In re Interest of Presten O.

evidence, and without a record being made. Accordingly, we
reverse the order of the district court which denied the motion
for reimbursement and remand the cause for further eviden-
tiary proceedings.
CONCLUSION
The district court had jurisdiction to determine Patterson’s
motion for reimbursement of expenses. The order denying the
motion is reversed, and the cause is remanded for further evi-
dentiary proceedings.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
in Re inteRest of pResten o.,
a child undeR 18 yeaRs of age .
state of nebRaska , appellee , v.
cRystal W., appellant.
in Re inteRest of poRsha o.,
a child undeR 18 yeaRs of age .
state of nebRaska , appellee , v.
cRystal W., appellant.
778 N.W.2d 759
Filed February 9, 2010. 	Nos. A-09-623, A-09-624.
1. Juvenile Courts: Parental Rights: Guardians Ad Litem: Appeal and Error.
Appointment of a guardian ad litem for a parent that is allegedly incompetent
because of mental illness or mental deficiency is mandatory, and the failure to
appoint a guardian ad litem is plain error which requires reversal of the order
terminating the parent’s rights.
Appeal 	from 	the 	County 	Court 	for 	Deuel 	County:
R andin Roland, Judge. Reversed and remanded for further
proceedings.
Joel B. Jay for appellant.
Douglas D. Palik, Deuel County Attorney, for appellee.
inbody, Chief Judge, and iRWin and caRlson, Judges.
IN Re INTeReST OF PReSTeN O. 	259
Cite as 18 Neb. App. 259
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

peR cuRiam.
I. INTRODUCTION
The county court for Deuel County, Nebraska, sitting as a
juvenile court, entered orders terminating Crystal W.’s parental
rights to her minor children. The court found that termination of
Crystal’s parental rights was warranted because she was unable
to discharge her parental responsibilities due to her mental
condition, because she had failed to comply with ordered plans
of rehabilitation, and because her children had been in an out-
of-home placement for 15 or more months of the most recent
22 months. The court also found that termination of Crystal’s
parental rights was in the children’s best interests. Crystal
appeals the court’s order. On appeal, Crystal is challenging the
statutory grounds for termination of her parental rights and the
county court’s finding that termination of her parental rights is
in the children’s best interests.
Upon our de novo review of the record, we find that the
county court erred in failing to appoint Crystal a guardian ad
litem for the court proceedings pursuant to Neb. Rev. Stat.
§ 43-292.01 (Reissue 2008). While Crystal does not raise this
issue in her appeal to this court, we conclude that the court’s
failure to appoint a guardian ad litem is plain error. We reverse
the county court’s orders terminating Crystal’s parental rights
and remand the matter for further proceedings.
II. BACKGROUND
These proceedings involve two children: Presten O. (also
referred to as “Preston” in the record), born in December 2005,
and Porsha O. (also referred to as “Portia” in the record), born
in May 2007. Crystal is the biological mother of both Presten
and Porsha.
In April 2007, Presten was removed from Crystal’s care
after Presten was diagnosed for the second time with failure to
thrive. Crystal became upset about the diagnosis and began to
clutch Presten so tightly that she left red marks on his abdo-
men. Crystal then locked herself and Presten in a hospital bath-
room until police arrived.
At the time Presten was removed, Crystal was pregnant with
Porsha. She gave birth to Porsha in May 2007. Because of the
incident surrounding Presten’s removal and because of concerns
260 	18 NeBRASKA APPeLLATe RePORTS

regarding Crystal’s mental health, Porsha was immediately
removed from Crystal’s care. Presten and Porsha have not been
returned to Crystal’s care since they were removed.
Our record does not include any filings prior to the State’s
motions for termination of parental rights. However, there is
an indication in the record that in June and September 2007,
respectively, Presten and Porsha were adjudicated as children
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum.
Supp. 2006). There is also an indication in the record that the
county court adopted the rehabilitation plans recommended by
the Department of Health and Human Services and ordered
Crystal to comply with the tenets of the rehabilitation plans.
As a part of the plans, Crystal was required to submit to a psy-
chological examination and a parenting assessment, to manage
her psychotropic medication, to participate in supervised visi-
tations with the children and a family support worker, and to
attend individual therapy.
In addition, Crystal was ordered to submit to a competency
evaluation. The competency evaluation revealed that Crystal
was competent to understand the legal proceedings and indi-
cated that Crystal should have consequences for any failure to
act appropriately in the courtroom. Based on the findings and
conclusions of the competency evaluation, the county court did
not appoint a guardian ad litem for Crystal.
On January 7, 2009, the State filed motions to termi-
nate Crystal’s parental rights to Presten and Porsha. In the
motions, the State alleged that Presten and Porsha were chil-
dren within the meaning of Neb. Rev. Stat. § 43-292(5), (6),
and (7) (Reissue 2008). The State also alleged that it would
be in the children’s best interests if Crystal’s parental rights
were terminated.
On April 28 and May 20, 2009, a hearing was held on the
State’s motions for termination of parental rights. While we
have reviewed the bill of exceptions from this hearing in its
entirety, we do not detail the extensive evidence offered here.
We will set forth the specific facts as presented at the hearing
as necessary in our analysis below.
At the conclusion of the termination hearing, the county
court found that the State had proved by clear and convincing
IN Re INTeReST OF PReSTeN O. 	261
Cite as 18 Neb. App. 259

evidence that Presten and Porsha were children within the
meaning of § 43-292(5), (6), and (7). The court also found that
it would be in the children’s best interests if Crystal’s parental
rights were terminated. The court then entered orders terminat-
ing Crystal’s parental rights to Presten and Porsha.
Crystal appeals from the county court’s orders here.
III. ASSIGNMeNTS OF eRROR
On appeal, Crystal alleges that the county court erred in
finding that the State proved the statutory factors for termi-
nation of her parental rights under § 43-292(5), (6), and (7)
and finding that termination of her parental rights was in the
children’s best interests.
IV. ANALYSIS
1. standaRd of R evieW
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. In re Interest of Jagger L., 270
Neb. 828, 708 N.W.2d 802 (2006). When the evidence is in
conflict, however, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted
one version of the facts over the other. Id.
For a juvenile court to terminate parental rights under
§ 43-292, it must find 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. See In re Interest
of Jagger L., supra. The State must prove these facts by clear
and convincing evidence. Id. Clear and convincing evidence is
that amount of evidence which produces in the trier of fact a
firm belief or conviction about the existence of the fact to be
proven. Id.
2. appointment of guaRdian ad litem
Crystal’s assignments of error on appeal focus on the suffi-
ciency of the evidence to prove the statutory factors warranting
termination of her parental rights and to prove that termina-
tion of her parental rights is in the children’s best interests.
Although an appellate court ordinarily considers only those
262 	18 NeBRASKA APPeLLATe RePORTS

errors assigned and discussed in the briefs, the appellate court
may, at its option, notice plain error. In Interest of D.W., 249
Neb. 133, 542 N.W.2d 407 (1996). Plain error is error plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process. In re Interest of Markice M.,
275 Neb. 908, 750 N.W.2d 345 (2008); In re Interest of Mainor
T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004); In
Interest of D.W., supra. Upon our de novo review of the record,
we find that the county court’s failure to appoint a guardian ad
litem for Crystal is plain error.
The State alleged and the county court found that termina-
tion of Crystal’s parental rights was warranted because she
was unable to discharge her parental responsibilities due to her
mental condition, pursuant to § 43-292(5); because she had
failed to comply with ordered plans of rehabilitation, pursuant
to § 43-292(6); and because her children had been in an out-of-
home placement for 15 or more months of the most recent 22
months, pursuant to § 43-292(7).
[1] Section 43-292.01 provides, in part, “When termination
of the parent-juvenile relationship is sought under subdivision
(5) of section 43-292, the court shall appoint a guardian ad litem
for the alleged incompetent parent.” The Nebraska Supreme
Court has previously held that the language in § 43-292.01
requiring appointment of a guardian ad litem is mandatory and
that the failure to appoint a guardian ad litem is plain error
which requires reversal of the order terminating the parent’s
rights. See In re Interest of M.M., C.M., and D.M., 230 Neb.
388, 431 N.W.2d 611 (1988) (analyzing language in § 43-292
(Reissue 1984), which is virtually identical to language in
§ 43-292.01).
Here, the State sought termination of Crystal’s parental rights
based, in part, on her mental condition and § 43-292(5). As a
result, the appointment of a guardian ad litem for Crystal was
mandatory. The county court did not appoint Crystal a guardian
ad litem, and such omission constitutes plain error. We reverse
the county court’s orders terminating Crystal’s parental rights
and remand the matter for further proceedings.
IN Re INTeReST OF PReSTeN O. 	263
Cite as 18 Neb. App. 259

V. CONCLUSION
Because the county court failed to appoint a guardian ad
litem for Crystal pursuant to § 43-292.01, we reverse the orders
terminating Crystal’s parental rights to her minor children and
remand the matter for further proceedings.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
iRWin, Judge, concurring.
I concur with the conclusion of the majority that the county
court’s failure to appoint Crystal a guardian ad litem pursu-
ant to Neb. Rev. Stat. § 43-292.01 (Reissue 2008) constitutes
plain error. I do not agree that such error prejudiced Crystal
in any way, but I am compelled to concur in the majority’s
ultimate decision to reverse the orders terminating Crystal’s
parental rights because the Nebraska Supreme Court held in In
re Interest of M.M., C.M, and D.M., 230 Neb. 388, 431 N.W.2d
611 (1988), that the failure to appoint a guardian ad litem
pursuant to § 43-292.01 is plain error which requires reversal,
implying that such failure constitutes prejudice per se.
In In re Interest of M.M., C.M., and D.M., the Nebraska
Supreme Court found that “‘the duties and responsibilities
of a guardian ad litem . . . are not coextensive with those of
an attorney . . . .’” 230 Neb. at 390, 431 N.W.2d at 612-13
(emphasis omitted). The court went on to find that although
the parent was represented by appointed counsel throughout
the court proceedings, “the appointment of a guardian ad litem
. . . is mandatory and . . . the failure to appoint a guardian ad
litem for [a parent] in these cases is plain error which requires
that the judgments be reversed.” Id. at 390, 431 N.W.2d
at 613.
The court in In re Interest of M.M., C.M., and D.M. did not
discuss whether the parent had been prejudiced by the failure
to appoint a guardian ad litem. The omission of this discus-
sion, together with the court’s finding that a guardian ad litem’s
duties and responsibilities are distinct from those of an attorney
representing a parent in a termination proceeding, implies that
the failure to appoint a guardian ad litem constitutes prejudice
per se.
264 	18 NeBRASKA APPeLLATe RePORTS

Contrary to the implication in In re Interest of M.M., C.M.,
and D.M., there are circumstances, such as those present in this
case, where a parent is not prejudiced by the failure to appoint
a guardian ad litem. Here, Crystal was represented by com-
petent counsel throughout the court proceedings. In addition,
she submitted to a competency evaluation which revealed that
she was fully capable of understanding the legal proceedings
and the ultimate implication of those proceedings. Under the
circumstances of this case, there is no indication that Crystal
would have benefited in any way by the appointment of a
guardian ad litem.
While I do not agree that the failure to appoint a guardian ad
litem constitutes prejudice per se or that Crystal was prejudiced
in this case, I join in the majority’s opinion because of the
principle of vertical stare decisis, which compels lower courts
to follow strictly the decisions rendered by higher courts within
the same judicial system. See State v. Hausmann, 277 Neb.
819, 765 N.W.2d 219 (2009).
IN Re INTeReST OF PReSTeN O. 	265
Cite as 18 Neb. App. 259