In re Interest of Spencer O.

I n re I nterest of spencer o., a chIld under 18 years of age .
state of nebraska , appellee , v.
spencer o., appellant.
765 N.W.2d 443
Filed May 15, 2009. 	Nos. S-08-583, S-08-584.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. ____: ____. Determining whether a permanency hearing is required under Neb.
Rev. Stat. § 43-1312(3) (Reissue 2004) presents a question of law, and an appel-
late court independently decides questions of law.
3. Juvenile Courts. Neb. Rev. Stat. § 43-1312(3) (Reissue 2004) requires a perma-
nency hearing for every child in foster care.
4. Parent and Child: Due Process. The parent-child relationship is afforded due
process protection.
5. Due Process: Words and Phrases. While the concept of due process defies pre-
cise definition, it embodies and requires fundamental fairness.
6. Due Process: Parties: Notice. Generally, procedural due process requires parties
whose rights are to be affected by a proceeding to be given timely notice, reason-
ably calculated to inform the person concerning the subject and issues involved
in the proceeding.
Appeals from the Separate Juvenile Court of Lancaster
County: lInda s. porter, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Jennifer
M. Houlden, and Sara Newell for appellant.
Karen Knight and Sarah E. Preisinger, Senior Certified Law
Student, for appellee.
heavIcan, 	c.J., 	WrIght, 	connolly, 	gerrard, 	stephan,
MccorMack, and MIller-lerMan, JJ.
connolly, J.
SuMMARy
under Neb. Rev. Stat. § 43-1312(3) (Reissue 2004), every
child in state-supervised foster care must have a permanency
hearing no later than 12 months after the child enters foster
care. At a permanency hearing, the court reviews and adopts
a permanency plan for the child. A permanency plan focuses
on providing the child with a safe, stable, and nurturing
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www.nebraska.gov/apps-courts-epub/
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environment and is the guiding philosophy when courts remove
children from their home.1
because of his misdemeanor violations, Spencer o., a child
under 18 years of age, was subject to the juvenile court’s juris-
diction under Neb. Rev. Stat. § 43-247(1) (Cum. Supp. 2006).
because Spencer’s delinquent behavior resulted in his being
placed in foster care, the Department of Health and Human
Services 	(DHHS) 	requested 	a 	permanency 	hearing 	under
§ 43-1312(3). Spencer objected to the hearing. He claimed
that § 43-1312(3) does not apply to juveniles who are in foster
care because of their delinquent behavior instead of parental
abuse or neglect. The juvenile court disagreed with Spencer
and ordered a permanency hearing. The court approved DHHS’
suggested permanency plan of reunification of Spencer with
his mother.
Spencer argues that the court erred in holding a permanency
hearing under § 43-1312(3) and adopting the permanency plan.
We conclude that § 43-1312(3) applies to Spencer and, there-
fore, affirm the decision of the juvenile court.
bACKGRouND
In two separate cases, the State charged Spencer with two
counts of criminal mischief and four counts of third degree
assault. because he was a minor and had committed misde-
meanor offenses, he was subject to the juvenile court’s juris-
diction under § 43-247(1). In May 2006, Spencer pleaded no
contest to one count of criminal mischief and one count of
third degree assault. In July 2006, he pleaded no contest to
one count of criminal mischief and one count of third degree
assault. In November 2007, he entered an admission to one
count of third degree assault. The State dismissed the remain-
ing count of third degree assault.
As part of the proceedings, the court held two hearings
regarding Spencer’s disposition and placement. The first hear-
ing occurred in August 2006, and the court committed Spencer
to the custody of the office of Juvenile Services (oJS) for in-
home placement. because of additional delinquent behavior,
1 Neb. Rev. Stat. § 43-533(4) (Reissue 2008).
IN RE INTEREST oF SPENCER o. 	777
Cite as 277 Neb. 776

however, oJS eventually removed Spencer from his home and
placed him in a juvenile detention center. In November 2007,
while still in custody of oJS, the juvenile court placed Spencer
at a residential treatment center.
Later, in March 2008, DHHS requested, under § 43-1312(3),
a permanency hearing. DHHS argued that because of Spencer’s
out-of-home placement, the court had placed him in foster
care.2 And because § 43-1312(3) requires a permanency hear-
ing for “[e]ach child in foster care,” the statute required the
court to conduct a permanency hearing.
Spencer objected to the permanency hearing. He conceded
that he was in foster care. but because the court’s jurisdic-
tion arose under § 43-247(1) (delinquent child), he argued that
§ 43-1312(3) did not apply. He argued that the court should
have interpreted subsection (3) with subsections (1) and (2) of
§ 43-1312 and limited permanency hearings to those children
subject to the court’s jurisdiction under § 43-247(3), (4), or (9).
DHHS argued that § 43-1312 (3) should be read independently
from subsections (1) and (2).
The court held that § 43-1312(3) required every child in
foster care to have a permanency hearing, even those subject
to the court’s jurisdiction under § 43-247(1). The court con-
ducted a permanency hearing in April 2008. At the hearing, the
court approved a permanency plan that reunited Spencer with
his mother.
ASSIGNMENTS oF ERRoR
Spencer asserts that the juvenile court erred in holding a
permanency hearing under § 43-1312(3) and that by having the
hearing, the court violated his due process rights.
STANDARD oF REvIEW
[1,2] We review juvenile cases de novo on the record, and
we reach a conclusion independent of the juvenile court’s find-
ings.3 Determining whether a permanency hearing is required
2 Neb. Rev. Stat. § 43-1301(3) and (4) (Reissue 2008).
3 In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
778 	277 NEbRASKA REPoRTS

under § 43-1312(3) presents a question of law. We indepen-
dently decide questions of law.4
ANALySIS
Section 43-1312 outlines the procedure and requirements for
permanency hearings:
(1) Following the investigation conducted pursuant to
section 43-1311 and immediately following the initial
placement of the child, the person or court in charge of
the child shall cause to be established a safe and appropri-
ate plan for the child. . . .
. . . .
(2) If the return of the child to his or her parents is not
likely based upon facts developed as a result of the inves-
tigation, the Department of Health and Human Services
shall recommend termination of parental rights and refer-
ral for adoption, guardianship, placement with a relative,
or, as a last resort, another planned permanent living
arrangement.
(3) Each child in foster care under the supervision of
the state shall have a permanency hearing by a court, no
later than twelve months after the date the child enters
foster care and annually thereafter during the continuation
of foster care. The court’s order shall include a finding
regarding the appropriateness of the permanency plan
determined for the child . . . .
Spencer contends that the juvenile court erred in finding that
the permanency hearing requirement in § 43-1312(3) applies to
every child in foster care despite the statutory procedure used
by the juvenile court in acquiring jurisdiction over the child.
He argues that § 43-1312(3) does not require a permanency
hearing for children who are in foster care because of their
adjudication under § 43-247(1). The State contends that the
plain language of § 43-1312(3) mandates a hearing for every
child in foster care. We have not previously decided whether
the statute mandates a permanency hearing for every child in
4 Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51
(2009).
IN RE INTEREST oF SPENCER o. 	779
Cite as 277 Neb. 776

foster care or whether the statute limits permanency hearings to
children identified in § 43-1312(1).
The juvenile code does not define “foster care.” However,
§ 43-1301(4) defines “[f]oster care placements” to include
“all placements of . . . delinquent children.” obviously, this
definition is broad enough to include children placed outside
their home because of delinquency. Also, Neb. Rev. Stat.
§ 43-1301.01 (Reissue 2008) provides that “a child is deemed
to have entered foster care . . . sixty days after the date on
which the child is removed from the home.” This section also
supports our conclusion that foster care includes removal from
the home because of delinquency.
Section 43-1312(3) mandates that “[e]ach child in foster
care . . . shall have a permanency hearing . . . .” The lan-
guage of § 43-1312(3) does not limit the permanency hearing
requirement to children in foster care for reasons other than
delinquent acts. While § 43-1312(1) may refer to children in
foster care because of an investigation conducted under Neb.
Rev. Stat. § 43-1311 (Reissue 2004), § 43-1312(3) contains no
such limitation. Subsection (3) simply states that a permanency
hearing is required for every child in foster care placement.
Absent anything to the contrary, we will give statutory lan-
guage its plain and ordinary meaning.5 We recognize that the
court placed Spencer in foster care because of his delinquent
behavior. but nothing in § 43-1312(3) exempts children in
foster care because of their delinquency from the permanency
hearing requirement.
Additionally, requiring a permanency hearing in delinquency
cases appears consistent with the purpose of such hearing.
A permanency hearing allows the court to review the appro-
priateness of a plan for a child in foster care.6 Furthermore,
§ 43-533(4) provides that when a court removes a child from
his or her home, “permanency planning shall be the guiding
philosophy.” Read together, the statutes suggest that no matter
why a court removes a child from his or her home—whether it
is for delinquency or parental abuse or neglect—the Legislature
5 In re Estate of Cooper, 275 Neb. 297, 746 N.W.2d 653 (2008).
6 In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).
780 	277 NEbRASKA REPoRTS

intended a review of the long-term plans for any child in foster
care. Thus, we conclude that the juvenile court did not err in
holding a permanency hearing.
[3] because § 43-1312(3) requires a permanency hearing
for every child in foster care, including delinquent children in
foster care, we now address Spencer’s argument that the per-
manency hearing violated his due process rights.
Spencer does not contest the substance of the permanency
plan. Nor does he argue that the court did not properly notify
him of the permanency hearing proceedings. Instead, he argues
he received insufficient notice of the potential consequences
of the permanency hearing. Specifically, he claims that the
court did not inform him of all the options contemplated in
§ 43-1312(3), such as the termination of parental rights, adop-
tion, and guardianship. He claims that because the court never
informed him that it could terminate his mother’s parental
rights, he did not knowingly or intelligently enter his no con-
test pleas. We interpret his argument to mean that because the
court did not inform him of the possibility of parental rights
termination, the court’s adjudication violated his due pro-
cess protections.
[4-6] The law affords due process protection to the parent-
child relationship.7 While the concept of due process defies
precise definition, it embodies and requires fundamental fair-
ness.8 Generally, procedural due process requires timely notice,
reasonably calculated to inform the person concerning the sub-
ject and issues involved in the proceeding.9
At each hearing, the court informed Spencer that while in
the custody of oJS, the court could place him in his mother’s
home, with services provided to him there, or could place him
in a youth rehabilitation treatment center or other out-of-home
setting such as a group home or treatment center. It is true
that the court never informed him that it could terminate his
mother’s parental rights.
7 In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
8 Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
9 Id.
IN RE INTEREST oF SPENCER o. 	781
Cite as 277 Neb. 776

but, assuming without deciding that a juvenile adjudicated
in a delinquency hearing is entitled to notice that the court
could terminate parental rights, such termination was not a
possibility when Spencer entered his plea. The court placed
Spencer in the custody and care of oJS, an office charged
with providing delinquent juveniles treatment in a manner
consistent with public safety.10 oJS did not have the author-
ity to terminate Spencer’s mother’s parental rights.11 To ter-
minate parental rights, the State would first have to file a
new petition under § 43-247(3) or Neb. Rev. Stat. § 43-291
(Reissue 2008). Either proceeding would be a separate case
and not part of the delinquency proceedings. Thus, although
§ 43-1312(3) lists as an option the termination of parental
rights, that was not a possibility in the State’s delinquency
case against Spencer.
because termination of parental rights was not a possibil-
ity in Spencer’s delinquency proceedings, we conclude that he
received adequate notification of all possible consequences of
his no contest plea.
affIrMed.
10 Neb. Rev. Stat. § 43-402 (Reissue 2008).
11 See, generally, Neb. Rev. Stat. §§ 43-401 to 43-423 (Reissue 2008).
the M etropolItan coMMunIty college area , a polItIcal
subdIvIsIon of the state of nebraska and body
corporate and polItIc , appellant, v.
cIty of oMaha et al ., appellees.
765 N.W.2d 440
Filed May 15, 2009. 	No. S-08-813.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. ____: ____. Absent anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
3. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the legislative language.
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