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AGO Opinion 97006

Juvenile Evaluations/Placements
Opinion 97006




DATE: January 10, 1997




SUBJECT: Juvenile Evaluations/Placements




REQUESTED BY: Jon R. Hill, Director, Office of Juvenile Services




WRITTEN BY: Don Stenberg, Attorney General

Marie C. Pawol, Assistant Attorney General






You have inquired about the authority of state juvenile courts

to issue specific orders that affect the Office of Juvenile

Services (OJS). First, you ask whether a court, in ordering an

evaluation of a juvenile under its jurisdiction, has the authority

to determine where, and by whom, the evaluation will be conducted.

Second, you have inquired whether a court has the authority to

place a juvenile in a designated OJS facility.




We are of the opinion that the statutory scheme, as it

currently exists, does permit a court to issue specific orders

pertaining to evaluations and placements of juveniles. With

respect to evaluations, a court may designate the facility where

such an evaluation may occur, as well as the scope of any

evaluation. We are also of the opinion that a court is authorized

to commit juveniles to a designated facility operated by OJS.






A. Evaluations.


Neb. Rev. Stat. § 43-258 (1993) authorizes a court, pending

adjudication of a case, to




(1) . . . order the juvenile examined by a physician,

surgeon, psychiatrist, duly authorized community mental

health service program, or psychologist to aid the court

. . .




(2) . . . the court may order such juvenile to be placed

in one of the facilities or institutions of the State of

Nebraska. Such juvenile shall not be placed in an adult

penal institution, either of the youth development

centers, or the Nebraska Center for Children and Youth,

except as provided in section 43-913. Any placement for

evaluation may be made on an inpatient or outpatient

basis for a period not to exceed thirty days. The head

of any facility or institution shall make a complete

evaluation of the juvenile, including any authorized area

of inquiry requested by the court.




See also, Neb. Rev. Stat. 43-254 (4) (1994).




Neb. Rev. Stat.§ 43-281 (1993) further provides:




Following an adjudication of jurisdiction and prior to

final disposition, the court may place the juvenile in

any facility or institution for evaluation under the

control of the State of Nebraska, except an adult penal

institution as provided in section 43-258.




Neb. Rev. Stat. § 83-469 (1994) states in pertinent part:




Prior to a commitment to the youth development center,

the court shall require an evaluation pursuant to section

43-258 or 43-281. If the judge finds that the juvenile

should be committed to the Youth Rehabilitation and

Treatment Center-Kearney or the Youth Rehabilitation and

Treatment Center-Geneva, then the judge shall issue a

warrant of commitment.




Neb. Rev. Stat. § 83-4,101(2) (1994) states that:




(2) The juvenile court may, without formal commitment,

refer any juvenile found in need thereof to the Youth

Diagnostic and Rehabilitation Center for detention for

purposes of observation, testing, and examination, both

mental and physical.




Neb. Rev. Stat. 83-4,102 (1994) also indicates that:




Each boy or girl at the Youth Diagnostic and

Rehabilitation Center, whether committed or referred,

shall be subjected to such observation, testing, and

examination as shall be necessary to ascertain the

reasons for his antisocial attitudes and conduct and to

indicate a program designed to be followed in order to

accomplish his rehabilitation and permit his return to

society free of his anti-social attitudes and conduct

. . .




The foregoing statutes clearly indicate that a court may

commit a juvenile to a particular state facility for purposes of an

evaluation. Although a court may not have authority to designate

a specific individual to conduct an evaluation, the statutes do

provide that the court may order that an evaluation be conducted by

persons with specific professional qualifications.




B. Commitments.




Neb. Rev. Stat. § 83-465 (1994) provides that when a juvenile

has been found guilty of any crime, except murder or manslaughter,




[T]he court may order that the juvenile be committed to

the Youth Rehabilitation and Treatment Center-Kearney or

the Youth Rehabilitation and Treatment Center-Geneva.

Prior to such commitment, the court shall require an

evaluation pursuant to section 43-258 or 43-281. A copy

of the order under the seal of the court shall be

sufficient warrant for delivering the juvenile to the

center and committing him or her to the custody of the

superintendent.




Neb. Rev. Stat. § 83-470 (1994), in relevant part, states:




The judge shall . . . command the officer to take and

deliver the juvenile without delay to the superintendent

of the Youth Rehabilitation and Treatment Center-Kearney

or the Youth Rehabilitation and Treatment Center-Geneva.


Neb. Rev. Stat. § 83-472 (Cum Supp. 1996) further provides:




Every juvenile committed to the Youth Rehabilitation and

Treatment Center-Kearney or Youth Rehabilitation and

Treatment Center-Geneva or other placement of the Office

of Juvenile Services under sections 83-465 to 83-470

pursuant to the Nebraska Juvenile Code or subsection (3)

of section 29-2204 shall remain there until he or she

attains the age of nineteen unless sooner paroled or

legally discharged.




(2) The Office of Juvenile Services shall adopt and

promulgate regulations for the promotion, parole, and

final discharge of juveniles such as shall be considered

mutually beneficial for the Office of Juvenile Services

and facilities under its direction and the juveniles.




Neb. Rev. Stat. § 83-4,101 (1994) states that:




(1) The juvenile court may commit any juvenile to the

Youth Diagnostic and Rehabilitation Center upon the same

terms and conditions and subject to all provisions of law

as govern commitments to the Youth Rehabilitation and

Treatment Center-Kearney or the Youth Rehabilitation and

Treatment Center-Geneva.




Neb. Rev. Stat. 83-4,104 (1994) additionally provides:




(1) Any juvenile committed to the Youth Diagnostic and

Rehabilitation Center may be released therefrom upon the

same terms and conditions and subject to all provisions

of law as govern the release of juveniles committed to

the Youth Rehabilitation and Treatment Center-Kearney to

the Youth Rehabilitation and Treatment Center-Geneva.




(2) Any juvenile referred to the Youth Diagnostic and

rehabilitation Center may be released therefrom upon

order of the court by which he or she was referred when

the purposes of the referral have been accomplished.




Based upon the foregoing statutes, we are of the opinion that

a court may in its commitment order designate the initial placement

of a juvenile. However, Neb. Rev. Stat. § 83-142 (Cum. Supp. 1996)

contemplates that the juvenile's initial placement may be changed

by OJS, "as shall be considered mutually beneficial for the Office

of Juvenile Services and facilities under its direction and the

juveniles."




As is clearly evident from the foregoing statutory scheme,

courts have been given broad latitude in determining the scope of

juvenile evaluations and placements. See also, In re Interest of

Aufenkamp, 214 Neb. 297, 333 N.W.2d 681 (1983)(the juvenile court

has broad discretion as to the disposition of a child found to be

delinquent); In re Interest of J.N.S., 218 Neb. 72, 352 N.W.2d 186

(1984); In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40

!989).




The meaning of a statute is to be ascertained from the entire

language of a statute considered in its plain, ordinary, and

popular sense. In re Application of Jantzen, 245 Neb. 81, 511

N.W.2d 504 (1994). When the words used in a statute are plain,

direct, and unambiguous, no interpretation is necessary or will be

indulged in to ascertain their meaning. Rosse v. Rosse, 244 Neb.

967, 510 N.W.2d 73 (1994). In considering and applying a statute,

it is not within the province of a court or others to read a

meaning into a statute that is not warranted by the legislative

language or to read anything plain, direct, and unambiguous out of

the statute. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414,

489 N.W. 2d 289 (1992).




Although the current statutory scheme may not have kept pace

with the additional community-based and other resources developed

by the Office of Juvenile Services, the plain language of the

statutes controls. The statutes do not grant OJS the same degree

of discretion in classification and placement of persons committed

to its custody, for example, as that granted to the Department of

Correctional Services. See, e.g. Neb. Rev. Stat. § 83-176(2) and

§ 83-178 (3)(1994).




The foregoing statutes are also consistent with other

provisions of the Nebraska Juvenile Code. Neb. Rev. Stat. § 43-247

(1993), for example, holds that a juvenile court's jurisdiction

over any individual adjudged to be within the statute "shall

continue until the individual reaches the age of majority or the

court otherwise discharges the individual from its jurisdiction."

The juvenile courts are required "to consider the developmental

needs of the juvenile in all placements . . ." Neb. Rev. Stat. §

43-246(4) (1993). Such courts also have the "power to order a

change in the custody or care of such juvenile if at any time it is

made to appear to the court that it would be for the best interests

of the juvenile to make such a change." Neb. Rev. Stat. § 43-295

(1993).




Sincerely,




DON STENBERG

Attorney General






Marie C. Pawol

Assistant Attorney General






Approved By:






__________________________

Attorney General




23-3418-8.32