State v. Robert W. (In re Robert W.)

925 N.W.2d 714, 27 Neb. Ct. App. 11
CourtNebraska Court of Appeals
DecidedMarch 12, 2019
DocketNo. A-18-166.
StatusPublished
Cited by4 cases

This text of 925 N.W.2d 714 (State v. Robert W. (In re Robert W.)) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Robert W. (In re Robert W.), 925 N.W.2d 714, 27 Neb. Ct. App. 11 (Neb. Ct. App. 2019).

Opinion

Pirtle, Judge.

*717INTRODUCTION

Robert W. appeals from two orders of the separate juvenile court of Lancaster County finding that all community-based resources to assist him and his family in keeping Robert in the family home had been exhausted and ordering him placed outside of the home. Based on the reasons that follow, we affirm.

BACKGROUND

On November 6, 2017, a petition to adjudicate Robert was filed, alleging that he had committed two felony offenses: terroristic threats and use of a deadly weapon to commit a felony. The charges stemmed from an incident in which Robert pointed a handgun at the back of another juvenile's head. An order for immediate custody was attached to the petition. A supplemental petition was filed on November 9, alleging three additional misdemeanor charges. On November 17, Robert entered a no contest plea to the use of the deadly weapon to commit a felony offense and he was adjudicated under *13Neb. Rev. Stat. § 43-247(2) (Reissue 2016). The remaining charges were dismissed.

Following his adjudication, the court ordered him to be "detained at the Lancaster County Juvenile Detention Center [and to] cooperate with a co-occurring evaluation" with psychological testing. Dr. Leland Zlomke, a licensed psychologist, conducted an evaluation on December 4, 2017, and an updated evaluation on December 21.

Four continued disposition hearings were held between December 8, 2017, and February 16, 2018. During this time, Robert remained at the detention center. The evidence presented at the disposition hearings showed that when police officers went to Robert's home on November 3, 2017, to retrieve the gun used in the offense, officers noticed a "strong odor of marijuana" throughout the home, "as if marijuana is smoked within the house on a consistent basis." Robert's mother, Kelley B., had a boyfriend, Jamil W., who lived with Robert and Kelley. Jamil has a criminal history involving marijuana. Probation reports showed that there had been repeated burglaries at Robert's home, and the police indicated that the break-ins were related to the belief that there were large quantities of illegal substances in the home.

At the first disposition hearing on December 8, 2017, Robert's probation officer, Allison Rusler, stated that Robert and Kelley wanted him to return to his home. Rusler discussed the safety plan recommended for Robert if he were to be placed in Kelley's home. Rusler testified that Kelley had indicated she was willing to follow the safety plan. The plan included a requirement that Robert be supervised by an *718adult at all times. Kelley indicated that Jamil would be one adult that could supervise Robert, and she indicated they coparent together. In addition to Jamil's criminal history of drug use, Jamil has a history of assaultive behavior, including domestic violence against Kelley. Most recently, in October 2017, Jamil was charged with assault in the second degree for "assaulting an individual with a baseball bat." *14Kelley also provided the names of other individuals who could assist her in continuously supervising Robert, including Desiree H., who had a criminal history that included citations for marijuana possession as recently as August 2017 and whose own children have been adjudicated and removed from her home. Other names listed as potential supports for Robert's at-home placement included Desiree's mother, who was cited for "child abuse/neglect" in 2001; an individual who lives outside of the state and who could not assist with implementing the safety plan; and an individual who struggles with mental health disorders.

Rusler also discussed the first psychological evaluation performed by Zlomke. In the initial evaluation, Zlomke noted that Robert had a moderate to high risk of recidivism. Zlomke's recommendations included weekly outpatient psychotherapy, cognitive behavioral therapy and "moral decision making" therapy, in-home family therapy and skill building, random drug screenings, and a stable school placement. According to Rusler, Zlomke did "not necessarily recommend[ ] himself that [Robert] be released" to live in Kelley's home, but did recommend that a "strict safety plan" would need to be put into place if Robert were placed in Kelley's home. Rusler indicated that there would be significantly less risk to the community if Robert were to be placed "in a group home setting" as opposed to in-home placement.

Rusler informed the court that Zlomke did not have important collateral information available at the time he completed the first evaluation. Therefore, the court allowed the probation office to provide Zlomke with supplemental information, which led to an updated evaluation report.

Zlomke's updated evaluation, dated December 21, 2017, was discussed at the continued disposition hearing on December 28. The evaluation stated that Robert has a long-term history of "impulsive, disrespectful and aggressive behavior," starting around age 10. Robert had received special education supports for several years and had been educated in schools with *15additional supports for youth with behavioral disturbances on and off over the years.

The updated evaluation noted that Robert's school attendance worsened significantly between 2013 and 2016. In the most recent school year at the time of the evaluation, he was tardy to first period approximately 90 percent of the time. In 2017, Robert was suspended from school three times between September and November. The suspensions resulted from incidents involving disrespect of authority, verbal threats (including threats to bring a weapon to school on September 9), assault of another student on October 4, and actual possession of a gun and threats on November 3. Outside of school, Robert's criminal activity escalated over the course of 2017. The incidents included an assault in April, a minor in possession charge in May, shoplifting and a second assault in October, and finally the incident with the loaded firearm in November.

Zlomke's updated evaluation noted that Robert had participated in a diversion program for the minor in possession charge, but Robert had reoffended before completion of the program. Robert was charged with shoplifting and assault while in the *719diversion program. Robert was told that if he finished diversion successfully, he would not be referred to the county attorney for the shoplifting and assault charges. However, Robert was subsequently discharged from the diversion program after the November 2017 gun incident in the present case.

Zlomke diagnosed Robert with childhood-onset conduct disorder, a condition that manifests as "defiance, anger and disruptive" behaviors when challenged by authority figures, and "[o]ther specified impulse control problems." Zlomke maintained that Robert posed a "moderate to high" risk for recidivism without appropriate supports, supervision, and treatment.

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Bluebook (online)
925 N.W.2d 714, 27 Neb. Ct. App. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robert-w-in-re-robert-w-nebctapp-2019.