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299 Nebraska Report

IN RE INTEREST OF NICHOLAS K.

Cite as 299 Neb. 350

In re Interest of Nicholas K., 

under 18 years of age

State of Nebraska, appellee,

v. Nicholas K., appell

___ N.W.2d ___

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

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile 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 thoroughly considered and none are feasible.

Appeal from the Separate Juvenile Court of Douglas County: 

Elizabeth Crnkovich, Judge. Affi

Thomas C. Riley, Douglas County Public Defender, and 

Lauren J. Micek for appellant.

No appearance for appellee.

Heavican, C.J., Miller-Lerman, Cassel, 

Funke, J

Miller-Lerman

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/04/2018 12:18 AM CDT
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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 dispositional order unless “(a) [a]ll available community-based 

resources” have been exhausted and “(b) [there is] a significant risk of harm to the juvenile or community” by “[m]aintaining the juvenile in the home.” We conclude the out-ofhome 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 substance 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 substance 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 letters 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 parttime 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 
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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 therapy 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 continued 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 controlled 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 
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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 temporarily 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 significant 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 juvenile court’s findings. In re Interest of Lilly S. & Vincent S., 

298 Neb. 306, 903 N.W.2d 651 (2017).
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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 relevant 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 controlling statute applicable to this case is § 43-251.01(7), which 

provides as follows:

A juvenile alleged to be a juvenile as described in subdivision (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 significant 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 separate 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 establishing that no other community-based resources have a reasonable possibility for success or that all options for communitybased services have been thoroughly considered and none are 
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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’ contention, 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 intensive 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 negatively impacted his daily functioning, including school performance—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 findings 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.

Affirme

Wright and Kelch, JJ., not participati