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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

In re Interest of Steven S., a child

under 18 years of age.

State of Nebraska, appellee, 

v. Steven S., appellant.

___ N.W.2d ___

Filed March 23, 2018. No. S-17-1155.

1. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. An appellate court reviews a juvenile court’s decision to transfer a juvenile 

offender’s case to county court or district court de novo on the record 

for an abuse of discretion.

2. Juvenile Courts: Appeal and Error. When the evidence is in conflict, 

an appellate court may give weight to the fact that the lower court 

observed the witnesses and accepted one version of the facts over 

the other.

3. Courts: Juvenile Courts: Jurisdiction: Proof. When the prosecution 

seeks to transfer a juvenile offender’s case to criminal court, the juvenile court must retain the matter unless a preponderance of the evidence 

shows that the proceeding should be transferred to the county court or 

district court. The prosecution has the burden by a preponderance of the 

evidence to show why such proceeding should be transferred.

4. Courts: Juvenile Courts: Jurisdiction. In determining whether a case 

should be transferred to criminal court, a juvenile court should consider 

those factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016). In 

order to transfer the proceedings, the court need not resolve every factor 

against the juvenile, and there are no weighted factors and no prescribed 

method by which more or less weight is assigned to a specific factor. 

It is a balancing test by which public protection and societal security 

are weighed against the practical and nonproblematical rehabilitation of 

the juvenile.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Affirmed.

Nebraska Supreme Court Online Library

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

06/15/2018 12:13 AM CDT
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

Joe Nigro, Lancaster County Public Defender, and Sarah J. 

Safarik for appellant.

Tara A. Parpart, Deputy Lancaster County Attorney, for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, 

JJ., and Colborn and Samson, District Judges.

Cassel, J.

INTRODUCTION

Steven S. appeals an order of the separate juvenile court 

transferring his case to county court. We begin by settling 

the standard of review, which is a matter of first impression. 

Because of the nature of juvenile courts and the statutory 

provisions governing such transfers, we determine that the 

appropriate standard of review is de novo on the record for an 

abuse of discretion. Having considered the evidence, upon our 

de novo review, we find no abuse of discretion in the transfer. 

We affirm the order of the juvenile court.

BACKGROUND

Juvenile Petition

In September 2017, Steven and another juvenile were being 

transported from juvenile detention facilities to the Youth 

Rehabilitation and Treatment Center (YRTC) in Kearney, 

Nebraska. While en route, the juveniles discussed not wanting 

to go to Kearney. Steven freed his hand from a wrist restraint 

and opened the passenger door, allowing both juveniles to 

escape from custody. Shortly thereafter, law enforcement took 

them into custody without incident.

The State filed a petition in the separate juvenile court 

of Lancaster County charging Steven with escape. This is 

a Class IV felony offense.1 The State simultaneously filed 

1 Neb. Rev. Stat. § 28-912(4) (Reissue 2016).
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

a motion to transfer Steven’s case from juvenile court to 

county court.

Transfer Hearing

The juvenile court conducted a transfer hearing. Evidence 

showed that Steven’s contacts with law enforcement dated 

back to 2011. He was placed on probation for disturbing the 

peace committed in 2011 and for criminal mischief committed 

in April 2012. In February 2013, a court adjudicated Steven 

on a charge of disturbing the peace and committed him to the 

Office of Juvenile Services. He received probation for criminal mischief committed in January 2015 and for an assault 

in April.

Over the course of Steven’s involvement with juvenile court, 

he had multiple out-of-home placements. Lancaster County 

Youth Services Center (YSC) housed him for approximately 

1 month, before he was placed at a group home in Iowa at 

the end of March 2014. Steven successfully completed the 

program and returned home in November. But approximately 

5 months later, he was detained at YSC for an assault. At that 

time, Steven was also being uncooperative with his electronic 

monitor and with services.

In May 2015, Steven was placed at a psychiatric residential treatment facility. He ran away from that program after 

approximately 3 months and was “on run” for approximately 

2 weeks. After being held at YSC for a few weeks, Steven 

was placed at a group home. After a little over 2 weeks, 

Steven ran away. Once detained, the State filed a motion to 

send Steven to the YRTC. Steven remained at the YRTC for 

about 7 months, until June 2016, and returned to his mother’s 

home in Lincoln, Nebraska, after successfully completing 

the program.

After being home for approximately 3 months, Steven cut 

off his electronic monitor. He allegedly took his mother’s 

vehicle to Omaha, Nebraska, and was on run for about 3 

days. After being detained, Steven had relatively short stays 
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

at YSC, “Cedars Shelter,” and a relative’s home. In December 

2016, Steven was placed at a different group home in Iowa. 

After approximately 3 months, he again went on run. After 

being on run for about 1 day, Steven was located with another 

youth in a stolen vehicle that was stuck in mud. He was 

detained for some time in “Sarpy County Detention” and then 

transferred to YSC.

In April 2017, Steven returned to the YRTC. In August, he 

absconded with another youth and was on run for almost 3 

weeks. He had been in detention since being apprehended, but 

he remained under a commitment to the YRTC.

Emily Trotter, Steven’s intensive supervision probation officer since November 2015, noted that Steven did not turn himself in on any of the times that he was on run. He had an electronic monitor on three occasions and was not compliant on 

any of those occasions. She could not think of any additional 

services that could be used to help Steven be successful in his 

home. She explained, “I think we’ve offered . . . the family 

everything that probation has available to us at this time and 

it doesn’t seem like it’s working.” She testified that the YRTC 

was the most structured and secure environment that probation 

could offer.

In September 2016, a co-occurring evaluation was performed to examine mental health and substance abuse symptoms. It stated in part:

Overall, Steven continues to struggle with impulsivity 

and low frustration tolerance, which has resulted in a history of oppositional behaviors, which have led to multiple 

arrests and out of home placements. If Steven is not able 

to find ways to better regulate his emotions these behaviors are likely to continue and even worsen.

Trotter discussed a couple of matters favorable to Steven. 

The only time that Steven tested positive on a drug screen was 

when he was taking prescribed painkillers. Trotter testified 

that Steven consistently attended high school when he was in 
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

the community, that he obtained good grades, and that teachers 

liked him. Unfortunately, due to all the times that Steven was 

on run, he was not on track to graduate.

Trotter also testified regarding a couple of traumatic events 

in Steven’s life. Steven’s father passed away during Steven’s 

first commitment at the YRTC. In July 2016, a firework injured 

Steven’s hand, causing a loss of parts of his fingers and a hearing loss.

Even after the instant escape charge, Steven continued to 

display problematic behavior. On September 9, 2017, he joined 

in a fight occurring in his housing unit. Four days later, he 

commented that he would continue the fight if allowed out 

with the youth. On September 17 and 18, Steven disobeyed 

staff orders. On the latter day, he received a “Major Rule 

Violation for Obstruction of Correctional Operations.”

In October 2017, Dr. Colleen A. Conoley performed a neuropsychological/psychological evaluation on Steven. Steven’s 

attorney requested the evaluation and sought an expert opinion 

on whether the case should be transferred to adult court. Trotter 

testified that if probation had been aware of the evaluation, she 

would have provided the YRTC’s intake and monthly updates, 

as well as Steven’s entire school record.

Conoley opined that Steven was amenable to treatment in 

the juvenile court. She stated that the correct clinical priority 

was treatment of Steven’s post-traumatic stress disorder. She 

opined that it would be best to aggressively treat Steven’s posttraumatic stress disorder before addressing anger and resentment issues and that “[t]he juvenile justice system has more 

flexibility and access to resources and medication than available through the adult system.” Conoley also stated, “He continues to require resources that are better handled at the juvenile levels, including access to peers, special education, mental 

health providers specializing in children and adolescents, and 

access to medication that is unavailable within the state penitentiary system.”
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

Juvenile Court’s Order

The juvenile court entered a comprehensive order outlining 

its considerations of the factors set forth in Neb. Rev. Stat. 

§ 43-276 (Reissue 2016). The court found it “very clear that 

[Steven] is not willing to cooperate with treatment services and 

is not currently amenable to treatment.” It noted that Steven’s 

“significant and lengthy history in Juvenile Court” weighed 

strongly in favor of transferring the case to county court. The 

court recounted that multiple services had been offered to 

Steven and that he had been placed in multiple out-of-home 

placements. The court determined that Steven’s history of 

going “on run” posed an ongoing risk to the public. It stated 

that Steven “seems to do whatever he wants without any regard 

for the consequences of how it might affect others.”

The juvenile court felt that it was running out of time to help 

Steven and that nothing tried over the last 6 years had been 

successful. It reasoned:

It is very clear that [Steven] has not taken advantage of 

the services provided to him[,] and he has not taken steps 

that would likely help better regulate his emotions. In 

reality, quite the opposite is true and, per the evaluation, 

it is fair to conclude that the juvenile’s behaviors have 

worsened and have continued.

No matter what, the Juvenile Court loses jurisdiction 

over [Steven] once he turns 19 years of age, which is in 

approximately 16 months. If he is adjudicated in Juvenile 

Court on the pending charge, the most restrictive thing 

this Court could do is re-commit him to the YRTCKearney, a place he has been to twice and one that clearly 

is not working for [Steven]. As there was no evidence 

presented that indicates the YRTC-Kearney has increased 

[its] security and structure since he escaped from there, 

he could very clearly run away again from there if he 

so chose.

The juvenile court acknowledged factors weighing in favor 

of maintaining jurisdiction. It recognized Steven’s chaotic 
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

upbringing, but stated that Steven had added to the chaos and 

had not cooperated with services and placements that were 

designed to help him overcome his chaotic upbringing. And 

it observed that Conoley recommended Steven be placed in a 

“treatment-group home or a [psychiatric residential treatment 

facility].” But in considering Conoley’s evaluation, the court 

was troubled that probation had no involvement: “[N]o collateral information was provided by the juvenile probation office 

nor was the juvenile probation office even contacted by Dr. 

Conoley. That in and of itself calls into question the validity of 

her entire report, especially her recommendations.”

The juvenile court queried what it could do for Steven that 

had not already been done. It found the answer to be clear: 

“[N]othing. The Juvenile Court is simply out of options.” The 

court concluded that the State had proved by a preponderance of the evidence that the matter should be transferred to 

county court.

Steven filed a timely appeal from the final order granting 

transfer of the case,2 and we moved the case to our docket.3

ASSIGNMENT OF ERROR

Steven assigns that the juvenile court erred in finding sufficient evidence to transfer his case to county court.

STANDARD OF REVIEW

The standard of review for transfer orders from juvenile 

court to county court or district court is an issue of first 

impression. The parties advance different standards.

Before considering the suggested alternatives, we make two 

observations. First, transfers from juvenile to “adult” court are 

a recent development. Prior to legislation enacted in 2014,4

proceedings began in the county or district court. The juvenile 

2 See Neb. Rev. Stat. § 43-274(5) (Supp. 2017).

3 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

4 2014 Neb. Laws, L.B. 464.
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Cite as 299 Neb. 447

could file a motion asking that the case be transferred to juvenile court. In 2014, the legislation dictated that the county 

attorney or city attorney file the petition in the court with 

jurisdiction as outlined in what became codified as Neb. Rev. 

Stat. § 43-246.01 (Reissue 2016).5 Second, the 2014 legislation 

did not provide for an interlocutory appeal.6 Thus, we held that 

an order denying a transfer was not a final, appealable order.7

Later, the Legislature amended the law to provide for an interlocutory appeal.8

 In so doing, the Legislature emphasized that 

these interlocutory appeals are to be expedited.9 This is our 

first opportunity to review a juvenile court order granting a 

transfer to county court, where the matter has not proceeded 

to the substance of the allegations. We now turn to the parties’ proposals.

The State contends that our review should be for an abuse of 

discretion. We have used an abuse of discretion standard when 

reviewing a denial of a transfer from juvenile court to tribal 

court under the Indian Child Welfare Act.10 And we review 

a motion to transfer a pending criminal proceeding to the 

juvenile court for an abuse of discretion.11 The State correctly 

observes that in such a situation, the court considers the same 

criteria under § 43-276(1).12

Although the considerations for transfer between adult court 

and juvenile court are the same, the respective prerequisites 

are not. When a case is filed in adult court, the adult court 

shall transfer it to juvenile court “unless a sound basis exists 

5 Id., §§ 9 and 16.

6 Id., § 4.

7 In re Interest of Tyrone K., 295 Neb. 193, 887 N.W.2d 489 (2016).

8 2017 Neb. Laws, L.B. 11, § 1.

9 See § 43-274(5).

10 See In re Interest of Tavian B., 292 Neb. 804, 874 N.W.2d 456 (2016).

11 See State v. Bluett, 295 Neb. 369, 889 N.W.2d 83 (2016).

12 See Neb. Rev. Stat. § 29-1816(3)(a) (Supp. 2017).
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

for retaining the case.”13 On the other hand, when the matter is 

initially filed in juvenile court, the juvenile court shall retain it 

“unless the court determines that a preponderance of the evidence shows that the proceeding should be transferred to the 

county court or district court.”14 Due to this difference, it does 

not naturally follow that we should employ the pure abuse of 

discretion standard used in reviewing a request to transfer from

adult court.

On the other hand, Steven urges that a de novo standard of 

review is appropriate. He highlights that in juvenile cases, an 

appellate court’s review is typically de novo on the record and 

that the appellate court reaches its conclusions independently 

of the juvenile court’s findings.15 We have long held that the 

object of the juvenile code is corrective, to the end that the 

child’s reformation be brought about.16 And we have observed 

that a juvenile proceeding is not a prosecution for a crime but 

a special proceeding that serves as an ameliorative alternative 

to a criminal prosecution and that the purpose of our statutes 

relating to youthful offenders is the education, treatment, 

and rehabilitation of the child.17 Moreover, the juvenile code 

expounds upon these purposes at length18 and the codification of recent changes allocating jurisdiction between juvenile 

and adult courts19 illustrates the Legislature’s goal of favoring 

juvenile courts as forums for criminal offenses committed 

by minor children. But this does not mean that no deference should be accorded to the juvenile court’s decision on a 

motion to transfer.

13 Id.

14 § 43-274(5).

15 See, e.g., In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 

(2017).

16 See Laurie v. State, 108 Neb. 239, 188 N.W. 110 (1922).

17 See In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).

18 See Neb. Rev. Stat. § 43-246 (Reissue 2016).

19 See § 43-246.01.
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

In some juvenile cases, we have conducted a review de novo 

on the record for an abuse of discretion. We have used such a 

standard in reviewing a juvenile court’s determination regarding (1) whether a juvenile has been denied his or her statutory right to a prompt adjudication20; (2) whether a juvenile’s 

waiver of counsel was voluntary, knowing, and intelligent21; 

and (3) whether special reasons exist to split the roles of 

guardian ad litem and counsel for the juvenile.22 Likewise, the 

Nebraska Court of Appeals has used that standard for review 

regarding guardian ad litem fees.23

We believe that is the standard of review that should be 

used here. In our view, it provides the proper balance for 

accomplishing the purposes and goals of both the juvenile code 

and the criminal code. At oral argument, Steven urged that 

transfers from juvenile to adult court be viewed as “suspect.” 

We reject his argument and conclude that our articulation best 

carries out the Legislature’s goal of expedited review. And we 

emphasize that in many, if not most, instances, oral arguments 

will not be necessary. Summary dispositions may frequently 

be appropriate.

[1,2] We therefore hold that an appellate court reviews a 

juvenile court’s decision to transfer a juvenile offender’s case 

to county court or district court de novo on the record for an 

abuse of discretion. But we also recognize that in doing so, the 

juvenile court’s assessment of credibility may be critical. In 

such circumstances, we will apply the rule that when the evidence is in conflict, an appellate court may give weight to the 

fact that the lower court observed the witnesses and accepted 

one version of the facts over the other.24

20 See In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).

21 See In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).

22 See In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

23 See In re Interest of Antone C. et al., 12 Neb. App. 466, 677 N.W.2d 190 

(2004).

24 See In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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ANALYSIS

[3] When the prosecution seeks to transfer a juvenile offender’s case to criminal court, the juvenile court must retain the 

matter unless “a preponderance of the evidence shows that 

the proceeding should be transferred to the county court or 

district court.”25 The prosecution “has the burden by a preponderance of the evidence to show why such proceeding should 

be transferred.”26

[4] Section 43-276 sets forth 15 factors for a juvenile court 

to consider in making the determination of whether to transfer a case to county court or district court. As noted above, 

the same factors are considered when determining whether to 

transfer a case to juvenile court. And in that context, we have 

said that the court need not resolve every factor against the 

juvenile and that there are no weighted factors and no prescribed method by which more or less weight is assigned to a 

specific factor.27 Rather, it is a balancing test by which public 

protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. We 

apply the same reasoning in the context of a motion to transfer 

from juvenile court.

Factors Weighing in

Favor of Transfer

Of the 15 statutory factors to be considered, many weigh in 

favor of transferring the matter to county court or district court. 

One consideration is the type of treatment to which Steven 

would most likely be amenable. The evidence on this point was 

in dispute. Conoley, who performed the psychological evaluation on Steven, opined that Steven was amenable to treatment 

in the juvenile court and that “[t]he juvenile justice system 

has more flexibility and access to resources and medication 

25 § 43-274(5).

26 Id.

27 See State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).
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IN RE INTEREST OF STEVEN S.

Cite as 299 Neb. 447

than available through the adult system.” But Trotter, Steven’s 

intensive supervision probation officer, felt that probation had 

offered Steven everything it could and that such services had 

not worked. This consideration dovetails with another factor 

weighing heavily in favor of transferring the case: Steven’s 

previous history. His first contact with law enforcement was 

in 2011. Since that time, Steven has continued to engage in 

unlawful activity, despite his ongoing involvement with juvenile court and the multitude of services offered to him. Based 

on Steven’s poor track record over a number of years in juvenile court, we agree with the juvenile court that Steven is not 

amenable to treatment in that court.

Other factors weigh in favor of transferring the case. 

Steven’s motivation in committing the escape was to avoid 

returning to the YRTC. He was being returned to the YRTC 

after escaping from there. Ironically, the YRTC is the most 

secure environment that probation can offer. At the time of 

the escape, Steven was 171⁄2 years old. He helped a juvenile 

who was 7 months younger escape with him. Consideration of 

public safety weighs in favor of transferring the case. Steven 

has gone on run a number of times and has escaped from 

even the most secure juvenile placement. Further, he does 

not appear to appreciate the nature and seriousness of his 

conduct. His claim to be a member of a criminal street gang 

is troublesome.

Whether Steven’s best interests and the security of the 

public may require that Steven continue in secure detention or under supervision for a period extending beyond his 

minority also point to transferring his case. Once again, we 

note his 6-year involvement with juvenile court and the multiple placements and services that have not led to a positive 

change in Steven’s behavior. If Steven remained in juvenile 

court, he would likely be sent to the YRTC for a third time 

and the juvenile court would lose jurisdiction over him when 

he turned 19 years old. If Steven’s case were transferred to 

adult court, he could be placed on adult probation or he could 
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Cite as 299 Neb. 447

be incarcerated, if necessary. The evidence shows that even 

though Steven has successfully completed some programs, he 

has not reformed his behavior.

Factors Weighing

Against Transfer

A few factors weigh against transfer. The escape offense 

did not include violence. Steven’s best interests would likely 

be aided by remaining in juvenile court and thereby avoiding 

a possible felony conviction. He has not been convicted of 

or acknowledged use or possession of a firearm. And we are 

cognizant of research related to the development of the adolescent brain.

Neutral Factors

Some of the factors do not tip the scales in favor of juvenile court or adult court. Whether the victim agrees to participate in mediation has no application here. Whether there 

is a juvenile pretrial diversion program also appears largely 

irrelevant: Lancaster County has such a program, but nothing 

in the evidence leads to the conclusion that Steven would be 

eligible for the program. There was no evidence that a juvenile 

court order had been issued for Steven under Neb. Rev. Stat. 

§ 43-2,106.03 (Reissue 2016).

Resolution

Upon our de novo review of the record, we find no abuse 

of discretion by the juvenile court in transferring Steven’s case 

to county court. Steven is now 18 years old, and the juvenile 

court’s jurisdiction ends when he turns 19. No service offered 

to Steven thus far has led him to reform his behavior.

To the extent that Steven’s mental health and trauma issues 

may be better handled at the juvenile level, we observe that 

a transfer to adult court does not eliminate a disposition 

under the juvenile code. As we recently noted, “the possibility of disposition under the juvenile code remains available 
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to juveniles even if their case is transferred from juvenile to 

criminal court.”28 A statute specifically provides:

If the defendant was under eighteen years of age at the 

time he or she committed the crime for which he or she 

was convicted, the court may, in its discretion, instead of 

imposing the penalty provided for the crime, make such 

disposition of the defendant as the court deems proper 

under the Nebraska Juvenile Code.29

Further, individuals in adult court can be placed on probation 

with conditions related to rehabilitation of the offender.30 And 

adult probation can work with an offender for up to 5 years.31

CONCLUSION

Upon our de novo review of the record, we conclude that 

the juvenile court did not abuse its discretion in ordering that 

Steven’s case be transferred to county court. The juvenile 

court’s transfer order is affirmed.

Affirmed.

Wright, J., not participating.

28 In re Interest of Tyrone K., supra note 7, 295 Neb. at 211, 887 N.W.2d at 

501.

29 Neb. Rev. Stat. § 29-2204.02(6) (Reissue 2016).

30 Neb. Rev. Stat. § 29-2262(2) (Reissue 2016).

31 Neb. Rev. Stat. § 29-2263(1) (Reissue 2016).