Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/04/2018 08:10 AM CDT




                                                         - 350 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                          IN RE INTEREST OF NICHOLAS K.
                                                 Cite as 299 Neb. 350




                                   In   re I nterest of
                                                     Nicholas K., a child
                                                  18 years of age.
                                                under
                                         State of Nebraska, appellee,
                                          v. Nicholas K., appellant.
                                                    ___ N.W.2d ___

                                          Filed March 16, 2018.    No. S-17-531.

                1.	 Juvenile Courts: Appeal and Error. An appellate court reviews juve-
                    nile cases de novo on the record and reaches a conclusion independently
                    of the juvenile court’s findings.
                2.	 Minors: Proof. The exhaustion requirement of Neb. Rev. Stat.
                    § 43-251.01(7)(a) (Reissue 2016) demands evidence establishing that
                    no other community-based resources have a reasonable possibility for
                    success or that all options for community-based services have been thor-
                    oughly considered and none are feasible.

                 Appeal from the Separate Juvenile Court of Douglas County:
               Elizabeth Crnkovich, Judge. Affirmed.
                 Thomas C. Riley, Douglas County Public Defender, and
               Lauren J. Micek for appellant.
                    No appearance for appellee.
                 Heavican,              C.J.,    Miller-Lerman,          Cassel,   Stacy,   and
               Funke, JJ.
                    Miller-Lerman, J.
                                     NATURE OF CASE
                  Nicholas K. appeals from a disposition by the separate
               juvenile court of Douglas County which ordered him placed
               in a residential group home. The appeal presents the question
                             - 351 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                 IN RE INTEREST OF NICHOLAS K.
                        Cite as 299 Neb. 350

of whether the out-of-home placement order complied with
Neb. Rev. Stat. § 43-251.01(7) (Reissue 2016), which requires
that a juvenile not be placed out of his or her home as a dis-
positional order unless “(a) [a]ll available community-based
resources” have been exhausted and “(b) [there is] a signifi-
cant risk of harm to the juvenile or community” by “[m]ain-
taining the juvenile in the home.” We conclude the out-of-
home placement complied with both requirements. Therefore,
we affirm.

                   STATEMENT OF FACTS
   Nicholas was adjudicated pursuant to Neb. Rev. Stat.
§ 43-247(3)(B)(ii) (Reissue 2016) based on his admission to
deportment, a status offense. The petition had alleged that (1)
Nicholas was observed abusing alcohol or a controlled sub-
stance and (2) Nicholas had admitted to abusing alcohol or
a controlled substance. This was Nicholas’ first adjudicated
law violation.
   At his arraignment on March 13, 2017, Nicholas stated he
was currently attending individual therapy and had previously
participated in, but did not complete, intensive outpatient sub-
stance abuse treatment at Journeys in August 2016. The court
ordered an updated chemical dependency evaluation.
   At the disposition hearing commenced on April 24, 2017,
the court considered evidence, including a predisposition
investigation authored by Nicholas’ probation officer, two let-
ters from Nicholas’ substance abuse therapist, and a chemical
dependency evaluation.
   The probation officer recommended that Nicholas be placed
on probation for a period of 6 months and that he participate
in level-one dual diagnosis outpatient treatment, attend school
without unexcused absences, participate in intensive family
support services as arranged by probation, and obtain part-
time employment. The State agreed with the recommendations
of the probation officer at this time. Counsel for Nicholas
agreed with the recommendations, but requested that Nicholas
                            - 352 -
          Nebraska Supreme Court A dvance Sheets
                  299 Nebraska R eports
                 IN RE INTEREST OF NICHOLAS K.
                        Cite as 299 Neb. 350

finish the school year, continue any outpatient treatment with
his current therapist, and be ordered to attend meetings of
Narcotics Anonymous or Alcoholics Anonymous if group ther-
apy is not available from his current therapist.
   The court disagreed with the probation recommendation
and the request by Nicholas and, based on all the evidence
including questioning of Nicholas’ parents about his homelife,
observed that the sessions with Nicholas’ therapist were not
working. The court stated to Nicholas, “[I]t is clear from this
letter [from Nicholas’ substance abuse therapist] that you do
not take your drug use seriously, and you certainly do not take
your treatment seriously.” The court determined that contin-
ued therapy would not work because, in the previous year,
Nicholas had dropped out of intensive outpatient substance
abuse treatment at Journeys and was continuing to use con-
trolled substances.
   Following the receipt of evidence, the court stated that
“residential treatment at Boys Town would be great” for
Nicholas and ordered that application be made to the Boys
Town group home. The court made clear that a 30-day order
would not produce the long-term changes needed. The court
asked a youth care worker from Boys Town who was present
at the hearing whether there was space at Boys Town group
home and confirmed that there was one bed open. Having
directed that application for Boys Town be made, the court
stated that it would check on the group home application in a
week or so.
   At the continued disposition on May 9, 2017, the court
inquired about the status of the application to Boys Town
group home. Nicholas’ probation officer stated that Nicholas
was accepted into the family home program, but recommended
that Nicholas receive family support and continue outpatient
treatment. However, the State indicated that it had reviewed
the chemical dependency evaluation and asked the court to
order Nicholas to Boys Town group home. The State asserted
that Nicholas’ several months at the Journeys program while
                             - 353 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                 IN RE INTEREST OF NICHOLAS K.
                        Cite as 299 Neb. 350

continuing to use controlled substances demonstrated that he
had exhausted community-based services. Nicholas objected
to an out-of-home placement. The court reiterated its concerns
about his unsuccessful treatment, lack of motivation in therapy,
and failure to question his drug use.
   In its May 9, 2017, written disposition order, the court
ordered Nicholas placed at Boys Town group home. The
court made specific written findings that reasonable efforts
were made to prevent removal from the home, including a
risk assessment, shelter placement, evaluation, predisposition
investigation, probation terms and conditions, and probation
supervision, but that the efforts failed to eliminate the need
for removal from the home. The order stated that it would
be contrary to the health, safety, and welfare of Nicholas
to reside at the family home. The order stated that it would
be in the best interests of Nicholas to be placed temporar-
ily outside of the parental home and ordered that Nicholas
be placed at Boys Town group home until further order of
the court.
   Nicholas appeals his out-of-home placement at Boys Town
group home. On October 12, 2017, the State waived filing a
brief and participating in oral arguments on this case.

                  ASSIGNMENTS OF ERROR
   Nicholas claims, consolidated and restated, that the juvenile
court erred when it committed Nicholas to a group home when
less restrictive placement alternatives existed, determined that
available community-based resources had been exhausted, and
determined that residing in the parental home presented a sig-
nificant risk to him or to the community.

                  STANDARD OF REVIEW
   [1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings. In re Interest of Lilly S. & Vincent S.,
298 Neb. 306, 903 N.W.2d 651 (2017).
                             - 354 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                 IN RE INTEREST OF NICHOLAS K.
                        Cite as 299 Neb. 350

                            ANALYSIS
   Nicholas claims that the juvenile court erred when it placed
him in a residential group home. He argues that the rel-
evant statutory requirements were not met, because there was
insufficient evidence all community-based resources had been
exhausted, and that the evidence failed to show residing in his
family home presented a significant risk of harm to him or the
community. After a review of the statute and the record, we
reject Nicholas’ assignments of error.
   According to the juvenile court and Nicholas, the control-
ling statute applicable to this case is § 43-251.01(7), which
provides as follows:
      A juvenile alleged to be a juvenile as described in subdi-
      vision (1), (2), (3)(b), or (4) of section 43-247 shall not
      be placed out of his or her home as a dispositional order
      of the court unless:
         (a) All available community-based resources have been
      exhausted to assist the juvenile and his or her family; and
         (b) Maintaining the juvenile in the home presents a sig-
      nificant risk of harm to the juvenile or community.
   As an initial matter, we note that application of § 43-251.01
requires a dispositional order. We have reviewed the record
of the April 24 and May 9, 2017, hearings and the orders
associated with each hearing. Although conducted over 2 sepa-
rate days, we conclude that the juvenile court’s ruling which
resulted from these hearings and ordered that Nicholas be
placed out of home at Boys Town group home is a disposition
order for purposes of § 43-251.01. Accordingly, we apply this
statute to the facts of this case.
   [2] We have recently interpreted the exhaustion requirement
of § 43-251.01(7)(a) in In re Interest of Dana H., ante p. 197,
___ N.W.2d ___ (2018). We concluded that the exhaustion
requirement of § 43-251.01(7)(a) demands evidence establish-
ing that no other community-based resources have a reason-
able possibility for success or that all options for community-
based services have been thoroughly considered and none are
                            - 355 -
          Nebraska Supreme Court A dvance Sheets
                  299 Nebraska R eports
                 IN RE INTEREST OF NICHOLAS K.
                        Cite as 299 Neb. 350

feasible. In reaching our interpretation of § 43-251.01(7)(a),
we adopted the reasoning with respect to a similar statute
interpreted in In re Interest of Nedhal A., 289 Neb. 711, 856
N.W.2d 565 (2014), wherein we stated that the comparable
exhaustion requirement did not imply that a juvenile court
must ensure that every conceivable community-based resource
has been tried and failed. In re Interest of Dana H., supra.
With the foregoing understanding in mind, we have reviewed
the evidence, and we determine that contrary to Nicholas’ con-
tention, the evidence satisfied the exhaustion requirement of
§ 43-251.01(7)(a).
   The evidence regarding community-based options is
described in the “Statement of Facts” section of this opinion
and will not be repeated here. In sum, the exhaustion evidence
showed, inter alia, that Nicholas had not improved with inten-
sive outpatient substance abuse treatment including services
provided by the Journeys program and that he continued to use
controlled substances notwithstanding therapy.
   With respect to the risk analysis required under
§ 43-251.01(7)(b), there is evidence, including evaluations,
which indicates that Nicholas’ sale of drugs to others has neg-
atively impacted his daily functioning, including school per-
formance—all to his detriment. See In re Interest of Dana H.,
supra. In particular, Nicholas’ sale of drugs to others showed
a risk to the community.
   Before ordering out-of-home placement, the juvenile court
made the correct statutory findings. The juvenile court’s find-
ings were supported by the evidence. Upon our de novo review,
we find no merit to Nicholas’ assertions to the contrary.
                      CONCLUSION
  For the reasons set forth above, the orders of the juvenile
court are affirmed.
                                                  A ffirmed.
  Wright and K elch, JJ., not participating.
