In re Laurance S.
| Decision Date | 07 December 2007 |
| Docket Number | No. S-06-1439.,No. S-06-1443.,S-06-1439.,S-06-1443. |
| Citation | 742 N.W.2d 484,274 Neb. 620 |
| Parties | In re Interest of LAURANCE S., A Child Under 18 Years of Age. State of Nebraska, Appellee, v. Laurance S., Appellant. In re Interest of Michael S., A Child Under 18 Years of Age. State of Nebraska, Appellee, v. Michael S., Appellant. |
| Court | Nebraska Supreme Court |
These delinquency proceedings were brought under the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 to 43-2,129 (Reissue 2004 & Cum.Supp.2006) against appellants Laurance S., case No. S-06-1439, and Michael S., case No. S-06-1443. We consolidate these cases for purposes of opinion and disposition. Juvenile proceedings were instituted in the county court for Dodge County alleging that Laurance and Michael, who are brothers, had committed felony criminal mischief. Based on their pleas of no contest, each appellant was adjudicated under § 43-247(2). Following a dispositional hearing, appellants were placed on indefinite probation with restrictions and ordered to pay restitution. Appellants appeal from that portion of the dispositional order that required each of them to pay $29,059.96. As discussed below, we conclude that an order of restitution under § 43-286(I)(a) should serve the rehabilitative purposes of the Nebraska Juvenile Code, and we further conclude that the juvenile court erred when it failed to consider appellants' financial ability to pay restitution in the amount ordered. We reverse the orders in part and remand the causes for further proceedings consistent with this opinion.
There is essentially no dispute with regard to the material facts. On August 18, 2006, appellants broke into Washington Elementary School in Fremont, Nebraska, where they proceeded to damage five classrooms. Appellants set off fire extinguishers, broke computer monitors, and splattered paint and glue on the walls, ceilings, desks, books, computers, and carpets. Shortly thereafter, appellants came forward to authorities and admitted responsibility for the incident. On August 30, separate juvenile petitions were filed in the county court for Dodge County, alleging that appellants had committed the Class IV felony of criminal mischief in violation of Neb.Rev.Stat. § 28-519 (Cum. Supp.2006). Appellants each pled no contest to the allegations in the petitions, and as a result, each was adjudicated a child as defined in § 43-247(2) on September 19.
On November 20, 2006, a dispositional and restitution hearing was held in both juvenile proceedings. Restitution is permitted in juvenile cases under § 43-286(1)(a). Relative to the restitution issue, the State called four witnesses, including several individuals from the Fremont Public School District, and offered 28 exhibits into evidence. The evidence showed that the school district had incurred expenses in order to replace or repair property damaged by appellants in the total amount of $29,059.96. On November 30, the court entered dispositional orders under which it placed each appellant on indefinite probation with restrictions and ordered each appellant to pay restitution, presumably to the school district, in the amount of $29,059.96. Appellants appeal.
On appeal, appellants assign several errors contesting only the restitution portion of the dispositional order entered in their respective case. The primary assignment of error, which we restate and summarize, is a claim that the juvenile court erred when it failed to consider appellants' financial resources in ordering restitution. Appellants assert additional assignments of error challenging the method by which the juvenile court determined the amount of restitution that it ordered.
Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).
Together, these appeals raise issues as to the propriety of the juvenile court's having ordered appellants to pay restitution in the amount determined by the court and the proper approach juvenile courts should use in setting a restitution amount under § 43-286(1)(a). More specifically, appellants claim that the juvenile court failed to consider their ability to pay the restitution amount established by the court and that the amount determined was not reached in a reasonable manner.
In connection with their primary assignment of error regarding ability to pay, appellants assert that before setting the restitution amount, the juvenile court should have heard and considered evidence concerning appellants' employment history and their ability to work, as well as appellants' financial resources. In support of their arguments, appellants suggest that factors similar to those considered in criminal restitution proceedings should be considered by the court when ordering restitution in juvenile cases.
Appellants refer this court to the criminal restitution statute, Neb. Rev. Stat, § 29-2281 (Reissue 1995), which provides, in pertinent part, as follows:
To determine the amount of restitution, the court may hold a hearing at the time of sentencing. [In determining the amount of restitution the] court shall consider the defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. . . . The court may order that restitution be made immediately, in specified installments, or within a specified period of time not to exceed five years after the date of judgment or defendant's final release date from imprisonment, whichever is later.
Although we have previously held that criminal restitution statutes do not control in juvenile proceedings, see In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007), we agree with appellants that the factors listed in § 29-2281 may serve as useful guidelines in setting restitution amounts in juvenile proceedings.
We begin our analysis by reference to well-established principles involving juvenile proceedings. As we stated in In re Interest of Brandon M., 273 Neb. at 51, 727 N.W.2d at 234:
We have long recognized that a juvenile court proceeding is not a prosecution for crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution. [Citations omitted.] The purpose of our statutes relating to the handling of youthful offenders is the education, treatment, and rehabilitation of the child, rather than retributive punishment. [Citations omitted.] The emphasis on training and rehabilitation, rather than punishment, is underscored by the declaration that juvenile proceedings are civil, rather than criminal, in nature.
See, also, In re Interest of Brandy M. et al., 250 Neb. 510, 524, 550 N.W.2d 17, 26 (1996) (); In re Interest of A.M.H., 233 Neb. 610, 614, 447 N.W.2d 40, 44 (1989) (quoting In re T.D., 81 Ill.App.3d 369, 401 N.E.2d 275, 36 Ill.Dec. 594 (1980)) ( that primary purpose of juvenile code "`is remedial and preventive rather than punitive'").
The Nebraska Juvenile Code authorizes a court to order "restitution of any property stolen or damaged" by a juvenile as a term and condition of a dispositional order if it is "in the interest of the juvenile's reformation or rehabilitation." § 43-286(1)(a). See, also, Neb.Rev.Stat. § 43-246 (Reissue 2004) (allowing restorative approach by providing "(4) . . . selected juveniles the opportunity to take direct personal responsibility for their individual actions by reconciling with the victims through juvenile offender and victim mediation and fulfilling the terms of the resulting agreement which may require restitution and community service," consistent with "the responsibility of the juvenile court to act to preserve the public peace and security").
Unlike the provisions in the juvenile codes or rules of other states, § 43-286(1)(a) of the Nebraska Juvenile Code does not prescribe any particular method by which to determine whether restitution is appropriate or the amount of restitution to be awarded. See, e.g., In re R.T., No. 0408020557, 2005 WL 1420878 at *3 (Del.Fam. Feb.28, 2005) (unreported decision) (discussing Delaware Family Court Criminal Procedure Rule outlining "guidelines" for awarding restitution); In re R.V., 283 Ga.App. 355, 356, 641 S.E.2d 591, 592 (2007) (); In re T.M.R., 334 Mont. 64, 144 P.3d 809 (2006) ().
Because Nebraska's juvenile code does not provide guidelines to courts entering restitution orders, there is a risk that an order could be entered imposing a restitution amount that is unreasonable and inconsistent with the purpose of the juvenile code. Such an order could give rise to frustration that would negate the juvenile code's rehabilitative purpose. State v. Kristopher G., 201 W.Va. 703, 705, 500 S.E.2d 519. 201 W.Va. 703, 500 S.E.2d 519, 521 (1997) (quoting State v. M.D.J., 169 W.Va. 568, 289 S.E.2d 191 (1982)). Moreover, a...
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...record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007). Jurisdiction Over Gag Order of February 3, 2009. In a juvenile case, as in any other appeal, before reaching the......
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