In re Interest of Hope L. et al.

adults “go onto the computer and . . . try to entice children to
engage in acts of sexual conduct.” Rung argues that no child
was harmed. However, the evidence indicates that Rung fully
intended to subject a person he believed to be a 15-year-old girl
to sexual penetration. Furthermore, although Rung had no prior
history of sexual assaults, his criminal history included several
other offenses over a period of almost 20 years. Considering
these factors and considering that his sentence is at the lower
end of the range of up to 5 years in prison that he could have
received, we conclude that the district court did not abuse
its discretion by sentencing Rung to imprisonment for 1 to
2 years.
CONCLUSION
We conclude that the district court did not err when it
rejected Rung’s constitutional challenges to § 28-320.02 on the
basis that the statute is facially invalid either because it is a
violation of the Equal Protection Clause or because it is vague
or overbroad. We further conclude that the court did not abuse
its discretion by sentencing Rung to imprisonment for 1 to 2
years. We therefore affirm Rung’s conviction and sentence.
A ffirmed.
mccormAck, J., participating on briefs.
in re interest of Hope L. et AL.,
cHiLdren under 18 yeArs of Age .
stAte of nebrAskA, AppeLLee And cross -AppeLLee , v.
benjAmin L., AppeLLAnt, And joAnnA L.,
AppeLLee And cross -AppeLLAnt.
775 N.W.2d 384
Filed November 13, 2009. 	No. S-08-949.
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. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
IN RE INtERESt OF HOPE L. Et aL. 	869
Cite as 278 Neb. 869
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

3. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
4. Parental Rights: Evidence: Appeal and Error. Improper admission of evidence
in a parental rights proceeding does not, in and of itself, constitute reversible
error, for, as long as the appellant properly objected, an appellate court will not
consider any such evidence in its de novo review of the record.
5. Parental Rights: Courts: Evidence. a court is not prohibited from considering
prior events when determining whether to terminate parental rights.
6. Parental Rights: Juvenile Courts. Reasonable efforts to reunify a family are
required under the juvenile code only when termination of parental rights is
sought under Neb. Rev. Stat. § 43-292(6) (Reissue 2008).
7. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue 2008), in order
to terminate parental rights, the State must prove, by clear and convincing evi-
dence, that one or more of the statutory grounds listed in this section have been
satisfied and that termination is in the child’s best interests.
8. Constitutional Law: Parental Rights. the proper starting point for legal analy-
sis when the State involves itself in family relations is always the fundamental
constitutional rights of a parent.
9. Parental Rights: Proof. Before the State attempts to force a breakup of a natural
family, over the objections of the parents and their children, the State must prove
parental unfitness.
10. ____: ____. a court may not properly deprive a parent of the custody of his or
her minor child unless the State affirmatively establishes that such parent is unfit
to perform the duties imposed by the relationship, or has forfeited that right.
11. ____: ____. It is always the State’s burden to prove by clear and convincing evi-
dence that the parent is unfit and that the child’s best interests are served by his
or her continued removal from parental custody.
12. Parental Rights: Statutes: Words and Phrases. the term “unfitness” is not
expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2008), but the concept is
generally encompassed by the fault and neglect subsections of that statute, and
also through a determination of the child’s best interests.
13. Records: Appeal and Error. It is incumbent upon the appellant to present a
record supporting the errors assigned; absent such a record, an appellate court
will affirm the lower court’s decision regarding those errors.
appeal 	from 	the 	Separate 	Juvenile 	Court 	of 	Lancaster
County: reggie L. ryder, Judge. affirmed.
Scott E. Sidwell, of Legal aid of Nebraska, for appellant.
Stephanie R. Hupp, of McHenry, Haszard, Hansen, Roth &
Hupp, P.C., L.L.O., for appellee Joanna L.
870 	278 NEBRaSka REPORtS

Gary Lacey, Lancaster County attorney, alicia B. Henderson,
and Michelle Clarke, Senior Certified Law Student, for appel-
lee State of Nebraska.
Dalton W. tietjen, of tietjen, Simon & Boyle, guardian
ad litem.
H eAvicAn, 	c.j., 	WrigHt, 	connoLLy, 	gerrArd, 	stepHAn,
mccormAck , and miLLer-L ermAn, jj.
H eAvicAn, c.j.
I. INtRODUCtION
the parental rights of Benjamin L. (Ben) and Joanna L. to
their four minor children, Hope L., Samuel L. (Sam), Xavier
L., and Gracie L., were terminated. Ben appeals and Joanna
cross-appeals that termination. We affirm the juvenile court’s
termination of parental rights.
II. FaCtS
Ben and Joanna are the parents of Hope, born in October
2003; Sam, born in april 2005; Xavier, born in October 2006;
and Gracie, born in February 2008. Xavier was removed from
Ben and Joanna’s custody on March 29, 2007, as a result of
their arrests for the repeated disconnection of Xavier’s feed-
ing tube while he was hospitalized at Children’s Hospital
(Children’s) in Omaha, Nebraska. Hope and Sam were removed
from Ben and Joanna’s custody the next day, March 30. Gracie
was removed from Ben and Joanna’s custody on February 29,
2008, shortly after her birth.
1. XAvier’s premAture birtH And
subsequent HospitALizAtions
Xavier was born at approximately 27 weeks’ gestation. By
all accounts, Joanna’s pregnancy with Xavier was difficult.
During the pregnancy, Joanna was treated several times for
dehydration. Joanna’s obstetrician, Dr. Sean kenney, utilized
both “NG tube” and “J tube” feedings in an attempt to help
Joanna keep food down and gain appropriate weight. an NG
tube delivers nourishment directly to the stomach; a J tube
IN RE INtERESt OF HOPE L. Et aL. 	871
Cite as 278 Neb. 869

bypasses the stomach and delivers nourishment directly to
the intestines.
according to kenney’s testimony, about 2 weeks after
beginning the J tube feedings, Joanna stopped the feedings
because she reported the feedings made her feel nauseous.
However, because such feedings bypass the stomach, usually
no nausea is experienced. Joanna was directed to restart the
feedings, but did not do so. Joanna subsequently requested
the removal of the J tube, but kenney declined to remove
it. kenney testified that he did not want to remove the tube
because, given Joanna’s inability to gain weight, the tube
might still be needed.
During kenney’s treatment of Joanna, he expressed concern
that Joanna was suffering from an eating disorder. Joanna had
spent much of her youth in various forms of treatment for
anorexia nervosa. kenney recommended more aggressive care,
but because both Ben and Joanna denied that Joanna was suf-
fering from an eating disorder, such treatment was refused.
Joanna was eventually hospitalized on September 24, 2006,
and remained so until Xavier’s birth in October. During her
hospital stay, Joanna still did not gain weight as expected. No
medical reason could be found for this failure. However, on
two occasions, a nurse discovered that Joanna’s feeding tube
had been disconnected. kenney also testified that during this
hospital stay, Ben and Joanna repeatedly stopped and restarted
the tube feedings.
Following Xavier’s birth in October 2006, he spent 2 months
in the neonatal intensive care unit at St. Elizabeth Regional
Medical Center in Lincoln, Nebraska (St. Elizabeth). according
to one of Xavier’s physicians, his medical course was uncom-
plicated while in the neonatal intensive care unit and Xavier
gained weight appropriately.
Upon Xavier’s discharge on December 23, 2006, Ben and
Joanna were informed that some of Xavier’s feedings needed
to be supplemented with human milk fortifier. Ben and Joanna
were provided a can of human milk fortifier containing a 2- to
3-week supply and were instructed on its use. Just 3 days later,
however, Ben and Joanna indicated to Xavier’s physician, Dr.
alicia Cruce, that they were not feeding Xavier as ordered.
872 	278 NEBRaSka REPORtS

Once home from St. Elizabeth, Xavier failed to appropriately
gain weight. He was again admitted to St. Elizabeth on January
10, 2007. Due to Xavier’s lack of weight gain, Cruce increased
the number of fortified milk feedings from two per day to three
per day. During this hospitalization, Xavier gained weight well.
Xavier was discharged from the hospital on January 17, but
by this time, Joanna had been admitted to St. Elizabeth for a
purported flareup of Crohn’s disease. throughout these events,
and in the medical records from this case, Joanna asserted that
she has Crohn’s disease; however, testing has determined it is
unlikely that she has the disease.
While hospitalized, Joanna was treated with morphine for
pain. as a result, Joanna was informed by a nurse assigned to
her that she should not breastfeed and that she should “pump
and dump” any breast milk she produced during the time she
was on the morphine. according to the nurse, 12 percent of
a morphine dose would be transmitted via the breast milk,
or about twice the dosage a child of Xavier’s age should
receive. However, the nurse testified that he observed Joanna
breastfeeding Xavier. another nurse testified that she also
saw Joanna apparently breastfeeding at a time when she was
on morphine.
Despite indicating her understanding of the instruction to
“pump and dump” the breast milk, Joanna kept 6 to 10 cups
of what appeared to be breast milk, marked with her name and
the word “morphine,” in a common refrigerator located at St.
Elizabeth. the milk was disposed of only after one of Cruce’s
medical partners was contacted. that doctor spoke with Joanna,
then instructed nursing staff to pour the morphine-tainted milk
down the sink.
Ben and Joanna deny that either was initially informed of
the dangers of Joanna’s breastfeeding Xavier while she was
on morphine. Joanna testified that once she was informed that
she should not breastfeed, she stopped doing so. Joanna testi-
fied that there was no intention to save the breast milk pumped
while Joanna was on morphine, but that she and Ben believed
that breast milk, whether or not it contained morphine, was a
biohazard that had to be properly disposed of. according to both
Ben and Joanna, special steps had to be taken at Children’s to
IN RE INtERESt OF HOPE L. Et aL. 	873
Cite as 278 Neb. 869

dispose of such milk. However, several nurses, including Ben’s
mother, who is a licensed practical nurse in the St. Elizabeth
neonatal intensive care unit, testified that at St. Elizabeth, the
milk could simply be poured down the sink or toilet.
Joanna was subsequently discharged. But on January 30,
2007, Xavier was readmitted to St. Elizabeth for poor weight
gain. that day, Ben and Joanna informed yet another nurse that
they were only breastfeeding Xavier. that nurse testified that
she asked about the fortified milk and that the parents avoided
answering her question, but reaffirmed that Xavier was getting
breast milk. However, Ben and Joanna later insisted to Cruce
that Xavier was, in fact, getting the prescribed three bottles of
fortified milk.
the next day, January 31, 2007, Cruce contacted Child
Protective Services. Cruce expressed concern that Ben and
Joanna were not adequately feeding Xavier, because he would
gain weight in the hospital but not at home. Cruce could
find no medical explanation for Xavier’s continued lack of
weight gain. Child Protective Services met with Joanna at St.
Elizabeth on February 2 and obtained Joanna’s signature on a
safety plan which indicated she would follow doctors’ orders
regarding Xavier’s feedings. Ben signed that same safety plan
on February 9.
On February 16, 2007, Xavier was brought to St. Elizabeth
with parental reports of diarrhea and vomiting. Dr. Michelle
Walsh, a medical partner to Cruce, admitted Xavier to the hos-
pital due to his low glucose levels. However, Walsh questioned
Ben and Joanna’s reporting, because diarrhea or vomiting
will cause a drop in carbon dioxide levels and Xavier’s levels
were normal.
In an attempt to raise his glucose levels, Xavier was given
fluids intravenously and blood was drawn and tested every 2
hours. after several hours, Xavier’s glucose levels were still
not acceptable. It was then reported to Walsh that Xavier’s
intravenous line had been disconnected on two separate occa-
sions. Walsh testified that Xavier could not have disconnected
it himself; that in Walsh’s 10 years of practice, she had never
seen a disconnect in a patient Xavier’s age; and that in both
874 	278 NEBRaSka REPORtS

instances, Joanna was the only person in Xavier’s room around
the time of the disconnects.
During this hospitalization at St. Elizabeth, it was deter-
mined that Xavier suffered from hydrocephalus, or extra fluid
in his brain. Xavier was transferred to Children’s for treat-
ment of the hydrocephalus and placement of a shunt. During
this hospitalization at Children’s, parental reports of vomiting
and fussiness were made, but never confirmed or observed by
Children’s staff. Xavier was discharged on February 23, 2007,
but readmitted on February 27 and 28 for surgery to repair an
inguinal hernia.
a few days later, on March 2, 2007, Xavier was yet again
admitted to Children’s due to his failure to appropriately gain
weight. Various tests were performed in an attempt to deter-
mine why Xavier was not gaining weight, but no medical rea-
son could be found to explain this failure. During the course of
this testing, an NG tube was placed. Such a tube runs through
the nasal passages, down the back of the throat, and into the
stomach. according to Dr. Jay Snow, one of Xavier’s treat-
ing physicians at Children’s, Xavier’s condition was progress-
ing toward the need to perform a “fundoplication,” a surgery
in which the top part of the stomach is wrapped around the
esophagus, as well as placement of a “gastrostomy button”
(G-button), before it was determined that Xavier’s feedings
were being interrupted.
On March 19, 2007, a 2-week feeding trial using the formula
Neocate was begun and Xavier was fed via an NG tube. at the
end of the tube were two ports: a main port and a side port.
the tube is capped when not in use; when in use, the tube is
connected via the main port to a bag containing formula (or
whatever is being fed to the patient). the side port is generally
used for administering medicine. Even before the beginning
of this feeding trial, several nurses reported that the NG tube
was being manipulated and that formula was leaking out of
the tube or that “burp rags” were wet with reported emesis, or
“spit up.” tests conducted on March 22 concluded that Xavier
was starving. at that time, a decision was made to have a
nurse present in Xavier’s room at all times to monitor whether
IN RE INtERESt OF HOPE L. Et aL. 	875
Cite as 278 Neb. 869

Ben or Joanna were manipulating the feedings. During this
time, nurses reported several instances in which it appeared
that Xavier’s NG tube was being manipulated. after 2 days,
Children’s ceased such monitoring and contacted the Omaha
Police Department (OPD).
Beginning on March 29, 2007, OPD began conducting a
video surveillance of Xavier’s room. During the approximately
7 hours when the room was under surveillance, a detective
with OPD observed Joanna disconnect Xavier’s feeding tube
25 times and tamper with the tube another 12 times. the
detective ceased surveillance and transported Joanna to OPD
headquarters for questioning. During that questioning, Joanna
admitted that she typically would disconnect Xavier’s tube
about eight times per day and let the tube drain for 10 to 15
minutes each time. Joanna admitted, contrary to the video evi-
dence, that she had disconnected the tube only twice on that
day. Joanna was specifically asked if she or Ben were giving
Xavier any breast milk; she replied that they were not and that
she was “saving it all.”
Ben, who was not present in Xavier’s room at the time of
the surveillance, was also interviewed. Ben first indicated that
he or Joanna would pour formula from the refrigerator onto the
“burp rags” as evidence of Xavier’s continued emesis. But Ben
eventually acknowledged that the couple had disconnected the
tube and drained food from it. Ben stated that the tube would
be drained for up to an hour at a time.
In contrast to their statements to OPD, Ben and Joanna
both testified at the termination hearing that they were add-
ing breast milk back into the feeding tube using a syringe.
Joanna also testified that she occasionally would breastfeed
Xavier. Joanna indicated that they hid these actions from hos-
pital staff. Ben testified that he and Joanna would occasionally
present formula-soaked “burp rags” to the hospital staff and
represent that it was Xavier’s natural emesis in an attempt to
stop the Neocate trial. Ben explained that he and Joanna were
concerned because the Neocate contained corn, to which Ben
claims Xavier was allergic.
Ben and Joanna were arrested for child abuse. Both even-
tually pleaded no contest to felony child abuse. Meanwhile,
876 	278 NEBRaSka REPORtS

Xavier remained at Children’s for several days following the
arrests of Ben and Joanna. During that time, Xavier showed
steady weight gain, first on Neocate, then later, on another
formula. all NG tube feedings were ceased only days after
Xavier was removed from Ben and Joanna’s custody. Since
his discharge from Children’s in april 2007, Xavier has been
hospitalized one time, for treatment of a relatively common
respiratory virus. Xavier has gained or maintained his weight
since that time, and has since switched to a regular diet includ-
ing whole milk. In addition, Xavier has had tubes placed in
his ears and his shunt has been replaced. the ambulance was
called on one occasion because Xavier was crying, cough-
ing, and possibly having a seizure. Otherwise Xavier’s office
visits to Cruce have been for routine well-child checks or for
seasonal-type illnesses.
there was testimony from several physicians about the
effect on Xavier of the disconnection of the feeding tube.
Snow testified that Xavier was being starved and that he would
have had hunger pains. Snow further testified that children
who are starved have developmental delays. He also testified
that cognitive functioning can be affected. according to Snow,
a younger infant is at greater risk for these problems. a pedi-
atric gastroenterologist, who is a feeding and growth special-
ist from Children’s, testified that a child Xavier’s age who is
starved suffers problems with brain development and with the
immune system. another doctor, also from Children’s, testified
that such starvation can cause mild to significant develop-
mental delays and an increased risk of infection and that the
younger the age, the greater the effect the starvation will have
on a child.
2. Hope’s eAting issues And fAiLure to tHrive
Hope was born at full term following an uncomplicated
pregnancy. Hope apparently gained weight appropriately until
she was about 18 months of age. But beginning in the sum-
mer of 2004, Hope began to lose weight, and in January 2005,
she was diagnosed with failure to thrive. Hope was referred
to Children’s. During a period of hospital observation, Hope
was diagnosed with rotavirus and was fed at night by an NG
IN RE INtERESt OF HOPE L. Et aL. 	877
Cite as 278 Neb. 869

tube. Hope was discharged with the NG tube still in place, and
her parents were instructed to follow up with the feeding and
growth clinic at Children’s. the clinic told Ben and Joanna
that if the tube fell (or was pulled) out, they should wait a few
days to see if Hope would eat appropriately before attempting
to have the tube replaced. Contrary to this advice, on one occa-
sion, the tube fell out and Hope was brought to the emergency
room (ER) within 30 minutes to have the tube replaced.
In addition to the purported eating issues, Cruce testified as
to Hope’s medical problems in the summer and fall of 2005.
Ben and Joanna reported that Hope was often constipated but,
despite testing, this could never be confirmed. Conversely,
Hope was often brought in with complaints of diarrhea.
Hope also had tubes placed in her ears and had her adenoids
removed. though Hope had had relatively few ear infections,
these surgeries were performed on the basis of parental reports
that Hope was continually pulling at her ears.
Hope’s medical history also reveals several office visits in
which parental reports did not match Cruce’s observations.
In October 2005, Hope was reported to be fussy, but Cruce
observed that Hope was playing and running in circles during
the visit. and in November, parental reports indicated that Hope
had been fussy and had refused to drink any fluids for the prior
24 hours; Cruce observed that Hope was playful and that she
drank 3 ounces of fluid. Later in November, Hope was brought
in for a dog bite which turned out to be only a scratch.
In addition, in the spring of 2005, Cruce began seeing Hope
for asthma symptoms, particularly wheezing. Cruce testified
that, in fact, she heard no wheezing when examining Hope, but
indicated that such was not unusual as parents often mistake
upper airway noise for wheezing. But Hope was continually
seen for wheezing despite being put on different treatments. a
few months later, for the first time, Joanna indicated that the
wheezing became worse when Hope would run. Cruce testified
that in the nine visits in which she saw Hope, at least in part
for wheezing complaints, on only one of those occasions was
Hope actually wheezing.
Similar to Cruce’s testimony regarding the November 2005
visit, Snow testified that in January 2005, Hope had been
878 	278 NEBRaSka REPORtS

admitted to Children’s based upon reports that she had stopped
eating 24 hours earlier. But within a short time after admission,
Hope was eating pizza, drinking water, and found to have a
wet diaper.
In early 2006, due to Hope’s continued and apparent refusal
to eat, she was again fed by an NG tube and later had a
G-button placed. When compared with an NG tube, which
can be placed bedside, the placement of a G-button is a surgi-
cal procedure.
as will be discussed below, Hope has been diagnosed with
posttraumatic stress disorder (PtSD) as a result of the various
medical interventions experienced by herself and members of
her family. as for medical care, since removal from Ben and
Joanna’s custody, Hope has had no hospitalizations or ER
visits. Hope has been to the doctor for well-child checks, for
allergy/cold symptoms, and to have her G-button removed.
3. sAm’s eAting issues And fundopLicAtion
Sam was also born full term following an uncomplicated
pregnancy. He was breastfed, and Ben and Joanna reported
that he suffered from reflux. Because of Sam’s reflux, Joanna,
who was breastfeeding, began excluding foods from her diet.
Eventually, Sam was diagnosed with milk soy protein intoler-
ance. Sam had many medical contacts for the alleged reflux
and for other issues. the record largely indicates that parental
reports received from Joanna were not consistent, either with
each other or with the symptoms being observed by the medi-
cal professionals providing Sam’s care.
For example, on May 28, 2005, Sam saw Walsh for an
appointment. at this time, no mention was made that Sam was
suffering from constipation. Later that same day, Sam was
brought to the ER because of a scratch on his eyelid. again,
during that visit, no mention was made of constipation. But
2 days later, on May 30, Sam was brought to the ER with a
report that he had been constipated for the prior 4 weeks and
had not had a bowel movement in 4 days. testing revealed no
signs of constipation. the next day, May 31, Sam was brought
to Cruce’s office with parental reports of projectile vomiting
and having not had a bowel movement for 5 days.
IN RE INtERESt OF HOPE L. Et aL. 	879
Cite as 278 Neb. 869

On June 30, 2005, Sam was admitted to Children’s as a
result of parental reports of continuing reflux issues, though
testing continued to reveal nothing medically wrong. During
the patient admission process, Joanna, with Ben present, indi-
cated that Sam had blood in his stools and provided stool
samples which tested positive for blood. In fact, stool samples
had been ordered for Sam, but none tested positive for blood, a
fact of which Joanna was aware. as a result of this claim, Sam
had a flexible sigmoidoscopy, a scope of the rectum and lower
colon. the risks of this procedure include bleeding and infec-
tion, as well as risks inherent with general anesthesia.
Joanna also informed doctors at Children’s that Sam had
previously undergone an upper gastrointestinal test which was
positive for reflux. However, Sam’s upper gastrointestinal test
was not positive for reflux, a fact which 1 month earlier, Ben
and Joanna had admitted to an ER doctor.
Finally, Joanna informed doctors at Children’s that Sam
had had several instances of apnea. While Sam’s apnea moni-
tor had alerted on several occasions, the alerts were not true
apnea alarms. In reality, Sam had had no apnea episodes, a fact
of which Joanna had been informed prior to Sam’s admission
to Children’s.
On July 11, 2005, Joanna reported to Cruce that Sam had
not improved. Sam was then admitted to St. Elizabeth. During
the admission process, Joanna again informed medical staff
that Sam had previously had blood in his stools. During this
admission, a metabolic workup was done which showed Sam
was in a starvation state and had not been receiving proper
nutrition. Several days later, while still at St. Elizabeth, Joanna
reported that Sam was fussy and continuing to reflux half-
strength breast milk. But the nursing staff reported that Sam
was not fussy. During this hospitalization, Sam lost weight.
However, no medical reason could be found for his fussiness
or weight loss.
Sam was transferred to Children’s on July 18, 2005, due to
parental reports of continued fussiness and reflux. according to
parental reports, the situation had not improved by July 20; how-
ever, Children’s staff observed no fussiness or reflux. Despite
this, on July 26, based in part upon the above information
880 	278 NEBRaSka REPORtS

provided by Joanna, a fundoplication was performed on Sam.
this is major surgery which can cause scarring and can occa-
sionally result in death. In connection with this surgery, a
G-button was placed so that Sam could be burped after feed-
ings. Subsequent to this surgery, the site of Sam’s G-button
became infected. Because of the G-button, Sam also experi-
enced less time spent lying on his stomach and needed physical
therapy as a result.
In the months following the fundoplication, Sam contin-
ued to have visits with Cruce, though none were for reflux
concerns. Parental reports included continued fussiness and
multiple watery stools, but nothing was found to explain such
stools. In each instance where fussiness was complained of,
Cruce reported the opposite: that Sam was happy, alert, and
smiling. In one particular instance on December 15, 2005, it
was reported that Sam was lethargic, retching, and could not
hold his head up. Cruce noted none of that in her notes; to the
contrary, Cruce noted Sam was “happy, smiling, sitting well
without help, and . . . had good head control.” Later that day,
Sam reported to the ER for the same symptoms; he was admit-
ted to St. Elizabeth but released the next day.
In contrast, since his removal from the custody of Ben and
Joanna, Sam has had no hospitalizations or ER visits. He has
seen the doctor for well-child checks and for seasonal aller-
gies and illness. and as will be discussed in more detail below,
Sam has since been diagnosed with “adjustment Disorder with
anxiety,” primarily as a result of the anxiety associated with
his removal from Ben and Joanna, and also with “Pervasive
Developmental Disorder.”
4. grAcie’s birtH And removAL
Gracie was born in February 2008. By this time, Hope,
Sam, and Xavier had all been removed from Ben and Joanna’s
custody and were living together in a foster home. according
to Ben, Joanna, and Joanna’s new obstetrician, Joanna suf-
fered from hyperemesis during her pregnancy with Gracie,
but the condition was more controlled than it was during her
pregnancy with Xavier. though Ben and Joanna arranged for
family friends to act as Gracie’s guardian, Gracie was removed
IN RE INtERESt OF HOPE L. Et aL. 	881
Cite as 278 Neb. 869

from Ben and Joanna’s custody at the hospital and placed with
Hope, Sam, and Xavier.
5. stAte’s testimony regArding best interests
Several doctors testified that the best interests of Hope,
Sam, Xavier, and Gracie would be served by terminating the
parental rights of Ben and Joanna. First to testify on this point
was Dr. Jeffrey DeMare, the medical director of the children’s
advocacy team at Children’s. DeMare has extensive qualifica-
tions in the areas of child medical care and analysis, as well
as the treatment of child abuse. DeMare examined the medi-
cal records of Hope, Sam, and Xavier, and also examined the
surveillance video taken by OPD. Based upon that review,
DeMare opined that Hope, Sam, and Xavier had all suffered
from child abuse at the hands of Ben and Joanna. DeMare
specifically diagnosed all three children with factitious dis-
order by proxy, also known as Munchausen syndrome by
proxy. DeMare opined that to reunify the children with Ben
and Joanna would put all the children at risk for further health
issues, including death. DeMare was even more concerned for
Hope and Sam than for Xavier based upon the “repeated and
escalating nature of abuse.” DeMare noted that he could not
“conceive of a scenario by which these children, or any other
children, would be safe from harm in these parents’ care.”
Finally, DeMare indicated his concern that no doctor would
be able to confidently treat the children given the risk that the
parents would not provide correct information to the treating
medical professionals.
Dr. Mannhan Pratap Pothuloori also testified regarding the
best interests of the children. Pothuloori is the chief of the
psychiatry division at BryanLGH Medical Center in Lincoln.
Pothuloori also began treating Joanna for an eating disorder in
1996. Pothuloori testified that it was not safe for the children
to be in the care of Joanna, nor was it likely to be safe in the
future. this opinion was based upon a variety of factors, includ-
ing Joanna’s multiple mental health diagnoses. those diagnoses
included anorexia nervosa, purging and restricting type; major
depressive 	disorder; 	possible 	PtSD; 	obsessive-compulsive
symptoms; psychotic disorder, not otherwise specified; and
882 	278 NEBRaSka REPORtS

borderline personality disorder. Moreover, Pothuloori diag-
nosed Joanna with both factitious disorder and factitious disor-
der by proxy.
With respect to the diagnosis of factitious disorder by proxy,
Pothuloori distinguished it from the pediatric definition with
which the children were diagnosed. Specifically, the patient,
in this case Joanna, performs improper acts regarding the
children’s medical conditions so that she can gain psychologi-
cal benefit.
Pothuloori testified that even excluding the factitious dis-
order and factitious disorder by proxy diagnoses, her opinion
regarding Joanna would still be “severely guarded.” Pothuloori
explained that her opinion was based upon the fact that Joanna
had multiple hospitalizations, had not been very compliant, did
not adhere to treatment, and had multiple relapses.
Dr. Judith Bothern, the children’s therapist, also testified.
Bothern is the clinical psychologist who had been treating Hope
and Sam since their removal from Ben and Joanna’s custody. In
connection with her treatment of Hope and Sam, Bothern has
also observed the foster family as well as Xavier and Gracie.
In addition to her sessions with the various children and foster
mother, Bothern also reviewed the children’s medical histories,
Joanna’s medical and mental health records, visitation reports,
and Child Protective Services’ documentation. Bothern testi-
fied that she believed it was in the best interests of Hope, Sam,
Xavier, and Gracie that the parental rights of Ben and Joanna
be terminated.
Bothern indicated that she has watched the children struggle
with problems caused by the behavior of Ben and Joanna.
Bothern indicated that she had attempted to work with Ben
and Joanna to make decisions which would not traumatize the
children, in particular Hope. Bothern testified that Ben and
Joanna still “try to avoid the help that was there [from DHHS]
and to deceive people and [that she does not] know how we
can protect these children any other way [besides terminat-
ing parental rights].” Bothern also indicated that she did not
believe remedial efforts aimed at the parents would be success-
ful, because such attempts had previously been tried and had
been unsuccessful.
IN RE INtERESt OF HOPE L. Et aL. 	883
Cite as 278 Neb. 869

Bothern diagnosed Hope with PtSD as a result of the
trauma related to her own medical procedures, as well as the
disruptions caused by the medical procedures performed on
Sam and Xavier. according to Bothern, Hope is ultrasensitized
to medical-related issues and after exposure to such issues,
Hope becomes upset, acts babyish, or cries and pretends to
have “owies.”
also of concern to Bothern was the fact that while in therapy
sessions, Hope was very “guarded” when the topic of her par-
ents was raised, but she was not similarly guarded in any other
areas. Bothern also relates that while in therapy, if Bothern
raised the topic of Xavier’s birth or Sam in his infancy, Hope
would “disassociate” and it would be difficult to rouse her
out of this state. Sometimes upon being brought back to real-
ity, Hope would make some mention of “Xavier being sick.”
Bothern relates an incident from visitation in which Hope was
not getting attention from her father; Hope began to simulate
choking and gagging and attempted to throw up in order to
gain that attention.
Bothern also testified to an incident at a visitation during
Joanna’s pregnancy with Gracie in which Joanna arrived with a
medical device in a backpack. according to Bothern, the back-
pack beeped during visitation and Joanna left the room to deal
with it. Hope and Sam “rushed her immediately when she came
out which looked to me like insecurity and some fear related to
that.” On the topic of the backpack, at some point, Joanna was
no longer wearing it and Hope reported to Bothern that “mom
didn’t need the backpack anymore because she wasn’t sick and
she had [the backpack] because she was sick.” to Bothern’s
knowledge, no one had mentioned to Hope anything about the
backpack or why Joanna needed it.
In addition to Hope’s diagnosis, Bothern diagnosed Sam
with an adjustment disorder with anxiety, due to both Sam’s
removal from Ben and Joanna and his concerns about Gracie’s
whereabouts. Bothern testified that after Gracie was placed in
the foster home, both Hope and Sam were “constantly looking
for where the baby was” and would continue to seek her until
they found her. Sam continued this behavior even after Hope
stopped. Sam was also diagnosed with pervasive developmental
884 	278 NEBRaSka REPORtS

disorder, which raises the concern that he might have a dis-
order on the autism spectrum.
Bothern made specific reference to Ben’s involvement and
whether his paternal rights should be terminated when arguably
Joanna was the party making the bulk of the false reporting
which had led to the allegedly unnecessary medical procedures.
Bothern stated:
Of additional concern is [Ben’s] complicity on all lev-
els from participating in unhooking [Joanna’s] feeding
tube while hospitalized and pregnant with Xavier (detri-
mental to mother and child), complicity in demands for
more extensive and invasive treatment for his children,
and his admitted participation in unhooking and drain-
ing nutrients from Xavier’s feeding tube while hospital-
ized. In addition, [Ben] was inquiring about late term
abortion with Xavier in September and again in October
due to his wife’s discomfort. While Xavier was in the
hospital, [Ben] was keeping detailed records where he
clearly tracked the weight that Xavier lost and/or failed to
gain, yet continued to unhook the feeding tube with clear
awareness that he was starving his own child. [Ben’s]
complicity indicates that he lacks the ability or desire to
contradict his wife’s wishes, his own denials regarding his
wife’s medical history after meeting and marrying her, his
own focus on medical issues keeping significant weight
records so that he was well aware of starving his son, his
own willingness to harm both his wife and his children,
and his inability to provide protection for any of them.
For whatever reason [Ben] has engaged in this activity, it
clearly indicates not only his complicity (both active and
tacit) in the alleged abuse, but his unwillingness or inabil-
ity to protect his children.
6. pArents’ testimony regArding best interests
Ben and Joanna also presented the testimony of a psychol-
ogist, Dr. audrey Wiener. Wiener was hired by Ben and Joanna
to evaluate them in connection with the Douglas County
criminal 	charges. 	In 	testifying 	and 	offering 	her 	opinion,
Wiener reviewed some documentation regarding the family.
IN RE INtERESt OF HOPE L. Et aL. 	885
Cite as 278 Neb. 869

She reviewed a summary of the medical records for the entire
family. Wiener also interviewed Ben and Joanna but did not
evaluate the children.
Wiener testified she believed that with adequate support,
Ben and Joanna could both parent. Wiener recommended that
the family be provided with intensive family preservation serv-
ices. Wiener indicated in her testimony that her opinion was
formed before receiving the opinions of DeMare and Bothern,
but that those opinions did not affect her recommendation.
In addition, Wiener indicated that she was suspect of Cruce’s
opinion because she believed it to be formed in hindsight.
Wiener did acknowledge, though, that she did not speak with
Cruce, see her testify, know the content of Cruce’s testimony,
or review the actual medical records. Wiener also indicated that
her review of the underlying medical records was not sufficient
for her to conclude what impact Snow’s opinion that Sam’s
fundoplication was unnecessary might have on her own opin-
ion. Wiener did acknowledge that credible medical evidence
that the children were not given proper medical treatment
might change her opinion.
Wiener also indicated that she did not consider the safety
plan Ben and Joanna signed, in which the couple agreed to
follow all medical advice, and that Ben and Joanna’s failure
to follow through with the plan did not change her opinion. In
addition to Wiener’s less than complete review of applicable
medical records, as noted, Wiener was retained in connec-
tion with the criminal case, not the termination case. as such,
Wiener did not interview Ben and Joanna as to Hope and Sam,
but only as to Xavier.
7. removAL of guArdiAn A d L item
During the termination hearing, Ben and Joanna asked to
have the guardian ad litem (GaL) removed. Ben and Joanna
argued that the GaL had shown he was not neutral by “insert-
ing” himself as a witness in Ben’s and Joanna’s criminal cases,
improperly attempting to influence their sentences. During that
sentencing, the GaL provided information to the probation
officer preparing presentence reports for Ben and Joanna. the
juvenile court denied the motions.
886 	278 NEBRaSka REPORtS

8. terminAtion of pArentAL rigHts
In its fourth amended petition, the State alleged that Ben’s
and Joanna’s parental rights should be terminated because such
termination was in the best interests of all four children. In
addition, the State alleged the conditions as set forth in Neb.
Rev. Stat. § 43-292 (Reissue 2008), specifically, subsections
(2) (neglect) and (4) (unfit by reason of debauchery), existed
for all four children. the same allegations were made with
regard to Hope, Sam, and Xavier, as well as subsections (8)
(causing serious bodily injury), (9) (subjected to aggravated
circumstances), and (10)(d) (felony resulting in serious bodily
injury). the State also alleged that under Neb. Rev. Stat.
§ 43-283.01 (Reissue 2008), it did not need to make attempts
to reunify the family.
the juvenile court concluded that reunification attempts
were not necessary and that termination was in the best inter-
ests of the children. the juvenile court also found statutory
grounds to support termination as to Gracie under § 43-292(2),
and as to Hope, Sam, and Xavier under § 43-292(2), (8), (9),
and (10)(d). the court dismissed the allegation of § 43-292(4)
for failure of proof.
III. aSSIGNMENtS OF ERROR
On appeal, Benjamin assigns, restated and renumbered, that
the juvenile court erred by (1) admitting evidence of Joanna’s
mental health history which predated the birth of her children,
(2) concluding that reasonable efforts to preserve and reunify
the family were unnecessary, and (3) terminating his paren-
tal rights.
On cross-appeal, Joanna assigns, restated and renumbered,
that the juvenile court erred by (1) admitting evidence of her
mental health and criminal history, (2) concluding that reason-
able efforts to preserve and reunify the family were unneces-
sary, (3) terminating her parental rights, and (4) not removing
the guardian ad litem.
IV. StaNDaRD OF REVIEW
[1,2] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion independent
IN RE INtERESt OF HOPE L. Et aL. 	887
Cite as 278 Neb. 869

of the juvenile court’s findings.1 However, when the evidence is
in conflict, an appellate court may consider and give weight to
the fact that the trial court observed the witnesses and accepted
one version of the facts over the other.2
V. aNaLYSIS
1. A dmissibiLity of mentAL H eALtH And
criminAL H istories
[3] In their first assignments of error, Ben and Joanna both
assign that it was error for the juvenile court to admit Joanna’s
mental health and medical history predating the birth of the
children. Ben does not actually address this assignment of
error in his brief. In order to be considered by an appellate
court, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error;
therefore, we decline to address Ben’s assignment.3 But Joanna
does assign and argue this issue, and accordingly, we address
her arguments. In addition to arguing that her mental health
and medical histories were inadmissible, Joanna argues that it
was error to admit her criminal history.
We turn first to Joanna’s criminal history. there is no men-
tion made of Joanna’s criminal history in the juvenile court’s
order. Nor does Joanna argue in her brief precisely what evi-
dence should have been excluded. But the record shows that
Joanna once made false accusations of rape against at least one
man that she worked with. according to the record, Joanna felt
pressured to have sex with the man and did so, but then felt
guilty afterward.
[4] Given our review of this record, even assuming that the
admission of this evidence was in error, it was harmless. Our
review is de novo on the record; any error is cured so long as
this court does not rely on the challenged evidence. Improper
admission of evidence in a parental rights proceeding does not,
in and of itself, constitute reversible error, for, as long as the
1 In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74
(2009).
2 Id.
3 See Hauptman, O’Brien v. Turco, 277 Neb. 604, 764 N.W.2d 393 (2009).
888 	278 NEBRaSka REPORtS

appellant properly objected, an appellate court will not con-
sider any such evidence in its de novo review of the record.4
Because, as explained in more detail below, there is sufficient
evidence to support the termination of Joanna’s parental rights,
her argument with respect to her criminal history is with-
out merit.
turning next to Joanna’s mental health and medical histo-
ries and diagnoses, Joanna argues that any history predating
the birth of the children is too remote to be probative, that the
diagnoses in question were provided by doctors other than her
treating physicians, that there was no causal connection shown
between the histories and the alleged parenting problems, and
that the history was unduly prejudicial. Joanna contends there
is no indication that any of her alleged diagnoses affect her
ability to parent or would be sufficient to support the termina-
tion of her parental rights and that it was inappropriate for the
juvenile court to rely on this past medical history as a basis for
the termination of her parental rights.
to the extent Joanna argues that the juvenile court terminated
her parental rights because she has a mental illness, such is not
borne out in the juvenile court’s decision. Rather, the juvenile
court considered Joanna’s illnesses within the framework of
whether Joanna could be rehabilitated and whether it was in the
children’s best interests to have Joanna’s rights terminated.
[5] We conclude that the juvenile court did not err in admit-
ting evidence of Joanna’s mental health and medical issues
experienced prior to the birth of the children, and we reject
Joanna’s argument to the contrary. this court has stated that
a court is not prohibited from considering prior events when
determining whether to terminate parental rights.5 the chal-
lenged evidence is relevant to what happened to Hope, Sam,
and Xavier. First, the evidence shows a pattern of medical
intervention sought by Joanna for herself, which is relevant
when considered in light of what was alleged to have occurred
to her children. But even more importantly, the evidence shows
4 In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999).
5 In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672
(2003).
IN RE INtERESt OF HOPE L. Et aL. 	889
Cite as 278 Neb. 869

the depth of Joanna’s mental health issues and the multiple
attempts at treatment that Joanna, for the most part unsuc-
cessfully, underwent. Whether Joanna recognizes her men-
tal health issues and whether she responds to treatment are
both highly relevant to whether it is in the best interests of
Hope, Sam, Xavier, and Gracie that Joanna’s parental rights
be terminated.
Joanna’s first assignment of error is without merit.
2. necessity of reAsonAbLe efforts to
reunify fAmiLy
Both Ben and Joanna next assign that the juvenile court
erred by concluding that it was not necessary for the State
to make reasonable efforts to reunify the family. at issue is
§ 43-283.01(4), which provides in relevant part that
[r]easonable efforts to preserve and reunify the family
are not required if a court of competent jurisdiction has
determined that:
(a) the parent of the juvenile has subjected the juvenile
to aggravated circumstances, including, but not limited to,
abandonment, torture, chronic abuse, or sexual abuse;
(b) the parent of the juvenile has (i) committed first
or second degree murder to another child of the parent,
(ii) committed voluntary manslaughter to another child
of the parent, (iii) aided or abetted, attempted, conspired,
or solicited to commit murder, or aided or abetted volun-
tary manslaughter of the juvenile or another child of the
parent, or (iv) committed a felony assault which results
in serious bodily injury to the juvenile or another minor
child of the parent; or
(c) the parental rights of the parent to a sibling of the
juvenile have been terminated involuntarily.
We discussed § 43-283.01 in some detail in In re Interest of
DeWayne G. & Devon G.6 We began by considering § 43-283.01
in light of the entire juvenile code. We then noted that with
regard to
6 In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510
(2002).
890 	278 NEBRaSka REPORtS

the termination of parental rights pursuant to § 43-292, the
Legislature incorporated § 43-283.01 into only § 43-292(6).
Subsection (6) now states that parental rights can be
terminated when, “Following a determination that the
juvenile is one as described in subdivision (3)(a) of sec-
tion 43-247, reasonable efforts to preserve and reunify
the family if required under section 43-283.01, under the
direction of the court, have failed to correct the condi-
tions leading to the determination.” Section 43-283.01 is
not incorporated into any of the other grounds for seeking
termination of parental rights.
We 	additionally 	note 	that 	the 	plain 	language 	of
§§ 43-284, 43-254, 43-1315, and 43-292(6), as amended
by the Legislature in 1998, recognizes that determina-
tions regarding reasonable efforts are necessary only “if
required” under § 43-283.01. Section 43-283.01 limits
situations in which the State is required to provide rea-
sonable efforts to preserve and reunify, by completely
eliminating any such requirement in those situations con-
templated under § 43-283.01(4)(a), (b), and (c).
Construing this statutory framework in pari materia, we
determine that the issue of reasonable efforts if required
under § 43-283.01 must be reviewed by the juvenile court
(1) when removing from the home a juvenile adjudged
to be under subsections (3) or (4) of § 43-247 pursuant
to § 43-284, (2) when the court continues a juvenile’s
out-of-home placement pending adjudication pursuant to
§ 43-254, (3) when the court reviews a juvenile’s status
and permanency planning pursuant to § 43-1315, and (4)
when termination of parental rights to a juvenile is sought
by the State under § 43-292(6).7
[6] In In re Interest of DeWayne G. & Devon G., we clearly
indicated that reasonable efforts to reunify a family are required
under the juvenile code only when termination is sought under
§ 43-292(6); we reaffirm that holding today. In this case, termi-
nation was not sought under § 43-292(6); it was sought under
7 Id. at 53-54, 638 N.W.2d at 519.
IN RE INtERESt OF HOPE L. Et aL. 	891
Cite as 278 Neb. 869

§ 43-292(2), (4), (8), (9), and (10)(d). It was not necessary for
the State to make reasonable efforts to reunify this family, and
Ben’s and Joanna’s assignments of error to the contrary are
without merit.
3. terminAtion of pArentAL rigHts
[7,8] We now turn to the question of whether the juvenile
court properly terminated Ben’s and Joanna’s parental rights. It
is axiomatic that under § 43-292, in order to terminate parental
rights, the State must prove, by clear and convincing evidence,
that one or more of the statutory grounds listed in this section
have been satisfied and that termination is in the child’s best
interests.8 and the proper starting point for legal analysis when
the State involves itself in family relations is always the funda-
mental constitutional rights of a parent.9
(a) Finding of Statutory Grounds
[9-12] We have explained that the interest of parents in the
care, custody, and control of their children is perhaps the old-
est of the fundamental liberty interests recognized by the U.S.
Supreme Court. accordingly, before the State attempts to force
a breakup of a natural family, over the objections of the parents
and their children, the State must prove parental unfitness.10 a
court may not properly deprive a parent of the custody of his
or her minor child unless the State affirmatively establishes
that such parent is unfit to perform the duties imposed by
the relationship, or has forfeited that right.11 It is always the
State’s burden to prove by clear and convincing evidence that
the parent is unfit and that the child’s best interests are served
by his or her continued removal from parental custody.12 We
have noted that the term “unfitness” is not expressly used in
§ 43-292, but the concept is generally encompassed by the
8 In re Interest of Angelica L. & Daniel L., supra note 1.
9 Id.
10 Id.
11 Id.
12 See id.
892 	278 NEBRaSka REPORtS

fault and neglect subsections of that statute, and also through a
determination of the child’s best interests.13
In this case, the juvenile court found that the State had met
its burden of showing statutory ground § 43-292(2) as to Gracie
and statutory grounds § 43-292(2), (8), (9), and (10)(d) as to
Hope, Sam, and Xavier. Ben and Joanna appeal these findings.
In relevant part, § 43-292 states:
the court may terminate all parental rights between
the parents or the mother of a juvenile born out of wed-
lock and such juvenile when the court finds such action
to be in the best interests of the juvenile and it appears
by the evidence that one or more of the following condi-
tions exist:
. . . .
(2) the parents have substantially and continuously
or repeatedly neglected and refused to give the juvenile
or a sibling of the juvenile necessary parental care and
protection;
. . . .
(8) the parent has inflicted upon the juvenile, by other
than accidental means, serious bodily injury;
(9) the parent of the juvenile has subjected the juve-
nile to aggravated circumstances, including, but not lim-
ited to, abandonment, torture, chronic abuse, or sexual
abuse; or
(10) the parent has . . . (d) committed a felony assault
that resulted in serious bodily injury to the juvenile or
another minor child of the parent.
a review of the record demonstrates that Ben and Joanna
repeatedly sought unnecessary medical attention for their chil-
dren. the couple reported false symptoms and test results to
medical staff, resulting in the performance of unnecessary pro-
cedures and surgeries, most particularly Sam’s fundoplication
surgery. In many cases, it is clear that the symptoms were false
because the same behavior was not observed by medical staff
and was not confirmed by testing. In addition, Ben and Joanna
13 See In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
IN RE INtERESt OF HOPE L. Et aL. 	893
Cite as 278 Neb. 869

were convicted of felony child abuse for withholding food from
Xavier’s feeding tube to the point that he entered a starvation
state. Joanna was videotaped repeatedly disconnecting the NG
tube; in addition, both Ben and Joanna admitted to the discon-
nection of the feeding tube. the record shows that Sam was
also in a starvation state at one point. and a G-button was
placed because of parental reports that Hope did not eat.
the parents argue that medical professionals performed the
now-questioned procedures and that, therefore, a medical basis
to do so must have existed. But parental reports were the driv-
ing force behind most of these procedures; several medical
professionals testified that in order to effectively practice medi-
cine, one must be able to take parental reports at face value. as
a result of all of these medical interventions, Hope has been
diagnosed with PtSD. and though Xavier appears to be doing
well, the starvation he experienced as a young, premature
infant might well affect him developmentally.
We conclude, based upon our de novo review of the record,
that under § 43-292(2), Ben and Joanna “substantially and
continuously or repeatedly neglected and refused to give
. . . necessary parental care and protection” to Hope, Sam,
and Xavier. Moreover, under § 43-292(2), if this condition
is met as to the three older children, it is also met as to their
sibling, Gracie.
In addition to § 43-292(2), the record also supports the con-
clusion that Ben and Joanna subjected Hope, Sam, and Xavier
to aggravated circumstances, specifically chronic abuse, under
§ 43-292(9). the record is replete with instances of unneces-
sary medical treatment undergone by Hope and Sam, as well
as the repeated disconnection of Xavier’s feeding tube and Ben
and Joanna’s failure to comply with medical advice and orders
relating to Xavier’s treatment, even after signing a safety plan
indicating that they would do so.
the evidence supports these findings under § 43-292(2) and
(9) with respect to both Ben and Joanna. Joanna was respon-
sible for many of the false reports, but the record indicates that
Ben was also involved. It is not plausible that Ben was unaware
of Joanna’s actions. and indeed, the record reveals that Ben
was present with Joanna on many relevant occasions. Notably,
894 	278 NEBRaSka REPORtS

Ben was present at St. Elizabeth and Children’s during the
admission processes leading to Sam’s fundoplication, times
when Joanna made several false reports to medical staff. and
Ben has admitted that he was as involved with the disconnec-
tion of Xavier’s feeding tube as Joanna was.
Because we have concluded that Ben and Joanna are unfit
under § 43-292(2) and (9), we decline to address whether
the medical abuse suffered by the children was sufficient
to render Ben and Joanna unfit under any other subsection
of § 43-292.
(b) Best Interests
Having concluded that the State met its burden to show the
requisite statutory grounds under § 43-292, we next move to
the question of whether the termination of Ben’s and Joanna’s
parental rights is in the best interests of Hope, Sam, Xavier,
and Gracie. and again, upon our de novo review of the record,
we conclude that termination of those rights is in the best inter-
ests of the children.
as we have already discussed, the record in this case shows
an extensive history of unnecessary medical treatment. as a
result of this unnecessary treatment, the three older children
are victims of factitious disorder by proxy, or Munchausen
syndrome by proxy. Joanna has been diagnosed with facti-
tious disorder, or Munchausen syndrome, as well as facti-
tious disorder by proxy. Munchausen syndrome by proxy is
the name given to factitious disorders in children produced
by their parents or caregivers.14 the american Psychiatric
association defines factitious disorder by proxy as “the delib-
erate production or feigning of physical or psychological signs
or symptoms in another person who is under the individual’s
care,” motivated by the perpetrator’s need to assume the sick
role by proxy.15 Munchausen syndrome is distinguished from
14 See In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005),
citing 2 Gale Encyclopedia of Medicine 1147 (Donna Olendorf et al. eds.,
1999).
15 american Psychiatric association, Diagnostic and Statistical Manual of
Mental Disorders 781 (4th rev. ed. 2000).
IN RE INtERESt OF HOPE L. Et aL. 	895
Cite as 278 Neb. 869

Munchausen syndrome by proxy in that the medical attention
is sought for oneself.
In addition to her factitious disorder and factitious disorder
by proxy diagnoses, Joanna has also been diagnosed with a
host of other mental illnesses. Joanna has been in treatment for
various disorders, including anorexia nervosa, since she was a
teenager, and she has repeatedly undergone treatment. Ben and
Joanna maintain that Joanna does not currently suffer from an
eating disorder, but medical testimony suggests otherwise.
Moreover, Joanna has a history of being treated, claiming to
feel fine, and then returning for more treatment only a few days
later. Joanna’s treating physicians have indicated that she plays
the sick role, as evidenced by her factitious disorder and facti-
tious disorder by proxy diagnoses. Physicians also testified that
Joanna lacked insight into her issues and illnesses.
and Ben is complicit in Joanna’s actions. He denies that
Joanna has any problems, notably any eating disorder, and
seems resistant to treatment in any case. there is evidence that
Ben, too, lacks insight into Joanna’s problems, as well as into
his own problems.
there was evidence from multiple medical professionals
that it was in the best interests of the children that Ben’s and
Joanna’s parental rights be terminated. Most experts believed
that Ben and Joanna refused to acknowledge any problems and
therefore would be resistant to any attempts to rectify their
behavior. and Joanna’s history of unsuccessful treatment is
also an indication that further treatment would not be effective.
Just one expert testified that the family could be reunited; the
juvenile court found that this expert “was not very compelling
in her testimony nor was she very credible.” this court may
consider and give weight to that conclusion.16
Ben and Joanna suggest that this case is controlled by this
court’s decision in In re Interest of Shelby L.17 On petition for
further review in that case, we reversed the termination of the
mother’s parental rights based upon allegations that the mother
16 See In re Interest of Angelica L. & Daniel L., supra note 1.
17 In re Interest of Shelby L., supra note 14.
896 	278 NEBRaSka REPORtS

had too much contact with medical professionals. But In re
Interest of Shelby L. is distinguishable. In that case, there had
been no diagnosis of factitious disorder or factitious disorder
by proxy and even the child’s doctor testified that there were
medical reasons for continued medical intervention. Moreover,
we concluded that the inaccurate reporting of symptoms was
exaggerated and that the child’s improvement in foster care
was not as significant as the State, the juvenile court, and the
Court of appeals made it appear. But in this case, both Joanna
and the three older children have been diagnosed with facti-
tious disorder by proxy. the children’s treating physicians were
unable to find medical reasons for most of Hope’s, Sam’s, and
Xavier’s various medical issues. Finally, the conclusion that
Ben and Joanna were inaccurately reporting symptoms is sup-
ported by the record. the record also supports the conclusion
that the children have improved since being placed in foster
care, having fewer medical visits and interventions and suffer-
ing mostly from seasonal-type illnesses and allergies.
Ben and Joanna also take issue with a portion of DeMare’s
opinion in which he suggests that Hope suffered from trau-
matic brain injury at 7 months of age and with his opinion’s
being based only on a record review. We have considered these
contentions and find them to be without merit.
Based upon our de novo review of the record, we conclude
that Ben and Joanna are unfit, and it is in the best interests of
the children that Ben’s and Joanna’s parental rights be termi-
nated. accordingly, we conclude that Ben’s and Joanna’s third
assignments of error are without merit.
4. removAL of gAL
In her final assignment of error, Joanna assigns that the GaL
should have been removed because he “submitted a sentencing
request to the criminal court urging a maximum sentence be
issued”18 in Joanna’s criminal case. Joanna complains that by
asking for the maximum term of 5 years’ imprisonment, the
GaL’s recommendation would have had the effect of terminat-
ing parental rights, because Joanna would not have had the
18 Brief for appellee on cross-appeal at 41.
IN RE INtERESt OF HOPE L. Et aL. 	897
Cite as 278 Neb. 869

ability to comply with a dispositional plan. Joanna cites no
authority in support of this contention.
We reject Joanna’s argument. there is no evidence in this
record regarding the content of the GaL’s alleged statements
in the criminal case. During the hearing on the motion to dis-
qualify the GaL, neither Joanna nor Ben attempted to offer the
content of that statement, or any evidence at all, in support of
the request to have the GaL removed, save a request that the
court take judicial notice of the argument made at an earlier
hearing held on June 17, 2008. and the record includes neither
a bill of exceptions nor a request for a bill of exceptions for
that hearing.
[13] It is incumbent upon the appellant (or in this case, cross-
appellant) to present a record supporting the errors assigned;
absent such a record, an appellate court will affirm the lower
court’s decision regarding those errors.19 this court cannot
conclude that the GaL should be removed based solely upon
Joanna’s assertions without any evidentiary support for such
assertions. Because Joanna has failed to present any evidence
as to the content of any information that might have been given
to the Douglas County District Court, the record is inadequate
for us to further examine Joanna’s assignment of error.
We accordingly conclude that Joanna’s final assignment of
error is without merit.
VI. CONCLUSION
For the reasons stated, we conclude that the decision of the
juvenile court terminating Ben’s and Joanna’s parental rights
should be affirmed.
A ffirmed.
19 Parker v. State ex rel. Bruning, 276 Neb. 359, 753 N.W.2d 843 (2008).
898 	278 NEBRaSka REPORtS