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the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If a tendered
conditional admission is not finally approved as above
provided, it may not be used as evidence against the
Respondent in any way.
Pursuant to § 3‑313, and given the conditional admission,
we find that respondent knowingly does not challenge or
contest the matters set forth in the formal charges. We further
determine that by his conduct, respondent violated professional
conduct rules §§ 3‑504.1(a) and 3‑508.4(a), (c), and (d), as
well as his oath of office as an attorney licensed to practice law
in the State of Nebraska. Respondent has waived all additional
proceedings against him in connection herewith. Upon due
consideration, the court approves the conditional admission
and enters the orders as indicated below.
CONCLUSION
The conditional admission is accepted. Respondent is pub-
licly reprimanded. Respondent is directed to pay costs and
expenses in accordance with Neb. Ct. R. §§ 3‑310(P) and
3‑323(B) within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
Judgment of public reprimand.
In re I nterest of
Samantha L. and Jasmine L.,
children under18 years of age.
State of Nebraska, Department of Health and
Human Services, appellee and cross-appellee,
v. K elly L., appellee and cross-appellant,
and William H., appellant.
___ N.W.2d ___
Filed November 1, 2013. No. S-13-264.
1. Rules of the Supreme Court: Appeal and Error. Headings in the argu-
ment section of a brief do not satisfy the requirements of Neb. Ct. R. App. P.
§ 2-109(D)(1) (rev. 2012). Under that rule, a party is required to set forth the
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assignments of error in a separate section of the brief, with an appropriate head-
ing, following the statement of the case and preceding the propositions of law,
and to include in the assignments of error section a separate and concise state-
ment of each error the party contends was made by the trial court.
2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
3. Rules of the Supreme Court: Appeal and Error. Where a brief of a party fails
to comply with the mandate of Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012),
an appellate court may proceed as though the party failed to file a brief or, alter-
natively, may examine the proceedings for plain error.
4. Appeal and Error. Plain error is error plainly evident from the record and of
such a nature that to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.
5. Juvenile Courts: Adoption: Child Custody. A juvenile court, except where
an adjudicated child has been legally adopted, may always order a change
in the juvenile’s custody or care when the change is in the best interests of
the juvenile.
6. Trial: Waiver: Appeal and Error. A litigant’s failure to make a timely objection
waives the right to assert prejudicial error on appeal.
7. Trial: Appeal and Error. One cannot silently tolerate error, gamble on a favor-
able result, and then complain that one guessed wrong.
Appeal from the Separate Juvenile Court of Douglas County:
Vernon Daniels, Judge. Affirmed.
Matthew P. Saathoff, of Saathoff Law Group, P.C., L.L.O.,
for appellant.
Molly Adair-Pearson, of Adair-Pearson Law, for appellee
Kelly L.
Donald W. Kleine, Douglas County Attorney, and Shakil A.
Malik for appellee State of Nebraska, Department of Health
and Human Services.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
The biological parents of two children in the care and
custody of the Nebraska Department of Health and Human
Services (DHHS) each filed a notice of appeal from an order of
the separate juvenile court of Douglas County. The order found
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that DHHS was no longer required to supply reasonable efforts
in support of reunification and that the primary permanency
objectives for the children should be changed from reunifica-
tion. Both parents failed to include in their respective briefs on
appeal a separate section assigning error in the juvenile court’s
order. We therefore review the court’s order for plain error.
Finding none, we affirm.
BACKGROUND
Kelly L. and William H. are the biological parents of
Jasmine L. and Samantha L. The separate juvenile court of
Douglas County placed Jasmine and Samantha in the temporary
care and custody of DHHS on October 12, 2010, after DHHS
received information that Kelly and William had engaged in
acts of domestic violence in Jasmine’s and Samantha’s pres-
ence on multiple occasions.
An adjudication hearing was conducted by the juvenile court
on January 5, 2011. Jasmine and Samantha had remained in
the custody of DHHS up until that time. Upon completion of
the hearing, the court entered an order providing that Kelly
and William admitted or pled no contest to various allega-
tions made by the State. Kelly admitted that she had failed
to provide Jasmine and Samantha with proper parental care,
support, and/or supervision, and pled no contest to the State’s
allegations that she and William had engaged in domestic
violence in front of the children and that the children were at
risk for harm. William admitted that his use of alcohol and/
or controlled substances placed the children at risk for harm,
and pled no contest to the State’s allegations that he and Kelly
had engaged in acts of domestic violence in front of the chil-
dren and that the children were at risk for harm. Based upon
Kelly’s and William’s pleas and admissions, the court found
that it was in the best interests, safety, and welfare of Jasmine
and Samantha to remain in the temporary care and custody
of DHHS.
The juvenile court’s order also set forth requirements for
Kelly and William to complete for reunification. These require-
ments included, in relevant part, to (1) obtain and maintain
safe, stable, and adequate housing; (2) obtain and maintain a
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legal, stable source of income; (3) abstain from the consump-
tion of alcohol and the use/possession of all controlled sub-
stances, unless prescribed by a physician; (4) submit to future
random drug testing within 4 hours of a request by the case
manager; and (5) participate in individual therapy to address
issues relating to domestic violence.
Jasmine and Samantha’s case then came before the juvenile
court on several continued disposition hearings throughout
2011 and 2012. DHHS was required to provide Kelly and
William with copies of reports that it planned to use at the
hearings 3 days in advance of the hearing dates. However,
three hearings during this period were continued because
DHHS failed to do so. Because DHHS caused the hearings to
be continued, the juvenile court assessed fees for preparation
and attendance at the hearings against DHHS. DHHS appealed
the fees award, and we disposed of the appeal in In re Interest
of Samantha L. & Jasmine L.1
On February 15, 2012, Kelly and William moved the juve-
nile court for an order to toll the statutory ground for termina-
tion of parental rights provided by Neb. Rev. Stat. § 43-292(7)
(Cum. Supp. 2012). Section 43-292(7) provides that parental
rights may be terminated when a juvenile has been in an
out-of-home placement for 15 or more months of the most
recent 22 months. In support of their motion to toll, Kelly and
William alleged that DHHS had caused three hearings to be
continued by failing to provide them with copies of reports
DHHS planned to use at the hearings. They further alleged
that their contact with the caseworkers had been intermittent
from approximately February 2011 to January 2012. Kelly
and William ultimately claimed that these failures had limited
their ability to comply with the court’s orders. At the time the
motion was filed, Jasmine and Samantha had been in the care
and custody of DHHS for 16 months.
In response to Kelly and William’s motion to toll, the parties
entered into a stipulation providing that DHHS had failed to
provide Kelly and William with reasonable efforts in support
1
In re Interest of Samantha L. & Jasmine L., 284 Neb. 856, 824 N.W.2d
691 (2012).
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of reunification from February 28, 2011, to February 29, 2012.
The stipulation further requested that the juvenile court toll
the statutory time period of § 43-292(7) from February 28,
2011, to February 29, 2012. The court did so in an order dated
August 24, 2012.
Jasmine and Samantha’s case then came before the juvenile
court for an evidentiary and review and permanency plan-
ning hearing on February 11, 2013. At that time, Jasmine and
Samantha had been in out-of-home placement for nearly 28
months. Their primary permanency objectives during that time
had been reunification.
At the hearing, DHHS offered several exhibits to the juve-
nile court without objection. These exhibits included reports
from the Nebraska Foster Care Review Office, a guardian
ad litem report, a case plan and court report from DHHS,
and correspondence documenting the progress of Kelly’s and
William’s drug testing.
The exhibits made clear that both Kelly and William had
demonstrated a continued disregard for the juvenile court’s
requirements for reunification during the nearly 28-month
period that Jasmine and Samantha had been in the care and
custody of DHHS. The exhibits showed that both Kelly and
William had been evicted from their residences, that William
had been terminated from his employment, that neither Kelly
nor William was in compliance with urinalysis requests or
participating in therapy, and that William had been discharged
from his domestic violence program because he had missed
more than the permitted number of classes.
The reports from the Nebraska Foster Care Review Office
and the guardian ad litem report recommended that the primary
permanency objectives for the children be changed from reuni-
fication and that reasonable efforts in support of reunification
no longer be required. At the hearing, the author of the case
plan from DHHS also made an oral amendment to the plan,
recommending that the court adopt a primary permanency
objective of adoption for Samantha.
In an order dated February 26, 2013, the juvenile court
found that no further reasonable efforts were required in sup-
port of reunification, that the primary permanency objective
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for Jasmine was to be independent living, and that the primary
permanency objective for Samantha was to be guardianship
with a concurrent plan of adoption.
William filed a timely notice of appeal. Kelly filed a second
notice of appeal. Under our rules, she was considered an appel-
lee2 and was vested with the right to cross-appeal.3
ASSIGNMENTS OF ERROR
[1] Both Kelly and William failed to include in their respec-
tive briefs on appeal a separate section assigning error in the
juvenile court’s February 26, 2013, order. We have emphasized
that headings in the argument section of a brief do not satisfy
the requirements of Neb. Ct. R. App. P. § 2-109(D)(1) (rev.
2012).4 Under that rule, a party is required to set forth the
assignments of error in a separate section of the brief, with an
appropriate heading, following the statement of the case and
preceding the propositions of law, and to include in the assign-
ments of error section a separate and concise statement of each
error the party contends was made by the trial court.5 We again
enforce these requirements.
STANDARD OF REVIEW
[2-4] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.6 However, where a brief of a party
fails to comply with the mandate of § 2-109(D)(1)(e), we may
proceed as though the party failed to file a brief or, alterna-
tively, may examine the proceedings for plain error.7 Plain
error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to
the integrity, reputation, or fairness of the judicial process.8
2
See Neb. Ct. R. App. P. § 2-101(C) (rev. 2010).
3
See § 2-101(E).
4
See In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
5
See id.
6
Id.
7
See id.
8
Id.
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ANALYSIS
The juvenile court’s February 26, 2013, order found that
reasonable efforts in support of reunification were no longer
required, that the primary permanency objective for Jasmine
was to be independent living, and that the primary per-
manency objective for Samantha was to be guardianship
with a concurrent plan of adoption. Because both Kelly and
William failed to include a separate section assigning error
in their briefs on appeal, we will review each of the above
findings for plain error. We begin with the court’s finding
that reasonable efforts in support of reunification were no
longer required.
R easonable Efforts
The juvenile court’s February 26, 2013, order found that
reasonable efforts in support of reunification were no longer
required. We do not find this conclusion to be plain error.
From the outset, we acknowledge that the parties entered into
a stipulation providing that reasonable efforts were not pro-
vided in support of reunification from February 28, 2011, to
February 29, 2012. However, notwithstanding the stipulated
time period, the evidence shows a clear pattern of disregard by
Kelly and William for the services provided to them by DHHS
in support of reunification. Due to Kelly’s and William’s
continued disregard for these services, the court did not com-
mit plain error in finding that reasonable efforts were no
longer required.
The exhibits offered to the juvenile court at the February 11,
2013, hearing demonstrated that Kelly and William continually
ignored the services provided to them by DHHS to fulfill the
juvenile court’s requirements for reunification. The case plan
authored by DHHS stated that Kelly and William were not
participating in individual therapy, couples counseling, family
therapy, or Alcoholics Anonymous or drug/alcohol screening.
The case plan also claimed that Kelly and William had “made
themselves unavailable to services by not answering their
phones or the door to their home.”
The guardian ad litem report similarly established Kelly’s
and William’s unwillingness to utilize the services provided
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by DHHS. The report stated that “[a]ll resources necessary for
the parents to comply with the orders of the court have been
repeatedly made available to the parents and they continue to
refuse services.” The report then recommended that DHHS
no longer be required to offer services or provide reasonable
efforts to assist Kelly and William in their compliance with
the court’s order.
The correspondence documenting the progress of Kelly’s
and William’s drug screening also demonstrated a continued
lack of effort by Kelly and William to participate in the drug-
screening services provided by DHHS. A January 21, 2013,
letter from Kelly’s drug-testing provider stated that Kelly
was to arrange to come to drug testing weekly, but tested
only once and then missed all other drug tests. A January 30,
2013, e-mail from William’s drug-testing provider stated that
William was being discharged from testing services for failing
to call in to determine if he needed to test. The e-mail docu-
mented dozens of unsuccessful attempts by the provider to
contact William to set up appointments for drug testing during
2011 and 2012.
The reports from the Nebraska Foster Care Review Office
outlined barriers to reunification that similarly established
Kelly’s and William’s unwillingness to utilize the services
provided to them. These barriers included (1) lack of progress
toward reunification, (2) noncompliance by both parents with
urinalysis requests or participation in therapy, (3) lack of par-
ticipation by both parents in outpatient substance abuse treat-
ment, and (4) noncompletion by both parents of a domestic
violence program.
The exhibits offered to the juvenile court established that
Kelly and William continually failed to utilize the services pro-
vided by DHHS in support of reunification during the nearly
28 months that Jasmine and Samantha were in the care and
custody of DHHS. Based upon the substantial evidence before
the court of Kelly’s and William’s unwillingness to utilize
these services, we find that the court did not commit plain error
in no longer requiring DHHS to provide reasonable efforts in
support of reunification.
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P rimary P ermanency Objectives
The juvenile court’s February 26, 2013, order changed
Jasmine’s and Samantha’s primary permanency objectives from
reunification to independent living for Jasmine and guardian-
ship with a concurrent plan of adoption for Samantha. We find
no plain error in the court’s modification of Jasmine’s and
Samantha’s primary permanency objectives.
[5] A juvenile court, except where an adjudicated child has
been legally adopted, may always order a change in the juve-
nile’s custody or care when the change is in the best interests
of the juvenile.9 Here, the evidence before the juvenile court at
the February 11, 2013, hearing adequately demonstrated that it
was in Jasmine’s and Samantha’s best interests to modify their
primary permanency objectives.
The evidence before the juvenile court showed that dur-
ing the nearly 28 months that Jasmine and Samantha were
in the care and custody of DHHS, Kelly and William had
failed to make any significant progress toward reunification.
The court report and case plan from DHHS stated that Kelly
and William had each been evicted from their respective
homes, that William was unemployed, and that there was
continued evidence of alcohol abuse on the part of both Kelly
and William. The court report further stated that Kelly’s and
William’s lack of progress had caused the case to be drawn out
longer than necessary and that the case’s length was affecting
Jasmine and Samantha.
The juvenile court also received several recommendations at
the February 11, 2013, hearing that Jasmine’s and Samantha’s
primary permanency objectives be changed from reunifica-
tion. The reports from the Nebraska Foster Care Review
Office recommended a permanency objective of adoption.
The guardian ad litem report recommended a permanency
objective of independent living for Jasmine and guardianship
or adoption for Samantha. At the hearing, the author of the
case plan from DHHS also made an oral amendment to the
case plan that Samantha’s permanency objective be changed
to adoption.
9
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
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[6,7] Although William’s counsel asserted at oral argument
that Kelly and William were ambushed by the oral amendment
to the case plan recommending that Jasmine’s and Samantha’s
primary permanency objectives be changed from reunifica-
tion, they failed to take any action to address their surprise
before the juvenile court. Neither Kelly nor William objected
to the oral recommendation or moved the court for a contin
uance once it was made. We have previously stated that a
litigant’s failure to make a timely objection waives the right to
assert prejudicial error on appeal.10 One cannot silently toler-
ate error, gamble on a favorable result, and then complain that
one guessed wrong.11 We apply that principle now in reject-
ing William’s argument that the oral recommendation was an
unfair surprise.
The evidence before the juvenile court established that it was
in Jasmine’s and Samantha’s best interests to modify their pri-
mary permanency objectives from reunification. The evidence
demonstrated that the case’s length was affecting Jasmine and
Samantha and that Kelly and William were unlikely to fulfill
the court’s requirements for reunification in the foreseeable
future. The court also received multiple recommendations that
Jasmine’s and Samantha’s permanency objectives be changed.
We conclude that the court did not commit plain error in modi-
fying Jasmine’s and Samantha’s primary permanency objec-
tives in its February 26, 2013, order.
CONCLUSION
Because both Kelly and William failed to comply with
§ 2-109(D)(1) regarding assignments of error, our review is
limited to an examination of the record for plain error. The
evidence before the court at the February 11, 2013, perma-
nency planning hearing demonstrated that Kelly and William
had repeatedly disregarded the services provided by DHHS
in support of reunification. The evidence further established
that modification of Jasmine’s and Samantha’s permanency
objectives was in their best interests. We therefore find no
10
Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).
11
Id.
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plain error in the juvenile court’s February 26 order finding
that reasonable efforts in support of reunification were no
longer required, that the primary permanency objective for
Jasmine was to be independent living, and that the primary
permanency objective for Samantha was to be guardianship
with a concurrent plan of adoption. Accordingly, we affirm the
court’s order.
Affirmed.
State of Nebraska, appellee, v.
Kaylene M. Rieger, appellant.
___ N.W.2d ___
Filed November 1, 2013. No. S-13-456.
1. Sentences: Appeal and Error. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
2. Sentences: Probation and Parole. It is within the discretion of the trial court
whether to impose probation or incarceration.
3. ____: ____. When a court sentences a defendant to probation, it may impose any
conditions of probation that are authorized by statute.
4. ____: ____. Whether a condition of probation imposed by the sentencing court is
authorized by statute is a question of law.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
Appeal from the District Court for Sarpy County, Max
K elch, Judge, on appeal thereto from the County Court for
Sarpy County, Robert C. Wester, Judge. Sentence vacated in
part, and cause remanded with directions.
Liam K. Meehan, of Schirber & Wagner, L.L.P., for
appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.