43-286 Juvenile violator or juvenile in need of special supervision; disposition; violation of probation; procedure.
43-286. Juvenile violator or juvenile in need of special supervision; disposition; violation of probation; procedure.(1) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), or (4) of section 43-247:(a) The court may continue the dispositional portion of the hearing, from time to time upon such terms and conditions as the court may prescribe, including an order of restitution of any property stolen or damaged or an order requiring the juvenile to participate in community service programs, if such order is in the interest of the juvenile's reformation or rehabilitation, and, subject to the further order of the court, may:(i) Place the juvenile on probation subject to the supervision of a probation officer;(ii) Permit the juvenile to remain in his or her own home or be placed in a suitable family home, subject to the supervision of the probation officer; or(iii) Cause the juvenile to be placed in a suitable family home or institution, subject to the supervision of the probation officer. If the court has committed the juvenile to the care and custody of the Department of Health and Human Services, the department shall pay the costs of the suitable family home or institution which are not otherwise paid by the juvenile's parents.Under subdivision (1)(a) of this section, upon a determination by the court that there are no parental, private, or other public funds available for the care, custody, and maintenance of a juvenile, the court may order a reasonable sum for the care, custody, and maintenance of the juvenile to be paid out of a fund which shall be appropriated annually by the county where the petition is filed until a suitable provision may be made for the juvenile without such payment; or(b) The court may commit such juvenile to the Office of Juvenile Services, but a juvenile under the age of twelve years shall not be placed at the Youth Rehabilitation and Treatment Center-Geneva or the Youth Rehabilitation and Treatment Center-Kearney unless he or she has violated the terms of probation or has committed an additional offense and the court finds that the interests of the juvenile and the welfare of the community demand his or her commitment. This minimum age provision shall not apply if the act in question is murder or manslaughter.(2) When any juvenile is found by the court to be a juvenile described in subdivision (3)(b) of section 43-247, the court may enter such order as it is empowered to enter under subdivision (1)(a) of this section or enter an order committing or placing the juvenile to the care and custody of the Department of Health and Human Services.(3) Beginning July 15, 1998, when any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 because of a nonviolent act or acts and the juvenile has not previously been adjudicated to be such a juvenile because of a violent act or acts, the court may, with the agreement of the victim, order the juvenile to attend juvenile offender and victim mediation with a mediator or at an approved center selected from the roster made available pursuant to section 25-2908.(4)(a) When a juvenile is placed on probation or under the supervision of the court and it is alleged that the juvenile is again a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, a petition may be filed and the same procedure followed and rights given at a hearing on the original petition. If an adjudication is made that the allegations of the petition are true, the court may make any disposition authorized by this section for such adjudications.(b) When a juvenile is placed on probation or under the supervision of the court for conduct under subdivision (1), (2), (3)(b), or (4) of section 43-247 and it is alleged that the juvenile has violated a term of probation or supervision or that the juvenile has violated an order of the court, a motion to revoke probation or supervision or to change the disposition may be filed and proceedings held as follows:(i) The motion shall set forth specific factual allegations of the alleged violations and a copy of such motion shall be served on all persons required to be served by sections 43-262 to 43-267;(ii) The juvenile shall be entitled to a hearing before the court to determine the validity of the allegations. At such hearing the juvenile shall be entitled to those rights relating to counsel provided by section 43-272 and those rights relating to detention provided by sections 43-254 to 43-256. The juvenile shall also be entitled to speak and present documents, witnesses, or other evidence on his or her own behalf. He or she may confront persons who have given adverse information concerning the alleged violations, may cross-examine such persons, and may show that he or she did not violate the conditions of his or her probation or, if he or she did, that mitigating circumstances suggest that the violation does not warrant revocation. The revocation hearing shall be held within a reasonable time after the juvenile is taken into custody;(iii) The hearing shall be conducted in an informal manner and shall be flexible enough to consider evidence, including letters, affidavits, and other material, that would not be admissible in an adversarial criminal trial;(iv) The juvenile shall be given a preliminary hearing in all cases when the juvenile is confined, detained, or otherwise significantly deprived of his or her liberty as a result of his or her alleged violation of probation. Such preliminary hearing shall be held before an impartial person other than his or her probation officer or any person directly involved with the case. If, as a result of such preliminary hearing, probable cause is found to exist, the juvenile shall be entitled to a hearing before the court in accordance with this subsection;(v) 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 order, extend the period of probation, or enter any order of disposition that could have been made at the time the original order of probation was entered; and(vi) In cases when the court revokes probation, it shall enter a written statement as to the evidence relied on and the reasons for revocation. SourceLaws 1981, LB 346, § 42; Laws 1982, LB 787, § 18; Laws 1987, LB 638, § 6; Laws 1989, LB 182, § 13; Laws 1994, LB 988, § 21; Laws 1996, LB 1044, § 134; Laws 1998, LB 1073, § 26; Laws 2000, LB 1167, § 21. Cross ReferencesJuvenile probation officers, appointment, see section 29-2253.Placements and commitments, restrictions, see section 43-251.01. Annotations1. Probation2. Restitution3. Equal protection4. Miscellaneous1. ProbationThis section does not authorize the juvenile court to impose confinement as a part of an order of probation. In re Interest of Dustin S., 276 Neb. 635, 756 N.W.2d 277 (2008).Juvenile court may not place a juvenile on probation or exercise any of its other options for disposition and at the same time continue the dispositional hearing. In re Interest of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008).In the absence of an order revoking probation, a juvenile court has no obligation to comply with former subsection (4)(f) of this section. In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).This section does not allow the juvenile court to place a juvenile on probation or exercise any of its other options under the former subsections (1) and (2) and at the same time continue the dispositional hearing. Subsection (4) outlines the procedures which must be followed when a court revokes probation, revokes supervision, or otherwise changes the juvenile's disposition, and the former subsection (4)(f) describes more particularly the procedures which must be followed when a court revokes probation. In re Interest of Torrey B., 6 Neb. App. 658, 577 N.W.2d 310 (1998).There is no provision in either this section or section 43-287 that grants the juvenile court the authority to place a juvenile on probation subject to the supervision of the Department of Social Services. In re Interest of Robin C., 3 Neb. App. 936, 535 N.W.2d 831 (1995).2. RestitutionA juvenile court may use any rational method of fixing the amount of restitution, so long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juvenile's ability to pay. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).When a juvenile court enters an order of restitution under subsection (1)(a) of this section, the court should consider, among other factors, the juvenile's earning ability, employment status, financial resources, and other obligations. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).3. Equal protectionSince juvenile offenders and adult offenders are not similarly situated, there is no deprivation of equal protection when a juvenile adjudged to be a juvenile within the meaning of section 43-247(1), (2), or (4) is, pursuant to this section, confined for a longer period than an adult convicted of the same offense could be incarcerated. In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989).The dispositional statutes (sections 43-283 to 43-2,101) do not violate the equal protection provisions of either the U.S. Constitution or the Constitution of the State of Nebraska, because they validly classify status offenders, who do not violate the state's criminal law, on the one hand, and juvenile criminal offenders, on the other, who violate the state's criminal law by their own volitional acts. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).4. MiscellaneousAs used in subsection (1)(a)(iii) of this section, the terms "supervision" and "custody" are not synonymous. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).A juvenile adjudged to be a juvenile within the meaning of section 43-247(3)(b), i.e., a status offender, may not be committed to the Department of Correctional Services. In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989).A juvenile court has broad discretion as to the disposition of a child found to be delinquent. In re Interest of Jones, 230 Neb. 462, 432 N.W.2d 46 (1988).Disposition of juveniles adjudged within section 43-247 is pursuant to sections 43-283 to 43-2,101. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).In exercising its jurisdiction, a juvenile court cannot modify a disposition order without, at least, a motion, appropriate notice, and a hearing satisfying the requirements of due process. In addition to lacking the authority to order the Department of Health and Human Services to supervise a juvenile's probation, the juvenile court also lacks the authority to order the Department of Health and Human Services to supervise a juvenile's house arrest or to oversee a juvenile's payment of restitution. In re Interest of Juan L., 6 Neb. App. 683, 577 N.W.2d 319 (1998).A juvenile court does not have jurisdiction over the Office of Juvenile Services in placing, managing, or discharging a juvenile committed to a youth rehabilitation treatment center, even though the juvenile court retains jurisdiction of the juvenile. On a motion to revoke probation, the court must advise the juvenile and his or her parent or guardian of their right to retain counsel, inquire of the juvenile and his or her parent or guardian as to whether they desire to retain counsel, and inform the juvenile and his or her parent or guardian of the juvenile's right to counsel at county expense if none of them is able to afford counsel. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).The written statement requirement contained in former subsection (4)(f) of this section is satisfied if the judge's oral statements appearing in the bill of exceptions from the revocation hearing, as well as in the revocation order, when taken together, reveal the evidence relied upon and reasons for the revocation. In re Interest of Thomas W., 3 Neb. App. 704, 530 N.W.2d 291 (1995).