Interest of Brandy M., In re
| Decision Date | 31 October 1995 |
| Docket Number | A-94-1222,A-94-1214,Nos. A-94-1212,s. A-94-1212 |
| Citation | 539 N.W.2d 280,4 Neb.App. 115 |
| 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 Court of Appeals |
Syllabus by the Court
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings.
2. 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.
3. Juvenile Courts: Time. Neb.Rev.Stat. § 43-271 (Reissue 1993) applies, on its face, only to juveniles taken into custody pursuant to Neb.Rev.Stat. §§ 43-248, 43-250, and 43-253 (Reissue 1993).
4. Statutes: Ordinances: Legislature: Intent. Where a statute or ordinance enumerates the things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned, unless the legislative body has plainly indicated a contrary purpose or intention.
5. Parental Rights: Time. Absent a showing of prejudice, failure to comply with the 6-month time period found in Neb.Rev.Stat. § 43-271 (Reissue 1993) does not require dismissal of a juvenile case involving the termination of parental rights.
6. Statutes: Legislature: Intent: Presumptions. Generally, where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of its intent.
7. Juvenile Courts: Time. Neb.Rev.Stat. § 43-278 (Reissue 1993), as amended, provides that all cases filed under subdivision (3) of Neb.Rev.Stat. § 43-247 (Reissue 1993) shall have an adjudication hearing not more than 90 days after a petition is filed.
8. Juvenile Courts. A juvenile court judge is not authorized to dismiss a petition filed pursuant to Neb.Rev.Stat. § 43-247(3) (Reissue 1993) absent a showing of prejudice.
9. Juvenile Courts: Criminal Law: Speedy Trial. A juvenile court judge has no authority to dismiss cases pursuant to Neb.Rev.Stat. §§ 29-1205 to 29-1209 (Reissue 1989), as these criminal speedy trial provisions do not apply to juvenile proceedings.
10. Constitutional Law: Statutes: Speedy Trial. The constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other. To determine whether one's constitutional right to a speedy trial has been violated, courts employ a balancing test.
James S. Jansen, Douglas County Attorney, and Vernon Daniels, Omaha, for appellant.
Thomas M. Kenney, Douglas County Public Defender, Sarah G. Hemming, and Krista L. Tushar, Omaha, for appellees.
The State appeals from 10 separate orders of the Douglas County Separate Juvenile Court dismissing 10 juvenile cases on the basis that said cases were not brought to trial within 6 months of the filing of the individual petitions. Having issues of fact and law in common, the cases were consolidated by stipulation of the parties.
The petitions at issue were filed in the separate juvenile court of Douglas County between April 11 and June 1, 1994. Nine of the 10 petitions alleged jurisdiction over the juveniles pursuant to Neb.Rev.Stat. § 43-247(1), (2), or both (Reissue 1993). One petition alleged jurisdiction under § 43-247(3)(b). Motions for absolute discharge pursuant to Neb.Rev.Stat. §§ 43-271 (Reissue 1993) and 29-1207 and 29-1208 (Reissue 1989) were filed in each of the cases on December 5 or 6. In these motions, it was claimed that the children in interest had not been brought to trial within 6 months as required by statute. A hearing was held on December 7 in which the only evidence adduced was with regard to docket congestion in the Douglas County Separate Juvenile Court. In separate orders dated December 7, the juvenile judge, without a statement of the factual or legal basis, sustained the motions for absolute discharge and ordered that each of the 10 cases be dismissed.
Appellant claims the juvenile court erred in (1) sustaining the motions for absolute discharge on the sole evidentiary ground of a congested docket and (2) failing to apply a balancing test to determine whether an impermissible violation of the right to a speedy trial occurred.
Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the trial court's findings. In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994); In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).
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. Grady v. Visiting Nurse Assn., 246 Neb. 1013, 524 N.W.2d 559 (1994); No Frills Supermarket v. Nebraska Liq. Control Comm., 246 Neb. 822, 523 N.W.2d 528 (1994); Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
Appellant's first assignment of error presumes that § 43-271 applies to juvenile proceedings such as those involved here. This assignment goes on to contend that the trial judge erroneously based dismissal on the fact that a congested docket precluded more prompt hearings. We are uncertain on what legal or factual grounds the trial judge based these dismissals. We initially presume that the discharges were based on the grounds set forth in appellees' motions. At the outset, the applicability of § 43-271 to these juvenile proceedings appears, to us, questionable. We begin our discussion by explaining this point. However, we note that even if § 43-271 were construed to apply to these proceedings, it would not change the result reached herein.
Appellees' motions for absolute discharge base their claim on §§ 43-271, 29-1207, and 29-1208. Section 43-271 states:
A juvenile taken into custody pursuant to sections 43-248, 43-250, and 43-253 shall be brought before the court for adjudication as soon as possible after the petition is filed. On the return of the summons ... or as soon thereafter as legally may be, the court shall proceed to hear and dispose of the case as provided in section 43-279.
The hearing as to a juvenile in custody of the probation officer or the court shall be held as soon as possible but, in all cases, within a six-month period after the petition is filed, and as to a juvenile not in such custody as soon as practicable but, in all cases, within a six-month period after the petition is filed. The computation of the six-month period provided for in this section shall be made as provided in section 29-1207, as applicable.
When interpreting a statute, an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Grady v. Visiting Nurse Assn., 246 Neb. 1013, 524 N.W.2d 559 (1994); No Frills Supermarket v. Nebraska Liq. Control Comm., 246 Neb. 822, 523 N.W.2d 528 (1994); Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
Section 43-271 applies, on its face, only to juveniles "taken into custody pursuant to sections 43-248, 43-250, and 43-253." First, Neb.Rev.Stat. § 43-248 (Reissue 1993) provides that in certain situations, a juvenile may be taken into temporary custody by an officer without a warrant or order of the court. Neb.Rev.Stat. § 43-250 (Reissue 1993) gives the officer taking the juvenile into temporary custody four options: The officer may (1) release the juvenile; (2) provide a written notice requiring the juvenile to appear before the juvenile court or probation officer; (3) take and deliver the juvenile to the custody of the juvenile court or probation officer; or (4) deliver custody of the juvenile to the Department of Social Services, which then provides for placement of the child. Neb.Rev.Stat. § 43-253 (Reissue 1993) further provides instruction when a juvenile is taken into temporary custody pursuant to § 43-248 and option No. 3, pursuant to § 43-250, is chosen, i.e., the juvenile is delivered to the juvenile court or probation officer. Section 43-253 provides that the court or probation officer may immediately release the juvenile, admit the juvenile to bail by bond, or provide for placement or detention of the juvenile.
The second paragraph of § 43-271 divides those juveniles taken into temporary custody into two groups, those remaining in the custody of the court or probation officer and those not remaining in said custody. Section 43-271 further provides that for both groups, a hearing must be held as soon as possible or practicable, but in all cases, within 6 months after the petition is filed.
The language of § 43-271 is plain and unambiguous. It applies only to those juveniles entering the juvenile court system through the temporary custody process set forth in § 43-248. Even if § 43-271 could be construed as ambiguous, the maxim "expressio unius est exclusio alterius" is applicable here. " '[W]here a statute or ordinance enumerates the things upon which it is to operate ... it is to be construed as excluding from its effect all those not expressly mentioned, unless the legislative body has plainly indicated a contrary purpose or intention.' " Nebraska City Education Assn. v. School Dist. of Nebraska City, 201 Neb. 303, 306, 267 N.W.2d 530, 532 (1978).
Our interpretation is further supported by examining the previous version of the Nebraska Juvenile Code, Neb.Rev.Stat. § 43-245 et seq. (Reissue 1988). Section 43-271 in its current version is identical to the...
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Interest of Brandy M., In re
...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 judg......