In re Interest of Dana H. (Final Appealable Order/Out-of-Home Placement)
In this case Dana appealed an order from the separate juvenile court in Lancaster County that ordered him removed from his home and placed at Omaha Home for Boys, arguing that such placement was in violation of Neb. Rev. Stat. 43-251.01(7), which prohibits any temporary or final disposition order for out-of-home care unless “all community based resources have been exhausted,” and “maintaining the juvenile in the home presents a significant risk of harm to the juvenile or the community.” Similar to the situation presented in In re Interest of Zachary B, the out of home placement was part of an “interim” order and the case was continued for final disposition. However, unlike In re Interest of Zachary B., the court found that the comments made by the juvenile judge indicated she “intended the order to be of indefinite duration and to be continued in the final disposition.” The Court also referenced evidence of the average length of stay at The Omaha Home for Boys which ranges anywhere from 6 months to 14 months. The Court , in dicta, said that 6 months “might suggest a mere temporary effect,” but 14 months “would substantially affect” Dana’s right to reside in his family home. There was no evidence of how long Dana’s stay would be, so the Court relied on the intent of indefinite duration to find that it was a final appealable order. The Court then turned to the merits of the appeal.
The Court found that the statutory requirements of Neb. Rev. Stat. 43-251.01(7) were met, relying heavily on the analysis found in In re Interest of Nedhal A., which concerned commitment to Nebraska’s Youth Rehabilitation and Treatment Centers. 289 Neb. 711 (2014). The Court found that the requirement to exhaust all community based resources, did not require a court to “ensure that every conceivable probationary condition has been tried and failed.” What it does require is that probation must report “whether any such untried conditions or probation or community-based services have a reasonable possibility for success or…that none are feasible.” In this case the probation officer testified that there were no other appropriate or necessary services to address school attendance. Dana presented other services that were available, but the Court found that “similar services had not been successful,” and therefore, found the evidence to be sufficient that the community-based resources were “exhausted.”
The second requirement under Neb. Rev. Stat. 43-251.01(7) is that maintaining the youth in the home would significantly risk either the youth or the community. There was no evidence that continuing Dana in the home would put the community at risk, but the Court found that Dana was “at serious risk of harm and detriment due to his refusal to attend school and develop basic life skills.” As such, the Court affirmed the order of separate juvenile court placing the youth at Omaha Home for Boys.