§ 43-274 — County attorney; city attorney; preadjudication powers and duties; petition, pretrial diversion, or restorative justice practice or service; transfer; procedures; appeal; admission, confession, or statement made by juvenile; inadmissible; when

Nebraska § 43-274

• Jurisdiction: Nebraska
• Ch. 43: Infants and Juveniles

Text

(1) The county attorney or city attorney, having knowledge of a juvenile within his or her jurisdiction who appears to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and taking into consideration the criteria in section 43-276 , may proceed as provided in this section.
(2) The county attorney or city attorney may offer pretrial diversion to the juvenile in accordance with a juvenile pretrial diversion program established pursuant to sections 43-260.02 to 43-260.07 .
(3)(a) If a juvenile appears to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 , the county attorney or city attorney may utilize restorative justice practices or services as a form of, or condition of, diversion or plea bargaining or as a recommendation as a condition of disposition, through a referral to a restorative justice facilitator.
(b) For victim-involved offenses, a restorative justice facilitator shall conduct a separate individual intake and assessment session with each juvenile and victim to determine which, if any, restorative justice practice is appropriate. All participation by the victim shall be voluntary. If the victim declines to participate in any or all parts of the restorative justice practice, a victim surrogate may be invited to participate with the juvenile. If, after assessment, participation by the juvenile is deemed inappropriate, the restorative justice facilitator shall return the referral to the referring county attorney or city attorney.
(c) A victim or his or her parent or guardian shall not be charged a fee. A juvenile or his or her parent or guardian may be charged a fee according to the policies and procedures of the restorative justice facilitator and the referring county attorney or city attorney. Restorative justice facilitators shall use a sliding fee scale based on income and shall not deny services based upon the inability of a juvenile or his or her parent or guardian to pay, if funding is otherwise available.
(d) Prior to participating in any restorative justice practice or service under this section, the juvenile, the juvenile's parent or guardian, and the victim, if he or she is participating, shall sign a consent to participate form.
(e) If a reparation plan agreement is reached, the restorative justice facilitator shall forward a copy of the agreement to the referring county attorney or city attorney. The terms of the reparation plan agreement shall specify provisions for reparation, monitoring, completion, and reporting. An agreement may include, but is not limited to, one or more of the following:
(i) Participation by the juvenile in certain community service programs;
(ii) Payment of restitution by the juvenile to the victim;
(iii) Reconciliation between the juvenile and the victim;
(iv) Apology, when appropriate, between the juvenile and the victim; and
(v) Any other areas of agreement.
(f) The restorative justice facilitator shall give notice to the county attorney or city attorney regarding the juvenile's compliance with the terms of the reparation plan agreement. If the juvenile does not satisfactorily complete the terms of the agreement, the county attorney or city attorney may:
(i) Refer the matter back to the restorative justice facilitator for further restorative justice practices or services; or
(ii) Proceed with filing a juvenile court petition or criminal charge.
(g) If a juvenile meets the terms of the reparation plan agreement, the county attorney or city attorney shall either:
(i) Not file a juvenile court petition or criminal charge against the juvenile for the acts for which the juvenile was referred for restorative justice practice or services when referred as a diversion or an alternative to diversion; or
(ii) File a reduced charge as previously agreed when referred as a part of a plea negotiation.
(4) The county attorney or city attorney shall file the petition in the court with jurisdiction as outlined in section 43-246.01 .
(5)(a) When a transfer from juvenile court to county court or district court is authorized because there is concurrent jurisdiction, the county attorney or city attorney may move to transfer the proceedings. Such motion shall be filed with the juvenile court petition unless otherwise permitted for good cause shown. The juvenile court shall schedule a hearing on such motion within fifteen days after the motion is filed. The county attorney or city attorney has the burden by a preponderance of the evidence to show why such proceeding should be transferred. The juvenile shall be represented by counsel at the hearing and may present the evidence as to why the proceeding should be retained. After considering all the evidence and reasons presented by both parties, the juvenile court shall retain the proceeding unless the court determines that a preponderance of the evidence shows that the proceeding should be transferred to the county court or district court. The court shall make a decision on the motion within thirty days after the hearing. The juvenile court shall set forth findings for the reason for its decision.
(b) An order granting or denying transfer of the case from juvenile court to county or district court shall be considered a final order for the purposes of appeal. Upon the entry of an order, any party may appeal to the Court of Appeals within ten days. Such review shall be advanced on the court docket without an extension of time granted to any party except upon a showing of exceptional cause. Appeals shall be submitted, assigned, and scheduled for oral argument as soon as the appellee's brief is due to be filed. The Court of Appeals shall conduct its review in an expedited manner and shall render the judgment and opinion, if any, as speedily as possible. During the pendency of any such appeal, the juvenile court may continue to enter temporary orders in the best interests of the juvenile pursuant to section 43-295 .
(c) If the proceeding is transferred from juvenile court to the county court or district court, the county attorney or city attorney shall file a criminal information in the county court or district court, as appropriate, and the accused shall be arraigned as provided for a person eighteen years of age or older in subdivision (1)(b) of section 29-1816 .
(d)(i) Except as provided in subdivision (5)(d)(ii) of this section, any admission, confession, or statement made by the juvenile to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of a motion to transfer a case from juvenile court to county court or district court shall be inadmissible in any criminal or civil proceeding.
(ii) Subdivision (5)(d)(i) of this section does not prevent any such admission, confession, or statement from being:
(A) Admissible in proceedings relating to such motion to transfer;
(B) Admissible in disposition proceedings for such juvenile under the Nebraska Juvenile Code if the case is not transferred to county court or district court;
(C) Included in any presentence investigation report for such juvenile if the case is transferred to county court or district court; and
(D) Admissible in such case to impeach such juvenile during cross-examination if the juvenile testifies at trial or during juvenile court proceedings and such testimony is materially inconsistent with a prior statement made by the juvenile to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of the motion to transfer such case.

Legislative History

Source: Laws 1981, LB 346, § 30; Laws 1987, LB 638, § 4; Laws 1998, LB 1073, § 20; Laws 2003, LB 43, § 13; Laws 2014, LB464, § 16; Laws 2017, LB11, § 2; Laws 2019, LB595, § 28; Laws 2024, LB184, § 2. Annotations: An order granting transfer from juvenile court to county court or district court is reviewed de novo on the record for an abuse of discretion. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018). In determining whether a case should be transferred from juvenile court to criminal court, a juvenile court should consider those factors set forth in section 43-276; there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018). Actions involving juveniles fitting into categories under section 43-246.01(3) may be initiated either in the juvenile court or in the county or district court and may be transferred as provided in this section. In re Interest of Luis D., 29 Neb. App. 495, 956 N.W.2d 25 (2021). When the prosecution seeks to transfer a juvenile offender's case to criminal court, the juvenile court must retain the matter unless a preponderance of the evidence shows that the proceeding should be transferred to the county court or district court. The prosecution has the burden by a preponderance of the evidence to show why such proceeding should be transferred. In re Interest of William E., 29 Neb. App. 44, 950 N.W.2d 392 (2020). The mandate that allegations under section 43-247(1), (2), and (4) be made with the same specificity as a criminal complaint merely reconciles the pleading practice regarding juvenile offenders with that of adult criminals. In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012). The pleading standard for allegations under section 43-247(3) stems from the requirements of due process, and the factual allegations must give a parent notice of the bases for seeking to prove that the child is within the meaning of section 43-247(3)(a). In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012). A guardian ad litem appointed by the juvenile court does not have the authority to initiate a juvenile court case by filing a petition alleging that a child is within the meaning of section 43-247(3)(a). In re Interest of David M. et al., 19 Neb. App. 399, 808 N.W.2d 357 (2011). Subsection (1) of this section authorizes a county attorney with knowledge of a juvenile in his or her county falling within the purview of section 43-247(3)(a) to file a petition in that county's juvenile court. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011). Juvenile court did not err in refusing to allow an intervenor to proceed on the intervenor's petition where there was no evidence to establish the county attorney's consent to the filing of the intervenor's petition as required by this section. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003). A petition filed pursuant to this section, specifying facts under subsection (3)(a) of section 43-247, must allege facts which would show that a child lacks proper parental care by reason of the inadequacy of any parent whose custody or right to custody might be affected, so that both parents may understand that the litigation concerns their respective rights. In re Interest of Kelly D., 3 Neb. App. 251, 526 N.W.2d 439 (1994).