Interest of Brandy M., In re

• Decision Date: 05 July 1996
• Docket Number: S-94-1222,S-94-1214,Nos. S-94-1212,s. S-94-1212
• Citation: 250 Neb. 510,550 N.W.2d 17
• Parties: In re Interest of BRANDY M. et al., children under 18 years of age. STATE of Nebraska, appellant, v. BRANDY M. et al., appellees. to
• Court: Nebraska Supreme Court

Page 17

550 N.W.2d 17

250 Neb. 510

In re Interest of BRANDY M. et al., children under 18 years of age STATE of Nebraska, appellant, v. BRANDY M. et al., appellees.

Nos. S-94-1212, S-94-1214 to S-94-1222.

Supreme Court of Nebraska.

July 5, 1996.

Syllabus by the Court

1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.

2. Statutes: Intent. In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.

3. Statutes. A court will construe statutes relating to the same subject matter together so as to maintain a consistent and sensible scheme.

4. Statutes: Juvenile Courts: Time. Neb.Rev.Stat. §§ 43-271 and 43-278 (Reissue 1993) confer a statutory right to a prompt adjudication hearing to all juveniles within Neb.Rev.Stat. § 43-247(1), (2), (3)(b), and (4) (Reissue 1993).

5. Statutes: Words and Phrases. As a general rule, in the construction of statutes, the word "shall" is considered mandatory and inconsistent with the idea of discretion.

6. Statutes: Intent: Words and Phrases. While the word "shall" may render a particular provision mandatory in character, when the spirit and purpose of the legislation require that the word "shall" be construed as permissive rather than mandatory, such will be done.

7. Juvenile Courts. A juvenile court proceeding is not a prosecution for crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution.

8. Statutes: Time. A legislative enactment providing that an act be accomplished within a specified time period, with no sanction for failure to comply with that mandate, is directory.

9. Statutes: Time: Minors. Neb.Rev.Stat. §§ 43-271 and 43-278 (Reissue 1993) are directory and do not require absolute discharge of a juvenile not adjudicated within the prescribed time period.

10. Minors: Juvenile Courts. The foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile's best interests.

11. Minors: Juvenile Courts. It is within the discretion of the juvenile court to determine whether absolute discharge of a juvenile petition is in the best interests of a juvenile taking into consideration (1) the factors set forth in Neb.Rev.Stat. §§ 43-271 and 43-278 (Reissue 1993), (2) the right of the juvenile to a prompt and fair adjudication, and (3) the future treatment and rehabilitation of the juvenile in the event of an adjudication. The benchmark of this determination is the protection of the best interests of the juvenile.

12. Juvenile Courts: Appeal and Error. An appellate court's review of the juvenile court's prompt adjudication determination shall be de novo on the record to determine whether there has been an abuse of discretion by the juvenile court.

13. Juvenile Courts: Appeal and Error. Prompt adjudication determinations in juvenile cases are initially entrusted to the discretion of the juvenile court and will be upheld unless they constitute an abuse of discretion.

James S. Jansen and Vernon Daniels, Omaha, for appellant.

Thomas M. Kenney, Douglas County Public Defender, Krista L. Tushar, and Sarah G. Hemming, Omaha, for appellees.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

GERRARD, Justice.

I. INTRODUCTION

On December 7, 1994, the separate juvenile court sustained the motions for absolute discharge filed in 10 separate juvenile cases. Each motion was predicated upon the juveniles' statutory right to a prompt adjudication hearing pursuant to Neb.Rev.Stat. §§ 43-271 and 43-278 (Reissue 1993). In an opinion designated for permanent publication, the Nebraska Court of Appeals reversed the juvenile court, holding § 43-271 applied only to juveniles taken into custody pursuant to Neb.Rev.Stat. §§ 43-248, 43-250, and 43-253 (Reissue 1993), and, in any event, the Nebraska Juvenile Code provides no authority for a judge to dismiss a petition absent a showing of prejudice by the juvenile. In re Interest of Brandy M. et al., 4 Neb.App. 115, 539 N.W.2d 280 (1995). It is from this decision that the juveniles have successfully sought further review. We now reverse the judgment of the Court of Appeals.

II. FACTUAL BACKGROUND

On December 5 and 6, 1994, 10 separate motions for absolute discharge were filed concerning juveniles who had not been brought before the juvenile court for an adjudication hearing within 6 months of the filing of their petitions. In each case, counsel for the child in interest did not request a continuance or file any pretrial motions within a 6-month period from the date the petition was filed. The parties stipulated to consolidation of the cases, as each case concerned the same issues of fact and law. The specific facts of each petition are as follows:

1. In re Interest of Brandy M., case No. S-94-1212. The petition, filed June 1, 1994, alleged three counts pursuant to Neb.Rev.Stat. § 43-247(3)(b) (Reissue 1993): a wayward and disobedient child in need of supervision. A denial was entered on behalf of the child on July 6. An adjudication hearing was set for December 22. Motion for absolute discharge was filed December 6.

2. In re Interest of James D., case No. S-94-1214. The petition, filed May 6, 1994, alleged six counts pursuant to § 43-247(1) and (2): commission of an act by a juvenile which would constitute a misdemeanor or infraction and commission of an act by a juvenile which would constitute a felony. James D. was charged with four counts of receiving stolen property and two counts of destruction of property. A denial was entered on behalf of the child on July 19. This case was never set for adjudication. Motion for absolute discharge was filed December 6.

3. In re Interest of Thomas S., case No. S-94-1215. The petition, filed May 2, 1994, alleged two counts pursuant to § 43-247(1): commission of an act by a juvenile which would constitute a misdemeanor or infraction. Thomas S. was charged with trespassing and obstruction. A denial was entered on behalf of the child on July 6. This case was set for adjudication on December 22. Motion for absolute discharge was filed December 6.

4. In re Interest of Stephanie P., case No. S-94-1216. The petition, filed April 22, 1994, alleged two counts pursuant to § 43-247(1) and (2): commission of an act by a juvenile which would constitute a misdemeanor or infraction and commission of an act by a juvenile which would constitute a felony. Stephanie P. was charged with receiving stolen property and obstruction. A denial was entered on behalf of the child on July 6. This case was set for adjudication on December 12. Motion for absolute discharge was filed December 6.

5. In re Interest of Arthur H., case No. S-94-1217. The petition, filed April 22, 1994, alleged one count pursuant to § 43-247(2): commission of an act by a juvenile which would constitute a felony. Arthur H. was charged with first degree assault. A denial was entered on behalf of the child on June 28. This case was set for adjudication on December 21. Motion for absolute discharge was filed December 5.

6. In re Interest of Vincent P., case No. S-94-1218. The petition, filed April 19, 1994, alleged two counts pursuant to § 43-247(1): commission of an act by a juvenile which would constitute a misdemeanor or infraction. Vincent P. was charged with violation of the Omaha Municipal Code, refusing to leave property, and being an annoyance. A denial was entered on behalf of the child on June 28. This case was set for adjudication on December 21. Motion for absolute discharge was filed December 6.

7. In re Interest of Jerry G., case No. S-94-1219. The petition, filed April 18, 1994, alleged two counts pursuant to § 43-247(1) commission of an act by a juvenile which would constitute a misdemeanor or infraction. Jerry G. was charged with third degree assault. A denial was entered on behalf of the child on June 21. This case was set for adjudication on December 16. Motion for absolute discharge was filed December 5.

8. In re Interest of George M., case No. S-94-1220. The petition, filed April 13, 1994, alleged one count pursuant to § 43-247(2): commission of an act by a juvenile which would constitute a felony. George M. was charged with criminal mischief. A denial was entered on behalf of the child on June 21. This case was set for adjudication on December 13. Motion for absolute discharge was filed December 5.

9. In re Interest of David C., case No. S-94-1221. The petition, filed April 13, 1994, alleged two counts pursuant to § 43-247(1): commission of an act by a juvenile which would constitute a misdemeanor or infraction. David C. was charged with carrying a concealed weapon and with violation of a municipal ordinance, being an annoyance. A denial was entered on behalf of the child on June 21. This case was set for adjudication on December 19. Motion for absolute discharge was filed December 6.

10. In re Interest of Joe C., case No. S-94-1222. The petition, filed April 11, 1994, alleged one count pursuant to § 43-247(1): commission of an act by a juvenile which would constitute a misdemeanor or infraction. Joe C. was charged with shoplifting. A denial was entered on behalf of the child on June 7. This case was set for adjudication on December 13. Motion for absolute discharge was filed December 5.

1. PROCEEDINGS IN JUVENILE COURT

On December 7, 1994, a hearing was held in the juvenile court on the juveniles' motions for absolute discharge. Counsel for the juveniles argued the motion, but did not offer any evidence in support thereof. The State called two witnesses who testified generally...