§ 43-2,106.03 Nonamenability Orders: Preponderance Standard, Predictive Purpose, and No Dispositional Modification Authority

Case: In re Interest of Johnny H., 320 Neb. 675 (Neb. Jan. 16, 2026)  |  Court: Supreme Court of Nebraska  |  Disposition: Affirmed in part; vacated and remanded in part

1. Introduction

In re Interest of Johnny H. is the Nebraska Supreme Court’s first published construction of Neb. Rev. Stat. § 43-2,106.03 (Reissue 2016), a postdispositional mechanism allowing a juvenile court to hold an evidentiary hearing and enter an order finding a juvenile “not amenable to rehabilitative services” under the Nebraska Juvenile Code.

Parties. The State of Nebraska (appellee) moved in five pending juvenile cases for a finding that Johnny H. (appellant), an adjudicated juvenile on indefinite probation, was not amenable to juvenile-code rehabilitative services. Johnny opposed the motion and appealed after the juvenile court both (1) found nonamenability and (2) “terminated unsuccessfully” his probation and the court’s jurisdiction.

Factual and procedural backdrop. Johnny had multiple adjudications (truancy and delinquency matters) and had been on “open ended” probation orders. While still on juvenile probation, the State filed an attempted robbery charge against him in county court. Shortly thereafter, the State filed identical § 43-2,106.03 motions in each juvenile case seeking a nonamenability finding and also requesting termination of juvenile jurisdiction “as unsuccessful.”

Core issues. The consolidated appeals presented first-impression questions:

• What does “amenability” mean in § 43-2,106.03?
• Who bears the burden of proof and what is the quantum of proof at a § 43-2,106.03 hearing?
• Does a nonamenability finding authorize a juvenile court to change an existing disposition (terminate probation/jurisdiction)?
• Are such orders “final” and appealable?

2. Summary of the Opinion

The Nebraska Supreme Court:

• Affirmed the juvenile court’s nonamenability finding under § 43-2,106.03, holding there was no abuse of discretion.
• Vacated the portions of the orders that terminated probation and the court’s jurisdiction “unsuccessfully,” holding it was plain error because no statute authorizes such dispositional modification based solely on § 43-2,106.03.
• Remanded for further proceedings consistent with the statutory procedures governing disposition modification.

In doing so, the Court supplied controlling definitions and standards: amenability is a forward-looking likelihood-of-response inquiry; the State bears the burden (when it files the motion); and the standard is preponderance of the evidence. Critically, the Court framed § 43-2,106.03 as a predictive tool for future charging/transfer determinations—not as an engine to terminate juvenile dispositions.

3. Analysis

3.1 Precedents Cited (and how they shaped the decision)

Although § 43-2,106.03 was previously referenced in transfer jurisprudence, the Court noted there were no published appellate opinions construing or applying it. The Court therefore relied heavily on established Nebraska doctrines regarding (a) standards of review, (b) appellate jurisdiction/finality, (c) statutory interpretation, and (d) the limited statutory authority of juvenile courts to modify dispositions.

A. Standards of review and discretionary juvenile determinations

• State v. Aldana Cardenas, 314 Neb. 544, 990 N.W.2d 915 (2023): cited for the foundational proposition that statutory interpretation is reviewed independently as a question of law. This enabled the Court to define “amenability,” allocate burdens, and choose the proof standard without deference to the juvenile court.
• In re Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (2021): cited both for the general de novo review framework in juvenile cases and as an example where “de novo on the record for an abuse of discretion” applies to determinations involving broad judicial discretion. The Court used this line to justify the hybrid standard for § 43-2,106.03 determinations.
• In re Interest of Jeovani H., 316 Neb. 723, 6 N.W.3d 539 (2024): cited in the general juvenile de novo review discussion, reinforcing that juvenile appeals often proceed de novo on the record.
• In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003): cited for the proposition that when the Legislature grants juvenile courts broad discretion, appellate review is de novo on the record for abuse of discretion. This case supplied the doctrinal gateway for the Court’s selection of the standard of review here.
• In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018); In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013); In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007): cited as examples of discretionary juvenile determinations (transfer decisions; prompt adjudication; waiver of counsel) receiving abuse-of-discretion review. They collectively bolstered the Court’s characterization of an amenability determination as discretion-laden and predictive.

B. Appellate jurisdiction and “final order” analysis in juvenile special proceedings

• In re Interest of Jordon B., 316 Neb. 974, 7 N.W.3d 894 (2024): cited for the appellate court’s independent duty to verify jurisdiction before reaching merits in juvenile appeals.
• In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018): cited for the proposition that appealability in juvenile cases is fact-intensive.
• In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017): cited for the settled characterization of juvenile proceedings as “special proceedings” for final-order purposes.
• In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017): cited for the definition of a “substantial right” as an essential legal right.
• Noland v. Yost, 315 Neb. 568, 998 N.W.2d 57 (2023): cited for the principle that not only must a right be substantial, but the order’s effect on that right must be substantial and final. Applying this framework, the Court held the orders were appealable because they changed the disposition (terminated probation/jurisdiction), which affects substantial rights with finality.

C. Statutory interpretation methodology and Juvenile Code interpretive lens

• State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022): cited for the “plain meaning” rule—begin with the text and avoid interpretation when statutory words are unambiguous.
• McCoy v. Albin, 298 Neb. 297, 903 N.W.2d 902 (2017): cited for discerning legislative intent from the statute and construing it to achieve its objective.
• Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004): cited for the proposition that the statutory language is the primary insight into legislative intent. This supported the Court’s conclusion that § 43-2,106.03 is aimed at future charging/transfer decisions.
• Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019): cited to explain when legislative history may be consulted; the Court used legislative history as confirmatory support for its textual reading.
• State v. Bryant, 311 Neb. 206, 971 N.W.2d 146 (2022); State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016): cited for the accepted practice of consulting dictionaries to ascertain plain and ordinary meaning—used directly in defining “amenable/amenability.”

D. Proof standards in civil/juvenile contexts

• In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019); Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019): cited for the general rule that, absent a specified standard, civil cases use preponderance of the evidence. The Court used this to reject “clear and convincing” for § 43-2,106.03 and to align amenability hearings with civil juvenile proceedings.
• In re Interest of T.W., 314 Neb. 475, 991 N.W.2d 280 (2023): cited to equate “preponderance of the evidence” with “greater weight of the evidence” and explain it means “more likely true than not true.”

E. Limited statutory authority of juvenile courts; plain error when dispositions are modified without statutory compliance

• In re Interest of Jordon B., 312 Neb. 827, 981 N.W.2d 242 (2022); In re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 (2019); In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018): cited for the constitutional/statutory principle that juvenile courts are creatures of statute with limited jurisdiction and only those powers conferred by the Legislature. This principle was decisive in rejecting the State’s “logical result” argument.
• In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018): relied upon substantively for its holding that it is plain error to change a juvenile disposition without complying with the applicable statutory procedures. The Supreme Court used it as direct authority to vacate the termination portions here.
• In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018): cited as parallel appellate authority holding juvenile courts cannot extend or change probation dispositions absent a proper statutory revocation/modification pathway.
• In re Interest of Nowa K., 33 Neb. App. 446, 16 N.W.3d 896 (2025): cited as a closely analogous scenario—termination of probation/jurisdiction in response to adult-court charges without a § 43-286 revocation—reversed for lack of statutory authority. This case strongly foreshadowed the outcome in Johnny H. on the dispositional-modification issue.
• State v. Perry, 318 Neb. 613, 17 N.W.3d 504 (2025): cited for the maxim that courts may not read meaning into a statute that is not there, reinforcing the refusal to infer termination power from § 43-2,106.03.

F. Contextual citations regarding § 43-2,106.03’s role in transfer cases

• State v. Jeremiah T., 319 Neb. 133, 21 N.W.3d 313 (2025); In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018); State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018); State v. Aldana Cardenas, 314 Neb. 544, 990 N.W.2d 915 (2023): cited to show Nebraska courts often note the absence of a § 43-2,106.03 order when applying transfer-factor statutes, highlighting why a construction of § 43-2,106.03 matters in practice.

3.2 Legal Reasoning

A. Appealability: why the Court had jurisdiction

The Court treated juvenile proceedings as special proceedings and asked whether the challenged orders affected a substantial right with finality under Neb. Rev. Stat. § 25-1902(1)(b). The Court emphasized a key factual feature: these orders did not merely make a predictive nonamenability finding— they also terminated probation and jurisdiction. That dispositional change was sufficiently final and substantial to create a final, appealable order. Importantly, the Court expressly declined to decide whether a “nonamenability-only” order (with no dispositional change) would be appealable.

B. Construction of § 43-2,106.03: purpose and meaning of “amenability”

Applying plain-meaning tools (including contemporaneous and current dictionary definitions) and reading the statute as a whole, the Court located § 43-2,106.03’s purpose in its final sentence: the order “shall be considered” by prosecutors and courts in future determinations under § 43-276 (transfer-related decisions), future transfer motions under § 29-1816 or § 43-274, and “any future charge or petition.” From that, the Court inferred a predictive, forward-looking aim.

The Court’s definition is deliberately prospective: “amenability” refers to the likelihood a juvenile will respond effectively in the future to juvenile-code services. The finding “not amenable” thus labels a juvenile as unlikely to benefit from the available rehabilitative framework going forward, based on evidence presented at the hearing.

Notably, the Court rejected requests to create a judicial checklist of factors. Instead, it emphasized case-specificity and the statutory requirement that the court state reasons in the order, allowing later users (prosecutors, transfer courts, and appellate courts) to see what factors actually drove the determination.

C. Burden of proof and quantum of proof

The Court held that when the State files the § 43-2,106.03 motion, the State bears the burden to prove nonamenability. On the standard of proof, the Court declined Johnny’s “clear and convincing” proposal and adopted “preponderance of the evidence,” reasoning that (1) § 43-2,106.03 is a civil juvenile proceeding, (2) Nebraska’s default civil standard is preponderance absent contrary statutory text, and (3) analogous postdispositional juvenile hearings (e.g., § 43-286(1)) expressly use preponderance.

D. Reviewing the nonamenability finding: no abuse of discretion

With the standard of review set as “de novo on the record for an abuse of discretion,” the Court focused on whether the juvenile court’s stated reasons were untenable, unreasonable, or clearly against justice/conscience/reason/evidence. The Court found the written reasons supported by the record, including:

• Johnny’s history of adjudications and continued law violations while on probation;
• unsuccessful engagement with ordered services (e.g., incomplete anger management, sporadic therapy);
• lack of viable out-of-home placement options due to behavior/charges;
• the proximity of new serious allegations after prior interventions;
• his age and the approaching end of juvenile jurisdiction;
• public safety and the asserted need for interventions not available in juvenile court.

The Court therefore affirmed the finding of nonamenability.

E. The dispositive holding: § 43-2,106.03 does not authorize termination of probation/jurisdiction

The Court treated the termination provisions as a question of statutory power. It began with the constitutional and structural premise: juvenile courts are statutorily created (Neb. Const. art. V, § 27) and have only the authority the Legislature confers.

Turning to the Juvenile Code’s disposition-modification scheme, the Court emphasized § 43-286(6), which prohibits changing dispositions unless: (a) the juvenile violated probation/supervision or a court order and the revocation procedures in § 43-286(5)(b) are satisfied, or (b) the juvenile moves to modify and all parties stipulate under § 43-286(6)(b). The record showed neither pathway occurred. The Court also noted § 43-286.01(8) (conditions of probation may be reduced/eliminated on application), but found no such application in the record.

The State’s central argument—that a nonamenability finding is the “functional equivalent” of revocation and logically requires termination—was rejected as an invitation to add language to the statute. Citing the principle captured in State v. Perry, the Court refused to “read into” § 43-2,106.03 a termination authority the Legislature did not provide.

The result was framed as plain error because the juvenile court acted outside statutory authority in modifying the dispositions. Consistent with In re Interest of Josue G., In re Interest of Iyana P., and In re Interest of Nowa K., the termination portions were vacated and the cases remanded.

3.3 Impact

A. Doctrinal significance: § 43-2,106.03 is “predictive,” not “dispositive”

The most consequential clarification is the statute’s function. The Court anchored § 43-2,106.03 to future prosecutorial and transfer-court decisionmaking. A nonamenability order becomes a piece of structured, judicially-articulated information that must be “considered” later, but it does not itself alter the juvenile’s existing legal status unless and until other statutes are properly invoked.

B. Practical effects for prosecutors, juvenile defense, and juvenile courts

• Prosecutors: can use § 43-2,106.03 to build a record relevant to § 43-276 transfer factors and to justify charging/transfer positions, but cannot obtain “clean termination” of juvenile cases through § 43-2,106.03 alone. If the State seeks to change disposition (including termination), it must proceed via the Juvenile Code’s modification/revocation mechanisms and satisfy their procedural requirements.
• Juvenile defense: gains clear targets: (1) contest the forward-looking “likelihood of effective response” with evidence of engagement and available services, and (2) if the State uses § 43-2,106.03 to attempt dispositional changes, object on statutory-authority grounds and preserve (or obtain) reversal for plain error.
• Juvenile courts: must separate (a) the issuance of a nonamenability finding (a predictive record) from (b) the separate statutory authority needed to change probation terms, revoke probation, place in facilities, or terminate jurisdiction.

C. Transfer litigation and “first impression” ripple effects

Because § 43-276(1)(m) requires transfer courts to consider whether a § 43-2,106.03 order has been issued, the Court’s definition of amenability and its preponderance standard will shape what those orders look like and how much weight transfer courts may give them. The “reasons shall be stated” requirement, combined with the Court’s refusal to impose a factor checklist, suggests future litigation will focus on the adequacy, specificity, and evidentiary grounding of the stated reasons.

D. Final-order strategy and appellate review

The Court’s jurisdiction discussion signals that appealability may depend on whether the § 43-2,106.03 order changes disposition. Parties seeking immediate appellate review of a nonamenability finding alone may face a jurisdictional fight in future cases (the Court expressly reserved that question).

4. Complex Concepts Simplified

• “Amenability” (in this statute): not whether the juvenile behaved well in the past, but whether—based on the evidence—the juvenile is likely to benefit from juvenile-court rehabilitation services going forward.
• “Preponderance of the evidence”: the fact is more likely true than not (the “greater weight” of the evidence).
• “De novo on the record for an abuse of discretion”: the appellate court independently reviews the record, but it will reverse only if the trial court’s decision was unreasonable/untenable or clearly against justice and the evidence.
• “Special proceeding” and “final order”: juvenile cases are treated as special proceedings; an order is appealable when it finally and substantially affects an essential right. Here, termination of probation/jurisdiction made the order final.
• “Plain error”: an obvious legal mistake apparent on the record that the appellate court may correct even if not perfectly preserved—here, acting without statutory power to modify dispositions.
• “Court of limited jurisdiction”: juvenile courts can do only what statutes authorize. Even if a result seems “logical,” it is not permitted unless the Legislature granted the power.

5. Conclusion

In re Interest of Johnny H. supplies the missing architecture for § 43-2,106.03: it defines amenability as a forward-looking likelihood-of-benefit inquiry, assigns the burden to the State (when it moves), and fixes the proof standard at preponderance. Equally important, it draws a bright statutory boundary: a nonamenability finding is meant to inform future charging and transfer decisions, not to terminate existing juvenile probation or jurisdiction. By vacating the termination portions as plain error, the Court reaffirmed a core Nebraska juvenile-law principle—dispositional changes require strict statutory compliance, and juvenile courts may not expand their powers by inference.