In re Interest of Robert W.

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In re Interest of Robert W.

Caselaw No.
No. A-18-166
Filed on
Tuesday, March 12, 2019


Robert W. appeals two orders out of the Separate Juvenile Court in Lancaster County finding that all resources had been exhausted and placing him outside his home. The Court here affirms.

A petition was filed against Robert in November 2017 alleging he had made terroristic threats and used a deadly weapon – two felonies. Robert had pointed a handgun at another young person. A supplemental petition was filed with three additional misdemeanors. Robert entered a no contest plea to the use of a deadly weapon charge and was adjudicated.

Following the adjudication, he was detained at the Lancaster County Juvenile Detention Center and was ordered to complete a co-occurring evaluation with psychological testing. Four continued disposition hearings were held. At the first hearing, probation recommended that Robert be supervised by an adult at all times. His mother said that her boyfriend, Jamil, could help supervise. However, he has a criminal history of drug use and assaultive behavior, including towards the mother. She also put forward the names of other inappropriate support resources who had a variety of CPS and criminal histories.

Robert’s first evaluation came back recommending weekly therapy, cognitive behavioral therapy and “moral decision making” therapy, in home family therapy, random drug tests, and a stable school placement. However, probation informed the Court that the evaluator did not have all of the collateral information regarding Robert and so a second evaluation would need to be performed. The additional information was regarding his special education and behavioral issues at school, suspensions, school attendance issues, and criminal and diversion history. The second evaluation included all of the previous recommendations; but also that he also has conduct disorder and impulse control problems and because of his high risk that he would need a continuously supervised safety plan if he were home.

At the next disposition hearing, probation recommended Robert attend Yankee Hill School and receive MST or IFP, but it was difficult to find service providers because of the severity of his offense and his community safety risk. The Court continued the hearing to see if there could be more information about a safety plan and also to see if he was accepted to any placements.

At the next hearing in January, probation elaborated on the safety plan that would include MST or IFP, Yankee Hill School, Robert being transported to and from school by his mom and going to her work if necessary, electronic monitor, a tracker, random drug tests, and family therapy, and possibly day or evening reporting. Yankee Hill did say they would not be able to provide constant supervision. Robert was also accepted to Clarinda and Omaha Home for Boys (OHB).

Later in January, the Court entered an order on the disposition that the safety plan was inadequate and that Robert was a serious risk to himself and the community and continued the hearing for an opening at OHB.

In February, the Court entered an order that reasonable efforts had been made and all community resources had been exhausted. Robert was placed on probation until 19 and placed at OHB, with reviews every six months.

Robert appeals and assigns that the Court erred in finding that there had been an exhaustion of resources and removing him from his home.

An appellate court reviews juvenile cases de novo on the record. In re Interest of Dana H., 299 Neb 197 (2018).

The Court first addresses mootness in this case as at the time of argument, Robert had been returned to his mother’s home. To exercise judicial power, there must exist an actual case or controversy. Weatherly v. Cochran, 301 Neb. 426 (2018). If the issues presented in litigation no longer exist, the case becomes moot. Id. Here, the case is moot because the parties have no interest in whether efforts were exhausted since Robert is back at home. However, there are exceptions to mootness, including if the issue is a great public interest or other rights may be affected by the case’s outcome. Id.

The Court here addresses the issue of whether community based resources had been exhausted under the public interest exception as this issue is likely to reoccur.

The controlling statute is Neb. Rev. Stat. § 43-251.01(7), which provides that a juvenile described in 43-247(1), (2), (3)(b), or (4) shall not be placed out of his home unless, “[a]ll available community-based resources have been exhausted to assist the juvenile and his or her family; and (b) [m]aintaining the juvenile in the home presents a significant risk of harm to the juvenile or community.” This requires that evidence show that no other community-based services have a reasonable possibility of success or that they have been considered and none are feasible. In re Interest of Keyanna R., 299 Neb. 356 (2018).

Here, the probation office tried to develop a safety plan, but it included supervision at all times, which would have been hard to enforce. The Court also addresses that the adults considered to help with supervision were inappropriate, that the school could not provide the supervision needed, and that Robert had a prior failure at a diversion program. The record shows that options were thoroughly considered and found inappropriate.

The evidence supports the finding of exhaustion of community-based resources. The decision of the Juvenile Court is affirmed.