In re Interest of Markice M.

908 	275 NeBrASkA rePOrTS
in Re inteRest of maRkice m., a child undeR 18 yeaRs of age .
state of nebRaska , aPPellee , v .
maRkice m., aPPellant .
750 N.W.2d 345
Filed June 13, 2008. 	No. S-07-572.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determination made by the
court below.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpreta-
tion or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Juvenile Courts: Appeal and Error. Neb. rev. Stat. §§ 43-287.01 to 43-287.06
(reissue 2004) provide the sole method of reviewing juvenile court dispositional
orders falling within the ambit of the expedited appeal process specified therein.
4. ____: ____. A two-part test must be applied to determine whether an expedited
review is required under Neb. rev. Stat. §§ 43-287.01 to 43-287.06 (reissue
2004). First, the order must implement a different plan than that proposed by the
department of Health and Human Services. Second, there must exist a belief that
the court-ordered plan is not in the best interests of the juvenile.
5. Juvenile Courts: Probation and Parole. Neb. rev. Stat. § 43-286 (reissue 2004)
does not allow a juvenile court to place a juvenile on probation or exercise any
of its other options for disposition and at the same time continue the disposi-
tional hearing.
6. 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, reputa-
tion, or fairness of the judicial process.
Petition for further review from the Court of Appeals, inbody ,
Chief Judge, and iRwin and cassel, Judges, on appeal thereto
from the Separate Juvenile Court of douglas County, elizabeth
cRnkovich, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
Thomas C. riley, douglas County Public defender, and
Nicole L. Cavanaugh for appellant.
donald W. kleine, douglas County Attorney, and eric W.
Wells for appellee.
heavican , 	c.J., 	wRight , 	connolly , 	geRRaRd , 	stePhan ,
mccoRmack , and milleR-leRman , JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

stePhan , J.
In this appeal, Markice M. contends that the separate juvenile
court of douglas County committed plain error when it did not
follow applicable statutory procedures in changing the terms
of his probation. A threshold jurisdictional issue is whether the
appeal is subject to the expedited review procedures set forth
in Neb. rev. Stat. §§ 43-287.01 to 43-287.06 (reissue 2004),
which require submission to a juvenile review panel. We con-
clude that appellate jurisdiction exists and that there is plain
error which requires reversal.
BACkGrOUNd
Based upon a plea of admission, the separate juvenile court
of douglas County adjudicated Markice M. as a child within
the provisions of Neb. rev. Stat. § 43-247(1) (Cum. Supp.
2006) on November 6, 2006. Following a disposition hearing
held on February 1, 2007, the juvenile court entered an order
placing Markice under the supervision of a probation officer,
but allowing him to remain in his home. The court imposed
specific terms of probation requiring Markice to, inter alia,
(1) write a letter of apology, (2) complete 20 hours of com-
munity service, (3) write a 500-word essay on the importance
of respecting law enforcement authorities, (4) attend an 8-hour
anger management course, and (5) participate in tutoring at
his high school. The order included an admonition that fail-
ure to abide by the terms of probation “COULd reSULT IN
YOUr deTeNTION IN A SeCUre deTeNTION FACILITY
ANd/Or A reVOCATION OF YOUr PrOBATION ANd
reMOVAL FrOM YOUr PAreNTS’ HOMe.” A review hear-
ing was scheduled for August 1, 2007.
On March 13, 2007, the court held a hearing on a “Motion for
Immediate Custody,” which was apparently filed by the State but
does not appear in our record. In an order entered the following
day “[b]y agreement of the parties,” the juvenile court ordered
Markice to be released from the douglas County Youth Center
to his parent and further ordered him to be placed in the tempo-
rary custody of the department of Health and Human Services,
Office of Juvenile Services (OJS), “for purposes of obtaining
IN re INTereST OF MArkICe M. 	909
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910 	275 NeBrASkA rePOrTS
a community based evaluation.” The record does not disclose
when or why Markice was detained at the youth center.
On April 30, 2007, the juvenile court conducted an “evalua-
tion hearing,” at which hearing an evaluation report completed
by OJS was made a part of the record. In the report, OJS rec-
ommended that Markice remain in the parental home subject
to intensive supervision probation and that he be required to
participate in individual and family therapy. during the hearing,
the juvenile probation officer informed the court that she was
concerned about Markice’s safety and recommended that he be
placed in a group home. The deputy county attorney concurred.
Markice, through counsel, agreed with the intensive supervision
probation recommendation in the OJS evaluation and argued
that group home placement was not warranted and that he
should be allowed to remain in the parental home. The juvenile
court entered an order on May 1 requiring the probation officer
to make application for group home placement.
Markice filed a timely notice of appeal. On the State’s
motion, the Court of Appeals on december 27, 2007, summarily
dismissed the appeal for lack of jurisdiction, concluding that it
should have been filed with the juvenile review panel pursuant
to §§ 43-287.01 to 43-287.06. We granted the petition for fur-
ther review filed by Markice.
ASSIGNMeNTS OF errOr
In his petition for further review, Markice assigns (1) that the
Court of Appeals erred in dismissing his appeal on the ground
that it should have been taken to a juvenile review panel and
(2) that the separate juvenile court committed plain error in
changing the terms of his probation without complying with
applicable statutory procedures.
STANdArd OF reVIeW
[1,2] A jurisdictional question that does not involve a factual
dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determina-
tion made by the court below.1 To the extent an appeal calls for
1 In re Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006).

statutory interpretation or presents questions of law, an appellate
court must reach an independent conclusion irrespective of the
determination made by the court below.2
ANALYSIS
J uRisdiction
[3,4] Sections 43-287.01 to 43-287.06 provide the sole
method of reviewing juvenile court dispositional orders fall-
ing within the ambit of the expedited appeal process specified
therein.3 Section 43-287.03 provides:
A juvenile review panel shall review a disposition of a
court when the court makes an order directing the imple-
mentation of a plan different from the plan prepared by the
department of Health and Human Services concerning the
care, placement, or services to be provided to the juvenile
and the department or any other party believes that the
court’s order is not in the best interests of the juvenile.
Under this statute, a two-part test must be applied to determine
whether an expedited review is required.4 First, the order must
implement a different plan than that proposed by the depart-
ment.5 Second, there must exist a belief that the court-ordered
plan is not in the best interests of the juvenile.6
The issue in this appeal is not which of two alternatives—
parental home placement recommended by OJS or group home
placement ordered by the juvenile court—is in the best interests
of the juvenile. rather, Markice contends that the juvenile court
did not follow applicable statutory procedures in effecting what
he characterizes as a change in the original disposition ordered
by the court. Because the second part of the two-part test
clearly is not met, we conclude that this appeal is not subject
to the expedited review procedures set forth in §§ 43-287.01
2 In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758 (2005).
3 See, In re Interest of Jeffrey R., 251 Neb. 250, 557 N.W.2d 220 (1996); In
re Interest of Alex T. et al., 248 Neb. 899, 540 N.W.2d 310 (1995).
4 See, In re Interest of Jeffrey R., supra note 3; In re Interest of M.J.B., 242
Neb. 671, 496 N.W.2d 495 (1993).
5 Id.
6 Id.
IN re INTereST OF MArkICe M. 	911
Cite as 275 Neb. 908

912 	275 NeBrASkA rePOrTS
to 43-287.06, and the Court of Appeals erred in dismissing the
appeal for lack of jurisdiction.
meRits
Markice contends that the juvenile court erred in changing
the terms of his probation from in-home placement to group
home placement without following the procedures specified in
Neb. rev. Stat. § 43-286(4) (reissue 2004). He acknowledges
that he did not raise this issue in the juvenile court, but urges
that we reach the issue as plain error. The State contends that
§ 43-286(4) is inapplicable because the hearing which led to the
change was a “continued dispositional hearing” and the order
requiring group home placement was thus a part of the original
dispositional phase of the juvenile proceeding, not a subsequent
modification.7 We disagree with the State’s position.
[5] disposition of juveniles adjudicated under § 43-247(1)
is governed by § 43-286. Section 43-286(1)(a) permits a court
to continue a dispositional hearing “from time to time upon
such terms and conditions as the court may prescribe.” It also
authorizes specific alternative dispositions, one of which is to
“[p]ermit the juvenile to remain in his or her own home . . . sub-
ject to the supervision of the probation officer.”8 We agree with
the Nebraska Court of Appeals that § 43-286 “does not allow
the juvenile court to place a juvenile on probation or exercise
any of its other options [for disposition], and at the same time
continue the dispositional hearing.”9 The juvenile court did not
purport to do so in its dispositional order of February 13, 2007.
rather, it placed Markice on probation while permitting him to
remain in his home, and scheduled a “probation review hear-
ing” for August 1. The disposition was complete upon entry of
this order.
The subsequent order requiring group home placement there-
fore constituted a change in the terms of probation specified in
the dispositional order. When the State contends that a juvenile
7 Brief for appellee at 4.
8 § 43-286(1)(a)(ii).
9 In re Interest of Torrey B., 6 Neb. App. 658, 666, 577 N.W.2d 310, 316
(1998).

placed on probation has violated a term of probation or an order
of the court, it is required to file a motion to revoke or change
the disposition.10 The motion “shall set forth specific factual
allegations of the alleged violations” and a copy must be served
on all persons entitled to service.11 The juvenile is entitled
to a hearing to determine the validity of the allegations.12 At
the hearing,
[t]he juvenile shall also be entitled to speak and present
documents, witnesses, or other evidence on his or her own
behalf. He or she may confront persons who have given
adverse information concerning the alleged violations,
may cross-examine such persons, and may show that he or
she did not violate the conditions of his or her probation
or, if he or she did, that mitigating circumstances suggest
that the violation does not warrant revocation.13
These procedures were not followed in this case. The record
does not include a motion containing factual allegations that
Markice violated a term of his probation or an order of the
court. The hearing at which the court decided to change its
original disposition was for the purpose of reviewing the evalu-
ation previously ordered by the court. The probation officer
recommended group home placement due to safety concerns,
not probation violations. The State does not contend that the
hearing complied with § 43-286(4); it argues, incorrectly, that
the hearing was a continuation of the original disposition and
that the statute therefore did not apply.
[6] Plain error is error plainly evident from the record and of
such a nature that to leave it uncorrected would result in dam-
age to the integrity, reputation, or fairness of the judicial proc-
ess.14 Under similar circumstances, the Court of Appeals found
plain error where a juvenile who had been placed on probation
10 Id.; § 43-286(4)(b).
11 § 43-286(4)(b)(i).
12 § 43-286(4)(b)(ii).
13 Id.
14 In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442
(2004); In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996).
IN re INTereST OF MArkICe M. 	913
Cite as 275 Neb. 908

914 	275 NeBrASkA rePOrTS
but allowed to remain in his parents’ home was subsequently
ordered committed to OJS for placement at a youth rehabilita-
tion and training center without compliance with the procedures
specified in § 43-286(4).15 We reach the same conclusion here.
The order requiring Markice to be placed in a group home had
the effect of changing a term of his previously ordered proba-
tion without following the applicable statutory procedure.
CONCLUSION
For the reasons discussed, we reverse the order of dismissal
entered by the Court of Appeals and remand the cause to that
court with directions to vacate the order entered May 1, 2007,
by the separate juvenile court of douglas County, and to remand
the cause to that court for further proceedings consistent with
this opinion.
R eveRsed and Remanded with diRections .
15 In re Interest of Torrey B., supra note 9.
state of nebRaska ex Rel . counsel foR disciPline of
the nebRaska suPReme couRt , RelatoR, v .
timothy b. baRnes , ResPondent .
750 N.W.2d 668
Filed June 13, 2008. 	No. S-07-709.
1. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admis-
sion cases, the Nebraska Supreme Court reviews recommendations de novo on the
record, reaching a conclusion independent of the referee’s findings.
2. ____: ____. When credible evidence in an attorney discipline proceeding is in
conflict on material issues of fact, the Nebraska Supreme Court considers and gives
weight to the fact that the referee heard and observed the witnesses and accepted
one version of the facts rather than another.
3. Disciplinary Proceedings. Under Neb. Ct. r. of discipline 4 (rev. 2004), the
Nebraska Supreme Court may consider and impose the following public sanctions
for attorney misconduct: (1) disbarment; (2) suspension for a fixed period; (3)
probation in lieu of or subsequent to suspension, on such terms as the court may
designate; (4) censure and reprimand; or (5) temporary suspension.
4. ____. To determine whether and to what extent discipline should be imposed in a
lawyer discipline proceeding, the Nebraska Supreme Court considers the follow-
ing factors: (1) the nature of the offense, (2) the need for deterring others, (3) the