In re Interest of Gavin S. & Jordan S. ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
In re I nterest of
Gavin S. and Jordan S.,
children under18 years of age.
State of Nebraska, appellee and cross-appellee,
v. Lacy S., appellant, and Daniel S.,
appellee and cross-appellant.
___ N.W.2d ___
Filed November 24, 2015. No. A-14-1124.
1. Juvenile Courts: Evidence: 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. 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.
2. Parental Rights: Evidence: Appeal and Error. Because factual ques-
tions concerning a judgment or order terminating parental rights are
tried by an appellate court de novo on the record, impermissible or
improper evidence is not considered by an appellate court.
3. Parental Rights. When parental rights are terminated pursuant to Neb.
Rev. Stat. § 43-292(9) (Cum. Supp. 2014), a prior adjudication order is
not required.
4. Parental Rights: Evidence: Proof. For a juvenile court to terminate
parental rights under Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014), it
must find by clear and convincing evidence that one or more of the
statutory grounds listed in this section have been satisfied and that ter-
mination is in the child’s best interests.
5. Evidence: Words and Phrases. 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.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Affirmed.
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
Lisa F. Lozano for appellant.
Joe Kelly, Lancaster County Attorney, Alicia B. Henderson,
and Joshua L. Christolear, Senior Certified Law Student, for
appellee State of Nebraska.
Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellee
Daniel S.
Irwin, Inbody, and R iedmann, Judges.
Irwin, Judge.
I. INTRODUCTION
Lacy S. appeals and Daniel S. cross-appeals from an order
of the separate juvenile court of Lancaster County, which
order adjudicated Lacy and Daniel’s two minor children to be
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp.
2013) and terminated Lacy’s and Daniel’s parental rights to
the children. In their appeals, both Lacy and Daniel assert that
the juvenile court erred in admitting into evidence a report
authored by a doctor who was unavailable to testify during the
juvenile court proceedings. In addition, both Lacy and Daniel
allege that the juvenile court erred in finding sufficient evi-
dence to warrant the adjudication of their children pursuant to
§ 43-247(3)(a) and to warrant the termination of their parental
rights. For the reasons set forth below, we affirm the decision
of the juvenile court.
II. BACKGROUND
Lacy and Daniel are the parents of Gavin S., born in August
2009, and Jordan S., born in June 2011. The events which gave
rise to the juvenile court proceedings involving this family
occurred on January 3, 2012.
In January 2012, Lacy was a stay-at-home mother who
operated a daycare out of the family’s home in order to
earn additional income. One of the children who attended
Lacy’s daycare was 1-year-old Zachary T. On the morning
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
of January 3, Zachary’s father dropped him off at Lacy and
Daniel’s home. When Zachary arrived at the daycare, he was
awake, alert, happy, and playful.
Approximately 1 hour after Zachary arrived at the day-
care, Lacy left to take Gavin and Jordan to a doctor’s
appointment. Daniel stayed behind to watch Zachary, who
was in a baby swing in the family’s living room. When Lacy
returned to the home a couple of hours later, Zachary was
still in the baby swing. Zachary remained in the swing, not
moving and not making any noise, until about 3:30 p.m.,
when Lacy checked on him. At that time, she discovered that
Zachary was not breathing and felt cold to the touch. Lacy
called the 911 emergency dispatch service and attempted
to perform CPR on Zachary. Zachary was later pronounced
dead at the hospital.
After Zachary’s death, doctors discovered that he had a
skull fracture which was a few weeks old and that he had
significant additional trauma to his brain which the doctors
believed had occurred much more recently.
Due to the events of January 3, 2012, the State filed a
motion for emergency temporary custody of Gavin and Jordan
on January 5. The juvenile court granted this motion, ordered
Gavin and Jordan removed from Lacy and Daniel’s home, and
placed them in the custody of the Department of Health and
Human Services. The children have remained in the custody of
the department, in an out-of-home placement, since the entry
of the court’s order on January 5. The next day, on January 6,
the State filed a petition alleging that Gavin and Jordan were
within the meaning of § 43-247(3)(a).
The petition alleged that the children were within the mean-
ing of § 43-247(3)(a) due to the faults or habits of Lacy and
Daniel or due to being in a situation dangerous to life or limb
or injurious to their health. Specifically, the petition alleged
that Zachary had “died as a result of extensive, inflicted head
trauma” while in Lacy’s and Daniel’s care; that neither Lacy
nor Daniel had provided any explanation for Zachary’s head
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
trauma; and that consequently, Gavin and Jordan were at risk
for harm.
A few months after the filing of the original petition, on
March 29, 2012, the State filed an amended petition and a
motion for the termination of Lacy’s and Daniel’s parental
rights. In the amended petition, the State again alleged that
Gavin and Jordan were within the meaning of § 43-247(3)(a)
due to the faults or habits of Lacy and Daniel or due to being in
a situation dangerous to life or limb or injurious to their health.
Specifically, the amended petition alleged:
On or about January 3, 2012, Zachary . . . , a one-year old
child who had been in the care of [Daniel] and [Lacy],
died as a result of cerebral edema which occurred while
Zachary . . . was in the care of [Daniel] and/or [Lacy].
Zachary . . . also suffered from cerebral contusion(s),
subarachnoid hemorrhages and bruises to his shoulders,
which occurred while he was in the care of [Daniel] and
[Lacy]. These injuries are most consistent with abusive
head trauma.
The petition also alleged that Lacy and Daniel had not pro-
vided any explanation as to how Zachary’s injuries occurred
and that Lacy and Daniel had caused Zachary’s death or
failed to provide appropriate care to Zachary, which failure
had contributed to or caused his death. The petition alleged
that as a result of these facts, Gavin and Jordan were at risk
for harm.
The motion for the termination of Lacy’s and Daniel’s
parental rights alleged that termination was warranted pursu-
ant to Neb. Rev. Stat. § 43-292(9) (Cum. Supp. 2014) because
Lacy and Daniel subjected Zachary to aggravated circum-
stances, including, but not limited to, torture and chronic
abuse. In addition, the State alleged that termination of Lacy’s
and Daniel’s parental rights was in the children’s best inter-
ests and that reasonable efforts to reunify the family were
not required.
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
On January 13, 2014, the State filed a second amended
petition and amended motion for termination of Lacy’s and
Daniel’s parental rights. This petition and motion constitute the
operative pleading for the proceedings at issue in this appeal.
Accordingly, we lay out the allegations contained in this sec-
ond amended petition and motion to terminate parental rights
in some detail.
In the second amended petition, the State again alleged that
Gavin and Jordan were within the meaning of § 43-247(3)(a)
due to the faults or habits of Lacy and Daniel or due to being in
a situation dangerous to life or limb or injurious to their health.
Specifically, the second amended petition alleged:
A) On or between November of 2011 and January 3,
2012, [Daniel] and [Lacy] provided day-care for Zachary
....
B) On or after December 1, 2011, Zachary[’s] skull
was fractured while in the care of [Daniel] and/or [Lacy].
C) On or about January 3, 2012, Zachary . . . died as a
result of cerebral edema and/or trauma to his brain which
occurred while Zachary . . . was in the care of [Daniel]
and/or [Lacy], and which was the result of child abuse
and/or non-accidental or abusive head trauma.
D) On or about January 3, 2012, while in the care of
[Daniel] and/or [Lacy], Zachary . . . suffered from acute
injuries to his brain, acute injuries to his head, and acute
symmetrical bruising to his shoulders which injuries and
bruising are most consistent with child abuse and/or non-
accidental or abusive head trauma.
E) Neither [Daniel] nor [Lacy] has provided an expla-
nation as to how the above-described injuries, bruising,
skull fracture, and/or death occurred to Zachary . . . .
F) [Daniel] and/or [Lacy] caused Zachary[’s] death;
and/or [Daniel] and/or [Lacy] failed to provide appropri-
ate care to Zachary . . . which resulted in his death; and/or
[Daniel] and/or [Lacy] failed to provide appropriate care
to Zachary . . . which contributed to his death.
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
G) One or more of the above and/or this situation
place(s) said juveniles at risk of harm.
H) All in Lancaster County, Nebraska.
In the amended motion to terminate Lacy’s and Daniel’s
parental rights, the State again alleged that termination was
warranted pursuant to § 43-292(9); however, in addition,
the State alleged that termination was also warranted pursu-
ant to § 43-292(7) because Gavin and Jordan had been in an
out-of-home placement for 15 or more months of the most
recent 22 months. The State alleged that termination of Lacy’s
and Daniel’s parental rights was in the children’s best inter-
ests and that reasonable efforts to reunify the family were
not required.
On the same day that the State filed its second amended
petition and amended motion to terminate parental rights,
January 13, 2014, the hearing on that pleading began. This
lengthy hearing continued on numerous dates in January
through June 2014. We have reviewed the evidence presented
at this hearing in its entirety, including the 2,500-page bill of
exceptions and each of the more than 80 exhibits presented by
the parties. However, we do not set forth the specifics of all of
the voluminous testimony and exhibits here.
Nevertheless, because the exact cause of Zachary’s death
and the precise time his injuries were sustained played a cen-
tral role in the hearing, and are similarly significant in this
appeal, we do briefly summarize the expert witness testimony
presented by all of the parties on this topic.
The State and the children’s guardian ad litem offered the
testimony of three separate medical professionals in order to
prove that Zachary died as a result of injuries he sustained
while at Lacy and Daniel’s home on January 3, 2012. These
medical professionals included Dr. Robert Bowen, a patholo-
gist who performed the autopsy on Zachary; Dr. Daniel Davis,
a pathologist and medical examiner in the State of Oregon;
and Dr. Suzanne Haney, a pediatrician specializing in child
abuse treatment.
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
Dr. Bowen testified that during the autopsy of Zachary,
he observed evidence of both recent and older head trauma.
Dr. Bowen testified that Zachary had a healing skull fracture
which was more than 2 weeks old. Zachary also had bruising
on his brain and bleeding on the surface of the brain which
were much more recent. Dr. Bowen opined that these injuries
were less than 24 hours old. In addition, Dr. Bowen observed
bruising on both of Zachary’s shoulders which he believed to
be less than 24 hours old. Dr. Bowen testified that it was the
most recent traumatic brain injuries, and not the skull fracture,
that were the cause of Zachary’s death.
After reviewing Zachary’s medical records, police reports,
and the autopsy report authored by Dr. Bowen, Dr. Davis testi-
fied that Zachary died from inflicted, blunt force head trauma
which caused bruising to the brain and bleeding on the surface
of the brain. He testified that such injuries would cause imme-
diate and dramatic changes in Zachary, including irregular
breathing, stiffening of his limbs, and unresponsiveness. Dr.
Davis testified that given that Zachary was awake, alert, and
mobile when he arrived at Lacy and Daniel’s home on January
3, 2012, he had to have been injured by either Lacy or Daniel
when they were caring for him that morning. Dr. Davis specifi-
cally testified that Zachary’s preexisting skull fracture did not
directly contribute to his death on January 3.
Similarly, Dr. Haney testified that Zachary’s death was
caused by abusive head trauma which occurred after Zachary
was dropped off at Lacy and Daniel’s home on January 3,
2012. She testified that the preexisting skull fracture did not
cause Zachary’s death. Dr. Haney indicated that in her expe-
rience in treating skull fractures in children, a child can die
from a skull fracture and a resulting brain injury, but such
death would occur immediately or in a few days after the
injury. A child’s condition would not dramatically worsen in
the weeks following the injury; nor would a child die sud-
denly and unexpectedly weeks after incurring such an injury.
Dr. Haney testified that Zachary’s death was caused by a
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
second injury to Zachary’s brain. This injury was caused by
a force similar to a fall of approximately 12 feet, such as out
of a window, or to a car accident. It was not an injury which
could have occurred with normal caretaking or a fall from a
piece of household furniture.
Lacy offered the testimony of one medical professional,
Dr. Janice Ophoven, a pediatric pathologist. Dr. Ophoven dis-
agreed with the other three medical professionals who testified.
She testified that Zachary died as a result of complications
from the skull fracture he sustained a few weeks prior to his
death. She testified that Zachary did not sustain any new, sig-
nificant trauma on January 3, 2012.
We will set forth other pertinent facts as presented at the
hearing as necessary in our analysis below.
After the hearing, the juvenile court entered a detailed,
21-page order summarizing and analyzing the evidence pre-
sented by all the parties. In the order, the court indicated
that it found the medical opinions of Drs. Bowen, Davis, and
Haney to be credible and, accordingly, that Zachary “died as
a result of blunt force trauma to his head and that the trauma
was caused by physical force consistent with a finding of
intentional injury.” The court specifically stated that it found
that the medical opinion of Dr. Ophoven was not supported
by the evidence. The court found that Zachary did not die as
a result of the skull fracture he sustained weeks before his
death. Instead, the court found that on January 3, 2012, “[a]fter
[Zachary] was left in the care of Daniel . . . and Lacy . . . , one
or both of them inflicted the injury that resulted in his death
and one or both of them failed to provide prompt medical care
to Zachary.”
Ultimately, the court adjudicated Gavin and Jordan as chil-
dren described in § 43-247(3)(a). The court also terminated
Lacy’s and Daniel’s parental rights to the children after finding
the children were within the meaning of § 43-292(7) and (9)
and that such termination was in their best interests.
Lacy appeals and Daniel cross-appeals from this order.
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
III. ASSIGNMENTS OF ERROR
Given that Lacy and Daniel present the same assignments of
error in their appeals, we combine their assignments of error
as follows: Lacy and Daniel assert that the juvenile court erred
in (1) admitting into evidence exhibit 53, a report authored by
Dr. Roger Brumback, a neuropathologist, when Dr. Brumback
was unavailable to testify at the termination hearing; (2) find-
ing sufficient evidence to warrant the adjudication of Gavin
and Jordan pursuant to § 43-247(3)(a); and (3) finding suf-
ficient evidence to warrant the termination of their parental
rights to Gavin and Jordan.
IV. ANALYSIS
1. Standard of R eview
[1] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent 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.
2. A dmissibility of Exhibit 53
Lacy and Daniel first challenge the juvenile court’s deci-
sion to admit into evidence exhibit 53, a pathology report
authored by Dr. Brumback, who was not available to testify
at the termination hearing. On appeal, they both assert that
the report was inadmissible because it contained hearsay and
because they were unable to cross-examine Dr. Brumback
about his opinions and conclusions. Lacy and Daniel also both
assert that the juvenile court erred in permitting Dr. Bowen
to discuss the report during his testimony. For the reasons set
forth below, we find Lacy’s and Daniel’s assertions concerning
exhibit 53 to be without merit.
As we discussed above, Dr. Bowen performed the autopsy
of Zachary after his death. Part of the autopsy involved
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
studying specific areas of Zachary’s brain. For this portion
of the autopsy, Dr. Bowen worked in collaboration with Dr.
Brumback. Together, Drs. Bowen and Brumback determined
what specific testing needed to be completed on the brain and
then conducted that testing and analyzed the results. Once the
testing and analysis were completed, Dr. Brumback authored
a report containing his observations and conclusions. After
he authored this report, but before the time of the termination
hearing in this case, Dr. Brumback died unexpectedly. As a
result, he was unavailable to testify at the hearing.
During Dr. Bowen’s testimony, the State questioned him
about Dr. Brumback’s report. Dr. Bowen indicated that he
relied on some of the conclusions in the report in rendering
his opinion about the cause of Zachary’s death. After this tes-
timony, the State offered into evidence those portions of Dr.
Brumback’s report that Dr. Bowen relied upon. This exhibit
was identified as exhibit 53. Lacy and Daniel objected to the
admission of this exhibit, arguing that the report was not rel-
evant, that it was not admissible because Dr. Brumback was
not available to be cross-examined, and that it constituted
hearsay. The court overruled the objections and admitted into
evidence exhibit 53. Lacy and Daniel appeal from this eviden-
tiary ruling.
In analyzing whether the juvenile court erred in admitting
into evidence Dr. Brumback’s report, we first note that in its
lengthy order and recitation of the evidence presented, the
court did not ever mention Dr. Brumback, his report, or the
conclusions contained in the report. In fact, the court specifi-
cally stated that it based its conclusion that Zachary died from
significant injuries which were inflicted on January 3, 2012,
“on the medical testimony provided by Dr. Davis and Dr. . . .
Bowen and Dr. . . . Haney.” Accordingly, it does not appear
that the juvenile court relied on Dr. Brumback’s report in
any way.
[2] However, even if the juvenile court did rely on Dr.
Brumback’s report and even if that report was erroneously
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
admitted into evidence, a juvenile court’s consideration of
improper evidence does not, by itself, require reversal of
a judgment terminating parental rights under the Nebraska
Juvenile Code. Because factual questions concerning a judg-
ment or order terminating parental rights are tried by an appel-
late court de novo on the record, impermissible or improper
evidence is not considered by an appellate court. See In re
Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d
147 (1987).
In our review of the juvenile court’s decision to terminate
Lacy’s and Daniel’s parental rights, we assume, without spe-
cifically deciding, that exhibit 53, Dr. Brumback’s report, was
improperly admitted into evidence, and as such, we do not con-
sider that exhibit in determining whether there was sufficient
evidence to warrant the termination of Lacy’s and Daniel’s
parental rights. Instead, we rely on the testimonies of the four
other experts, Drs. Bowen, Davis, Haney, and Ophoven, in
determining the cause of Zachary’s death.
3. A djudication
Lacy and Daniel next challenge the juvenile court’s deci-
sion to adjudicate their children pursuant to § 43-247(3)(a).
However, before we address the merits of this assertion, we
address their arguments concerning the juvenile court’s deci-
sion to terminate their parental rights, because we find that
a prior adjudication is not necessary when parental rights are
terminated pursuant to § 43-292(9). So, if we affirm the court’s
decision to terminate Lacy’s and Daniel’s parental rights on
that ground, an analysis of the propriety of the juvenile court’s
adjudication order would be unnecessary.
The Nebraska Supreme Court has previously found that the
grounds contained in § 43-292(1) through (5) do not “require,
imply, or contemplate juvenile court involvement, including
adjudication, prior to the filing of the petition for termina-
tion of parental rights.” In re Interest of Joshua M. et al., 256
Neb. 596, 609, 591 N.W.2d 557, 566 (1999). Subsection (9)
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of § 43-292 was not in effect at the time of the decision in In
re Interest of Joshua M. et al., and as a result, the Supreme
Court did not specifically determine whether termination under
that subsection required a prior adjudication order. See id.
However, based upon our review of the court’s rationale with
regard to § 43-292(1) through (5) and our reading of subsec-
tion (9), we conclude that subsection (9) also does not require,
imply, or contemplate an adjudication prior to the termination
of parental rights.
In In re Interest of Joshua M. et al., 256 Neb. at 609-10, 591
N.W.2d at 566, the Supreme Court explained its rationale for
finding that § 43-292(1) through (5), unlike subsections (6) and
(7), do not require a prior adjudication order:
[S]ubsections (1) through (5) each concern historical
actions or conditions of the parents such as abandonment,
neglect, unfitness, and mental deficiency. There is no
requirement of longitudinal involvement of the juvenile
court under § 43-292(1) through (5), much less a prior
adjudication. . . .
Through the plain language of § 43-292, the Legislature
has demonstrated its intention that under certain circum-
stances, prior court action or an adjudication is required
before parental rights can be terminated. See § 43-292(6)
and (7). Conversely, in this same statutory section, the
Legislature has listed other conditions justifying paren-
tal termination, dependent not upon prior juvenile court
action but upon the actions or conditions of the parents.
The Legislature’s obvious inclusion of prior court action
under certain conditions demonstrates a clear intention
that such action is necessary only under the enumer-
ated circumstances.
When we apply the court’s rationale concerning § 43-292(1)
through (5) to the language of subsection (9), we conclude
that there is no indication that the Legislature contemplated
any prior court action prior to termination under this subsec-
tion. Section 43-292(9) provides that a court may terminate
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parental rights when “[t]he parent of the juvenile has sub-
jected the juvenile or another minor child to aggravated cir-
cumstances, including, but not limited to, abandonment, tor-
ture, chronic abuse, or sexual abuse.” This language is focused
primarily on “the actions or conditions of the parents” and not
on any prior juvenile court involvement. See In re Interest of
Joshua M. et al., 256 Neb. at 610, 591 N.W.2d at 566. The
Legislature did not include any mention of prior court action
under this subsection.
[3] We conclude that terminating parental rights pursuant
to § 43-292(9) does not require a prior adjudication order.
And, because no prior adjudication order is required, we do
not review at this point in our analysis the juvenile court’s
decision to adjudicate Gavin and Jordan. Instead, we will first
analyze whether the court abused its discretion in terminating
Lacy’s and Daniel’s parental rights pursuant to § 43-292(9). If
we do not find an abuse of discretion in this regard, we need
not discuss the court’s adjudication order any further.
4. Termination of Parental R ights
On appeal, both Lacy and Daniel assert that the juvenile
court erred in finding that clear and convincing evidence sup-
ports the termination of their parental rights to Gavin and
Jordan. Specifically, Lacy and Daniel assert that there was
insufficient evidence presented to prove they were responsible
for Zachary’s death and that without such definitive evidence,
there is no basis for the termination of their parental rights.
Upon our de novo review of the record, we affirm the decision
of the juvenile court to terminate Lacy’s and Daniel’s paren-
tal rights.
[4,5] 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.,
270 Neb. 828, 708 N.W.2d 802 (2006). The State must prove
these facts by clear and convincing evidence. Id. Clear and
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convincing evidence is that amount of evidence which pro-
duces in the trier of fact a firm belief or conviction about the
existence of the fact to be proven. Id.
(a) Statutory Factors
In this case, the juvenile court found that termination of
Lacy’s and Daniel’s parental rights was warranted pursuant to
§ 43-292(7) and (9). Because only one statutory ground con-
tained within § 43-292 must be proven to support the termina-
tion of parental rights, we focus our discussion on the evidence
presented with regard to § 43-292(9).
As we have stated above, § 43-292(9) provides that parental
rights may be terminated when “[t]he parent of the juvenile
has subjected the juvenile or another minor child to aggravated
circumstances, including, but not limited to, abandonment, tor-
ture, chronic abuse, or sexual abuse.” Upon our de novo review
of the record, we conclude that there was clear and convincing
evidence presented at the termination hearing to demonstrate
that Lacy and Daniel subjected Zachary to “aggravated circum-
stances” pursuant to subsection (9).
The evidence presented by the State at the termination
hearing revealed that 1-year-old Zachary arrived at Lacy and
Daniel’s home for daycare on January 3, 2012. When he
arrived, he was alert, playful, and happy. And, although he was
suffering from an undiagnosed skull fracture, that injury had
begun to heal and, on that morning, was not affecting Zachary
in a significant way.
Approximately 8 hours after Zachary arrived at Lacy and
Daniel’s home, he was pronounced dead due to recent and
severe head trauma similar to that incurred in a fall from a
height of at least 12 feet or in a car accident. Such trauma was
so significant that anyone would have been able to observe an
immediate and dramatic change in Zachary. He would have
had trouble breathing and moving his limbs, and soon after
sustaining the injury, he would have become completely unre-
sponsive. Clearly, Zachary did not have such an injury when
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he arrived at Lacy and Daniel’s home. Lacy and Daniel were
the only people who provided care for Zachary during and
after the time he sustained this serious injury. Neither Lacy
nor Daniel offered any explanation for Zachary’s injury or
death. Instead, they contend that Zachary fell asleep in a baby
swing at 10:15 in the morning and that they assumed that
he continued to sleep for the next 6 hours until Lacy finally
checked on him and found him unresponsive. While Zachary
was in the swing for that extended period of time, no one
checked on his well-being, even though Zachary had never
before slept that long and even though he had skipped meal-
time, snacktime, and all diaper changes. Lacy and Daniel’s
story provides more questions than answers, and it is simply
not supported by the weight of a majority of the expert medi-
cal testimony.
Moreover, there was some evidence which suggested that
Zachary had previously been seriously injured in Lacy and
Daniel’s home in the weeks leading up to January 3, 2012.
Specifically, there was evidence that Zachary sustained his
skull fracture while at daycare when he fell down some stairs.
Lacy did not report Zachary’s fall to his parents and, in fact,
seemingly lied to his parents when they asked how he obtained
a large bump on the back of his head. As a result of Lacy’s
failure to report the fall, Zachary’s skull fracture went undiag-
nosed, despite his parents’ repeated trips to multiple medical
professionals. After Zachary’s death, Lacy attempted to cover
up this earlier incident.
When viewed as a whole, the evidence presented by the
State is sufficient to clearly and convincingly prove that Lacy
and Daniel subjected Zachary to “aggravated circumstances”
pursuant to § 43-292(9). This evidence demonstrates that
Zachary died as a result of serious injuries he sustained while
in Lacy’s and Daniel’s care. These injuries could not have
been sustained by normal toddler activities or by normal care-
taking. Instead, these injuries were a result of intentional child
abuse. In addition, the evidence demonstrates that Lacy and
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
Daniel failed to obtain medical care for Zachary both after he
sustained the fatal injuries and on a previous occasion, after
he fell and fractured his skull. Instead, they tried to cover
up Zachary’s injuries and delayed obtaining necessary medi-
cal intervention.
On appeal, Lacy and Daniel assert that the State’s evidence
concerning the cause of Zachary’s fatal injuries and the cause
of his skull fracture was not sufficient to demonstrate their
responsibility for Zachary’s death, because there was con-
flicting evidence presented about both the events of January
3, 2012, and the cause of Zachary’s death. Specifically, they
point to the testimony of Lacy’s expert, Dr. Ophoven, who
opined that Zachary’s death was a result of complications from
the skull fracture and not from any new injury he suffered on
January 3, and to evidence that doctors were not able to place
a specific date on when Zachary sustained that skull fracture.
Lacy’s and Daniel’s assertions lack merit.
While we recognize that there was conflicting evidence
presented at the trial about the cause and timing of Zachary’s
fatal injuries, we also must recognize that the juvenile court
heard and observed all of the witnesses and that it specifi-
cally determined that the State’s and the guardian ad litem’s
experts, Drs. Bowen, Davis, and Haney, were credible, while
Lacy’s expert, Dr. Ophoven, was not credible. In addition, the
court found that the statements of Lacy and Daniel and the
testimony of Lacy were also not credible. As we stated above,
in appeals from juvenile court proceedings, when the evidence
is in conflict, 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. See In re Interest of
Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006). Given our
de novo review of all of the evidence presented, and giving
weight to the juvenile court’s findings about witness cred-
ibility, we affirm the juvenile court’s conclusion that termi-
nation of Lacy’s and Daniel’s parental rights was warranted
pursuant to § 43-292(9). There was clear and convincing
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
evidence presented to demonstrate that Lacy and Daniel sub-
jected Zachary to “aggravated circumstances.” See id.
(b) Best Interests
Section 43-292 requires that parental rights can be ter-
minated only when the court finds that termination is in the
child’s best interests. A termination of parental rights is a
final and complete severance of the child from the parent and
removes the entire bundle of parental rights. See In re Interest
of Crystal C., 12 Neb. Ct. App. 458, 676 N.W.2d 378 (2004).
Therefore, given such severe and final consequences, paren-
tal rights should be terminated only “‘[i]n the absence of any
reasonable alternative and as the last resort . . . .’” See In re
Interest of Kantril P. & Chenelle P., 257 Neb. 450, 467, 598
N.W.2d 729, 741 (1999), quoting In re Interest of J.H., 242
Neb. 906, 497 N.W.2d 346 (1993).
In its order, the juvenile court found that because Lacy
and Daniel “bear the responsibility for the abuse and death of
Zachary,” it is in the best interests of Gavin and Jordan that
their parental rights be terminated. Specifically, the court found
that Lacy and Daniel are “unfit to be entrusted with the care
of their children because of their abuse and neglect of Zachary
. . . and their failure to accept responsibility for their actions.”
The court explained its decision further:
[Lacy and Daniel] have not accepted responsibility
for their actions or failures to act to provide medical
care for Zachary. They have not explained the injuries
Zachary received. It is unlikely that they will do so
now because to do so would potentially result in crimi-
nal charges being brought they have thus far avoided.
[Lacy and Daniel] have remained silent as to the true
events involving Zachary despite having their children
removed. They have remained silent despite having their
parental rights placed at jeopardy. Given their silence
to date, with so much at stake, it is unlikely they would
now come forward with an explanation. Without that
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IN RE INTEREST OF GAVIN S. & JORDAN S.
Cite as 23 Neb. Ct. App. 401
explanation and acceptance of responsibility there can
be no elimination of risk of harm to their children.
There is no rehabilitative plan that could be developed
by [the Nebraska Department of Health and Human
Services] that could correct the adjudicated conditions in
the Second Amended Petition or that would adequately
correct the actions of these parents or that would protect
[Gavin and Jordan].
[Gavin and Jordan] need permanency and the ability to
move on with parents that can provide a safe and stable
home. Lacy . . . and Daniel . . . are unable to provide
that home. It is in the best interest of the above children
that the parental rights of Lacy . . . and Daniel . . . be
­terminated. . . .
Lacy and Daniel appeal from the juvenile court’s find-
ing that termination of their parental rights is in Gavin’s and
Jordan’s best interests. In support of their argument, they again
assert that there was not sufficient evidence to demonstrate
their responsibility for Zachary’s injuries and death. In addi-
tion, they assert that there was no evidence whatsoever which
demonstrated that they were anything but loving and involved
parents to their own children, Gavin and Jordan. Upon our
de novo review of the record, we affirm the decision of the
juvenile court that termination of Lacy’s and Daniel’s parental
rights is in the children’s best interests.
As we discussed more thoroughly above, there was clear
and convincing evidence presented at the termination hear-
ing which revealed that Lacy and Daniel were responsible for
the injuries Zachary sustained on January 3, 2012, and his
resulting death. There was also clear and convincing evidence
presented which demonstrated that Lacy and Daniel failed
to obtain any medical intervention for Zachary after he suf-
fered his injuries. Neither Lacy nor Daniel has ever provided
any reasonable explanation for what happened to Zachary
on January 3. Given the gravity of Zachary’s fatal injuries
and given the lack of explanation for those injuries, we must
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Cite as 23 Neb. Ct. App. 401
agree with the findings of the juvenile court. There are no
rehabilitative measures which can be offered to Lacy and
Daniel which would make reunification of the family possible
at some point in the future, and returning Gavin and Jordan
to the care and custody of their parents without any such
meas­ures would present an unacceptable risk to their safety
and well-being.
We recognize that there was no evidence presented about
Lacy and Daniel acting inappropriately or violently with their
own children. In fact, the visitation notes from their daily visi-
tations with the children while this case was pending reflect
that Lacy and Daniel have a strong bond with the children
and love them very much. However, because we do not know
exactly what happened to Zachary on January 3, 2012, the risk
of harm to Gavin and Jordan in their parents’ home is simply
too much to overcome. There is no reasonable alternative
other than to terminate Lacy’s and Daniel’s parental rights to
Gavin and Jordan.
V. CONCLUSION
After reviewing the record de novo, we conclude that the
juvenile court did not err in finding that clear and convinc-
ing evidence supports the termination of Lacy’s and Daniel’s
parental rights to Gavin and Jordan under § 43-292(9) or in
finding that clear and convincing evidence shows that termina-
tion of Lacy’s and Daniel’s parental rights is in the children’s
best interests. For those reasons, we affirm the court’s order
terminating Lacy’s and Daniel’s parental rights to both Gavin
and Jordan.
A ffirmed.