In re the Interest of Victor L.

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In re the Interest of Victor L.

Caselaw No.
309 Neb. 21
Filed on
Friday, April 23, 2021

Summary:

A petition was filed in the separate juvenile court of Douglas County, Nebraska, alleging Victor L. had been habitually truant from school and fell within the meaning of Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016). Victor moved to dismiss the petition, alleging he was not competent to be adjudicated. The trial court ordered a competency evaluation for Victor and after receiving the evaluation into evidence found Victor was not competent and dismissed the petition. The State timely appealed, the Supremes affirmed.

The petition filed in April 2019 alleged that Victor had not attended school for more than 20 days during the current school year and therefore was habitually truant within the meaning of § 43-247(3)(b).  The attorney appointed to represent Victor moved the trial court to dismiss the truancy petition based on a 2018 competency evaluation that had concluded that Victor was not competent ‘“‘due to cognitive deficits, limited legal understanding, and emotional [lability].’” The motion to dismiss was heard prior to the adjudication hearing.   An exhibit was offered at the hearing, based on the evidence adduced at this hearing the trial court ordered Victor to undergo a new competency evaluation and the court continued the adjudication hearing.  On December 17, 2019 the trial court held a competency review hearing where the court received a competency evaluation report by Kari Perez, Ph.D.  In the report, Perez described Victor’s complicated mental health history, which included prior hospitalizations for suicidal ideation, medication noncompliance, and a long history of “‘school avoidance.’” Testing revealed Victor’s full-scale IQ of 68.  Testing also revealed Victor had extremely low verbal reasoning abilities, markedly impaired abstract reasoning abilities, and substantial impairments in practical knowledge and judgment. The report suggested all of these skills were “directly related to [Victor’s] ability to assist his attorney and to make decisions.” Among other things, he did not understand the basis for his current charges, how he could assist his counsel, what it meant to deny the allegations of the petition, the role of the juvenile court judge, the role of his defense attorney, or the role of the juvenile probation officer. Ultimately, the report concluded that “Victor does not have the capacities associated with competence to stand trial in juvenile court.” No party disputed the findings or methodology of Perez, and no additional evidence bearing on Victor’s competency was offered. Based on the evidence adduced, Victor’s counsel urged the court to find that Victor was not competent and to dismiss the truancy petition on that basis.  The State argued that the juvenile’s lack of competency was not grounds for dismissal since it was a status offense.  The State further argued that the court could appoint a guardian ad litem for Victor or in the alternative place Victor in some facility in order to regain competence.  When asked by the trial court if the State knew of such a facility the State said they would have to research it.  In a March 25, 2020 order the trial court found that Victor was not competent and dismissed the case. 

In the State’s appeal they cited that 1. competency is not required in juvenile adjudications for a status offense, 2. even if competency is required for status offense adjudications, the court could have adequately protected the juvenile’s competency right through other procedures and 3. the juvenile court should not have dismissed based on a finding of incompetency before ordering appropriate treatment to restore competency or making a judicial finding that competency could not be restored.

First the Supreme Court analyzed the standard of review, as they have not previously made a determination of such in an appeal, from a juvenile court’s pre-adjudication determination that a petition should be dismissed due to incompetency of the juvenile.  They determined that a juvenile court’s determination that a juvenile petition should be dismissed because the juvenile lacks competency to participate in the proceedings involves the sort of discretion that warrants review de novo on the record for an abuse of discretion.   An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Walker v. BNSF Railway Co., 306 Neb. 559, 946 N.W.2d 656 (2020).   Statutory interpretation presents a question of law, on which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.  0 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 N.W.2d 60 (2018).

Victor argued that the Supreme Court did not have jurisdiction in this case as it was not a final order that the State appealed.  The Supremes went through their analysis as to why it was a final order and stated that the jurisdictional question turns on whether the juvenile court’s order dismissed the truancy proceeding in its entirety foreclosed the State from pursuing adjudication and disposition of Victor on the ground of truancy under § 43-247(3)(b). It plainly did, and therefore the Court concluded the State has appealed from a final order.

Victor’s other argument has to do with constitutional due process principles.  Up to this point the Supreme Court had not yet addressed whether competency to participate in juvenile adjudication proceedings is among the constitutional due process rights to which juveniles are entitled. The U.S. Supreme Court has not yet addressed the specific question either. But most appellate courts to have considered the question have generally concluded that accused juveniles have a constitutional due process right not to be adjudicated of a juvenile offense while incompetent.  (see long list of cited cases in the opinion).

The Supremes point to Neb. Rev. Stat. Section 43-258 to explain why there is no need for them to decide if juveniles have a constitutional due process right not to be adjudicated while incompetent.  Obviously the Nebraska Legislature has already made the call.  Next the Court addresses the State’s contention that either a guardian ad litem be appointed for Victor or that Victor be sent to a facility until he is competent.  While the Legislature has recognized an accused juvenile’s statutory right to be competent to participate in adjudication proceedings, it has not mandated any particular procedure to enforce or protect that right when a youth is found incompetent.  The Court goes on to analyze the difference between the juvenile code and the criminal code in this respect.  The State argues that the juvenile court should follow what the criminal code mandates – basically commit the person to a state mental hospital or to some other appropriate state owned or state-operated facility for appropriate treatment until such time as the disability may be removed.  However the Court points out if the Legislature had wanted the criminal competency procedures to be imported into juvenile proceedings, it easily could have done so, as it did when it incorporated Neb. Rev. Stat. § 29-1207(4) (Reissue 2016) into the procedure for calculating a juvenile’s statutory right to prompt adjudication.  The Court also directs us to the case of In re Interest of Brandy M. et al., 250 Neb. 510, 550 N.W.2d 17 (1996), to provide guidance in the balancing of a juvenile’s statutory right to a speedy adjudication while also protecting the juvenile’s best interest. 

In the end the Court went back to the fact that the State presented no evidence regarding possible future treatment and rehabilitation options for Victor and also seemed to stress that the State did not specifically request an order appointing a GAL (nor did the State assign this as error in their brief) for Victor nor show why it would be appropriate in this case.  The Court, in the opinion, does encourage juvenile judges to appoint a GAL for a juvenile who has been found incompetent to assist identifying available options – they seem to imply that would be in the juvenile’s best interest not necessarily straight dismissal of the case against the juvenile.   The Court also encourages parties to make specific suggestions and offer appropriate supporting evidence, so the court has as much information as possible when deciding which option would be in the juvenile’s best interests. They also encourage judges to explain their reasons for selecting one option over the others so an appellate court can have a more meaningful review. 

In the end no abuse of discretion found in dismissing the petition.