In an opinion released Friday, Nebraska's high court called out the state Department of Health and Human Services for disregarding a judge's order in the case of a 13-year-old boy.

But an attorney with the department says it complied with the court's order and tried to get the judge to change his mind, then appealed when he didn't.

Last year, Madison County Juvenile Court Judge Ross Stoffer ordered the boy -- in trouble for assault, criminal mischief and multiple thefts -- committed to the Youth Rehabilitation and Treatment Center in Kearney as part of intensive supervised probation.

According to Friday's order, the parties in the case all agreed the boy should be placed there because he was a flight risk and posed a risk to himself and others.

The opinion said that when the boy arrived in Kearney, the center refused to take him, citing a state law that says a juvenile younger than 14 "shall not be placed with or committed to a youth rehabilitation and treatment center."

But, on Friday, HHS attorney Brad Gianakos said the county attorney had given the trial court incorrect information and that the center did take the boy that day.

"What we did was go back to the trial court and ask the court to reconsider the order," Gianakos said.

He said everyone agreed but the judge.

Stoffer refused to rescind his order, saying the placement was allowed under another state law because the boy had been committed to the Office of Juvenile Services before July 1, 2013, had committed another offense, and because it was in the interests of both the boy and the community.

"And I'm just not going to stand for the fact that the (D)epartment (and OJS are) able to say, we don't agree with you, and without appealing they refuse to take the child under my order," the judge said.

If HHS disagreed with his ruling, Stoffer said, it could appeal.

And if the center in Kearney refused again to take the boy, the judge said, its director would have to appear for a contempt hearing.

If anyone else refused to do something he ordered, Stoffer said, he wouldn't just let them say they disagreed with his interpretation of the law so they weren't going to do it.

"And I don't think that the (YRTC) at Kearney or the (D)epartment should be able to do that either," he said at a hearing in Madison on Nov. 14, 2013.

HHS did appeal.

But the boy didn't stay in Kearney long. The center discharged him to a group home 60 days after his arrival, the quickest it could.

Gianakos said briefs in the case make it appear that the boy was released because of his age alone, but it came down to two factors: ambiguity in the law, and the Legislature's intent to keep juveniles 13 or younger out of youth treatment centers.

"From my perspective, the department tried very hard in this case to do the right thing," he said.

He said the department felt strongly that having a 13-year-old at a youth treatment center wasn't a good idea, given that some of the older juveniles are there for serious crimes.

HHS could have dropped the boy's case after he was sent to Kearney, or after he went to a group home. But it didn't, Gianakos said, "because we do care what the courts say. We do want to follow the law."

Since the boy was not at the Kearney center, the question was moot, but HHS asked the high court to determine whether juvenile court judges have the authority to commit juveniles younger than 14 to a treatment center in case the issue comes up again.

HHS didn't provide the court with a specific number of juveniles younger than 14 who had been committed to the Office of Juvenile Services before July 1, 2013, to whom the law could still apply.

But there are fewer all the time, Gianakos said, and the Supreme Court correctly pointed out Friday that it is unlikely to happen again.

In a brief in the appeal, an attorney for HHS said the youth treatment center would do the same thing it did in this case should a judge enter an order committing another juvenile younger than 14. It would accept him or her, then discharge the juvenile promptly.

"That is not how the law stands now," the Supreme Court said in its unanimous ruling on Friday.

The court ultimately ruled the appeal moot and dismissed it, but not before adding to Stoffer's admonition of HHS, which they called "stern but appropriate."

The court said HHS, the Office of Juvenile Services and the Youth Rehabilitation and Treatment Center can -- and must -- comply with juvenile court orders.

"Statutory interpretation and construction is a function of the judiciary branch, not the executive branch," the high court said.

Going forward, Gianakos said, HHS will continue to follow court orders, and do the same as it did in this case: make decisions based not on the child's age alone but on the best interests of the child.

Subscribe to Daily Headlines

* I understand and agree that registration on or use of this site constitutes agreement to its user agreement and privacy policy.

Reach the writer at 402-473-7237 or lpilger@journalstar.com. On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

Load comments