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309 Nebraska Reports

IN RE INTEREST OF VICTOR L.

Cite as 309 Neb. 21

In re Interest of Victor L., a child 

under 18 years of age.

State of Nebraska, appellant, v. 

Victor L., appellee.

___ N.W.2d ___

Filed April 23, 2021. No. S-20-312.

1. Juvenile Courts: Appeal and Error. Ordinarily, an appellate court 

reviews juvenile cases de novo on the record and reaches a conclusion 

independent of the juvenile court’s findings.

2. Juvenile Courts: Mental Competency: Appeal and Error. A juvenile court’s determination that a juvenile petition should be dismissed 

because the juvenile lacks competency to participate in the proceedings involves the sort of discretion that warrants review de novo on the 

record for an abuse of discretion.

3. 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.

4. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, on which an appellate court is obligated to reach a conclusion 

independent of the determination reached by the court below.

5. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, 

as in any other appeal, before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.

6. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to the appellant prior to the order 

from which the appeal is taken.

7. Juvenile Courts: Minors: Final Orders: Jurisdiction. The State’s 

right in juvenile proceedings is derived from its parens patriae interest. 

Nebraska Supreme Court Online Library

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

06/18/2021 01:09 AM CDT
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The State’s substantial right is affected when an order dismisses a juvenile proceeding in its entirety, with no leave to amend, and the State 

is thus foreclosed from pursuing adjudication and disposition on the 

grounds alleged.

8. Statutes: Legislature: Public Policy. It is the Legislature’s function 

through the enactment of statutes to declare what is the law and public policy.

9. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

10. Statutes. A court must give effect to all parts of a statute, and if it can 

be avoided, no word, clause, or sentence will be rejected as superfluous 

or meaningless.

11. Juvenile Courts: Minors. The foremost purpose and objective of the 

Nebraska Juvenile Code is to promote and protect the juvenile’s best 

interests, and the Nebraska Juvenile Code must be liberally construed to 

serve the best interests of juveniles who fall within it.

12. Juvenile Courts: Minors: Mental Competency: Public Policy. The 

plain language of Neb. Rev. Stat. § 43-258 (Reissue 2016) recognizes, 

as a matter of public policy, that juveniles accused of delinquency and 

status offenses have a statutory right to be competent to participate in 

adjudication proceedings.

13. Juvenile Courts: Minors: Mental Competency: Legislature: Intent.

Because the Legislature has established a juvenile’s statutory right to 

be competent to participate in adjudication proceedings, but it has not 

mandated a specific procedure for enforcing or protecting that right, it 

intended to leave the procedure to the sound discretion of the juvenile 

court, based on the best interests of the juvenile.

14. Juvenile Courts: Minors: Mental Competency. An appropriate judicial procedure for determining whether preadjudication dismissal is 

in the best interests of an incompetent juvenile will generally include 

consideration of (1) the nature and extent of the juvenile’s incompetency and the impact it may have on the juvenile’s meaningful exercise 

of other adjudicatory rights, (2) the evaluation report required by Neb. 

Rev. Stat. § 43-258(3) (Reissue 2016) and any other competent evidence 

assessing the juvenile’s needs and making recommendations for the 

juvenile’s continuous and long-term care, (3) the juvenile’s statutory 

right to be competent while participating in adjudication proceedings, 

and (4) the future treatment and rehabilitation of the juvenile in the 

event of an adjudication. The benchmark of the determination is the 

protection of the best interests of the incompetent juvenile.
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IN RE INTEREST OF VICTOR L.

Cite as 309 Neb. 21

Appeal from the Separate Juvenile Court of Douglas County: 

Chad M. Brown, Judge. Affirmed.

Natalie Killion, Deputy Douglas County Attorney, and 

Rachel Lowe, Senior Certified Law Student, for appellant.

Thomas C. Riley, Douglas County Public Defender, and 

Leigh A. Ellis for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

The State filed a petition in the separate juvenile court 

of Douglas County, Nebraska, alleging Victor L. had been 

habitually truant from school and fell within the meaning of 

Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016). Victor moved 

to dismiss the petition, alleging he was not competent to be 

adjudicated. Following a court-ordered competency evaluation, the juvenile court found Victor was not competent and 

dismissed the petition. The State timely appealed, and we 

moved this case to our docket on our own motion. 1 On this 

record, we affirm.

BACKGROUND

Victor was born in December 2004 and resides with his 

mother in Douglas County, Nebraska. During the 2018-19 

school year, Victor was enrolled at a local middle school.

Truancy Petition

In April 2019, the State filed a petition against Victor in 

the separate juvenile court of Douglas County, alleging he 

had not attended school for more than 20 days during the current school year and therefore was habitually truant within the 

meaning of § 43-247(3)(b). The court appointed counsel to 

represent Victor in the proceeding.

1 See Neb. Rev. Stat. § 24-1106 (Reissue 2014 & Cum. Supp. 2018).
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IN RE INTEREST OF VICTOR L.

Cite as 309 Neb. 21

Motion to Dismiss and 

Competency Evaluation

Prior to the adjudication hearing, Victor moved to dismiss 

the truancy petition, alleging he was “incompetent to stand 

trial.” Victor’s motion referred to a 2018 competency evaluation which had concluded he was not competent “‘due to 

cognitive deficits, limited legal understanding, and emotional 

[lability].’” The 2018 competency evaluation is not in our 

record, but other information in the record suggests it was 

a court-ordered evaluation in an unrelated delinquency proceeding. In the instant proceeding, Victor’s motion to dismiss 

alleged generally that adjudicative competency was one of the 

“essential requirements of due process and fair treatment” to 

which a juvenile is entitled and that “adjudication of an incompetent juvenile violates due process of law.”

The motion to dismiss was taken up at a hearing on 

September 10, 2019. That hearing was not included in our bill 

of exceptions, but the court’s written order indicates Victor 

appeared for the hearing with his counsel and Victor’s mother 

was present pro se. A single unidentified exhibit was offered, 

which is not in our record. Based on the evidence adduced, 

the court continued the scheduled adjudication hearing and 

ordered Victor to undergo a new competency evaluation. 

Probation was appointed on a preadjudicative basis to assist 

with that evaluation. 2

At a competency review hearing on December 17, 2019, 

the court received into evidence a “Juvenile Adjudicative 

Competency Evaluation” report authored by Kari Perez, Ph.D. 

In the report, Perez described Victor’s complicated mental 

health history, which included prior hospitalizations for suicidal ideation, medication noncompliance, and a long history 

of “‘school avoidance.’” Testing revealed Victor’s full-scale 

2 See Neb. Rev. Stat. § 43-258(2)(b) (Reissue 2016) (authorizing court 

to order competency evaluation to be arranged by Office of Probation 

Administration).
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IQ was 68, placing him in the second percentile of children 

his age. Testing also revealed Victor had extremely low verbal reasoning abilities, markedly impaired abstract reasoning 

abilities, and substantial impairments in practical knowledge 

and judgment. The report suggested all of these skills were 

“directly related to [Victor’s] ability to assist his attorney and 

to make decisions.” Results from testing to assess Victor’s 

understanding of the juvenile legal process showed he understood some aspects of the proceedings, but did not understand 

others. Among other things, he did not understand the basis 

for his current charges, how he could assist his counsel, what 

it meant to deny the allegations of the petition, the role of the 

juvenile court judge, the role of his defense attorney, or the 

role of the juvenile probation officer. Ultimately, the report 

concluded that “Victor does not have the capacities associated 

with competence to stand trial in juvenile court.”

In a section of the report titled “Remediation Potential,” 

Perez noted:

It may be possible for Victor’s adjudicative competency 

to improve in the areas of understanding and appreciation 

of pleas, penalties, and the roles of the courtroom participants; however, this will require repeated, graded exposure to these concepts over time, substantially more than 

is required for most individuals his age. Even if he is able 

to improve in these areas, his ability to reason with that 

information in the service of assisting his attorney and 

making case decisions remains limited.

Perez suggested that Victor’s competency deficits were due 

primarily to his developmental delays in reasoning and communication and his mental health condition. She opined these 

conditions were “likely to endure and to continue to negatively 

impact his competency.”

No party disputed the findings or methodology of Perez, 

and no additional evidence bearing on Victor’s competency 

was offered. Based on the evidence adduced, Victor’s counsel 
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IN RE INTEREST OF VICTOR L.

Cite as 309 Neb. 21

urged the court to find that Victor was not competent and to 

dismiss the truancy petition on that basis.

The State did not dispute the report’s conclusion that Victor 

was not competent; instead, it argued that a juvenile’s “lack of 

competency, per se, is [not] grounds for dismissal.” The State’s 

primary contention was that competency was not required 

for adjudication of a status offense. Alternatively, the State 

proposed the court should consider either proceeding with 

the adjudication hearing after appointing a guardian ad litem 

(GAL) for Victor or ordering Victor to “go to some facility in 

order to regain competence.” The State offered no evidence 

showing how the appointment of a GAL would allow Victor to 

meaningfully participate in the proceedings despite his incompetency. And when the court asked the State’s counsel whether 

Nebraska had a facility focused on competency restoration for 

juveniles, the State responded that it would need to do some 

research. The court took the matter under advisement, and our 

record contains no information from the State regarding competency restoration.

Order of Dismissal

In an order entered March 25, 2020, the court found that 

Victor was not competent, and it dismissed the truancy proceeding on that basis. The order of dismissal directed that all 

records relating to the matter be sealed 3 and recited that information concerning the proceedings was deemed never to have 

occurred. The State appeals.

ASSIGNMENTS OF ERROR

The State assigns, restated and renumbered, that the juvenile 

court erred in dismissing the truancy petition because (1) competency is not required in juvenile adjudications for a status 

offense; (2) even if competency is required for status offense 

adjudications, the court could have adequately protected the 

3 See Neb. Rev. Stat. §§ 43-2,108.01 to 43-2,108.05 (Supp. 2019).
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IN RE INTEREST OF VICTOR L.

Cite as 309 Neb. 21

juvenile’s competency right through other procedures; and (3) 

the juvenile court should not have dismissed based on a finding of incompetency before ordering appropriate treatment to 

restore competency or making a judicial finding that competency could not be restored.

STANDARD OF REVIEW

[1] We have not previously articulated a standard of review 

for appeals from a juvenile court’s preadjudication determination that a petition should be dismissed because the juvenile is 

not competent. Ordinarily, an appellate court reviews juvenile 

cases de novo on the record and reaches a conclusion independent of the juvenile court’s findings. 4 But in some cases, we 

have said the appropriate standard of review is de novo on the 

record for an abuse of discretion. 5 We have applied the latter 

standard of review when considering a juvenile court’s decision to transfer a juvenile delinquency case to county court or 

district court, 6 when considering a juvenile court’s determination that a juvenile was denied the statutory right to a prompt 

adjudication, 7 and when considering a juvenile court’s determination that a juvenile’s waiver of counsel was voluntary, knowing, and intelligent. 8

[2,3] We now conclude that a juvenile court’s determination that a juvenile petition should be dismissed because the 

juvenile lacks competency to participate in the proceedings 

involves the sort of discretion that warrants review de novo 

on the record for an abuse of discretion. An abuse of discretion occurs when a trial court’s decision is based upon reasons 

4 In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).

5 See, e.g., In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 

(2018); In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 

(2013); In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007);

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

6 In re Interest of Steven S., supra note 5.

7 In re Interest of Shaquille H., supra note 5.

8 In re Interest of Dalton S., supra note 5.
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IN RE INTEREST OF VICTOR L.

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that are untenable or unreasonable or if its action is clearly 

against justice or conscience, reason, and evidence. 9

[4] Statutory interpretation presents a question of law, on 

which an appellate court is obligated to reach a conclusion 

independent of the determination reached by the court below. 10

ANALYSIS

Dismissal Order Is Final and Appealable

[5] In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an 

appellate court to determine whether it has jurisdiction over the 

matter before it. 11 Victor argues we lack jurisdiction because 

the State has not appealed from a final order. We disagree.

Pursuant to Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016), 

the county attorney is among those expressly authorized to 

appeal from “[a]ny final order or judgment entered by a juvenile court . . . in the same manner as an appeal from [the] 

district court to the Court of Appeals.” The county attorney’s 

appeal process differs in delinquency cases once the juvenile 

“has been placed legally in jeopardy,” 12 but that appeal process 

has no application here. As such, the county attorney’s right to 

appeal turns on whether the juvenile court’s dismissal was a 

final order.

Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) authorizes 

appeals from four types of final orders: (1) those affecting a 

substantial right in an action that, in effect, determines the 

action and prevents a judgment; (2) those affecting a substantial right made during a special proceeding; (3) those affecting 

a substantial right made on summary application in an action 

after judgment is rendered; and (4) those denying a motion 

9 Walker v. BNSF Railway Co., 306 Neb. 559, 946 N.W.2d 656 (2020).

10 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 

N.W.2d 60 (2018).

11 In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).

12 See § 43-2,106.01(2)(d).
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IN RE INTEREST OF VICTOR L.

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for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government 

official. 13 We have consistently held that juvenile proceedings 

are special proceedings. 14 So here, the jurisdictional question 

turns on whether the order of dismissal affected a substantial 

right of the State. We conclude it did.

[6,7] Under Nebraska law, a substantial right is affected if 

“an order affects the subject matter of the litigation, such as 

diminishing a claim or defense that was available to the appellant prior to the order from which the appeal is taken.” 15 The 

State’s right in juvenile proceedings is derived from its parens 

patriae interest, 16 and in In re Interest of Noah B. et al.,

 17 we 

held that the State’s substantial right is affected when an order 

dismisses a juvenile proceeding in its entirety, with no leave to 

amend, and the State is thus foreclosed from pursuing adjudication and disposition on the grounds alleged.

Victor suggests that dismissing the truancy petition did not 

affect a substantial right of the State, because the State is not 

precluded from seeking adjudication on different grounds, such 

as alleging that Victor is within the meaning of § 43-247(3)(a) 

due to the faults or habits of his parent(s). We express no 

opinion about whether the State may be able to seek adjudication on alternative grounds, because the jurisdictional question 

here is not answered by asking whether a different statutory 

provision might also support adjudication. Instead, the jurisdictional question turns on whether the juvenile court’s order 

dismissed the truancy proceeding in its entirety, thereby foreclosing the State from pursuing adjudication and disposition 

13 In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949 N.W.2d 299 

(2020).

14 See, e.g., In re Interest of Noah B. et al., supra note 4.

15 In re Interest of Karlie D., 283 Neb. 581, 587, 811 N.W.2d 214, 221 

(2012).

16 In re Interest of Noah B. et al., supra note 4.

17 See id.
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of Victor on the ground of truancy under § 43-247(3)(b). It 

plainly did, and we therefore conclude the State has appealed 

from a final order. We turn next to the merits of the State’s 

assigned errors.

Competency in Juvenile Adjudications

On appeal, the State’s primary argument is that truancy is a 

status offense and that a juvenile need not be competent to be 

adjudicated for a status offense. In response, Victor argues that 

regardless of the basis on which an adjudication is sought, it 

offends constitutional due process principles to adjudicate a 

juvenile who is not competent to participate in the proceedings.

This court has not yet addressed whether competency to participate in juvenile adjudication proceedings is among the constitutional due process rights to which juveniles are entitled. 

The U.S. Supreme Court has not yet addressed the specific 

question either. But most appellate courts to have considered 

the question have generally concluded that accused juveniles 

have a constitutional due process right not to be adjudicated of 

a juvenile offense while incompetent. 18

18 See, e.g., In re Albert C., 3 Cal. 5th 483, 397 P.3d 240, 219 Cal. Rptr. 

3d 897 (2017); SWM v. State, 299 P.3d 673 (Wyo. 2013); In re T.S., 798 

N.W.2d 649 (N.D. 2011); In re K.G., 808 N.E.2d 631 (Ind. 2004); In re 

J.M., 172 Vt. 61, 769 A.2d 656 (2001); Golden v. State, 341 Ark. 656, 21 

S.W.3d 801 (2000); Matter of W.A.F., 573 A.2d 1264 (D.C. 1990); State 

ex rel. Dandoy v. Superior Court, 127 Ariz. 184, 619 P.2d 12 (1980);

Matter of Welfare of S. W. T., 277 N.W.2d 507 (Minn. 1979); Matter of 

Two Minor Children, 95 Nev. 225, 592 P.2d 166 (1979); State in Interest of 

Causey, 363 So. 2d 472 (La. 1978); In re Carey, 241 Mich. App. 222, 615 

N.W.2d 742 (2000); In re Williams, 116 Ohio App. 3d 237, 687 N.E.2d 

507 (1997); State v. E.C., 83 Wash. App. 523, 922 P.2d 152 (1996); In 

re Interest of S.H., 220 Ga. App. 569, 469 S.E.2d 810 (1996); James v. 

Superior Court, 77 Cal. App. 3d 169, 143 Cal. Rptr. 398 (1978). See, also, 

Restatement of the Law, Children and the Law § 15.30 (Tentative Draft 

No. 2, 2019) (recognizing U.S. Supreme Court has not considered whether 

accused juvenile’s adjudicative competence is constitutionally required, 

but state courts and legislatures have almost uniformly concluded due 

process requires that accused youth facing adjudication must be capable of 

understanding proceedings and assisting counsel).
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We see no reason, in this case, to decide whether juveniles have a constitutional due process right not to be adjudicated while incompetent, because the Nebraska Legislature has 

already recognized an accused juvenile’s statutory right to be 

competent to participate in adjudication proceedings. 19 In that 

regard, § 43-258 provides:

(1) Pending the adjudication of any case under the 

Nebraska Juvenile Code, the court may order the juvenile examined by a physician, surgeon, psychiatrist, duly 

authorized community mental health service program, or 

psychologist to aid the court in determining (a) a material 

allegation in the petition relating to the juvenile’s physical or mental condition, (b) the juvenile’s competence to 

participate in the proceedings, (c) the juvenile’s responsibility for his or her acts, or (d) whether or not to provide 

emergency medical treatment.

(2)(a) . . . .

(b) . . . [P]ending the adjudication of any case in which 

a juvenile is alleged to be a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and after 

a showing of probable cause that the juvenile is within 

the court’s jurisdiction, for the purposes of subsection (1) 

of this section, the court may order an evaluation to be 

arranged by the Office of Probation Administration. Any 

temporary placement of a juvenile made under this section shall be in the least restrictive environment consistent 

with the best interests of the juvenile and the safety of 

the community.

(3) Upon completion of the evaluation, the juvenile 

shall be returned to the court together with a written or 

electronic report of the results of the evaluation. Such 

report shall include an assessment of the basic needs 

19 See In re Interest of Brandy M. et al., 250 Neb. 510, 550 N.W.2d 17 

(1996) (observing court need not decide unresolved constitutional speedy 

trial issue because juvenile statute already confers statutory right to 

prompt adjudication hearing).
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of the juvenile and recommendations for continuous and 

long-term care and shall be made to effectuate the purposes in subdivision (1) of section 43-246. The juvenile 

shall appear before the court for a hearing on the report 

of the evaluation results within ten days after the court 

receives the evaluation.

(Emphasis supplied.)

As relevant here, § 43-258 authorizes the juvenile court, 

before adjudicating “any case” under the juvenile code, to 

order the examination of the juvenile “to aid the court in 

determining . . . the juvenile’s competence to participate in 

the proceedings.” The competency evaluation provisions of 

§ 43-258 apply only to preadjudicated youth, 20 and the statute sets out the procedure for accomplishing such evaluations, including authorizing temporary placement “in the least 

restrictive environment consistent with the best interests of the 

juvenile and the safety of the community.” 21 The statute also 

addresses the content of the competency evaluation report, 

requiring that it “shall include an assessment of the basic 

needs of the juvenile and recommendations for continuous and 

long-term care and shall be made to effectuate the purposes in 

subdivision (1) of section 43-246.” 22 Once the juvenile court 

receives the evaluation report, the court must hold “a hearing 

on the report of the evaluation results within ten days.” 23 But 

as we discuss later, § 43-258 does not mandate any particular 

procedure which must be followed if a youth is determined 

not to be competent.

[8-11] As we have often noted, it is the Legislature’s function through the enactment of statutes to declare what is 

20 In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003) 

(holding mental evaluations of juvenile authorized under § 43-258 are not 

relevant to adjudicated youth).

21 § 43-258(2)(b).

22 § 43-258(3).

23 Id.
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the law and public policy. 24 In construing a statute, a court 

must determine and give effect to the purpose and intent of 

the Legislature as ascertained from the entire language of the 

statute considered in its plain, ordinary, and popular sense. 25 A 

court must give effect to all parts of a statute, and if it can be 

avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 26 The foremost purpose and objective 

of the Nebraska Juvenile Code is to promote and protect the 

juvenile’s best interests, and the Nebraska Juvenile Code must 

be liberally construed to serve the best interests of juveniles 

who fall within it. 27

[12] Applying these principles, we construe the plain language of § 43-258 to recognize, as a matter of public policy, 

that juveniles accused of delinquency and status offenses have 

a statutory right to be competent to participate in adjudication 

proceedings. Surprisingly, the State’s appellate brief contains 

no citation to, or discussion of, the competency provisions in 

§ 43-258. Nevertheless, because the provisions of § 43-258 

plainly apply to the adjudication of delinquency and status 

offenses, we must reject, as contrary to the plain language of 

§ 43-258, the State’s contention that juveniles who face adjudication for a status offense need not be competent to participate 

in the proceedings. The State’s first assignment of error has 

no merit.

Procedure When Juvenile 

Not Competent

The State does not argue that preadjudication dismissal of 

a juvenile petition is never appropriate after a determination 

24 See In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 

(2012).

25 In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

26 Id.

27 Id.
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that a youth is incompetent. 28 Instead, the thrust of the State’s 

argument is that preadjudication dismissal for lack of competency should not be considered mandatory, as other options 

may be available to safeguard a juvenile’s right to adjudicative competency. The State’s appellate briefing focuses on 

the same two options it mentioned below: either appointing a 

GAL for Victor and proceeding with adjudication despite his 

lack of competency or ordering reasonable efforts to restore 

Victor’s competency.

Before we can address the State’s contention that preadjudication dismissal of an incompetent youth is not mandatory, we 

must confront a statutory dilemma. While the Legislature has 

recognized an accused juvenile’s statutory right to be competent to participate in adjudication proceedings, it has not mandated any particular procedure to enforce or protect that right 

when a youth is found incompetent. In that respect, the statutory competency rights under the juvenile code are distinctly 

different from those under the criminal code. 29

Unlike the juvenile code, the criminal code mandates the 

procedure to be followed once an accused is found not competent to stand trial. 30 Under that procedure:

If the district court determines that the accused is incompetent to stand trial, then the court must make a determination whether there is a substantial probability that the 

accused will become competent within the foreseeable 

future. If the district court determines that there is a substantial probability that the accused will become competent within the foreseeable future, then § 29-1823(1) 

28 See, e.g., In re Interest of LeVanta S., 295 Neb. 151, 154, 887 N.W.2d 

502, 506 (2016) (noting delinquency and truancy petition was “dropped” 

after 15-year-old twins with developmental disabilities were found 

not competent).

29 Compare § 43-258 with Neb. Rev. Stat. § 29-1823 (Cum. Supp. 2020).

30 See, State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000) (noting 

§ 29-1823 sets out decision tree district courts are obligated to follow once 

accused is found incompetent).
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mandates that the court order the accused committed to a 

state mental hospital or to some other appropriate stateowned or state-operated facility for appropriate treatment until such time as the disability may be removed. 

Section 29-1823(2) provides for 6-month reviews of the 

competency determination made by the district court. If, 

however, the district court determines that there is not 

a substantial probability that the accused will become 

competent within the foreseeable future, § 29-1823(3) 

specifies the appropriate procedure: the State shall either 

commence civil commitment proceedings or release 

the accused. 31

The State’s briefing generally suggests, without any analysis, that juvenile courts should follow the same enforcement 

procedure mandated under the criminal code. While this court 

has, on occasion, looked to criminal statutes for general guidance when considering similar juvenile statutes, 32 we are not 

persuaded the Legislature intended juvenile courts to enforce 

statutory competency rights using only the criminal procedure 

set out in § 29-1823.

The juvenile code’s competency provisions neither reference nor incorporate the criminal code’s procedures for 

enforcing a criminal defendant’s competency rights. And if 

the Legislature had wanted the criminal competency procedures to be imported into juvenile proceedings, it easily could 

have done so, as it did when it incorporated Neb. Rev. Stat. 

§ 29-1207(4) (Reissue 2016) into the procedure for calculating 

a juvenile’s statutory right to prompt adjudication. 33 Instead, 

the Legislature has been conspicuously silent and has not 

31 Id. at 701, 605 N.W.2d at 439 (emphasis omitted).

32 See, e.g., In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 

484 (2007) (referring to criminal restitution statute for guidance when 

determining restitution factors in juvenile disposition).

33 See Neb. Rev. Stat. § 43-271 (Reissue 2016) (providing computation of 

6-month prompt adjudication period “shall be made as provided in section 

29-1207, as applicable”).
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mandated any particular procedure for enforcing a juvenile’s 

statutory right to competency in adjudication proceedings.

So what is a juvenile court to do once it determines that a 

juvenile is not competent to participate in adjudication proceedings? Is dismissal mandatory? Are other options available? We asked similar questions in In re Interest of Brandy 

M. et al.

 34

There, the State appealed from orders of dismissal entered 

in 10 separate juvenile adjudication proceedings; each dismissal was predicated on the juvenile court’s determination 

that the youth’s statutory right to a prompt adjudication had 

been violated. 35 We found it was readily apparent from the 

plain language of the governing statutes that the Legislature 

intended to provide juveniles with a statutory right to a prompt 

adjudication hearing. But we also observed that, unlike the 

speedy trial statutes for criminal defendants, 36 the prompt 

adjudication statutes for juveniles did not specify the remedy 

for noncompliance.

In re Interest of Brandy M. et al. did not, however, conclude 

that the absence of a specific statutory enforcement procedure 

left the juvenile court with no options. To the contrary, we 

reasoned that since the Legislature had established the statutory right to speedy adjudication without mandating a sanction for violating the right, it had enacted a statutory scheme 

under which enforcement was directory rather than mandatory. 37 Under that circumstance, we held it was “within the 

sound discretion of the juvenile court to determine whether 

absolute discharge of a juvenile petition is in the best interests 

of a juvenile.” 38

34 In re Interest of Brandy M. et al., supra note 19.

35 See, § 43-271 and Neb. Rev. Stat. §§ 43-277 and 43-278 (Reissue 2016) 

(establishing juvenile’s prompt adjudication rights).

36 Compare §§ 43-271 and 43-278 with § 29-1207 and Neb. Rev. Stat. 

§§ 29-1208 and 29-1209 (Reissue 2016).

37 In re Interest of Brandy M. et al., supra note 19.

38 Id. at 524, 550 N.W.2d at 26.
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In In re Interest of Brandy M. et al., we found persuasive 

cases from other jurisdictions in which the courts balanced a 

juvenile’s statutory right to speedy adjudication with protection of the juvenile’s best interests. We observed that a “rigid 

and legalistic interpretation of a juvenile’s statutory right to a 

speedy delinquency adjudication would often be contrary to a 

juvenile’s best interests and, ultimately, contrary to the public 

interest.” 39 Conversely, we observed that it “is rarely in the best 

interests of a juvenile to have his or her case languish unadjudicated in the juvenile court” 40 because delays in adjudication 

can affect the quality of evidence, impair a juvenile’s defense, 

prevent a fair hearing, and be detrimental to the youth’s rehabilitation in the event of adjudication. To help guide juvenile 

courts in deciding whether absolute discharge is in a juvenile’s 

best interests, we suggested courts should consider (1) the factors set out in the statutes establishing the juvenile’s right to a 

prompt adjudication, (2) the juvenile’s right to a prompt and 

fair adjudication, and (3) “the future treatment and rehabilitation of the juvenile in the event of an adjudication.” 41 And 

because of the discretion inherent in such a determination, we 

held that our appellate review should be de novo on the record 

for an abuse of discretion. 42

Applying that standard to our de novo review in In re 

Interest of Brandy M. et al., we concluded the juvenile court 

had not abused its discretion in granting absolute discharge. In 

considering whether absolute discharge was in the juvenile’s 

best interests, we observed the statutory adjudication period 

had run in each of the 10 cases, and we noted the State had 

adduced no evidence of excludable periods under the applicable statute and had instead offered evidence which, at best, 

showed only that the juvenile dockets were overcrowded and 

39 Id. at 522, 550 N.W.2d at 25.

40 Id. at 524, 550 N.W.2d at 26.

41 Id.

42 See In re Interest of Brandy M. et al., supra note 19.
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more judges were needed. We also considered the nature of 

the prompt adjudication right and evidence of how the delay 

in adjudication had prejudiced the juveniles. Finally, we noted 

the State had adduced no evidence at all concerning the rehabilitative needs, future treatment, or best interests of any of the 

juveniles facing adjudication. On that record, we could find 

no abuse of discretion in the juvenile court’s decision to grant 

absolute discharge.

[13] We find the reasoning of In re Interest of Brandy M. et 

al. instructive when reviewing the juvenile court’s dismissal 

here. Like the prompt adjudication rights at issue in In re 

Interest of Brandy M. et al., the Legislature has established 

a juvenile’s statutory right to be competent to participate in 

adjudication proceedings, but it has not mandated a specific 

procedure for enforcing or protecting that right. The absence 

of a compulsory or mandatory procedure for enforcing adjudicative competency rights under § 43-258 does not appear 

to have been an oversight. Instead, it appears the Legislature 

intended to leave the procedure to the sound discretion of the 

juvenile court, based on the best interests of the juvenile. 43 Our 

conclusion in this regard is entirely consistent with Neb. Rev. 

Stat. § 43-246(7) (Cum. Supp. 2020), which directs that when 

construing the juvenile code, courts should do so in a manner 

that “provide[s] a judicial procedure through which [the] purposes and goals [of the juvenile code] are accomplished and 

enforced” and “in which the parties are assured a fair hearing 

and their constitutional and other legal rights are recognized 

and enforced.”

[14] An appropriate judicial procedure for determining 

whether preadjudication dismissal is in the best interests of an 

incompetent juvenile will generally include consideration of 

(1) the nature and extent of the juvenile’s incompetency and 

the impact it may have on the juvenile’s meaningful exercise 

of other adjudicatory rights, (2) the evaluation report required 

43 See id.
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by § 43-258(3) and any other competent evidence assessing the 

juvenile’s needs and making recommendations for the juvenile’s continuous and long-term care, (3) the juvenile’s statutory right to be competent while participating in adjudication 

proceedings, and (4) the future treatment and rehabilitation of 

the juvenile in the event of an adjudication. 44 The benchmark 

of this determination is the protection of the best interests of 

the incompetent juvenile. 45

We consider these factors as part of our de novo review of 

the record to determine whether the juvenile court abused its 

discretion in dismissing the State’s petition. 46 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. 47

The only evidence in our record is the competency evaluation report authored by Perez, which concludes that “Victor 

does not have the capacities associated with competence to 

stand trial in juvenile court.” The State has not contested the 

methodology applied to determine competency, nor has it 

contested the juvenile court’s determination of incompetency. 

As such, this case does not afford the opportunity to address 

the juvenile competency standard, and we express no opinion 

in that regard. The competency evaluation report concluded 

Victor has a full-scale IQ of 68, low verbal reasoning abilities, 

impaired abstract reasoning abilities, and impaired practical 

knowledge and judgment. He does not understand the basis for 

his current charges, how to assist his counsel, what it means 

to deny the allegations of the petition, the role of the juvenile 

court judge, the role of his defense attorney, or the role of the 

juvenile probation officer.

44 See, generally, In re Interest of Brandy M. et al., supra note 19.

45 Id.

46 See, generally, id.

47 Walker, supra note 9.
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The State suggested to the juvenile court that it should consider ordering competency restoration, but it neither expressly 

requested such an order, nor did it provide any evidence to 

support the conclusion that competency restoration was feasible. The only evidence in that regard was the competency 

evaluation report itself, which concluded that even if Victor’s 

understanding of the juvenile court process could be improved, 

his ability to make reasoned decisions and assist his attorney would remain limited. Further, the report concluded that 

Victor’s mental deficits and developmental delays in reasoning 

and communication were “likely to endure and to continue to 

negatively impact his competency.” On this record, we can 

find no abuse of discretion in not ordering competency restoration efforts.

Nor can we find that the juvenile court abused its discretion 

by not appointing a GAL. First, the State has not specifically 

assigned error to the failure to appoint a GAL, even though 

its appellate briefing argues generally that the juvenile court 

should have “considered” the State’s “proposal for such an 

alternative.” 48 To be considered by an appellate court, the party 

asserting the alleged error must both specifically assign and 

specifically argue it in the party’s initial brief. 49

Second, while the State argues on appeal that the juvenile 

court should have appointed a GAL and proceeded with the 

adjudication hearing despite Victor’s incompetency, the State’s 

proposal to the juvenile court did not expressly move for the 

appointment of a GAL, nor did the State explain why a GAL 

would be appropriate in Victor’s case. During the competency review hearing, when referring generally to incompetent youth charged with status offenses, the State remarked: 

“Furthermore, if the Court is inclined to do so, other states 

have, in those instances, appointed a [GAL] to represent that 

juvenile offender’s best interests.”

48 Brief for appellant at 15, 16.

49 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
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We strongly encourage the appointment of a GAL in cases 

where an accused youth is found to be incompetent, in order 

to provide the court with appropriate information regarding the 

juvenile’s best interests and, in particular, whether preadjudication dismissal is in the juvenile’s best interests. But here, 

the State argues the juvenile court should have considered 

appointing a GAL for a different purpose: as an “alternative[] 

for safeguarding competency issues” 50 during the adjudication hearing and “subsequent court proceedings.” 51 Not only 

did the State fail to expressly move for the appointment of 

a GAL, but it adduced no evidence tending to show how the 

appointment of a GAL would protect Victor’s adjudicative 

competency rights or remediate his inability to understand the 

proceedings or consult with and assist his counsel. While there 

may be circumstances under which the appointment of a GAL 

can effectively address adjudicative incompetence, the State’s 

failure to expressly request such an appointment or to present 

any evidence on that issue left the juvenile court without any 

meaningful basis for considering the appointment of a GAL for 

the purpose of proceeding with the adjudication hearing.

Finally, the State presented no evidence at all of the possible future treatment and rehabilitation options for Victor in 

the event of an adjudication. Consequently, our record does 

not permit consideration of this factor when deciding whether 

preadjudication dismissal was in Victor’s best interests given 

his incompetency.

Although our discussion has necessarily been limited to the 

options presented to the juvenile court once Victor was found 

to be incompetent, undoubtedly there are other options available to a juvenile court judge tasked with determining whether 

preadjudication dismissal, or some other procedure, is in the 

best interests of an incompetent juvenile. In future cases, to 

assist the juvenile court in identifying available options, we 

50 Brief for appellant at 10.

51 Id. at 15.
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encourage the appointment of a GAL for the juvenile, and we 

encourage the parties to make specific suggestions and offer 

appropriate supporting evidence, so the court has as much 

information as possible when deciding which option would 

be in the juvenile’s best interests. And to assist in meaningful 

appellate review, we encourage judges to explain their reasons 

for selecting one option over the others.

Here, after determining that Victor was not competent to 

participate in adjudication proceedings, it was within the 

sound discretion of the juvenile court to determine, based on 

Victor’s best interests, how to proceed. While a juvenile court 

may, depending on the circumstances, have viable options 

other than preadjudication dismissal, our de novo review of 

this record does not show an abuse of discretion in dismissing 

the petition.

CONCLUSION

For the foregoing reasons, we affirm the juvenile court’s 

preadjudication dismissal of the truancy petition based on the 

juvenile’s lack of competency to participate in the proceedings.

Affirmed.