In re Interest of Skylar E.

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SKYLAR E. 725
Cite as 20 Neb. Ct. App. 725
review as to a necessary party. The district court lacked subject
matter jurisdiction of the APA proceeding. When a lower court
lacks the authority to exercise its subject matter jurisdiction
to adjudicate the merits of the claim, issue, or question, an
appellate court also lacks the power to determine the merits
of the claim, issue, or question presented to the lower court.
McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581,
748 N.W.2d 66 (2008). However, when an appeal is dismissed
because the lower court lacked jurisdiction to enter the order
appealed from, an appellate court may nevertheless enter an
order vacating the order issued by the lower court without
jurisdiction. Id. Therefore, the judgment of the district court is
vacated and this appeal is dismissed.
Vacated and dismissed.
In re I nterest of
Skylar E., a child
under18 years of age.
State of Nebraska, appellee, v.
Skylar E., appellant.
___ N.W.2d ___
Filed April 30, 2013. No. A-12-490.
1. Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska
Juvenile Code is to promote and protect the juvenile’s best interests.
2. Juvenile Courts. A juvenile court has broad discretion as to the disposition of
a child found to be within the jurisdiction of the juvenile court under Neb. Rev.
Stat. § 43-247(1) (Reissue 2008).
3. Public Health and Welfare: Parent and Child. Neb. Rev. Stat. § 43-532
(Reissue 2008) dictates that state policy is to assist juveniles in the least restric-
tive method consistent with the needs of each child.
4. Juvenile Courts: Minors: Proof. If a treatment level group home is the least
restrictive placement consistent with a child’s needs, a juvenile court may place
the child into a more restrictive level of care only after the State makes a showing
that a treatment level group home is not a viable option for the child.
Appeal from the County Court for Adams County: Michael
Offner, Judge. Reversed and remanded with directions.
T. Charles James, of Langvardt, Valle & James, guardian ad
litem for appellant.
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726 20 NEBRASKA APPELLATE REPORTS
Amy R. Skalka, of Seiler & Parker, P.C., L.L.O., for
appellant.
No appearance for appellee.
Moore, Pirtle, and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
This appeal raises the issue of whether the juvenile court
erred in committing Skylar E. to the Youth Rehabilitation and
Treatment Center (YRTC) for the pendency of his minority
despite recommendations by two psychologists, working on
behalf of the State, that a lower level of treatment be provided.
Neb. Rev. Stat. § 43-532 et seq. (Reissue 2008 & Cum. Supp.
2012) requires a juvenile court to place a minor in the least
restrictive setting consistent with Nebraska law and with the
minor’s best interests. We therefore find that the juvenile court
abused its discretion in committing Skylar to YRTC without
requiring the Nebraska Department of Health and Human
Services (DHHS) to explore the option of a less restrictive
placement, such as a treatment level group home, as recom-
mended by the State’s psychologists.
BACKGROUND
Skylar is a 15-year-old male. In November 2010, when
Skylar was 13, the State removed both him and his sister
Alyson D. from his mother’s care. The juvenile court initially
acquired jurisdiction of both Skylar and Alyson under Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2008) because their mother
was living in a halfway house and was unable to care for them.
While proceedings were ongoing under § 43-247(3)(a), Skylar
was transferred to a number of different placements as further
set forth below. In January 2012, while placed at the Madison
Detention Center, Skylar punched a wall. He was found guilty
of criminal mischief, which triggered an Office of Juvenile
Services (OJS) evaluation and caused the juvenile court to
acquire jurisdiction of him under § 43-247(1). The case was
transferred from Madison County to Adams County.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SKYLAR E. 727
Cite as 20 Neb. Ct. App. 725
State Placement History.
When Skylar was first removed from his mother in
November 2010, he was placed in foster care. While at this
foster care placement, Skylar began therapy with Dr. Doyle
Daiss. Dr. Daiss scheduled a weekly appointment for Skylar,
but the foster parents were able to take Skylar to only 13 of 21
scheduled sessions. Both Skylar and Dr. Daiss worked together
to craft a treatment plan focusing on the need to manage anger
and impulses. They both considered their relationship positive
and productive.
Skylar initially achieved success in his foster care place-
ment. In January 2011, a social worker described Skylar as
happier than she had ever seen him. In April 2011, however,
Skylar was expelled from school for bringing a knife to school
and allegedly threatening the principal. Dr. Daiss testified that
Skylar possessed knives to protect himself because no adult
had ever been able to meet that need for him. Skylar’s behav-
ior deteriorated after the expulsion, and in July 2011, the State
removed Skylar from the foster placement because his foster
parents reported “defiant behaviors” and Skylar’s fleeing on
various occasions.
The State then placed Skylar at a Boys Town shelter for a
few months before placing him and Alyson in a second foster
home. Skylar did well there for a while, but he also had epi-
sodes of concerning behavior. On one occasion, Skylar took a
knife from his foster father, and on another occasion, the fam-
ily smelled smoke in the middle of the night and discovered
that “something had been snubbed out in the cat’s dish.” Skylar
would also, on occasion, leave for hours at a time without per-
mission and refuse his medication. The culmination of these
incidents prompted the State to remove Skylar from the second
foster home.
After his removal from the second foster home, Skylar went
to Cedar Youth Services, a shelter in Lincoln, before a group
home in Geneva accepted him. The State removed Skylar
from the group home in Geneva after he ran away twice—
once to see his girlfriend in Harvard and once to see Alyson
in Aurora. Skylar stole a car in conjunction with his attempt
to travel to Aurora.
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728 20 NEBRASKA APPELLATE REPORTS
The State next placed Skylar at a foster home in Henderson,
followed by a group home at Epworth Village in Grand Island.
The Epworth Village group home is separate from the Epworth
Village treatment level group home. Skylar ran away from the
Epworth Village group home three times in 5 days, causing the
State to place him in a shelter at Madison. After he failed to
follow the rules at the Madison shelter, he was moved to the
Madison Detention Center. The State tried to place him at the
foster home in Henderson again, but the State returned him to
the Madison Detention Center after he “left school” and was
found in his bedroom closet with another youth.
Upon Skylar’s return to Madison, in January 2012, he
punched a wall at the detention center. This action resulted in
criminal charges that led to the adjudication under § 43-247(1)
which is at issue in this case.
Throughout this time, Dr. Daiss attempted to schedule
therapy for Skylar, but the logistics of transportation com-
bined with Skylar’s frequent movement prevented them from
regularly meeting. Dr. Daiss testified at trial that he would
“[m]ost definitely” be willing to work with Skylar again “down
the road.”
Throughout this time, Skylar’s visits with his mother and
Alyson decreased. Skylar last saw his mother in December
2011, and since then, he has had contact with her only
through letters.
Testimony at Trial.
In April 2012, the Adams County Court held a hearing to
determine Skylar’s next placement in light of the criminal mis-
chief conviction. The State, DHHS, Skylar, Skylar’s mother,
and Skylar’s guardian ad litem all appeared at the hearing.
Several professionals testified that Skylar’s mother and
Alyson are critically important to Skylar. Therapists and social
workers observing visitation described Skylar as parental
toward Alyson and protective of his mother. A report from Dr.
John Meidlinger reveals that Skylar described to him some of
his mother’s past boyfriends as being physically violent toward
her and that Skylar recalled a time where he threatened to beat
up one of them. Dr. Meidlinger’s report indicates that Skylar
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SKYLAR E. 729
Cite as 20 Neb. Ct. App. 725
told him that he does not care what happens to him, but will
protect his family at all costs.
According to Dr. Meidlinger, Alyson is the only sibling
with whom Skylar has contact. He mentioned in his report that
Skylar communicated that he does not care where he goes as
long as he can see Alyson.
Dr. Meidlinger observed that Skylar is steadfastly loyal
to his mother and continues to believe she will “get her life
straightened out” and raise him and Alyson. He indicated
in his report that Skylar continues to hope for this outcome
despite his mother’s failure to attend many of the visitations
arranged with Skylar and Alyson after losing custody of them.
DHHS’ visitation logs indicate that Skylar told his mother all
he wanted for Christmas was to go home. Skylar estimates that
since entering the State system, he has been placed in about 15
different foster care, group home, and shelter situations with-
out success.
Dr. Meidlinger testified that he diagnosed Skylar with dys-
thymia, oppositional defiant disorder, and attention deficit
hyperactivity disorder. He stated that he did not have enough
information to make a diagnosis of conduct disorder but that
Skylar resembles children with conduct disorder in some ways.
Dr. Meidlinger opined that Skylar’s “experiences have led him
to believe that life isn’t fair and authorities are the people in
charge and what they do is not fair either.” Dr. Meidlinger
thought that Skylar’s “bold and defiant attitude is perhaps a
way of hiding his inner feelings of weakness, vulnerability and
history of victimization.”
Dr. Meidlinger recommended that Skylar begin a coun-
seling process focusing on issues of abandonment and, per-
haps, trauma. He opined that those issues may be causing
his “aggressive posturing” and acting out. He further rec-
ommended that Skylar be placed in a treatment level group
home and then a less restrictive setting if appropriate. He
stated that the treatment home at Epworth Village would meet
Skylar’s needs. He was decidedly less enthusiastic about plac-
ing Skylar at YRTC, where therapy would be more limited.
Throughout his testimony, Dr. Meidlinger expressed his belief
that Skylar’s underlying issues have played an important role
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730 20 NEBRASKA APPELLATE REPORTS
in shaping his behavior and that addressing those issues, rather
than just Skylar’s behavior, would be the most effective way to
treat Skylar.
Dr. Eric Snitchler testified that he conducted the psychologi-
cal evaluation for Skylar’s OJS evaluation in March 2012. He
stated that he works with a therapy services company which
has a contract with Magellan Health Services (Magellan). The
contract with Magellan places Dr. Snitchler under restrictions
with respect to what he can recommend in his written report.
In his written report, Dr. Snitchler diagnosed Skylar with “con-
duct disorder, attention deficit, hyperactivity disorder, alcohol
abuse, [and] nicotine dependence,” although he stated that he
would have liked to have had more information about Skylar’s
earlier background to give him some indications as to how
those problems originated.
Dr. Snitchler explained that he made no recommendations
for treatment in his report because Magellan does not allow
him to recommend treatment unless he makes “a sub-acute
treatment placement” recommendation. Dr. Snitchler said that
he was not under Magellan requirements while testifying
in court, however, and for the first time, at trial, he recom-
mended placing Skylar into a treatment level group home. For
this placement to be successful, a group home would need
to accept Skylar and Skylar would need to cooperate and
maintain the placement. Dr. Snitchler felt a treatment level
group home would be the most appropriate placement for
Skylar because Skylar could get outpatient therapy treatment
in that setting.
Dr. Snitchler stated, however, that Magellan would not pay
for treatment for Skylar because Skylar was diagnosed with
conduct disorder and conduct disorder has not been something
research has shown benefits from a treatment level placement.
Dr. Snitchler also said he suspected many group homes would
not take Skylar because of his past behavioral problems.
Ann Wood is the OJS evaluation coordinator for DHHS who
performed Skylar’s OJS evaluation. She explained that an OJS
evaluation is ordered after a youth has been adjudicated. Her
role is to put information together and send it to Magellan for
assignment to a provider. She explained that she looks at the
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IN RE INTEREST OF SKYLAR E. 731
Cite as 20 Neb. Ct. App. 725
recommendation provided by the Magellan provider together
with an internal youth level of services inventory (YLS) and
makes a recommendation for a youth’s disposition based on
those two documents. YLS is an assessment that measures
a youth’s level of risk to reoffend. It is “a matrix and scor-
ing system that is somewhat standardized.” Wood testified
that Skylar’s YLS score was 25, which is a high level of risk
to reoffend on a scale with four levels ranging from low to
very high.
Wood recommended Skylar be placed at YRTC because he
has a high risk to reoffend and has been in multiple placements
without success. She explained that in evaluating Skylar’s risk
to reoffend, she found Skylar’s family circumstances to be his
highest risk score, elevating his overall YLS rating. A section
on attitude and orientation also mentions that Skylar is not par-
ticipating in therapy and labels that as a risk factor.
Wood stated that DHHS recommends YRTC as the next
level of care for juveniles if foster placements and group
homes are not adequate. Wood explained that she is not
allowed to recommend a treatment level group home unless
it is “approved by the clinician who does the clinical portion
of the evaluation” by Magellan. In this case, Wood could not
have recommended a treatment level group home unless Dr.
Snitchler recommended a treatment level group home in his
written evaluation.
Dr. Daiss testified about his relationship with Skylar
from February through October 2011. He testified that he
thought the relationship was productive, but that he could
not reach the issues causing Skylar’s behavior because of
Skylar’s inconsist­nt presence. Dr. Daiss stated that Skylar
e
needed to have contact with both his mother and Alyson to
make progress.
Trial Court Ruling.
The trial court committed Skylar to YRTC for the pendency
of his minority. In a ruling from the bench, the trial court
explained one reason for sending Skylar to YRTC was its doubt
that a treatment level group home would accept him. The trial
court emphasized Dr. Snitchler’s language, noting that he said
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732 20 NEBRASKA APPELLATE REPORTS
he would recommend a treatment level group home for Skylar
if any of the group homes would take him into their program.
The trial court stated:
But he said if anybody would take him, okay he did. And
I took the if, I’m saying here, if they would take him, that
would be great. And if he would work through the sys-
tem, that would be great. If he didn’t, then it’s not going
to work. . . . But in the end we both . . . have the shrinks
saying that this is the best, best practices. We know what
best practices means. That’s a fancy word where people
come from New York and they give us a lecture and they
are trying to tell us that this is what you ought to do if the
world was pure and clean and we had every opportunity
that we possibly have. And that’s what we are striving for.
But we also have to look at reality and that’s what we’re
going to talk about at the end.
The trial court went on to state that the reality is that the
trial court “[didn’t] think someone might even take [him]
because of [his] history, okay. That’s going to be the reality.”
The trial court also explained that Skylar’s way of treating
people caused the State to remove him from his placements,
which disrupted his therapy and visitation. Finally, the trial
court explained that Skylar needed stability for education and
that YRTC would allow that. The court also stated that thera-
pists at a treatment level group home would not have anything
new to say in therapy and that therefore, there was no reason
to believe Skylar would not run away again.
On appeal, the guardian ad litem and Skylar’s attorney argue
that the trial court erred in finding that placement of Skylar at
YRTC was the least restrictive placement and in Skylar’s best
interests. DHHS did not file a brief in this appeal.
ASSIGNMENTS OF ERROR
The guardian ad litem and Skylar’s attorney both argue that
the trial court abused its discretion in committing Skylar to
the care and custody of OJS for placement at YRTC because
it is not the least restrictive placement consistent with Skylar’s
best interests. Neither the State nor DHHS filed a brief in
this action.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SKYLAR E. 733
Cite as 20 Neb. Ct. App. 725
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Jorge O., 280 Neb. 411,
786 N.W.2d 343 (2010). To the extent an appeal presents ques-
tions of law, an appellate court must reach a conclusion inde-
pendently of the trial court. In re Interest of Jones, 230 Neb.
462, 432 N.W.2d 46 (1988). A trial court’s findings of fact will
not be set aside unless they are against the weight of the evi-
dence or there is a clear abuse of discretion. Id.
ANALYSIS
[1] Section 43-247(1) grants the juvenile court jurisdiction
of any minor under the age of 16 who has committed “an act
other than a traffic offense which would constitute a misde-
meanor or an infraction under the laws of this state, or viola-
tion of a city or village ordinance.” See In re Interest of Roy R.,
3 Neb. Ct. App. 816, 533 N.W.2d 107 (1995). When a court takes
jurisdiction over a juvenile, it obtains the “powers conferred
on it by the Nebraska Juvenile Code . . . to provide for the
treatment and rehabilitation of certain juveniles.” In re Interest
of Breana M., 18 Neb. Ct. App. 910, 914, 795 N.W.2d 660, 664
(2011). The foremost purpose and objective of the Nebraska
Juvenile Code is to promote and protect the juvenile’s best
interests. In re Interest of Brandy M. et al., 250 Neb. 510, 550
N.W.2d 17 (1996).
[2,3] A juvenile court has broad discretion as to the dis-
position of a child found to be within the jurisdiction of the
juvenile court under § 43-247(1). See Neb. Rev. Stat. § 43-286
(Cum. Supp. 2012). In such a case, the juvenile court may
commit such juvenile to OJS for placement at YRTC if the
youth is over the age of 14. See § 43-286(b). At the same
time, § 43-532 dictates that state policy is to assist juveniles
in the “least restrictive method consistent with the needs of
[each] child.” See In re Interest of J.R.W., 237 Neb. 691, 467
N.W.2d 413 (1991). The policy applies to “children . . . who,
by their circumstances or actions, have violated the laws,
rules, or regulations of the state and are found to be in need
of treatment or rehabilitation” and must be interpreted “in
Decisions of the Nebraska Court of Appeals
734 20 NEBRASKA APPELLATE REPORTS
conjunction with all relevant laws, rules, and regulations of
the state.” § 43-532.
In this case, the juvenile court acquired jurisdiction of
Skylar pursuant to § 43-247(1) because Skylar was adjudi-
cated for violating Neb. Rev. Stat. § 28-519(1)(a) (Reissue
2008), property damage, after punching the wall at the
Madison Detention Center. Because it acquired jurisdiction
of Skylar under § 43-247(1) and Skylar is older than 14,
the juvenile court had the power to send Skylar to YRTC.
In making that decision, the juvenile court was required to
find that a less restrictive placement was not consistent with
Skylar’s needs.
We find that the trial court abused its discretion in finding
that YRTC was the least restrictive placement consistent with
Skylar’s needs. The trial court considered placing Skylar in
either YRTC or a treatment level group home. The trial court
rejected a treatment level group home based on two primary
concerns: that Skylar would not be accepted into a treatment
level group home and that Skylar would not achieve the stabil-
ity he needs in a treatment level group home because he would
run away.
[4] The trial court’s concern that Skylar may not be accepted
into a treatment level group home is speculative at this point
because DHHS has not yet explored this placement possibil-
ity. If a treatment level group home is the least restrictive
placement consistent with Skylar’s needs, the court may place
Skylar into a more restrictive level of care only after the State
makes a showing that a treatment level group home is not a
viable option for Skylar. See, § 43-532 et seq.; In re Interest of
J.R.W., supra.
The trial court validly raises concern about Skylar’s need
for stability and history of leaving placements. This concern
requires analysis in the context of the testimony presented at
trial. Three psychologists testified at trial: Dr. Daiss, who com-
pleted a number of sessions with Skylar before he arrived at
the Madison Detention Center; Dr. Meidlinger, who evaluated
Skylar at the Madison Detention Center; and Dr. Snitchler, who
conducted interviews and reviewed Skylar’s file as part of the
OJS evaluation. All three psychologists admitted that Skylar
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IN RE INTEREST OF SKYLAR E. 735
Cite as 20 Neb. Ct. App. 725
has some behavioral issues. Skylar has difficulty with impulse
and anger control and has not yet been able to discuss his past
or analyze the impact of documented childhood difficulties on
his decisionmaking.
The State removed Skylar from the care of his mother when
he was an adolescent. He is steadfastly loyal to her and has
responded to the State’s decision to remove him from her care
with anger, defiance, and, on occasion, running away from the
State’s placements. Despite his poor decisions, Skylar was able
to maintain a positive therapeutic relationship with Dr. Daiss
and identified weaknesses in his anger and impulse control. Dr.
Daiss felt the relationship was productive and testified that he
thought Skylar could benefit from therapy. Both Drs. Daiss and
Meidlinger testified that Skylar’s behaviors are a response to
underlying issues that could be addressed with the appropriate
therapy. Dr. Daiss could not make a treatment recommenda-
tion, but both State doctors testified that a treatment level
group home, which is a level of care Skylar has never received,
would be the appropriate level of care to meet Skylar’s needs.
Skylar’s DHHS caseworker made no recommendation about
his placement.
The only individual who recommended that Skylar be sent
to YRTC was Wood. At trial, however, Wood testified that
Magellan rules prevented her from recommending a treatment
level group home because Dr. Snitchler had not recommended
one in his evaluation. Dr. Snitchler did, however, make that
recommendation in court. Wood’s opinion must be somewhat
discounted because she was prevented from recommending a
treatment level group home.
Moreover, the record does not show that Wood ever met
with Skylar. Instead, Wood relied on a report that did not
express Dr. Snitchler’s full opinion and the YLS score. The
YLS score is an objective test that does not take into account
the specifics of Skylar’s situation; for example, his score is
inflated because he is not participating in therapy, even though
he wants to participate.
In this case, all of the experts who had the authority to rec-
ommend a treatment level group home did so. All three doctors
thought Skylar would benefit from therapy, and the two who
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736 20 NEBRASKA APPELLATE REPORTS
were able to recommend placements opined that placement at
a treatment level group home was the most effective way to
address Skylar’s poor judgment and behavior. The evidence in
this case shows that a treatment level group home is in Skylar’s
best interests. Because a treatment level group home is a less
restrictive level of care consistent with Nebraska law and
Skylar’s needs, the trial court abused its discretion in order-
ing Skylar’s placement at YRTC. Accordingly, the order of the
juvenile court committing Skylar to YRTC is reversed and the
cause is remanded with directions for the court to order DHHS
to explore whether less restrictive placement settings are avail-
able for Skylar’s care, to include, but not be limited to, a treat-
ment level group home.
CONCLUSION
The trial court abused its discretion in committing Skylar to
YRTC when the evidence in the record proves that committing
Skylar to a less restrictive level of care was consistent with
Skylar’s best interests. Accordingly, we reverse the decision
of the trial court and remand the cause with directions for the
court to order DHHS to explore whether less restrictive place-
ment settings are available for Skylar’s care, to include, but not
be limited to, a treatment level group home.
R eversed and remanded with directions.