In Re JK

656 N.W.2d 253, 265 Neb. 253
CourtNebraska Supreme Court
DecidedJanuary 31, 2003
DocketS-02-438
StatusPublished
Cited by9 cases

This text of 656 N.W.2d 253 (In Re JK) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JK, 656 N.W.2d 253, 265 Neb. 253 (Neb. 2003).

Opinion

656 N.W.2d 253 (2003)
265 Neb. 253

In re Interest of J.K., a child under 18 years of age.
State of Nebraska, Appellee,
v.
Douglas R. Switzer and Jessica A. Kerkhofs, guardians ad litem, Appellants, and
William K. and Constance K., adoptive parents of child, and Nebraska Department of Health and Human Services, Appellees.

No. S-02-438.

Supreme Court of Nebraska.

January 31, 2003.

*257 Douglas R. Switzer and Jessica A. Kerkhofs, of Nebraska Legal Services, guardians ad litem for J.K., pro se.

Marian G. Heaney, of Nebraska Legal Services, for appellants.

James S. Jansen, Douglas County Attorney, and James M. Masteller for appellee State of Nebraska.

Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

CONNOLLY, J.

The separate juvenile court of Douglas County adjudicated J.K. under Neb.Rev. Stat. § 43-247(3)(a) (Cum.Supp.2002). J.K.'s guardians ad litem argue that J.K. was entitled to separate counsel under Neb.Rev.Stat. § 43-272(3) (Cum.Supp. 2002). This section provides in part, "A guardian ad litem shall act as his or her own counsel and as counsel for the juvenile, unless there are special reasons in a particular case why the guardian ad litem or the juvenile or both should have separate counsel." We conclude that the juvenile court did not abuse its discretion in refusing to appoint separate counsel. We affirm.

I. FACTUAL BACKGROUND

In March 2002, the Douglas County Attorney filed a petition in the separate juvenile court of Douglas County, asking the court to find that J.K. was a child within *258 the meaning of § 43-247(3)(a) because he was without support through no fault of his parents. In the petition, the State alleged that J.K. exhibits suicidal and homicidal tendencies and that the treating psychiatrist determined that J.K. should be placed in a residential treatment center for psychiatric care.

One of J.K.'s guardians ad litem moved to have the court appoint separate legal counsel for J.K. The guardian ad litem argued that special reasons existed under § 43-272(3) requiring the appointment of separate counsel for J.K.

The court refused to appoint separate counsel. The court noted that the proceedings were brought pursuant to § 43-247(3)(a), under which the parents are charged with being unable to meet the juvenile's needs, rather than § 43-247(3)(b) or (c). The court determined that the only issue was whether J.K.'s parents could provide for his care. It held the guardian ad litem could adequately "defend any issues concerning his placement and the appropriateness of his placement and/or any care that he might require in his best interests and to promote his health and safety."

In April 2002, J.K.'s parents entered pleas of admission to the petition and the county attorney gave a factual basis for the charges. The county attorney described J.K.'s mental health history, including times when he had demonstrated suicidal or homicidal tendencies. The court also received into evidence the affidavit of J.K.'s treating psychiatrist. He recommended that J.K. be placed "in [a residential treatment center] to meet his needs, which would include a locked, structured environment, school program ... chemical dependency treatment, and psychiatric care." The county attorney stated that the parents had tried to address the juvenile's needs at home and by treatment, but had failed. He stated they needed the court's assistance in placing J.K. into a residential, long-term treatment facility. Over one of the guardian ad litem's objection, the court accepted the plea and found the factual basis sufficient to adjudicate J.K. The guardians ad litem appealed.

II. ASSIGNMENT OF ERROR

The guardians ad litem assign that the juvenile court erred in finding that special reasons did not exist in the present case requiring separate legal counsel for the juvenile.

III. STANDARD OF REVIEW

Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Newman v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002).

IV. ANALYSIS

1. STATUTORY BACKGROUND

The State proceeded under § 43-247(3)(a), which, in part, provides that the juvenile court shall have jurisdiction of any juvenile "who is homeless or destitute, or without proper support through no fault of his or her parent, guardian, or custodian." The dual purpose of proceedings under § 43-247(3)(a) is to protect the welfare of the minor and to safeguard the parents' right to properly raise their child. In re Interest of Constance G., 247 Neb. 629, 529 N.W.2d 534 (1995).

This case requires us to consider how the interests of the juvenile are represented in § 43-247(3)(a) proceedings. The question is governed by § 43-272(2) and (3). Section 43-272(2)(e) requires that the court appoint a guardian ad litem for the juvenile "in any proceeding pursuant to *259 the provisions of [§ 43-247(3)(a) ]." Section 43-272(3) requires that the person appointed be an attorney. It also provides that "a guardian ad litem shall act as his or her own counsel and as counsel for the juvenile, unless there are special reasons in a particular case why the guardian ad litem or the juvenile or both should have separate counsel."

The plain language of § 43-272(2) and (3) envisions a dual role for an attorney appointed under these subsections. First, the attorney serves as guardian ad litem. Generally, a guardian ad litem determines the best interests of the juvenile and reports that determination to the court. Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998). Under the Nebraska Juvenile Code, the guardian ad litem is given somewhat broader powers; he or she not only determines and reports to the court what is in the juvenile's best legal and social interests, but also advocates that position. Neb.Rev.Stat. § 43-272.01 (Reissue 1998); In re Interest of Rachael M. & Sherry M., 258 Neb. 250, 603 N.W.2d 10 (1999). Second, an attorney appointed under § 43-272(2) and (3) serves as counsel for the juvenile. As counsel, an attorney is required to zealously advocate the wishes of the juvenile (as opposed to the best interests of the juvenile), as long as those wishes are within the bounds of the law. Orr v. Knowles, 215 Neb. 49, 337 N.W.2d 699 (1983); Canon 7, EC 7-1, of the Code of Professional Responsibility.

The juvenile code recognizes that generally, the roles of guardian ad litem and counsel can be carried out by the same attorney. But the code requires that the roles be split when there are "special reasons in a particular case." § 43-272(3). The guardians ad litem argue that special reasons are present and thus that the court should have appointed separate counsel for J.K.

2.

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Cite This Page — Counsel Stack

Bluebook (online)
656 N.W.2d 253, 265 Neb. 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jk-neb-2003.