately
1 month, before he was placed at a group home in Iowa at
the end of March 2014. Steven successfully completed the
program and returned home in November. But approximately
5 months later, he was detained at YSC for an assault. At that
time, Steven was also being uncooperative with his electronic
monitor and with services.
In May 2015, Steven was placed at a psychiatric residen-
tial treatment facility. He ran away from that program after
approximately 3 months and was “on run” for approximately
2 weeks. After being held at YSC for a few weeks, Steven
was placed at a group home. After a little over 2 weeks,
Steven ran away. Once detained, the State filed a motion to
send Steven to the YRTC. Steven remained at the YRTC for
about 7 months, until June 2016, and returned to his mother’s
home in Lincoln, Nebraska, after successfully completing
the program.
After being home for approximately 3 months, Steven cut
off his electronic monitor. He allegedly took his mother’s
vehicle to Omaha, Nebraska, and was on run for about 3
days. After being detained, Steven had relatively short stays
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
at YSC, “Cedars Shelter,” and a relative’s home. In December
2016, Steven was placed at a different group home in Iowa.
After approximately 3 months, he again went on run. After
being on run for about 1 day, Steven was located with another
youth in a stolen vehicle that was stuck in mud. He was
detained for some time in “Sarpy County Detention” and then
transferred to YSC.
In April 2017, Steven returned to the YRTC. In August, he
absconded with another youth and was on run for almost 3
weeks. He had been in detention since being apprehended, but
he remained under a commitment to the YRTC.
Emily Trotter, Steven’s intensive supervision probation offi-
cer since November 2015, noted that Steven did not turn him-
self in on any of the times that he was on run. He had an elec-
tronic monitor on three occasions and was not compliant on
any of those occasions. She could not think of any additional
services that could be used to help Steven be successful in his
home. She explained, “I think we’ve offered . . . the family
everything that probation has available to us at this time and
it doesn’t seem like it’s working.” She testified that the YRTC
was the most structured and secure environment that probation
could offer.
In September 2016, a co-occurring evaluation was per-
formed to examine mental health and substance abuse symp-
toms. It stated in part:
Overall, Steven continues to struggle with impulsivity
and low frustration tolerance, which has resulted in a his-
tory of oppositional behaviors, which have led to multiple
arrests and out of home placements. If Steven is not able
to find ways to better regulate his emotions these behav-
iors are likely to continue and even worsen.
Trotter discussed a couple of matters favorable to Steven.
The only time that Steven tested positive on a drug screen was
when he was taking prescribed painkillers. Trotter testified
that Steven consistently attended high school when he was in
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
the community, that he obtained good grades, and that teachers
liked him. Unfortunately, due to all the times that Steven was
on run, he was not on track to graduate.
Trotter also testified regarding a couple of traumatic events
in Steven’s life. Steven’s father passed away during Steven’s
first commitment at the YRTC. In July 2016, a firework injured
Steven’s hand, causing a loss of parts of his fingers and a hear-
ing loss.
Even after the instant escape charge, Steven continued to
display problematic behavior. On September 9, 2017, he joined
in a fight occurring in his housing unit. Four days later, he
commented that he would continue the fight if allowed out
with the youth. On September 17 and 18, Steven disobeyed
staff orders. On the latter day, he received a “Major Rule
Violation for Obstruction of Correctional Operations.”
In October 2017, Dr. Colleen A. Conoley performed a neu-
ropsychological/psychological evaluation on Steven. Steven’s
attorney requested the evaluation and sought an expert opinion
on whether the case should be transferred to adult court. Trotter
testified that if probation had been aware of the evaluation, she
would have provided the YRTC’s intake and monthly updates,
as well as Steven’s entire school record.
Conoley opined that Steven was amenable to treatment in
the juvenile court. She stated that the correct clinical priority
was treatment of Steven’s post-traumatic stress disorder. She
opined that it would be best to aggressively treat Steven’s post-
traumatic stress disorder before addressing anger and resent-
ment issues and that “[t]he juvenile justice system has more
flexibility and access to resources and medication than avail-
able through the adult system.” Conoley also stated, “He con-
tinues to require resources that are better handled at the juve-
nile levels, including access to peers, special education, mental
health providers specializing in children and adolescents, and
access to medication that is unavailable within the state peni-
tentiary system.”
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
Juvenile Court’s Order
The juvenile court entered a comprehensive order outlining
its considerations of the factors set forth in Neb. Rev. Stat.
§ 43-276 (Reissue 2016). The court found it “very clear that
[Steven] is not willing to cooperate with treatment services and
is not currently amenable to treatment.” It noted that Steven’s
“significant and lengthy history in Juvenile Court” weighed
strongly in favor of transferring the case to county court. The
court recounted that multiple services had been offered to
Steven and that he had been placed in multiple out-of-home
placements. The court determined that Steven’s history of
going “on run” posed an ongoing risk to the public. It stated
that Steven “seems to do whatever he wants without any regard
for the consequences of how it might affect others.”
The juvenile court felt that it was running out of time to help
Steven and that nothing tried over the last 6 years had been
successful. It reasoned:
It is very clear that [Steven] has not taken advantage of
the services provided to him[,] and he has not taken steps
that would likely help better regulate his emotions. In
reality, quite the opposite is true and, per the evaluation,
it is fair to conclude that the juvenile’s behaviors have
worsened and have continued.
No matter what, the Juvenile Court loses jurisdiction
over [Steven] once he turns 19 years of age, which is in
approximately 16 months. If he is adjudicated in Juvenile
Court on the pending charge, the most restrictive thing
this Court could do is re-commit him to the YRTC-
Kearney, a place he has been to twice and one that clearly
is not working for [Steven]. As there was no evidence
presented that indicates the YRTC-Kearney has increased
[its] security and structure since he escaped from there,
he could very clearly run away again from there if he
so chose.
The juvenile court acknowledged factors weighing in favor
of maintaining jurisdiction. It recognized Steven’s chaotic
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
upbringing, but stated that Steven had added to the chaos and
had not cooperated with services and placements that were
designed to help him overcome his chaotic upbringing. And
it observed that Conoley recommended Steven be placed in a
“treatment-group home or a [psychiatric residential treatment
facility].” But in considering Conoley’s evaluation, the court
was troubled that probation had no involvement: “[N]o collat-
eral information was provided by the juvenile probation office
nor was the juvenile probation office even contacted by Dr.
Conoley. That in and of itself calls into question the validity of
her entire report, especially her recommendations.”
The juvenile court queried what it could do for Steven that
had not already been done. It found the answer to be clear:
“[N]othing. The Juvenile Court is simply out of options.” The
court concluded that the State had proved by a preponder-
ance of the evidence that the matter should be transferred to
county court.
Steven filed a timely appeal from the final order granting
transfer of the case,2 and we moved the case to our docket.3
ASSIGNMENT OF ERROR
Steven assigns that the juvenile court erred in finding suf-
ficient evidence to transfer his case to county court.
STANDARD OF REVIEW
The standard of review for transfer orders from juvenile
court to county court or district court is an issue of first
impression. The parties advance different standards.
Before considering the suggested alternatives, we make two
observations. First, transfers from juvenile to “adult” court are
a recent development. Prior to legislation enacted in 2014,4
proceedings began in the county or district court. The juvenile
2
See Neb. Rev. Stat. § 43-274(5) (Supp. 2017).
3
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
4
2014 Neb. Laws, L.B. 464.
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
could file a motion asking that the case be transferred to juve-
nile court. In 2014, the legislation dictated that the county
attorney or city attorney file the petition in the court with
jurisdiction as outlined in what became codified as Neb. Rev.
Stat. § 43-246.01 (Reissue 2016).5 Second, the 2014 legislation
did not provide for an interlocutory appeal.6 Thus, we held that
an order denying a transfer was not a final, appealable order.7
Later, the Legislature amended the law to provide for an inter-
locutory appeal.8 In so doing, the Legislature emphasized that
these interlocutory appeals are to be expedited.9 This is our
first opportunity to review a juvenile court order granting a
transfer to county court, where the matter has not proceeded
to the substance of the allegations. We now turn to the par-
ties’ proposals.
The State contends that our review should be for an abuse of
discretion. We have used an abuse of discretion standard when
reviewing a denial of a transfer from juvenile court to tribal
court under the Indian Child Welfare Act.10 And we review
a motion to transfer a pending criminal proceeding to the
juvenile court for an abuse of discretion.11 The State correctly
observes that in such a situation, the court considers the same
criteria under § 43-276(1).12
Although the considerations for transfer between adult court
and juvenile court are the same, the respective prerequisites
are not. When a case is filed in adult court, the adult court
shall transfer it to juvenile court “unless a sound basis exists
5
Id., §§ 9 and 16.
6
Id., § 4.
 7
In re Interest of Tyrone K., 295 Neb. 193, 887 N.W.2d 489 (2016).
8
2017 Neb. Laws, L.B. 11, § 1.
9
See § 43-274(5).
10
See In re Interest of Tavian B., 292 Neb. 804, 874 N.W.2d 456 (2016).
11
See State v. Bluett, 295 Neb. 369, 889 N.W.2d 83 (2016).
12
See Neb. Rev. Stat. § 29-1816(3)(a) (Supp. 2017).
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
for retaining the case.”13 On the other hand, when the matter is
initially filed in juvenile court, the juvenile court shall retain it
“unless the court determines that a preponderance of the evi-
dence shows that the proceeding should be transferred to the
county court or district court.”14 Due to this difference, it does
not naturally follow that we should employ the pure abuse of
discretion standard used in reviewing a request to transfer from
adult court.
On the other hand, Steven urges that a de novo standard of
review is appropriate. He highlights that in juvenile cases, an
appellate court’s review is typically de novo on the record and
that the appellate court reaches its conclusions independently
of the juvenile court’s findings.15 We have long held that the
object of the juvenile code is corrective, to the end that the
child’s reformation be brought about.16 And we have observed
that a juvenile proceeding is not a prosecution for a crime but
a special proceeding that serves as an ameliorative alternative
to a criminal prosecution and that the purpose of our statutes
relating to youthful offenders is the education, treatment,
and rehabilitation of the child.17 Moreover, the juvenile code
expounds upon these purposes at length18 and the codifica-
tion of recent changes allocating jurisdiction between juvenile
and adult courts19 illustrates the Legislature’s goal of favoring
juvenile courts as forums for criminal offenses committed
by minor children. But this does not mean that no defer-
ence should be accorded to the juvenile court’s decision on a
motion to transfer.
13
Id.
14
§ 43-274(5).
15
See, e.g., In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247
(2017).
16
See Laurie v. State, 108 Neb. 239, 188 N.W. 110 (1922).
17
See In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).
18
See Neb. Rev. Stat. § 43-246 (Reissue 2016).
19
See § 43-246.01.
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
In some juvenile cases, we have conducted a review de novo
on the record for an abuse of discretion. We have used such a
standard in reviewing a juvenile court’s determination regard-
ing (1) whether a juvenile has been denied his or her statu-
tory right to a prompt adjudication20; (2) whether a juvenile’s
waiver of counsel was voluntary, knowing, and intelligent21;
and (3) whether special reasons exist to split the roles of
guardian ad litem and counsel for the juvenile.22 Likewise, the
Nebraska Court of Appeals has used that standard for review
regarding guardian ad litem fees.23
We believe that is the standard of review that should be
used here. In our view, it provides the proper balance for
accomplishing the purposes and goals of both the juvenile code
and the criminal code. At oral argument, Steven urged that
transfers from juvenile to adult court be viewed as “suspect.”
We reject his argument and conclude that our articulation best
carries out the Legislature’s goal of expedited review. And we
emphasize that in many, if not most, instances, oral arguments
will not be necessary. Summary dispositions may frequently
be appropriate.
[1,2] We therefore hold that an appellate court reviews a
juvenile court’s decision to transfer a juvenile offender’s case
to county court or district court de novo on the record for an
abuse of discretion. But we also recognize that in doing so, the
juvenile court’s assessment of credibility may be critical. In
such circumstances, we will apply the rule that when the evi-
dence is in conflict, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted
one version of the facts over the other.24
20
See In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
21
See In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).
22
See In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).
23
See In re Interest of Antone C. et al., 12 Neb. Ct. App. 466, 677 N.W.2d 190
(2004).
24
See In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
ANALYSIS
[3] When the prosecution seeks to transfer a juvenile offend-
er’s case to criminal court, the juvenile court must retain the
matter unless “a preponderance of the evidence shows that
the proceeding should be transferred to the county court or
district court.”25 The prosecution “has the burden by a prepon-
derance of the evidence to show why such proceeding should
be transferred.”26
[4] Section 43-276 sets forth 15 factors for a juvenile court
to consider in making the determination of whether to trans-
fer a case to county court or district court. As noted above,
the same factors are considered when determining whether to
transfer a case to juvenile court. And in that context, we have
said that the court need not resolve every factor against the
juvenile and that there are no weighted factors and no pre-
scribed method by which more or less weight is assigned to a
specific factor.27 Rather, it is a balancing test by which public
protection and societal security are weighed against the prac-
tical and nonproblematical rehabilitation of the juvenile. We
apply the same reasoning in the context of a motion to transfer
from juvenile court.
Factors Weighing in
Favor of Transfer
Of the 15 statutory factors to be considered, many weigh in
favor of transferring the matter to county court or district court.
One consideration is the type of treatment to which Steven
would most likely be amenable. The evidence on this point was
in dispute. Conoley, who performed the psychological evalua-
tion on Steven, opined that Steven was amenable to treatment
in the juvenile court and that “[t]he juvenile justice system
has more flexibility and access to resources and medication
25
§ 43-274(5).
26
Id.
27
See State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).
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IN RE INTEREST OF STEVEN S.
Cite as 299 Neb. 447
than available through the adult system.” But Trotter, Steven’s
intensive supervision probation officer, felt that probation had
offered Steven everything it could and that such services had
not worked. This consideration dovetails with another factor
weighing heavily in favor of transferring the case: Steven’s
previous history. His first contact with law enforcement was
in 2011. Since that time, Steven has continued to engage in
unlawful activity, despite his ongoing involvement with juve-
nile court and the multitude of services offered to him. Based
on Steven’s poor track record over a number of years in juve-
nile court, we agree with the juvenile court that Steven is not
amenable to treatment in that court.
Other factors weigh in favor of transferring the case.
Steven’s motivation in committing the escape was to avoid
returning to the YRTC. He was being returned to the YRTC
after escaping from there. Ironically, the YRTC is the most
secure environment that probation can offer. At the time of
the escape, Steven was 171⁄2 years old. He helped a juvenile
who was 7 months younger escape with him. Consideration of
public safety weighs in favor of transferring the case. Steven
has gone on run a number of times and has escaped from
even the most secure juvenile placement. Further, he does
not appear to appreciate the nature and seriousness of his
conduct. His claim to be a member of a criminal street gang
is troublesome.
Whether Steven’s best interests and the security of the
public may require that Steven continue in secure deten-
tion or under supervision for a period extending beyond his
minority also point to transferring his case. Once again, we
note his 6-year involvement with juvenile court and the mul-
tiple placements and services that have not led to a positive
change in Steven’s behavior. If Steven remained in juvenile
court, he would likely be sent to the YRTC for a third time
and the juvenile court would lose jurisdiction over him when
he turned 19 years old. If Steven’s case were transferred to
adult court, he could be placed on adult probation or he could
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be incarcerated, if necessary. The evidence shows that even
though Steven has successfully completed some programs, he
has not reformed his behavior.
Factors Weighing
Against Transfer
A few factors weigh against transfer. The escape offense
did not include violence. Steven’s best interests would likely
be aided by remaining in juvenile court and thereby avoiding
a possible felony conviction. He has not been convicted of
or acknowledged use or possession of a firearm. And we are
cognizant of research related to the development of the adoles-
cent brain.
Neutral Factors
Some of the factors do not tip the scales in favor of juve-
nile court or adult court. Whether the victim agrees to par-
ticipate in mediation has no application here. Whether there
is a juvenile pretrial diversion program also appears largely
irrelevant: Lancaster County has such a program, but nothing
in the evidence leads to the conclusion that Steven would be
eligible for the program. There was no evidence that a juvenile
court order had been issued for Steven under Neb. Rev. Stat.
§ 43-2,106.03 (Reissue 2016).
R esolution
Upon our de novo review of the record, we find no abuse
of discretion by the juvenile court in transferring Steven’s case
to county court. Steven is now 18 years old, and the juvenile
court’s jurisdiction ends when he turns 19. No service offered
to Steven thus far has led him to reform his behavior.
To the extent that Steven’s mental health and trauma issues
may be better handled at the juvenile level, we observe that
a transfer to adult court does not eliminate a disposition
under the juvenile code. As we recently noted, “the possibil-
ity of disposition under the juvenile code remains available
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to juveniles even if their case is transferred from juvenile to
criminal court.”28 A statute specifically provides:
If the defendant was under eighteen years of age at the
time he or she committed the crime for which he or she
was convicted, the court may, in its discretion, instead of
imposing the penalty provided for the crime, make such
disposition of the defendant as the court deems proper
under the Nebraska Juvenile Code.29
Further, individuals in adult court can be placed on probation
with conditions related to rehabilitation of the offender.30 And
adult probation can work with an offender for up to 5 years.31
CONCLUSION
Upon our de novo review of the record, we conclude that
the juvenile court did not abuse its discretion in ordering that
Steven’s case be transferred to county court. The juvenile
court’s transfer order is affirmed.
A ffirmed.
Wright, J., not participating.
28
In re Interest of Tyrone K., supra note 7, 295 Neb. at 211, 887 N.W.2d at
501.
29
Neb. Rev. Stat. § 29-2204.02(6) (Reissue 2016).
30
Neb. Rev. Stat. § 29-2262(2) (Reissue 2016).
31
Neb. Rev. Stat. § 29-2263(1) (Reissue 2016).