In re Interest of Josue G.

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In re Interest of Josue G.

Caselaw No.
299 Neb. 784
Filed on
Thursday, April 26, 2018

Summary:  The Douglas County juvenile court adjudicated Josue G. under Neb. Rev. Stat. § 43-247(1)  with a dispositional order entered on September 27, 2016 placing Josue on probation for four months, plus twenty hours of community service.

On January 24, 2017, the State moved to revoke Josue’s probation based on alleged violations of his probation terms. However, the juvenile court determined that Josue’s probation should not terminate automatically and a February 28th order stated that the revocation motion was withdrawn and all parties agreed to the previous disposition pursuant to an extension of probation for six months.

On May 11, 2017, the State again moved for probation revocation due to a new law violation and failure of Josue to meet his probation conditions. A revocation and arraignment hearing followed on July 5th and Josue entered a denial to the new charge. When asked if the state wished to proceed on the revocation, the State again withdrew is revocation motion and the trial court proceeded with questions about probation recommendations with Josue’s probation officer. That exchange resulted in a July 7th order titled “Violation of Probation Hearing/Motion is Withdrawn/Order” which contained language referencing the motion to revoke probation as part of the basis for continuing probation and the previous probation conditions, with a new modification, until December 5, 2017 when a probation review hearing would be held.

Josue then filed a timely appeal assigning that the juvenile court violated his due process rights by extending his probation and making further dispositional orders without a hearing, out of line with statutory procedures and requirements.

In its review, the Supreme Court first looked at Neb. Rev. Stat. § 43-286(5) which “authorizes a juvenile court to change an existing disposition of probation, but its power to do so is premised upon an existence of an appropriate motion and upon its compliance with the specified procedures.” The Court specifically highlighted the importance of § 43-285(5)(b)(ii) which provides that, for a motion to revoke probation, the juvenile is entitled to: a hearing before the court to determine the validity of the allegations; those rights relating to counsel; those rights relating to detention; speak and present documents, witnesses, or other evidence on his or her own behalf; confront persons; and show mitigating circumstances related to the violation. And if the juvenile is found by the court to have violated the terms of his or her probation the court may: modify the terms and conditions of the probation; extend the period of probation; or enter an order of disposition that could have been made at the time the original order was entered as a result.

Further, the Court states that 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. Here, the Court notes that while the State filed such an order, it was withdrawn prior to the extension of Josue’s probation term by court order. Thus, there was no hearing to establish whether a probation violation occurred, and with no motion the juvenile court lacked authority to extend Josue’s probation and change his probation conditions.

Therefore, the Supreme Court vacated the juvenile court’s order of July 7, 2017 and remanded the case to the juvenile court for further proceedings.