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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

In re Interest of Robert W., a child

under 18 years of age.

State of Nebraska, appellee, 

v. Robert W., appellant.

___ N.W.2d ___

Filed March 12, 2019. No. A-18-166.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently 

of the juvenile court’s findings.

2. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

3. Jurisdiction. An actual case or controversy is necessary for the exercise 

of judicial power.

4. Moot Question: Words and Phrases. A case becomes moot when 

the issues initially presented in the litigation cease to exist, when the 

litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not 

rest upon existing facts or rights, in which the issues presented are no 

longer alive.

5. Courts: Judgments. In the absence of an actual case or controversy 

requiring judicial resolution, it is not the function of the courts to render 

a judgment that is merely advisory.

6. Moot Question. As a general rule, a moot case is subject to summary 

dismissal.

7. Moot Question: Appeal and Error. Under certain circumstances, an 

appellate court may entertain the issues presented by a moot case when 

the claims presented involve a matter of great public interest or when 

other rights or liabilities may be affected by the case’s determination.

8. Moot Question: Words and Phrases. In determining whether the 

public interest exception should be invoked, the court considers the 

public or private nature of the question presented, the desirability of an 

Nebraska Supreme Court Online Library

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

03/12/2019 09:08 AM CDT
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

authoritative adjudication for future guidance of public officials, and the 

likelihood of future recurrence of the same or a similar problem.

9. Minors: Proof. The exhaustion requirement of Neb. Rev. Stat. 

§ 43-251.01(7)(a) (Reissue 2016) demands evidence establishing that 

no other community-based resources have a reasonable possibility for 

success or that all options for community-based services have been 

thoroughly considered and none are feasible.

Appeal from the Separate Juvenile Court of Lancaster 

County: Toni G. Thorson, Judge. Affirmed.

Joe Nigro, Lancaster County Public Defender, and James G. 

Sieben for appellant.

Patrick F. Condon, Lancaster County Attorney, and Julie 

Mruz for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Robert W. appeals from two orders of the separate juvenile 

court of Lancaster County finding that all community-based 

resources to assist him and his family in keeping Robert 

in the family home had been exhausted and ordering him 

placed outside of the home. Based on the reasons that follow, 

we affirm.

BACKGROUND

On November 6, 2017, a petition to adjudicate Robert was 

filed, alleging that he had committed two felony offenses: 

terroristic threats and use of a deadly weapon to commit a 

felony. The charges stemmed from an incident in which Robert 

pointed a handgun at the back of another juvenile’s head. An 

order for immediate custody was attached to the petition. A 

supplemental petition was filed on November 9, alleging three 

additional misdemeanor charges. On November 17, Robert 

entered a no contest plea to the use of the deadly weapon to 

commit a felony offense and he was adjudicated under Neb. 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

Rev. Stat. § 43-247(2) (Reissue 2016). The remaining charges 

were dismissed.

Following his adjudication, the court ordered him to be 

“detained at the Lancaster County Juvenile Detention Center 

[and to] cooperate with a co-occurring evaluation” with psychological testing. Dr. Leland Zlomke, a licensed psychologist, 

conducted an evaluation on December 4, 2017, and an updated 

evaluation on December 21.

Four continued disposition hearings were held between 

December 8, 2017, and February 16, 2018. During this time, 

Robert remained at the detention center. The evidence presented at the disposition hearings showed that when police 

officers went to Robert’s home on November 3, 2017, to 

retrieve the gun used in the offense, officers noticed a “strong 

odor of marijuana” throughout the home, “as if marijuana 

is smoked within the house on a consistent basis.” Robert’s 

mother, Kelley B., had a boyfriend, Jamil W., who lived with 

Robert and Kelley. Jamil has a criminal history involving marijuana. Probation reports showed that there had been repeated 

burglaries at Robert’s home, and the police indicated that the 

break-ins were related to the belief that there were large quantities of illegal substances in the home.

At the first disposition hearing on December 8, 2017, 

Robert’s probation officer, Allison Rusler, stated that Robert 

and Kelley wanted him to return to his home. Rusler discussed the safety plan recommended for Robert if he were to 

be placed in Kelley’s home. Rusler testified that Kelley had 

indicated she was willing to follow the safety plan. The plan 

included a requirement that Robert be supervised by an adult 

at all times. Kelley indicated that Jamil would be one adult 

that could supervise Robert, and she indicated they coparent 

together. In addition to Jamil’s criminal history of drug use, 

Jamil has a history of assaultive behavior, including domestic 

violence against Kelley. Most recently, in October 2017, Jamil 

was charged with assault in the second degree for “assaulting 

an individual with a baseball bat.”
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

Kelley also provided the names of other individuals who 

could assist her in continuously supervising Robert, including 

Desiree H., who had a criminal history that included citations 

for marijuana possession as recently as August 2017 and whose 

own children have been adjudicated and removed from her 

home. Other names listed as potential supports for Robert’s 

at-home placement included Desiree’s mother, who was cited 

for “child abuse/neglect” in 2001; an individual who lives outside of the state and who could not assist with implementing 

the safety plan; and an individual who struggles with mental 

health disorders.

Rusler also discussed the first psychological evaluation performed by Zlomke. In the initial evaluation, Zlomke noted that 

Robert had a moderate to high risk of recidivism. Zlomke’s 

recommendations included weekly outpatient psychotherapy, 

cognitive behavioral therapy and “moral decision making” 

therapy, in-home family therapy and skill building, random 

drug screenings, and a stable school placement. According to 

Rusler, Zlomke did “not necessarily recommend[] himself that 

[Robert] be released” to live in Kelley’s home, but did recommend that a “strict safety plan” would need to be put into 

place if Robert were placed in Kelley’s home. Rusler indicated 

that there would be significantly less risk to the community if 

Robert were to be placed “in a group home setting” as opposed 

to in-home placement.

Rusler informed the court that Zlomke did not have important collateral information available at the time he completed 

the first evaluation. Therefore, the court allowed the probation office to provide Zlomke with supplemental information, 

which led to an updated evaluation report.

Zlomke’s updated evaluation, dated December 21, 2017, was 

discussed at the continued disposition hearing on December 

28. The evaluation stated that Robert has a long-term history 

of “impulsive, disrespectful and aggressive behavior,” starting 

around age 10. Robert had received special education supports for several years and had been educated in schools with 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

additional supports for youth with behavioral disturbances on 

and off over the years.

The updated evaluation noted that Robert’s school attendance worsened significantly between 2013 and 2016. In the 

most recent school year at the time of the evaluation, he was 

tardy to first period approximately 90 percent of the time. In 

2017, Robert was suspended from school three times between 

September and November. The suspensions resulted from incidents involving disrespect of authority, verbal threats (including 

threats to bring a weapon to school on September 9), assault of 

another student on October 4, and actual possession of a gun 

and threats on November 3. Outside of school, Robert’s criminal activity escalated over the course of 20l7. The incidents 

included an assault in April, a minor in possession charge in 

May, shoplifting and a second assault in October, and finally 

the incident with the loaded firearm in November.

Zlomke’s updated evaluation noted that Robert had participated in a diversion program for the minor in possession 

charge, but Robert had reoffended before completion of the 

program. Robert was charged with shoplifting and assault 

while in the diversion program. Robert was told that if he 

finished diversion successfully, he would not be referred to 

the county attorney for the shoplifting and assault charges. 

However, Robert was subsequently discharged from the diversion program after the November 2017 gun incident in the 

present case.

Zlomke diagnosed Robert with childhood-onset conduct 

disorder, a condition that manifests as “defiance, anger and 

disruptive” behaviors when challenged by authority figures, 

and “[o]ther specified impulse control problems.” Zlomke 

maintained that Robert posed a “moderate to high” risk for 

recidivism without appropriate supports, supervision, and 

treatment.

Zlomke’s updated evaluation made several recommendations as to how to handle Robert’s case going forward. First, 

Zlomke recommended that due to Robert’s risk level and the 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

seriousness of his offense, Robert would need “a coordinated 

nearly continuously supervised safety plan [which] will need 

outside supports to the family in-home and community with 

close collaboration between home and school. Outside supports may include evening reporting, tracker/community support and in-home treatment nearly every day initially. Possibly 

electronic monitoring as well.” Zlomke also recommended 

“[i]ntense special educational supports,” including collaboration with parents or trackers to “‘pass’” Robert from one 

adult who is sure he has no weapons to the next adult. He also 

continued his recommendations from his initial report for individual therapy, “moral decision making” therapy, and random 

drug screens.

At the December 28, 2017, disposition hearing, Jody Busse, 

Rusler’s supervisor, testified that Yankee Hill School, a highly 

supervised and highly structured high school in Lincoln, 

Nebraska, was being considered as the school Robert would 

attend. She testified that she believed the school would meet 

Robert’s educational needs. She also indicated that Yankee 

Hill School could at least in part meet the recommendation 

for intense special education supports. Busse also testified that 

the probation office was recommending an intensive in-home 

service such as “Multisystemic Therapy” or “Intensive Family 

Preservation.” Busse also testified that there was difficulty in 

finding therapy providers to treat Robert in his home, as there 

were concerns about the severity of his offense and the community safety risk.

Kelley testified that if Robert were to be placed in his home, 

she would take Robert to school in the morning and pick him 

up after school and she would take him to work with her during times when school was not in session.

Regarding out-of-home placements, as of the December 28, 

2017, hearing, Robert had been accepted by Clarinda Academy 

in Clarinda, Iowa, and his case was under review by several 

group homes. The court determined that disposition should be 

continued because it wanted to hear back from other residential 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

placements before entering final disposition and because it 

wanted more information about what type of safety plan could 

be developed that did not have “gaps.”

The next disposition hearing was held on January 16, 2018. 

Rusler explained the safety plan that was developed by the probation office which included either “Multisystemic Therapy” or 

“Intensive Family Preservation” services in the home; Robert’s 

attending Yankee Hill School; Kelley’s taking him to and from 

school and taking him with her to work when necessary; an 

electronic monitor; and individual and family therapy. The 

safety plan also recommended that Robert have no contact with 

certain individuals and submit to random drug tests. Rusler 

testified that a “tracker” could also be used, which is someone 

who would meet with Robert multiple times per week, as well 

as day and/or evening reporting if needed. Rusler also testified 

that the safety plan required that Robert have constant supervision, which involved a risk that there would not be someone 

available to supervise him 100 percent of the time.

Rusler also testified at the January 16, 2018, hearing that 

it was unlikely that Yankee Hill School would be able to 

provide one-on-one monitoring of Robert; rather, supervision 

would be by teachers that are assigned to classes just like any 

other school. She further explained that she believed Yankee 

Hill School would do its best to comply with the safety 

plan, but she did not believe that there would be someone to 

walk Robert from classroom to classroom or that the school 

would provide extra supervision for Robert as compared to 

other students.

Rusler noted that Robert had been accepted for placement 

at the Omaha Home for Boys (OHB) and Clarinda Academy, 

pending an opening. She testified that Robert would be able to 

immediately begin the therapy services Zlomke recommended 

at either of these placements. She also stated that OHB and 

Clarinda Academy both have their own on-campus schools.

At the same hearing, Kelley again testified that she would 

follow the safety plan and was willing to cooperate with any 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

services put in place. She also confirmed her intent to rely on 

help from Desiree, Desiree’s mother, and an individual who 

struggles with mental health disorders during times she was 

unable to supervise Robert.

On January 24, 2017, the court entered an “Order Continuing 

Dispositional Hearing on the Second Amended Petition” noting that Zlomke recommended a coordinated “‘nearly continuously supervised’” safety plan and the probation office had 

made an effort to develop such a plan. The court found that the 

supports and safety plan that could be developed in the community were inadequate to provide the level of supervision that 

Robert required to be able to remain in the family home. The 

court stated that Robert presented

a serious risk to the community and himself. Given the 

high level of risk and inadequate safety plan available 

in the home, even with supports provided by probation, the Court finds: all available community-based 

resources have been exhausted to assist the juvenile and 

his family; and maintaining the juvenile in the home 

presents a significant risk of harm to the juvenile and 

the community.

The court continued the disposition hearing pending an opening at OHB.

Following a disposition hearing on February 16, 2018, the 

court entered an order titled “Reasonable Effort Determination; 

Order Continuing Detention; Notice of Review Hearing,” finding that reasonable efforts had been made and all available 

community resources had been exhausted to assist Robert 

and his family in maintaining him in the family home. The 

court stated that the efforts considered and attempted included 

the probation office’s efforts to develop an adequate safety 

plan, contact with in-home therapeutic services, background 

checks of possible safety monitors, evaluation, and updated 

evaluation. The court further found that maintaining Robert 

in the home presented a significant risk of harm to him and 

the community.
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

The court also entered an “Agreement and Order of 

Probation,” placing Robert on probation for the duration of 

his minority, with a review in 6 months, and ordering him to 

reside at OHB.

Robert filed a timely appeal. Subsequently, the State filed a 

“Suggestion of Mootness and Motion to Dismiss,” along with 

a motion to file a supplemental transcript. The State alleged 

that following a probation review hearing in the juvenile court 

on August 20, 2018, Robert was allowed to transition back to 

Kelley’s home, and that as of August 28, he was residing there 

full time. As a result, the State alleged Robert’s appeal was 

now moot. Robert filed an objection to the State’s “Suggestion 

of Mootness and Motion to Dismiss.” He does not dispute that 

he is back in Kelley’s home, but argues that such fact alone 

does not make the case moot. We denied the State’s motion 

at the time “with arguments preserved for final submission to 

the court.”

ASSIGNMENT OF ERROR

Robert assigns that the juvenile court erred in finding that 

all community-based resources to assist him and his family had 

been exhausted prior to the court entering an order removing 

Robert from his family home.

STANDARD OF REVIEW

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

record and reaches a conclusion independently of the juvenile 

court’s findings. In re Interest of Dana H., 299 Neb. 197, 907 

N.W.2d 730 (2018).

ANALYSIS

Mootness.

[2,3] Before reaching the legal issues presented, we must 

first address the State’s argument that this appeal has become 

moot. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy 

before it. Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

868 (2018). An actual case or controversy is necessary for the 

exercise of judicial power. Id.

[4-6] A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a 

legally cognizable interest in the outcome of litigation, or when 

the litigants seek to determine a question which does not rest 

upon existing facts or rights, in which the issues presented are 

no longer alive. Id. Usually, in the absence of an actual case or 

controversy requiring judicial resolution, it is not the function 

of the courts to render a judgment that is merely advisory. Id.

Therefore, as a general rule, a moot case is subject to summary 

dismissal. Id.

In this appeal, Robert challenges his placement outside his 

home. At this point in time, Robert is no longer in out-of-home 

placement—he is living with his mother, Kelley. We conclude 

that this case is moot because the parties no longer have a cognizable interest in the outcome of the determination of whether 

the court erred in finding that all community-based resources 

had been exhausted and in placing Robert outside the home as 

a dispositional order.

[7,8] Nonetheless, under certain circumstances, an appellate 

court may entertain the issues presented by a moot case when 

the claims presented involve a matter of great public interest 

or when other rights or liabilities may be affected by the case’s 

determination. Weatherly v. Cochran, supra. In determining 

whether the public interest exception should be invoked, the 

court considers the public or private nature of the question 

presented, the desirability of an authoritative adjudication for 

future guidance of public officials, and the likelihood of future 

recurrence of the same or a similar problem. Id.

Although the appeal is moot, we choose to address, 

under the public interest exception, the issue of whether all 

community-based resources had been exhausted when the court 

determined to place Robert outside his home. Authoritative 

guidance on the matter is desirable because it is likely to 

reoccur in the future. We note, however, that the issue of 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

whether community-based resources have been exhausted is 

fact specific and must be determined based on the circumstances of each case. Because we conclude that the public 

interest exception to the mootness doctrine applies, we next 

address the merits of the issue presented.

Out-of-Home Placement.

Robert assigns that the juvenile court erred in finding that 

all community-based resources to assist him and his family 

had been exhausted prior to the court’s entering an order placing him out of the home. The controlling statute applicable 

to this case is Neb. Rev. Stat. § 43-251.01(7) (Reissue 2016), 

which provides:

A juvenile alleged to be a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 shall not 

be placed out of his or her home as a dispositional order 

of the court unless:

(a) All available community-based resources have been 

exhausted to assist the juvenile and his or her family; and

(b) Maintaining the juvenile in the home presents a significant risk of harm to the juvenile or community.

[9] The exhaustion requirement of § 43-251.01(7)(a) 

demands evidence establishing that no other community-based 

resources have a reasonable possibility for success or that all 

options for community-based services have been thoroughly 

considered and none are feasible. In re Interest of Keyanna R., 

299 Neb. 356, 908 N.W.2d 82 (2018); In re Interest of Dana 

H., 299 Neb. 197, 907 N.W.2d 730 (2018).

The evidence showed that the probation office tried to 

develop an adequate safety plan that would allow Robert to 

stay in his home. However, the plan required that Robert be 

supervised by an adult at all times. There was obvious risk to 

this plan in that it would be difficult to enforce 100 percent 

of the time. The safety plan also included in-home therapy, 

an electronic monitor, no contact with certain individuals, and 

random drug tests. Probation also considered use of a tracker, 
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IN RE INTEREST OF ROBERT W.

Cite as 27 Neb. App. 11

who could meet with Robert up to five times per week, as 

well as day and/or evening reporting if needed. The probation office also performed background checks on the individuals Kelley identified as those she would rely on for help 

in supervising Robert. The individuals included Jamil, Kelley’s 

live-in boyfriend who has a criminal history of assault, including assault of Kelley, as well as a criminal history involving 

marijuana. The other individuals Kelley identified to help 

supervise Robert all have various issues making them less 

than ideal candidates for supervising Robert. Also, Yankee Hill 

School, the school that Robert was going to attend, could not 

provide the level of supervision Robert required. The evidence 

also showed that Robert was unsuccessfully discharged from a 

diversion program in regard to a previous crime. He also posed 

a moderate to high risk factor of recidivism without appropriate supports, supervision, and treatment.

The record establishes that other options for communitybased resources were thoroughly considered but deemed 

inappropriate or unnecessary. We conclude that the evidence 

supports the juvenile court’s determination that all available 

community-based resources had been exhausted to assist 

Robert and his family in maintaining him in the family home, 

as required by § 43-251.01(7)(a).

In regard to the risk analysis required under § 43-251.01(7)(b), 

Robert does not allege error in the court’s finding that this 

requirement was met. He alleges only that the court found that 

this factor was met and then improperly relied on that finding 

to conclude all community-based resources were exhausted. 

We conclude that this factor is clearly met, and we need not 

address it further.

CONCLUSION

For the reasons set forth above, we affirm the orders of the 

juvenile court finding that all community-based resources were 

exhausted and placing Robert outside his home.

Affirmed.