My Kid Got In Trouble...Now What?

Written by Tana M. Fye

So your child got into a fight? Or stole something? Or ran away from home? Or is smoking marijuana? Now you're wondering what happens. Look no further. I intend to give a brief guide as to what happens after a child gets into trouble with the law, step by step through the process.

Step 1: Petition

After a child gets into trouble, law enforcement may give them a citation to court, or may choose to simply provide reports to the County Attorney's Office. In either scenario, the County Attorney's Office files a Petition with the Court. The Petition states the allegations that the County Attorney is making about what occurred. Typically the juvenile and the parents also receive a summons, telling when to be at court to answer those allegations.

Step 2: First Court Appearance

The first court appearance has different names in different counties. It may be called a First Appearance, an Admit/Deny Hearing, or an Arraignment. No matter the name, the purpose is the same. The judge advises the juvenile of his/her rights, the allegations in the petition, and the dispositional options that the judge has (these will be discussed in Step 4). The judge determines whether the juvenile and his/her parents intend to hire an attorney, or whether they'd like a court-appointed attorney to be appointed. The judge also determines whether the juvenile wants to admit or deny the allegations. I encourage people to hire an attorney or ask for a court-appointed attorney if they can't afford to hire an attorney. I also encourage people to enter a denial so that they have the chance to talk to their attorney before proceeding further. There are often offers made by the County Attorney to the defense attorney, so it pays to wait and see.

Sometimes the Court will set the case for a continued admit/deny hearing if an attorney is appointed, and the purpose of that hearing is very similar to the first appearance. The judge wants to know whether the juvenile is ready to admit or deny, or if an adjudication needs to be scheduled.

Step 3: Adjudication

If the juvenile chooses to admit that the allegation in the Petition are true at an earlier hearing, this step is omitted. However, if the juvenile denies the allegations, then an adjudication happens. An adjudication is the term used in juvenile court to describe a trial.

The County Attorney presents evidence, through witnesses and exhibits to establish that their allegations are true. The juvenile with his/her attorney can choose to present evidence (witness testimony and exhibits) or not. The juvenile with his/her attorney can make arguments to the Court (the judge) about why the State (the County Attorney) has not proven their allegations. The trial is to a judge only, as there is no right to a jury trial in juvenile court. The judge can make a decision immediately at the end of the trial, or can take the matter under advisement (meaning issue a written decision later).

If the judge rules in favor of the juvenile, and finds that the State has not proven the allegations, then the case is dismissed. The juvenile has no further court appearances to make. If instead, the judge rules in favor of the State, and finds that the allegations have been proven, the next step is disposition.

Step 4: Disposition

Disposition is similar to sentencing in adult court. The attorneys make arguments to the judge about what the consequences and services should be for the juvenile. The juvenile and his/her parents can make statements to the judge.

The judge can also consider a document called a Pre-Dispositional Investigation (PDI). Judges sometimes order these after an admission or an adjudication, to get additional information and recommendations. The PDI is completed by the juvenile probation office, after testing and interviews with the juvenile and his/her parents. It includes information about the juvenile's family, friends, hobbies/interests, employment, education, and any juvenile or criminal history. This document is provided to the judge and the attorneys after its completion. The juvenile's attorney will review it and then discuss it with the juvenile and his/her parents.

After considering all of the statements, arguments, and the PDI, the judge decides what the disposition will be for the juvenile. The most common outcome is probation, either supervised by the juvenile probation office, or unsupervised court probation. There are a whole host of services that can be ordered as part of probation. These include, counseling, classes, group therapy, community service, school contracts, curfew, family support, and really anything that the judge or probation believes will be beneficial to the juvenile. If the juvenile is placed on probation, then no other hearings will be held, unless a probation violation is filed.

If instead, the problems are more severe, the judge can also place the juvenile out of his/her parents' home. This could be a foster care placement, a group home, a shelter, detention, drug treatment center, or at YRTC (Youth Rehabilitation and Treatment Center). I tell clients that if a placement out of home is coming, the family and the juvenile will know it. The problems are pretty bad, and there should be no surprise about it. There are two YRTCs in Nebraska--Geneva for girls, and Kearney for boys. A placement at YRTC only comes after all other placement options and probation services have been exhausted. If the juvenile is placed out of home, then the case is reviewed at least every 6 months until the juvenile is returned home.

Lawyers Need to Be GALs for Juveniles

I applaud G. Michael Fenner's position taken on lawyers v. non-lawyers acting as Guardians ad Litem for children in juvenile cases.  I believe that it is absolutely necessary for children to be represented by attorneys in these cases, as to take away this right to counsel for children would leave them the only parties unrepresented in these matters.  Parents have attorneys, the Department of Health and Human Services has attorneys, and the State has County Attorneys.

The right to counsel for children involved in juvenile proceedings should be a no-brainer.  And in fact, many states are moving toward a model with lawyer GALs, rather than away from it.  I would hate to see Nebraska moving in the wrong direction by taking away children's right to counsel in these matters.

Thank you to G. Michael Fenner for taking this position, and summarizing it so succinctly.

ICWA and SCOTUS

For only the second time, the Supreme Court of the United States will hear a case involving the Indian Child Welfare Act (ICWA).  This Reuters article describes the situation as a "human tragedy," which pretty much can describe any case on appeal involving ICWA, as the failure to abide by ICWA's mandates can essentially 'undo' an adoption.

Whatever the result, it will be wonderful for attorneys involved in these types of cases to have a little more guidance from the Supreme Court.

Correcting Misconceptions about Youth with Sexual Behavior Problems

I wrote an article that was published on the Through the Eyes of the Child Initiative's website.  Here's the link.  Please feel free to check it out & let me know if you have any comments.

Juvenile Law: Nebraska v. South Dakota

As an attorney who was first licensed in South Dakota, and who practiced there before moving to Nebraska, I grew accustomed to South Dakota procedures in different types of cases.  As a result, becoming acquainted with how things are done in Nebraska has been an adjustment and a definite learning experience.  Juvenile law is one area where there are definite differences between Nebraska and South Dakota.  Here are just a few of the differences between the two states, and my opinion on which is superior.  

SD: Different types of cases involving juveniles (abuse & neglect, juvenile delinquency, child in need of supervision, etc.) each have their own chapter of the Code, and as a result, have slightly different procedures.

NE:  Different types of cases involving juveniles are all handled under one section of the Code, and therefore have uniform procedures.

Winner: NE.  It's really nice that the cases all have identical procedures, so that the attorneys and participants in the case cannot get tripped up by some minor difference in the procedures for different types of cases.  

SD: Child's attorney appointed to represent the interests of the child in an abuse & neglect case.  Child's attorney is an attorney for the child who also advocates the best interests of the child (as they quite often are the same thing), although a Guardian ad Litem (GAL) may be appointed if the child's stated interests appear to differ from the best interests of the child.  

NE: GAL appointed to represent the interests of the child in an abuse & neglect case.  GAL represents the best interests of the child, and an additional attorney may be appointed if the child's stated interests appear to differ from the best interests of the child.  

Winner: These are essentially equivalent, although just the reverse of one another.  

SD: Department of Social Services (DSS) prepares a Report to the Court before every hearing.  The Child's Attorney does not prepare a Report to the Court.  

NE: GAL prepares a Report to the Court before every hearing.  The Department of Health and Human Services (HHS) does not prepare a Report to the Court.  

Winner: Neither state wins.  There are benefits to both systems, and therefore I would recommend that both states adopt a requirement that DSS/HHS & the GAL/Child's Attorney prepare Reports to the Court.  HHS has information such as completion of parenting classes, treatment information from parents, as well as information about contacts with the parents, that is valuable for the parties, attorneys, and the judge to consider.  However, the GAL is more of an impartial outsider to the case than is DSS/HHS, and therefore is in a better position to make recommendations to the judge as to what should happen in the case going forward.  In addition, because the GAL is an attorney, and the social worker is not an attorney, the GAL is in a better position to review the law applicable to the case & ensure that it is complied with.  

SD: The State's Attorney represents DSS's interests and may require DSS to take action.

NE: The County Attorney does not represent HHS's interests, and HHS may bring in its own attorney if HHS's recommendations are in conflict with those of the County Attorney.  

Winner: South Dakota.  SD's procedure here is much cleaner and smoother.  It makes much more sense to have the County Attorney, who represents the interests of the State on a daily basis, advocate the position of a state agency.  Likewise, it makes sense for the County Attorney to have some control over the actions of the state agency prior to the case being heard before the judge.  

So as you can see, there are differences between how juvenile cases are handled in Nebraska and South Dakota.  There are benefits to the systems of each state, as well as reasons for the different approaches.  It also makes clear how important it is to be represented by an attorney familiar with these procedures.