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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

In re Interest of Iyana P., a child

under 18 years of age.

State of Nebraska, appellee, 

v. Iyana P., appellant.

___ N.W.2d ___

Filed January 9, 2018. No. A-17-494.

1. 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.

2. ____: ____. In reviewing questions of law arising under the Nebraska 

Juvenile Code, an appellate court reaches conclusions independent of 

the lower court’s rulings.

3. Juvenile Courts: Due Process. Complying with the procedures under 

Neb. Rev. Stat. § 43-286(5) (Reissue 2016) is important because in a 

revocation proceeding, the juvenile is entitled to procedural protections, 

including the right to confront and cross-examine adverse witnesses.

4. Juvenile Courts: Probation and Parole. Under Neb. Rev. Stat. 

§ 43-286 (Reissue 2016), a juvenile court may not change a disposition 

unless the juvenile has violated a term of probation or supervision or 

the juvenile has violated an order of the court and the procedures established in subsection (5)(b) have been satisfied.

5. Juvenile Courts. An original dispositional order cannot be changed at 

the whim of the juvenile court judge, but only as provided in Neb. Rev. 

Stat. § 43-286(5)(b) (Reissue 2016).

6. Juvenile Courts: Appeal and Error. Once a court has entered a disposition, it is plain error to change that disposition when the State has not 

complied with the applicable statutory procedures.

7. Juvenile Courts: Probation and Parole. Neb. Rev. Stat. § 43-286 

(Reissue 2016) does not allow the juvenile court to place a juvenile on 

probation or exercise any of its other options for disposition and at the 

same time continue the dispositional hearing.

Nebraska Supreme Court Online Library

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

01/16/2018 12:12 AM CST
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

8. ____: ____. When the State contends that a juvenile placed on probation 

has violated a term of probation or an order of the court, it is required to 

file a motion to revoke or change the disposition.

9. Juvenile Courts. A motion to revoke or change a disposition shall set 

forth specific factual allegations of the alleged violations, a copy must 

be served on all persons entitled to service, and the juvenile is entitled 

to a hearing to determine the validity of the allegations.

Appeal from the Separate Juvenile Court of Douglas County: 

Elizabeth Crnkovich, Judge. Reversed and remanded with 

directions.

Thomas C. Riley, Douglas County Public Defender, and 

Ryan T. Locke for appellant.

No appearance for appellee.

Pirtle, Riedmann, and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Iyana P. appeals from an order of the separate juvenile 

court of Douglas County which changed the terms of her 

probation and a subsequent order which denied her motion 

to vacate the order that changed her probation. Because we 

determine that the juvenile court did not follow applicable 

statutory procedures in changing the terms of her probation 

and that it denied her due process, we reverse the juvenile 

court’s order denying Iyana’s motion to vacate and remand the 

matter to the juvenile court with directions to vacate its order 

which changed Iyana’s probation and for further proceedings 

consistent with this opinion.

BACKGROUND

On August 9, 2016, a petition to adjudicate was filed in 

the separate juvenile court of Douglas County alleging that 

Iyana was within the meaning of Neb. Rev. Stat. § 43-247 

(Reissue 2016) in that she had committed third degree assault. 

Following a detention hearing, the court entered an order on 
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

August 18 which ordered that Iyana be detained at the Douglas 

County Youth Center until further order of the court.

A detention review hearing was held on August 24, 2016, 

and the juvenile court entered an order that Iyana be placed 

in “shelter care,” as arranged by the Office of Probation 

Administration, and be released from the Douglas County 

Youth Center.

On October 17, 2016, the court entered an order adjudicating Iyana as a child within the meaning of § 43-247(1). 

Following a disposition hearing, the court entered an order 

on November 21 placing Iyana on probation for 6 months, 

subject to certain terms and conditions of probation. It further 

ordered that the probation “may automatically terminate on 

May 22, 2017 unless sooner extended or revoked for cause by 

the Court or unless a capias has been issued during the term of 

this probation.”

On November 23, 2016, Iyana was released from the 

Douglas County Youth Center to the custody of her parent for 

placement at home. On January 6, 2017, a juvenile warrant was 

issued for Iyana because she was missing from a court-ordered 

placement—the parental home.

On January 11, 2017, following a detention hearing, the 

court entered an order recalling the warrant and placing Iyana 

on the “HOME Program,” an alternative to detention.

On January 25, 2017, an order was entered placing Iyana 

in “shelter care” and set a “Check Hearing” for February 6. 

On January 30, the issue of Iyana’s placement at a shelter 

was brought before the court. There was no objection made 

to placement at a shelter due to concerns for her well-being 

if she was to remain in the home of her parent. An order was 

entered placing Iyana at “Youth Links” shelter and the “HOME 

Program” was relieved of further responsibility.

A “Check Hearing” was held on February 6, 2017. The 

juvenile court ordered the Office of Probation Administration 

to seek foster care placement for Iyana and to make application for group home placement.
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

On March 21, 2017, another “Check Hearing” was held 

regarding the placement of Iyana. On April 25, the juvenile 

court entered an order placing Iyana at “Uta Halee” group 

home and further ordered that “[she] shall remain under the 

supervision of a probation officer, for an open ended period 

of time.”

On April 27, 2017, Iyana filed a motion to vacate the court’s 

April 25 order, alleging that the statutory procedures to change 

a juvenile’s dispositional orders under Neb. Rev. Stat. § 43-286 

(Reissue 2016) were not followed. The juvenile court denied 

the motion to vacate.

ASSIGNMENTS OF ERROR

Iyana assigns that the juvenile court erred by extending her 

probation without a hearing, thereby violating her due process 

rights, and by denying her motion to vacate.

STANDARD OF REVIEW

[1,2] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

juvenile court’s findings. In re Interest of Candice H., 284 

Neb. 935, 824 N.W.2d 34 (2012). In reviewing questions of 

law arising under the Nebraska Juvenile Code, an appellate 

court reaches conclusions independent of the lower court’s rulings. Id.

ANALYSIS

Iyana assigns that the juvenile court violated her due process rights when it extended her probation without a hearing. 

More specifically, she contends that the juvenile court did not 

follow the procedures established under § 43-286 in changing 

her original disposition ordered by the court.

[3] Section 43-286 sets out a juvenile court’s disposition options for juveniles who have been adjudicated under 

§ 43-247(1), (2), or (4). The procedures for changing an existing disposition are set forth in § 43-286(5). Complying with 

the procedures under § 43-286(5) is important because in a 
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

revocation proceeding, the juvenile is entitled to procedural 

protections, including the right to confront and cross-examine 

adverse witnesses. See In re Interest of Alan L., 294 Neb. 261, 

882 N.W.2d 682 (2016).

Section 43-286(5)(b) governs the procedure for revoking 

a juvenile’s probation or court supervision and changing the 

disposition:

When a juvenile is placed on probation or under the 

supervision of the court for conduct under subdivision 

(1), (2), (3)(b), or (4) of section 43-247 and it is alleged 

that the juvenile has violated a term of probation or supervision or that the juvenile has violated an order of the 

court, a motion to revoke probation or supervision or to 

change the disposition may be filed and proceedings held 

as follows:

(i) The motion shall set forth specific factual allegations of the alleged violations and a copy of such motion 

shall be served on all persons required to be served by 

sections 43-262 to 43-267;

(ii) The juvenile shall be entitled to a hearing before 

the court to determine the validity of the allegations. . . .

(iii) The hearing shall be conducted in an informal 

manner . . . .

(iv) The juvenile shall be given a preliminary hearing 

in all cases when the juvenile is confined, detained, or 

otherwise significantly deprived of his or her liberty as a 

result of his or her alleged violation of probation, supervision, or court order. . . .

(v) If the juvenile is found by the court to have violated the terms of his or her probation or supervision or 

an order of the court, the court may modify the terms and 

conditions of the probation, supervision, or other court 

order, extend the period of probation, supervision, or 

other court order, or enter any order of disposition that 

could have been made at the time the original order was 

entered; and
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

(vi) In cases when the court revokes probation, supervision, or other court order, it shall enter a written statement as to the evidence relied on and the reasons for 

revocation.

[4,5] Under § 43-286, a juvenile court may not change a 

disposition unless the juvenile has violated a term of probation 

or supervision or the juvenile has violated an order of the court 

and the procedures established in subsection (5)(b) have been 

satisfied. See In re Interest of Torrey B., 6 Neb. App. 658, 577 

N.W.2d 310 (1998). In other words, the original dispositional 

order cannot be changed at the whim of the juvenile court 

judge, but only as provided in subsection (5)(b). In re Interest 

of Torrey B., supra.

[6] The Nebraska Supreme Court and this court have both 

held that once a court has entered a disposition, it is plain error 

to change that disposition when the State has not complied 

with the applicable statutory procedures. See, In re Interest 

of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008); In re 

Interest of Torrey B., supra.

[7] In In re Interest of Torrey B., supra, the juvenile was 

adjudicated under § 43-247(1) and the court placed the juvenile on indefinite probation with placement in the parental 

home. The court subsequently committed the juvenile to the 

Office of Juvenile Services (OJS) for placement at a youth 

rehabilitation and treatment center. The juvenile court did this 

without any pleading, motion, or notice by the State, claiming the juvenile had violated the terms of his probation. On 

appeal, this court stated that the juvenile court apparently 

assumed that by putting a provision in the original dispositional order continuing the matter, it could change the order 

without pleadings, notice, or evidence. We held that § 43-286 

does not allow the juvenile court to place a juvenile on probation or exercise any of its other options for disposition and at 

the same time continue the dispositional hearing. In re Interest 

of Torrey B., supra. We further held that the juvenile court 

committed plain error in committing the juvenile to OJS, as 
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

it had the effect of revoking the juvenile’s probation without 

following applicable statutory procedure. Id.

Similarly, in In re Interest of Markice M., supra, the juvenile argued that the court erred in changing the terms of his 

probation from inhome placement to group home placement 

without following the procedures in § 43-286(4), now found in 

§ 43-286(5). The juvenile was adjudicated under § 43-247(1), 

and the juvenile court subsequently entered a dispositional 

order placing him on probation, but allowing him to remain 

in his home. A few months later, the juvenile court conducted 

an “‘evaluation hearing’” at which time the probation officer 

informed the court that she was concerned about the juvenile’s safety in the home and recommended that he be placed 

in a group home. In re Interest of Markice M., 275 Neb. at 

910, 750 N.W.2d at 347. The juvenile court entered an order 

requiring the probation officer to make application for group 

home placement. The State argued that the hearing which led 

to the change was a “‘continued dispositional hearing’” and 

that the order requiring group home placement was part of the 

original dispositional phase, not a subsequent modification. 

Id. at 912, 750 N.W.2d at 349.

[8,9] The Nebraska Supreme Court disagreed with the 

State’s position and reversed the juvenile court’s order requiring the probation officer to make application for group home 

placement. In doing so, the court agreed with our holding in 

In re Interest of Torrey B., 6 Neb. App. 658, 577 N.W.2d 310 

(1998), that § 43-286 does not allow the juvenile court to place 

a juvenile on probation or exercise any of its other options for 

disposition, and at the same time continue the dispositional 

hearing. It held that the disposition was complete upon entry 

of the court’s order placing the juvenile on probation and permitting him to remain in his home. In re Interest of Markice 

M., 275 Neb. 908, 750 N.W.2d 345 (2008). The court further 

held that the subsequent order requiring group home placement constituted a change in the terms of probation specified 

in the dispositional order. Id. It stated that when the State 
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

contends that a juvenile placed on probation has violated a 

term of probation or an order of the court, it is required to file 

a motion to revoke or change the disposition. Id., citing In re 

Interest of Torrey B., supra; § 43-286. The motion “‘shall set 

forth specific factual allegations of the alleged violations,’” a 

copy must be served on all persons entitled to service, and the 

juvenile is entitled to a hearing to determine the validity of the 

allegations. In re Interest of Markice M., 275 Neb. at 913, 750 

N.W.2d at 349, citing § 43-286.

The In re Interest of Markice M. court concluded that the 

order requiring the juvenile to be placed in a group home had 

the effect of changing a term of his previously ordered probation without following the applicable statutory procedure. 

The court ordered that the order changing the disposition be 

vacated and that the matter be remanded to the juvenile court 

for further proceedings.

More recently, in In re Interest of Alan L., 294 Neb. 261, 

882 N.W.2d 682 (2016), the Nebraska Supreme Court did not 

reverse the order changing the disposition even though the procedures did not comply with § 43-286(5). Rather, it concluded 

that despite procedural flaws, the juvenile was not denied due 

process. The juvenile was adjudicated under § 43-247(1), and 

he was subsequently placed on probation and allowed to live 

with his parent. After the juvenile was placed on probation, 

the State filed three different commitment motions related 

to the juvenile’s noncooperation with his probation terms. 

But the State never filed a motion to revoke his probation. 

Following a hearing on a second amended motion to commit 

the juvenile to OJS for placement at a youth rehabilitation and 

treatment center, the court found that allegations for commitment were true, placed the juvenile on intensive supervision 

probation, and committed him to OJS for placement at the 

treatment center.

On appeal, among other arguments, the juvenile claimed 

that the commitment hearing deprived him of his due process 

right to confront and cross-examine his accusers. He argued 
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

that if the State had filed a motion to revoke his probation, 

he would have had a statutory right to confront and crossexamine witnesses against him.

The In re Interest of Alan L. court found that because the 

motion rested on probation violations, the State should have 

filed a motion to revoke probation to support its requested 

change in the disposition. It recognized its previous holding 

in In re Interest of Markice M., 275 Neb. 908, 912-13, 750 

N.W.2d 345, 349 (2008): “When the State contends that a 

juvenile placed on probation has violated a term of probation or an order of the court, it is required to file a motion to 

revoke or change the disposition.” The In re Interest of Alan 

L. court found that although the State did not comply with its 

previous holding, the State’s motion had put the juvenile on 

notice that it was seeking a commitment to OJS because of his 

probation violations. The Supreme Court further noted that the 

juvenile did not contend he did not have notice of the claim 

and that he had not shown the State denied him any protections he would have received had the State filed a revocation 

motion. Further, at the commitment hearing, the juvenile was 

represented by counsel and not precluded from presenting 

evidence. The Supreme Court found that despite procedural 

flaws, the juvenile court’s procedures did not deny the juvenile an opportunity to challenge the State’s recommendations 

for the commitment, so he was not denied due process. In re 

Interest of Alan L., supra.

The present case is similar to all three cases discussed above 

in that the State did not follow the statutory procedures in 

§ 43-286(5). Iyana’s dispositional order placed her on probation for 6 months. The juvenile court subsequently ordered 

that “[she] shall remain under the supervision of a probation 

officer, for an open ended period of time.” The subsequent 

order constituted a change in the terms of Iyana’s probation, 

and the court made this change without following the statutory procedures under § 43-286 to change a juvenile’s dispositional orders.
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IN RE INTEREST OF IYANA P.

Cite as 25 Neb. App. 439

We further determine that, unlike the juvenile in In re 

Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016), 

Iyana was denied due process. Although Iyana had notice 

that her probation would not automatically terminate on May 

22, 2017, if a capias was issued during the term of probation, and one was issued on January 6, 2017, the State did 

not file a motion to revoke her probation and there was no 

hearing to determine if Iyana violated a term of her probation. 

Because there was no hearing, Iyana could not confront or 

cross-examine witnesses against her. Therefore, in addition to 

the statutory procedural flaws, the juvenile court’s procedures 

denied Iyana an opportunity to challenge a change in the terms 

of her probation and she was denied due process.

We conclude that the juvenile court erred in extending 

Iyana’s probation indefinitely, as it had the effect of revoking 

her probation without following the applicable statutory procedures under § 43-286. The juvenile court’s procedures also 

denied Iyana due process. Therefore, the trial court erred in 

denying Iyana’s motion to vacate.

CONCLUSION

We conclude that the juvenile court erred in changing 

the terms of Iyana’s probation without following the statutory procedures set forth in § 43-286 and in denying her due 

process. Accordingly, we reverse the juvenile court’s order 

denying Iyana’s motion to vacate and remand the matter to 

the juvenile court with directions to vacate its order entered 

April 25, 2017, and for further proceedings consistent with 

this opinion.

Reversed and remanded with directions.