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AGO Opinion 97056

Authority of a probation officer to take a juvenile into custody based upon a violation of probation
Opinion 97056

DATE: October 20, 1997

SUBJECT: Authority of a probation officer to take a juvenile into custody based upon a violation of probation.

REQUESTED BY: Carol Schoenleber, Probation Administrator

WRITTEN BY: Don Stenberg, Attorney General

David Arterburn, Assistant Attorney General




You have asked several questions regarding the authority of a

probation officer to take a juvenile into custody based upon a

violation of probation. It is our opinion that under appropriate

circumstances as defined by statute, a probation officer does have

said authority. Neb. Rev. Stat. § 29-2266(2) provides:




Whenever a probation officer has a reasonable cause

to believe that a probationer has violated or is about to

violate a condition of his probation and that the

probationer will attempt to leave the jurisdiction or

will place lives or property in danger, the probation

officer shall arrest the probationer without a warrant

and may call on any peace officer to assist him.

Whenever a probationer is arrested, with or without a

warrant, he shall be detained in a jail or other

detention facility.




It is our opinion that this provision does not exclusively

apply to adult offenders. While Neb. Rev. Stat. § 29-2260(1)

states that the disposition of a person adjudicated under 43-

247(1), (b), (3)(b), or (4) will be controlled by the Nebraska

Juvenile Code, there is no provision which limits the post-

disposition custodial powers of the probation officer to adults

alone.




When the foregoing statutes are read in concert with the

juvenile code, the answer becomes more clear. Neb. Rev. Stat.

§ 43-253 discusses the powers of a probation officer with regard to

temporary custody. It provides (among other things) that when a

juvenile has been taken into custody by a peace officer pursuant to

Neb. Rev. Stat. § 43-248 to 43-250, the child may be delivered to

a probation officer. The probation officer may then make a

preliminary determination as to whether the juvenile should be

released to the custody of a parent or guardian or should be

further detained in order to protect the child or prevent flight

from the jurisdiction.




In our view, only a strained reading of these statutes would

allow a probation officer to detain a nonadjudicated juvenile

pending further hearings by a juvenile court, while making the same

officer powerless to detain a juvenile on probation who has

violated, or is about to violate, his or her probation and can be

reasonably expected to either flee the jurisdiction or place lives

or property in danger. Indeed, if a probation officer has

reasonable cause to believe a juvenile meets the requirements of

Neb. Rev. Stat. § 29-2266, it would follow that reasonable cause

would also exist that said juvenile is "wayward or habitually

disobedient, is uncontrolled by his or her parent, guardian, or

custodian, . . . deports himself or herself so as to injure or

endanger seriously the morals or health of himself, herself, or

others; or is habitually truant from home or school...." Neb. Rev.

Stat. § 43-247(3)(b). More importantly, it would be only in the

rarest of occasions that the temporary custody requirements of Neb.

Rev. Stat. § 43-248 would not be met if the probation officer has

reasonable cause to believe the provisions of § 29-2266(2) have

been satisfied.




It is clear that when a juvenile violates a condition of

probation, only the juvenile court may permanently modify the

original disposition. See Neb. Rev. Stat. § 43-286(4). However,

it would defeat the purpose of the juvenile code, i.e., to care for

and protect the children within our borders, were a probation

officer powerless to place into temporary custody a child who is at

risk as described in Neb. Rev. Stat. § 29-2266(2).




If a probation officer chooses to take a juvenile probationer

into custody, the same preadjudication protocols as set out in Neb.

Rev. Stat. § 43-248 to 43-259 should be observed. The issues of

temporary placement or detention should be brought before the

juvenile court promptly and within all statutory time limits. Such

a process would serve the best interests of the child while

respecting the rights of both the juvenile and his/her parents or

guardian.




Sincerely,

DON STENBERG

Attorney General




David K. Arterburn

Assistant Attorney General