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the Respondent knowingly admits or knowingly does 

not challenge or contest the truth of the matter or matters conditionally admitted and waives all proceedings 

against him or her in connection therewith. If a tendered 

conditional admission is not finally approved as above 

provided, it may not be used as evidence against the 

Respondent in any way.

Pursuant to § 3-313, and given the conditional admission, 

we find that respondent knowingly does not challenge or 

contest the matters set forth in the formal charges. We further 

determine that by his conduct, respondent violated professional 

conduct rules §§ 3-504.1(a) and 3-508.4(a), (c), and (d), as 

well as his oath of office as an attorney licensed to practice law 

in the State of Nebraska. Respondent has waived all additional 

proceedings against him in connection herewith. Upon due 

consideration, the court approves the conditional admission 

and enters the orders as indicated below.

CONCLUSION

The conditional admission is accepted. Respondent is publicly reprimanded. Respondent is directed to pay costs and 

expenses in accordance with Neb. Ct. R. §§ 3-310(P) and 

3-323(B) within 60 days after the order imposing costs and 

expenses, if any, is entered by the court.

Judgment of public reprimand.

In re Interest of Samantha L. and Jasmine L., 

children under 18 years of age.

State of Nebraska, Department of Health and

Human Services, appellee and cross-appellee, 

v. Kelly L., appellee and cross-appellant, 

and William H., appellant.

___ N.W.2d ___

Filed November 1, 2013. No. S-13-264.

1. Rules of the Supreme Court: Appeal and Error. Headings in the argument section of a brief do not satisfy the requirements of Neb. Ct. R. App. P. 

§ 2-109(D)(1) (rev. 2012). Under that rule, a party is required to set forth the 
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assignments of error in a separate section of the brief, with an appropriate heading, following the statement of the case and preceding the propositions of law, 

and to include in the assignments of error section a separate and concise statement of each error the party contends was made by the trial court.

2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases 

de novo on the record and reaches its conclusions independently of the juvenile 

court’s findings.

3. Rules of the Supreme Court: Appeal and Error. Where a brief of a party fails 

to comply with the mandate of Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012), 

an appellate court may proceed as though the party failed to file a brief or, alternatively, may examine the proceedings for plain error.

4. Appeal and Error. Plain error is error plainly evident from the record and of 

such a nature that to leave it uncorrected would result in damage to the integrity, 

reputation, or fairness of the judicial process.

5. Juvenile Courts: Adoption: Child Custody. A juvenile court, except where 

an adjudicated child has been legally adopted, may always order a change 

in the juvenile’s custody or care when the change is in the best interests of 

the juvenile.

6. Trial: Waiver: Appeal and Error. A litigant’s failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

7. Trial: Appeal and Error. One cannot silently tolerate error, gamble on a favorable result, and then complain that one guessed wrong.

Appeal from the Separate Juvenile Court of Douglas County: 

Vernon Daniels, Judge. Affirmed.

Matthew P. Saathoff, of Saathoff Law Group, P.C., L.L.O., 

for appellant.

Molly Adair-Pearson, of Adair-Pearson Law, for appellee 

Kelly L.

Donald W. Kleine, Douglas County Attorney, and Shakil A. 

Malik for appellee State of Nebraska, Department of Health 

and Human Services.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Cassel, J.

INTRODUCTION

The biological parents of two children in the care and 

custody of the Nebraska Department of Health and Human 

Services (DHHS) each filed a notice of appeal from an order of 

the separate juvenile court of Douglas County. The order found 
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that DHHS was no longer required to supply reasonable efforts 

in support of reunification and that the primary permanency 

objectives for the children should be changed from reunification. Both parents failed to include in their respective briefs on 

appeal a separate section assigning error in the juvenile court’s 

order. We therefore review the court’s order for plain error. 

Finding none, we affirm.

BACKGROUND

Kelly L. and William H. are the biological parents of 

Jasmine L. and Samantha L. The separate juvenile court of 

Douglas County placed Jasmine and Samantha in the temporary 

care and custody of DHHS on October 12, 2010, after DHHS 

received information that Kelly and William had engaged in 

acts of domestic violence in Jasmine’s and Samantha’s presence on multiple occasions.

An adjudication hearing was conducted by the juvenile court 

on January 5, 2011. Jasmine and Samantha had remained in 

the custody of DHHS up until that time. Upon completion of 

the hearing, the court entered an order providing that Kelly 

and William admitted or pled no contest to various allegations made by the State. Kelly admitted that she had failed 

to provide Jasmine and Samantha with proper parental care, 

support, and/or supervision, and pled no contest to the State’s 

allegations that she and William had engaged in domestic 

violence in front of the children and that the children were at 

risk for harm. William admitted that his use of alcohol and/

or controlled substances placed the children at risk for harm, 

and pled no contest to the State’s allegations that he and Kelly 

had engaged in acts of domestic violence in front of the children and that the children were at risk for harm. Based upon 

Kelly’s and William’s pleas and admissions, the court found 

that it was in the best interests, safety, and welfare of Jasmine 

and Samantha to remain in the temporary care and custody 

of DHHS.

The juvenile court’s order also set forth requirements for 

Kelly and William to complete for reunification. These requirements included, in relevant part, to (1) obtain and maintain 

safe, stable, and adequate housing; (2) obtain and maintain a 
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legal, stable source of income; (3) abstain from the consumption of alcohol and the use/possession of all controlled substances, unless prescribed by a physician; (4) submit to future 

random drug testing within 4 hours of a request by the case 

manager; and (5) participate in individual therapy to address 

issues relating to domestic violence.

Jasmine and Samantha’s case then came before the juvenile 

court on several continued disposition hearings throughout 

2011 and 2012. DHHS was required to provide Kelly and 

William with copies of reports that it planned to use at the 

hearings 3 days in advance of the hearing dates. However, 

three hearings during this period were continued because 

DHHS failed to do so. Because DHHS caused the hearings to 

be continued, the juvenile court assessed fees for preparation 

and attendance at the hearings against DHHS. DHHS appealed 

the fees award, and we disposed of the appeal in In re Interest 

of Samantha L. & Jasmine L.1

On February 15, 2012, Kelly and William moved the juvenile court for an order to toll the statutory ground for termination of parental rights provided by Neb. Rev. Stat. § 43-292(7) 

(Cum. Supp. 2012). Section 43-292(7) provides that parental 

rights may be terminated when a juvenile has been in an 

out-of-home placement for 15 or more months of the most 

recent 22 months. In support of their motion to toll, Kelly and 

William alleged that DHHS had caused three hearings to be 

continued by failing to provide them with copies of reports 

DHHS planned to use at the hearings. They further alleged 

that their contact with the caseworkers had been intermittent 

from approximately February 2011 to January 2012. Kelly 

and William ultimately claimed that these failures had limited 

their ability to comply with the court’s orders. At the time the 

motion was filed, Jasmine and Samantha had been in the care 

and custody of DHHS for 16 months.

In response to Kelly and William’s motion to toll, the parties 

entered into a stipulation providing that DHHS had failed to 

provide Kelly and William with reasonable efforts in support 

1 In re Interest of Samantha L. & Jasmine L., 284 Neb. 856, 824 N.W.2d 

691 (2012).
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of reunification from February 28, 2011, to February 29, 2012. 

The stipulation further requested that the juvenile court toll 

the statutory time period of § 43-292(7) from February 28, 

2011, to February 29, 2012. The court did so in an order dated 

August 24, 2012.

Jasmine and Samantha’s case then came before the juvenile 

court for an evidentiary and review and permanency planning hearing on February 11, 2013. At that time, Jasmine and 

Samantha had been in out-of-home placement for nearly 28 

months. Their primary permanency objectives during that time 

had been reunification.

At the hearing, DHHS offered several exhibits to the juvenile court without objection. These exhibits included reports 

from the Nebraska Foster Care Review Office, a guardian 

ad litem report, a case plan and court report from DHHS, 

and correspondence documenting the progress of Kelly’s and 

William’s drug testing.

The exhibits made clear that both Kelly and William had 

demonstrated a continued disregard for the juvenile court’s 

requirements for reunification during the nearly 28-month 

period that Jasmine and Samantha had been in the care and 

custody of DHHS. The exhibits showed that both Kelly and 

William had been evicted from their residences, that William 

had been terminated from his employment, that neither Kelly 

nor William was in compliance with urinalysis requests or 

participating in therapy, and that William had been discharged 

from his domestic violence program because he had missed 

more than the permitted number of classes.

The reports from the Nebraska Foster Care Review Office 

and the guardian ad litem report recommended that the primary 

permanency objectives for the children be changed from reunification and that reasonable efforts in support of reunification 

no longer be required. At the hearing, the author of the case 

plan from DHHS also made an oral amendment to the plan, 

recommending that the court adopt a primary permanency 

objective of adoption for Samantha.

In an order dated February 26, 2013, the juvenile court 

found that no further reasonable efforts were required in support of reunification, that the primary permanency objective 
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for Jasmine was to be independent living, and that the primary 

permanency objective for Samantha was to be guardianship 

with a concurrent plan of adoption.

William filed a timely notice of appeal. Kelly filed a second 

notice of appeal. Under our rules, she was considered an appellee2

 and was vested with the right to cross-appeal.3

ASSIGNMENTS OF ERROR

[1] Both Kelly and William failed to include in their respective briefs on appeal a separate section assigning error in the 

juvenile court’s February 26, 2013, order. We have emphasized 

that headings in the argument section of a brief do not satisfy 

the requirements of Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 

2012).4 Under that rule, a party is required to set forth the 

assignments of error in a separate section of the brief, with an 

appropriate heading, following the statement of the case and 

preceding the propositions of law, and to include in the assignments of error section a separate and concise statement of each 

error the party contends was made by the trial court.5 We again 

enforce these requirements.

STANDARD OF REVIEW

[2-4] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

juvenile court’s findings.6 However, where a brief of a party 

fails to comply with the mandate of § 2-109(D)(1)(e), we may 

proceed as though the party failed to file a brief or, alternatively, may examine the proceedings for plain error.7

 Plain 

error is error plainly evident from the record and of such a 

nature that to leave it uncorrected would result in damage to 

the integrity, reputation, or fairness of the judicial process.8

2 See Neb. Ct. R. App. P. § 2-101(C) (rev. 2010).

3 See § 2-101(E).

4 See In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).

5 See id.

6 Id.

7 See id.

8 Id.
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ANALYSIS

The juvenile court’s February 26, 2013, order found that 

reasonable efforts in support of reunification were no longer 

required, that the primary permanency objective for Jasmine 

was to be independent living, and that the primary permanency objective for Samantha was to be guardianship 

with a concurrent plan of adoption. Because both Kelly and 

William failed to include a separate section assigning error 

in their briefs on appeal, we will review each of the above 

findings for plain error. We begin with the court’s finding 

that reasonable efforts in support of reunification were no 

longer required.

Reasonable Efforts

The juvenile court’s February 26, 2013, order found that 

reasonable efforts in support of reunification were no longer 

required. We do not find this conclusion to be plain error. 

From the outset, we acknowledge that the parties entered into 

a stipulation providing that reasonable efforts were not provided in support of reunification from February 28, 2011, to 

February 29, 2012. However, notwithstanding the stipulated 

time period, the evidence shows a clear pattern of disregard by 

Kelly and William for the services provided to them by DHHS 

in support of reunification. Due to Kelly’s and William’s 

continued disregard for these services, the court did not commit plain error in finding that reasonable efforts were no 

longer required.

The exhibits offered to the juvenile court at the February 11, 

2013, hearing demonstrated that Kelly and William continually 

ignored the services provided to them by DHHS to fulfill the 

juvenile court’s requirements for reunification. The case plan 

authored by DHHS stated that Kelly and William were not 

participating in individual therapy, couples counseling, family 

therapy, or Alcoholics Anonymous or drug/alcohol screening. 

The case plan also claimed that Kelly and William had “made 

themselves unavailable to services by not answering their 

phones or the door to their home.”

The guardian ad litem report similarly established Kelly’s 

and William’s unwillingness to utilize the services provided 
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by DHHS. The report stated that “[a]ll resources necessary for 

the parents to comply with the orders of the court have been 

repeatedly made available to the parents and they continue to 

refuse services.” The report then recommended that DHHS 

no longer be required to offer services or provide reasonable 

efforts to assist Kelly and William in their compliance with 

the court’s order.

The correspondence documenting the progress of Kelly’s 

and William’s drug screening also demonstrated a continued 

lack of effort by Kelly and William to participate in the drugscreening services provided by DHHS. A January 21, 2013, 

letter from Kelly’s drug-testing provider stated that Kelly 

was to arrange to come to drug testing weekly, but tested 

only once and then missed all other drug tests. A January 30, 

2013, e-mail from William’s drug-testing provider stated that 

William was being discharged from testing services for failing 

to call in to determine if he needed to test. The e-mail documented dozens of unsuccessful attempts by the provider to 

contact William to set up appointments for drug testing during 

2011 and 2012.

The reports from the Nebraska Foster Care Review Office 

outlined barriers to reunification that similarly established 

Kelly’s and William’s unwillingness to utilize the services 

provided to them. These barriers included (1) lack of progress 

toward reunification, (2) noncompliance by both parents with 

urinalysis requests or participation in therapy, (3) lack of participation by both parents in outpatient substance abuse treatment, and (4) noncompletion by both parents of a domestic 

violence program.

The exhibits offered to the juvenile court established that 

Kelly and William continually failed to utilize the services provided by DHHS in support of reunification during the nearly 

28 months that Jasmine and Samantha were in the care and 

custody of DHHS. Based upon the substantial evidence before 

the court of Kelly’s and William’s unwillingness to utilize 

these services, we find that the court did not commit plain error 

in no longer requiring DHHS to provide reasonable efforts in 

support of reunification.
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Primary Permanency Objectives

The juvenile court’s February 26, 2013, order changed 

Jasmine’s and Samantha’s primary permanency objectives from 

reunification to independent living for Jasmine and guardianship with a concurrent plan of adoption for Samantha. We find 

no plain error in the court’s modification of Jasmine’s and 

Samantha’s primary permanency objectives.

[5] A juvenile court, except where an adjudicated child has 

been legally adopted, may always order a change in the juvenile’s custody or care when the change is in the best interests 

of the juvenile.9 Here, the evidence before the juvenile court at 

the February 11, 2013, hearing adequately demonstrated that it 

was in Jasmine’s and Samantha’s best interests to modify their 

primary permanency objectives.

The evidence before the juvenile court showed that during the nearly 28 months that Jasmine and Samantha were 

in the care and custody of DHHS, Kelly and William had 

failed to make any significant progress toward reunification. 

The court report and case plan from DHHS stated that Kelly 

and William had each been evicted from their respective 

homes, that William was unemployed, and that there was 

continued evidence of alcohol abuse on the part of both Kelly 

and William. The court report further stated that Kelly’s and 

William’s lack of progress had caused the case to be drawn out 

longer than necessary and that the case’s length was affecting 

Jasmine and Samantha.

The juvenile court also received several recommendations at 

the February 11, 2013, hearing that Jasmine’s and Samantha’s 

primary permanency objectives be changed from reunification. The reports from the Nebraska Foster Care Review 

Office recommended a permanency objective of adoption. 

The guardian ad litem report recommended a permanency 

objective of independent living for Jasmine and guardianship 

or adoption for Samantha. At the hearing, the author of the 

case plan from DHHS also made an oral amendment to the 

case plan that Samantha’s permanency objective be changed 

to adoption.

9 In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
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[6,7] Although William’s counsel asserted at oral argument 

that Kelly and William were ambushed by the oral amendment 

to the case plan recommending that Jasmine’s and Samantha’s 

primary permanency objectives be changed from reunification, they failed to take any action to address their surprise 

before the juvenile court. Neither Kelly nor William objected 

to the oral recommendation or moved the court for a continuance once it was made. We have previously stated that a 

litigant’s failure to make a timely objection waives the right to 

assert prejudicial error on appeal.10 One cannot silently tolerate error, gamble on a favorable result, and then complain that 

one guessed wrong.11 We apply that principle now in rejecting William’s argument that the oral recommendation was an 

unfair surprise.

The evidence before the juvenile court established that it was 

in Jasmine’s and Samantha’s best interests to modify their primary permanency objectives from reunification. The evidence 

demonstrated that the case’s length was affecting Jasmine and 

Samantha and that Kelly and William were unlikely to fulfill 

the court’s requirements for reunification in the foreseeable 

future. The court also received multiple recommendations that 

Jasmine’s and Samantha’s permanency objectives be changed. 

We conclude that the court did not commit plain error in modifying Jasmine’s and Samantha’s primary permanency objectives in its February 26, 2013, order.

CONCLUSION

Because both Kelly and William failed to comply with 

§ 2-109(D)(1) regarding assignments of error, our review is 

limited to an examination of the record for plain error. The 

evidence before the court at the February 11, 2013, permanency planning hearing demonstrated that Kelly and William 

had repeatedly disregarded the services provided by DHHS 

in support of reunification. The evidence further established 

that modification of Jasmine’s and Samantha’s permanency 

objectives was in their best interests. We therefore find no 

10 Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).

11 Id.
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plain error in the juvenile court’s February 26 order finding 

that reasonable efforts in support of reunification were no 

longer required, that the primary permanency objective for 

Jasmine was to be independent living, and that the primary 

permanency objective for Samantha was to be guardianship 

with a concurrent plan of adoption. Accordingly, we affirm the 

court’s order.

Affirmed.

State of Nebraska, appellee, v. 

Kaylene M. Rieger, appellant.

___ N.W.2d ___

Filed November 1, 2013. No. S-13-456.

1. Sentences: Appeal and Error. Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court must determine 

whether the sentencing court abused its discretion in considering and applying 

the relevant factors as well as any applicable legal principles in determining the 

sentence to be imposed.

2. Sentences: Probation and Parole. It is within the discretion of the trial court 

whether to impose probation or incarceration.

3. ____: ____. When a court sentences a defendant to probation, it may impose any 

conditions of probation that are authorized by statute.

4. ____: ____. Whether a condition of probation imposed by the sentencing court is 

authorized by statute is a question of law.

5. Judgments: Words and Phrases. 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.

Appeal from the District Court for Sarpy County, Max

Kelch, Judge, on appeal thereto from the County Court for 

Sarpy County, Robert C. Wester, Judge. Sentence vacated in 

part, and cause remanded with directions.

Liam K. Meehan, of Schirber & Wagner, L.L.P., for 

appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.