Yerania O. v. Juan P.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/18/2022 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
YERANIA O. v. JUAN P.
Cite as 310 Neb. 749Yerania O., appellant,
v. Juan P., appellee.
___ N.W.2d ___
Filed January 21, 2022. No. S-21-441.
1. Protection Orders: Judgments: Injunction: Appeal and Error. A
protection order is analogous to an injunction. Accordingly, the grant or
denial of a protection order is reviewed de novo on the record. In such
a de novo review, an appellate court reaches conclusions independent of
the factual findings of the trial court.
2. Due Process: Words and Phrases. While the concept of due process
defies precise definition, it embodies and requires fundamental fairness.
3. Constitutional Law: Due Process. Generally, procedural due process
requires parties whose rights are to be affected by a proceeding to be
given timely notice, which is reasonably calculated to inform the person
concerning the subject and issues involved in the proceeding; a reason-
able opportunity to refute or defend against a charge or accusation; a
reasonable opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation; representation by
counsel, when such representation is required by constitution or statute;
and a hearing before an impartial decisionmaker.
4. Constitutional Law: Protection Orders. Because the intrusion on a
respondent’s liberty interests is relatively limited, the procedural due
process afforded in a protection order hearing is likewise limited.
5. Courts: Judgments: Statutes. To satisfy the requirement of specific
findings, the court must set forth the reasoning for its order, explaining
why its conclusion is appropriate; specific findings cannot be satisfied
by simply quoting the statutory language.
6. Protection Orders: Proof. The legal theories supporting either a sexual
assault, domestic abuse, or harassment protection order are signifi-
cantly different from one another, and each require different offerings
of proof.
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 7497. Judges. A judge must be careful not to appear to act in the dual capacity
of judge and advocate.
8. Judges: Trial. A judge’s official conduct must be free from even the
appearance of impropriety, and a judge’s undue interference in a trial
may tend to prevent the proper presentation of the cause of action.
Appeal from the District Court for Lancaster County:
Thomas E. Zimmerman, Judge. Reversed and remanded with
directions.
David V. Chipman and Carlos A. Monzón, of Monzón,
Guerra & Associates, for appellant.
McKynze P. Works and Gina Elliott, Senior Certified Law
Student, of Morrow, Poppe, Watermeier & Lonowski, P.C.,
L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
Yerania O. and Juan P. worked together in the early morn-
ings at a grocery store in Lincoln, Nebraska, for approximately
2 years. Yerania quit this job in December 2020, and in March
2021, she sought and obtained an ex parte sexual assault pro-
tection order against Juan. Yerania’s petition alleged that Juan
had “[p]ester[ed]” her at work, verbally and physically, and
that he had followed her when she took her children to school
and threatened to kidnap Yerania and her children.
Juan requested and was granted a show cause hearing on
whether the sexual assault protection order should remain in
effect, at which hearing he denied Yerania’s allegations and
asserted that their relationship had been consensual.
After the case was submitted, the district court, sua sponte,
filed Yerania’s petition under a new case number, then entered
a harassment protection order. The court found that it had
jurisdiction and concluded a harassment protection order was
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749more appropriate, but did not make specific findings. Juan
appealed. We moved the appeal to our docket.
We find that the procedure utilized in this case deprived
Juan of sufficient notice and an opportunity to be heard, in
violation of his due process rights. Accordingly, we reverse the
decision of the district court and remand the cause with direc-
tions to vacate the harassment protection order.
I. BACKGOUND
Yerania and Juan worked together at a Lincoln grocery store
for approximately 2 years, until December 2020. Their shifts
were generally 3 to 7 a.m., and there were typically no other
employees present in the store during this time. Both parties
were married to other people.
In March 2021, Yerania filed a petition and affidavit to
obtain a sexual assault protection order against Juan. The peti-
tion alleged Juan had “[p]ester[ed]” Yerania at work; showed
her his genitals; and touched her breasts, genitals, and buttocks
“for several weekends.” It also alleged Juan forcibly kissed
Yerania and forced her to touch his penis while they were in a
walk-in cooler. According to Yerania, Juan followed her when
she took her children to school and threatened to kidnap both
her and her children. Yerania alleged that she was very afraid
and did not feel safe working alone with Juan.
The same day Yerania’s petition was filed, the district court
entered an ex parte sexual assault protection order against Juan.
Approximately 2 weeks later, Juan filed a request for a hear-
ing on the protection order. After several delays, a hearing was
held on May 14, 2021.
At the hearing, Yerania testified through an interpreter.
Yerania admitted that she did not understand English; that
the allegations contained in the typed, English portion of her
petition were “uncertified”; and that they were translated with
the help of a friend. Over Juan’s objection, the petition and
affidavit were admitted into evidence; the court noted that
the English portion of the petition is what it had relied on in
entering its ex parte order due to a “language barrier.”
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Cite as 310 Neb. 749Yerania read from her petition for much of her testimony
presented at the hearing. According to Yerania, from October
until December 2020, Juan began to sexually harass her during
their solitary shifts. On October 25, Juan approached her from
behind in the walk-in cooler and tried to kiss her while holding
her arms. When she resisted, Juan pushed her and she fell to
the ground, injuring her hip.
Yerania’s husband testified that he was in Mexico from July
2020 until the end of November 2020. Upon returning home, he
noticed that Yerania was acting differently and asked her about
her behavior. According to Yerania’s husband, on December 5,
2019, Yerania told him that she was being sexually harassed at
work. He and Yerania then devised a plan to record the harass-
ment. The next morning, after Yerania’s husband dropped her
off at work with a “digital recorder in her shirt,” she also set
up her phone to video record the kitchen area. According to
Yerania, after Juan arrived that morning, he noticed that she
was recording him. Yerania then called her husband and told
him that Juan had discovered the phone recorder and reported
to him that she was afraid. Yerania’s husband contacted the
police, who went to the grocery store. Police questioned both
Yerania and Juan, and Yerania stated at that time that she did
not want to file charges against Juan and that she did not want
police involved. At the hearing, Yerania testified that although
she had told police at that time that she felt safe retuning to
work, this had been a lie and she did not feel safe at work.
Yerania quit her job that same day.
Yerania and her husband both testified that they worked
with police in the following months to try to collect evidence
against Juan. In February, Yerania called Juan multiple times
in the presence of police, but Juan did not answer. Juan then
contacted police and stated that he did not want Yerania con-
tacting him anymore “because she [was] trying to get him to
say things related to this case in front of her husband.” Police
instructed Yerania that she should no longer contact Juan by
phone. The police then notified Yerania and her husband that
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749there was no probable cause to arrest Juan and the investiga-
tions ceased.
In April 2021, Yerania saw Juan at a local park and called
the police; Juan had left before police arrived.
After Yerania and her husband completed their testimony,
Juan called Yerania’s aunt, who is also her coworker, on his
behalf. Yerania’s aunt testified that Yerania and Juan were
very close, that she always saw Yerania and Juan together,
and that they seemed happy together. Yerania’s aunt also
testified that the two had arrived together at a family gather-
ing in November 2020. When asked about her observations
on that day, Yerania’s aunt recalled that she saw Yerania and
Juan sitting together and that “I saw the relationship that she
seemed happy. I was happy for her. I thought that she would
finally be happy with him.” Yerania’s aunt also testified that
on December 6, after the police had finished talking to Yerania
and Juan outside the store that morning, Yerania had returned
to collect her things and leave. At this time, Yerania told her
aunt that “she wasn’t able to leave her husband.” Yerania’s
aunt said that Juan approached them and that Yerania said,
“‘Don’t go away.’” She further said, “‘You need this job.’”
Juan responded, “‘You stay,’” and he said that he would go
instead. Juan asked if he could hug Yerania, and she agreed.
According to Yerania’s aunt, Yerania and Juan “hugged each
other very strongly and it was mutual,” while the aunt was in
the room with them.
Other coworkers testified that they never saw Juan act inap-
propriately toward Yerania and that they thought the two had
a “sentimental” relationship. They also testified that the two
had danced together, had hugged often, and usually ate lunch
together even on their days off. One coworker testified that in
early November, she arrived at the store to find Yerania and
Juan eating breakfast “really close together.” She also reported
that Yerania did not like when other female coworkers talked
to Juan, that Yerania gave Juan extra attention, and that she
would often arrive late for her scheduled shifts “because they
didn’t want me around.”
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749Juan testified that he and Yerania were “more than just
friends” and instead were “confidants”; he also testified that
they would often kiss, hug, and exchange gifts, including food,
socks, and flowers. Juan stated they would give each other a
hug and a kiss when they arrived at work each morning, and
he denied ever forcing Yerania to touch him or threatening
Yerania or her family. Juan admitted that although both he and
Yerania were married, the two had formed a close relationship
over the years after confiding in each other about their mar-
riage problems. Juan stated that “[a]t first it was more about
work and then afterwards, it became more personal and she
would talk to me about her husband and I would talk to her
about my wife.”
Juan also testified that on the morning of December 6, 2019,
when police arrived to question them outside the grocery store,
he believed Yerania was afraid of her husband. Juan testified
that “[s]he was fearful for the reaction of her husband, what he
was going to say, and I was also fearful because I don’t know
what he was going to do after finding out.”
In addition to this testimony at the show cause hearing, addi-
tional statements in exhibit 3 tend to support Juan’s version
of events. According to the Lincoln Police Department case
reports within exhibit 3, an “[Officer] Rakoczy” reported that
on the morning of December 6, 2019, Yerania’s husband called
to report that his wife was being sexually harassed. Officers
arrived at the grocery store to find Yerania’s husband behind
the building. Officers knocked on the back door of the store, at
which time Yerania and Juan came to the door. Officer Rakoczy
reported that “Yerania seemed afraid and [her husband] told
her to come outside and talk several times.” Officer Rakoczy
reported that when Yerania stepped outside, her husband held
her arm, “almost as if to prevent her from walking back inside,
and had to be told to let go of her and let her answer questions
for herself.”
Officers then removed Yerania from the scene so that she
could be questioned without her husband’s being present. They
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749went to a nearby residence belonging to Yerania’s cousin.
At this time, Yerania told police that “she did not want anyone
to get in trouble and did not want the police to get involved.”
Yerania “did not give much detail about the harassment” but
“was adamant that [Juan] not get in trouble.”
Officer Rakoczy spoke to Yerania’s cousin next, who said
that she believed Yerania was being emotionally or mentally
abused by her husband, which could explain “the fearful way
Yerania was acting.” Yerania’s cousin also said that Yerania’s
husband was very controlling of Yerania and that he often
would not let her talk and would answer questions for her.
Although Yerania’s cousin stated to police that she did not
know of any physical abuse, she also “would not be surprised”
if physical abuse was occurring. Yerania’s cousin’s statements
were not provided through direct testimony at the hearing;
rather, they were included in the police reports admitted into
evidence.
After the case was submitted, the district court, sua sponte,
filed Yerania’s petition under a new case number and entered
and issued a harassment protection order against Juan. In the
order, the court found that the facts alleged in the petition
gave it jurisdiction over the parties and the subject matter, and
concluded a harassment protection order was more appropriate
than a sexual assault protection order. The court made no spe-
cific findings, leaving blank the portion of the protection order
form which states that “[t]he court specifically finds as follows
. . . .” Juan appealed, and as noted, we removed the case to
our docket.
II. ASSIGNMENTS OF ERROR
Juan assigns that the district court erred in (1) violating his
due process rights by issuing a harassment protection order
against him and (2) finding Yerania had met her burden of
proof for the issuance of a harassment protection order.
Juan also assigns that this appeal should not be found moot
if the expiration of the protection order occurs prior to this
court’s decision on appeal.
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749III. STANDARD OF REVIEW
[1] A protection order is analogous to an injunction. 1
Accordingly, the grant or denial of a protection order is
reviewed de novo on the record. 2 In such a de novo review, an
appellate court reaches conclusions independent of the factual
findings of the trial court. 3
IV. ANALYSIS
In his first assignment of error, Juan assigns that the dis-
trict court erred in violating his due process rights by issuing
a harassment protection order against him. Specifically, Juan
asserts that he was not provided with sufficient notice and an
opportunity to be heard regarding the harassment protection
order, in violation of his procedural due process rights pro-
tected by the U.S. and Nebraska Constitutions. We agree.
1. Due Process and Protection Orders
[2,3] While the concept of due process defies precise defini-
tion, it embodies and requires fundamental fairness. 4 Generally,
procedural due process requires parties whose rights are to be
affected by a proceeding to be given timely notice, which is
reasonably calculated to inform the person concerning the sub-
ject and issues involved in the proceeding; a reasonable oppor-
tunity to refute or defend against a charge or accusation; a
reasonable opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required
by constitution or statute; and a hearing before an impartial
decisionmaker. 5
1
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
2
Id.3
Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d
841 (2018).
4
Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), disapproved on
other grounds, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933,
932 N.W.2d 692 (2019).
5
Id.- 757 -
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749[4] When it comes to protection orders, we have recognized
that because the intrusion on a respondent’s liberty interests
is relatively limited, the procedural due process afforded in
a protection order hearing is likewise limited. 6 But while the
procedures required in a protection order proceeding may not
reflect the full panoply of procedures common to civil trials,
we have held that due process does impose some basic require-
ments. 7 A brief explanation of prior opinions concerning pro-
tection orders and due process is helpful to understand the
due process rights afforded to the parties in protection order
proceedings.
In 2010, the Nebraska Court of Appeals considered a due
process claim regarding the entry of a harassment protection
order in Sherman v. Sherman. 8 Susan Sherman filed a peti-
tion and affidavit to obtain a domestic abuse protection order
against her ex-husband, Scott Sherman, under Neb. Rev. Stat.
§ 42-924 (Reissue 2008). The lower court issued an ex parte
order against Scott that same day. Scott requested a hearing.
At that hearing, Scott moved to dismiss the ex parte domes-
tic abuse protection order; in response, the court sua sponte
requested the bailiff to retrieve a harassment protection order
and stated that Susan “‘want[ed] to amend it to that.’” 9 The
court later entered a harassment protection order pursuant to
Neb. Rev. Stat. § 28-311.09 (Reissue 2008) against Scott for a
period of 1 year.
On appeal, the Court of Appeals found that Scott had not
properly preserved the due process issue for appellate review,
but noted that the lower court had indeed crossed the line into
advocacy because it had made the determination of which
theory to pursue, rather than allowing Susan to make that
choice herself. The court then laid out instructions for how a
6
See Mahmood v. Mahmud, supra note 1.
7
Id.8
Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010).
9
Id. at 344, 781 N.W.2d at 619.
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Cite as 310 Neb. 749court should act under these circumstances so that the rights of
both parties could be protected without the court’s acting as an
advocate for either side, stating:
In order to prevent crossing the line into advocacy for
a pro se litigant, when presented with a situation in which
an ex parte domestic abuse protection order has been
entered, but at the hearing, it becomes apparent that the
matter may more properly be considered as a harassment
protection order, the judge should explain the require-
ments for both domestic abuse and harassment protection
orders and allow the petitioner to choose which theory to
pursue. If the petitioner chooses to pursue the alternative
theory to the petition and affidavit filed, and the respond­
ent objects, the court should inquire if the respondent is
requesting a continuance, which should be granted, if so
requested, while leaving the ex parte protection order
temporarily in place. Following this procedure ensures
that a judge does not cross the line from judge to advo-
cate in assisting the pro se litigant while at the same time
protecting the rights of the opposing party. 10
In a later case, Linda N. v. William N., 11 this court consid-
ered a due process claim regarding a domestic abuse protection
order. The mother, Linda N., had requested a protection order
on behalf of her minor daughter, seeking protection against
the daughter’s father, William N. An ex parte domestic abuse
protection order was issued by the district court, and William
requested a show cause hearing on the ex parte order, which
was upheld by the district court after the show cause hearing.
William appealed, stating that the district court erred in con-
sidering his conduct “abuse” for purposes of Neb. Rev. Stat.
§ 42-903 (Cum. Supp. 2014). Linda cross-appealed, arguing
that a harassment protection order should be entered if the
evidence did not sustain the domestic abuse protection order
entered by the trial court.
10
Id. at 347-48, 781 N.W.2d at 620-21.
11
Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).
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YERANIA O. v. JUAN P.
Cite as 310 Neb. 749On appeal, this court held that William’s conduct did not
constitute abuse and reversed the decision of the district court.
In consideration of Linda’s cross-appeal, we stated that a
trial court has discretion, authority, and jurisdiction to issue
a harassment protection order, even though the petitioner had
filed a petition for a domestic abuse protection order, but the
legal theory supporting a domestic abuse protection order is
significantly different from the theory underlying a harass-
ment protection order. 12 Thus, it was improper for Linda to
attempt to induce this court to change legal theories at the
appellate level.
We went on to distinguish Sherman, stating that the proce-
dure it laid out which allowed for a change of legal theories
was proper in that it occurs before the trial court makes a final
decision, requires the petitioner to make an informed choice of
legal theory, and protects the due process rights of both parties
by trying the case only on the theory elected by the petitioner
and by offering a continuance if the petitioner does elect to
change his or her theory. 13 Such procedure, however, was inap-
plicable “where a petitioner, as informed by counsel, pursues a
domestic abuse theory and the potential application of a harass-
ment theory does not become ‘apparent’ to either the petitioner
or the trial court.” 14 Accordingly, Linda’s cross-appeal was
without merit.
Most recently, this court again considered due process as
it related to protection orders in a 2019 case, D.W. v. A.G. 15
In D.W., a woman petitioned the court for a sexual assault
protection order based on her allegations that the respond­
ent, A.G., had subjected her to sexual intercourse when she
was incapacitated. D.W. further alleged that A.G. had vio-
lated contact restrictions imposed by the university they both
12
Id.13
Id.14
Id. at 619, 856 N.W.2d at 446.
15
D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019).
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Cite as 310 Neb. 749attended, “‘interfering with [her] educational experience.’” 16
An ex parte sexual assault protection order was entered against
A.G., who then requested a show cause hearing on whether the
sexual assault protection order should remain in place.
After the close of evidence at the hearing, the trial court
stated that the sexual assault protection order would not remain
in effect, but that it would “enter a protection order.” 17 The
trial court subsequently dismissed the sexual assault protection
order and, after sua sponte filing D.W.’s petition and affidavit
under a new case number, entered a harassment protection
order in that case.
On appeal, we held that the respondent, A.G., was not pro-
vided with sufficient notice and an opportunity to be heard and
that the entry of the harassment protection order had violated
A.G.’s right to procedural due process. In our analysis, we
discussed and distinguished both Linda N. and Sherman. We
stated: “Inherent in both Linda N. and Sherman is a recogni-
tion that a respondent in a protection order proceeding must be
notified of the grounds upon which a protection order is sought
and provided with an opportunity to respond to those grounds
at the show cause hearing.” 18
In accordance with reasoning supplied by the Linda N. and
Sherman opinions, we found that A.G. was not provided with
sufficient notice and an opportunity to be heard regarding a
harassment protection order. The original petition, ex parte
order, and show cause hearing had all either alleged a sexual
assault or focused on whether the sexual assault protection
order entered against A.G. should remain in place. D.W. did
not request a harassment protection order or make allegations
sufficient to give notice that she sought such an order, and no
evidence could be identified at the show cause hearing that
tended to show A.G. harassed D.W.
16
Id. at 44, 926 N.W.2d at 654.
17
Id. at 43, 926 N.W.2d at 654.
18
Id. at 50, 926 N.W.2d at 657.
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Cite as 310 Neb. 749After again noting the issues of advocacy by the court, as
previously discussed in Sherman, this court explained that the
procedure had been insufficient where A.G. had “requested a
show cause hearing as to whether a sexual assault protection
order should remain in effect.” 19 It was not until after the close
of evidence that the trial court “brought up the harassment pro-
tection order on its own initiative.” 20 We found that by the time
A.G. was aware that the court was considering a harassment
protection order in place of a sexual assault protection order,
A.G. no longer had the opportunity to present a case that such
an order was not warranted.
Further, we discussed how the procedure followed by
the lower court was not meaningfully different from that of
Linda N., a procedure which we found to be inconsistent with
due process. We noted, again:
Whether a new theory for a protection order is asserted
for the first time on appeal or after the close of evidence
at the show cause hearing, the respondent does not have
an opportunity to defend against the entry of the protec-
tion order on the new theory and is denied procedural
due process. 21
Because the entry of a harassment protection order did not
comply with procedural due process, we reversed entry of
the harassment protection order and remanded the cause with
directions to vacate it. 22
2. Neb. Rev. Stat. § 28-311.11 (Supp. 2019)
After D.W. was decided, the Legislature amended Neb.
Rev. Stat. § 28-311.11 (Supp. 2019) on May 30, 2019, and
Yerania asserts that D.W. therefore does not control this case
as it was decided prior to these amendments. Conversely, Juan
19
Id. at 51, 926 N.W.2d at 658 (emphasis supplied).
20
Id.
21
Id. at 51-52, 926 N.W.2d at 658.
22
D.W. v. A.G., supra note 15.
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Cite as 310 Neb. 749argues that the amendments to § 28-311.11 “[do] not relieve a
trial court from giving the respondent notice that it is consid-
ering a harassment protection order . . . in lieu of the sexual
assault protection order and an opportunity to defend against
such new theory.” 23
We agree with Juan. Simply because the statute has been
amended does not mean that Juan’s rights were not violated
under the amended statute, and such amendment does not ren-
der our prior opinion inapplicable where the process utilized
was deficient for similar reasons.
(a) Insufficient Notice
In this case, the facts mirror those in D.W. 24 Yerania submit-
ted a petition and affidavit seeking a sexual assault protec-
tion order, which was granted ex parte by the district court.
The ex parte sexual assault protection order served upon Juan
informed him that “[i]f [he] wishes to appear and show cause
why this order should not remain in effect or be renewed for
a period of one year,” he could submit a request for hearing.
(Emphasis supplied.)
Included with the ex parte protection order was a form enti-
tled “Protection Order Information - Sexual Assault.” Under
the heading “Notice to Respondent,” this form stated:
If there has been an Ex Parte Protection Order served
upon you and you wish to request a hearing to show
cause why the order should not remain in effect, you must
request a hearing on the provided “Request for Hearing”
form . . . .
If there is a hearing scheduled [and] if you fail to
appear, a final order may be entered against you for the
relief requested in the petition.
(Emphasis supplied.) While the form elsewhere briefly men-
tioned that the court may on its own motion or at the request
23
Reply brief for appellant at 1.
24
See D.W. v. A.G., supra note 15.
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Cite as 310 Neb. 749of the petitioner treat a petition for a sexual assault protection
order as a request for a domestic abuse protection order or
harassment protection order, fulfilling the requirements of the
amended § 28-311.11, it did not make clear to Juan that such
action was applicable where an ex parte protection order had
already been entered against him. Instead, the forms served
upon Juan seemed to indicate that such action was applicable
only if the judge had set the petition for hearing to allow the
parties to present evidence prior to issuing an order. As a
result, this notice did not reasonably inform Juan of the subject
and issues involved in the proceeding.
(b) Insufficient Opportunity to Be Heard
Based on the language of the protection order with which
he was served, Juan requested a show cause hearing to “show
cause why this order should not remain in effect or be renewed
for a period of one year.” At the show cause hearing, testi-
mony and evidence of both parties addressed only whether a
sexual assault or sexual harassment had occurred. There was
no discussion regarding harassment or domestic abuse protec-
tion orders and no indication that an alternate order would be
entered; rather, the sole focus was whether the ex parte sexual
assault protection order should be continued based on the evi-
dence presented.
It was not until after the close of evidence that the trial
court sua sponte refiled the petition under a new case num-
ber and entered a harassment protection order. Much like the
respondent in D.W., 25 by the time Juan learned that a harass-
ment protection order was under consideration by the court, he
no longer had the opportunity to present a case that such an
order was not warranted. This deprived Juan of any meaning-
ful opportunity to defend himself or be heard on the issue of
harassment.
25
See id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
YERANIA O. v. JUAN P.
Cite as 310 Neb. 749(c) Fundamental Fairness and
Advocacy by Court
Yerania has suggested that the language of § 28-311.11
sufficiently made clear the court may issue a harassment pro-
tection order rather than a sexual assault protection order if
such is deemed appropriate based on the facts in the petition,
affidavit, and evidence presented at a show cause hearing and
that thus, Juan’s rights were not violated because he was given
a show cause hearing on the matter. But even if Juan had
himself understood that § 28-311.11, as amended, granted the
court authority to consider a different form of protection order
as the result of evidence provided at the show cause hearing,
after such hearing had concluded, and even when an ex parte
order had already been entered, his due process rights would
still have been violated.
[5] With its amendments, § 28-311.11(8) grants the court
authority to consider an alternative protection order, even after
the show cause hearing has concluded and without a request by
the petitioner, as long as it makes specific findings. To satisfy
the requirement of specific findings, the court must set forth
the reasoning for its order, explaining why its conclusion is
appropriate; specific findings cannot be satisfied by simply
quoting the statutory language. 26 Here, the district court did
not make specific findings: Within the harassment protection
order entered against Juan, it included a statement of general
findings, i.e., that it had jurisdiction of the parties and the sub-
ject matter and that “a Harassment Protection Order is more
appropriate,” but left blank the portion of the form in which
the court is apparently meant to enter its specific findings.
Such failure to make specific findings, on its own, is already
enough to warrant a reversal of the protection order entered
against Juan.
26
See, Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391(2015); Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877(2007).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
YERANIA O. v. JUAN P.
Cite as 310 Neb. 749However, even where trial courts have made such spe-
cific findings, they should be attentive to potential issues of
due process.
[6] First, we have previously stated that the legal theories
supporting either a sexual assault, domestic abuse, or harass-
ment protection order are significantly different from one
another and each require different offerings of proof. 27 For
example, a domestic abuse protection order requires proof of
abuse between family or household members. 28 A harassment
protection order requires proof that the petitioner was seriously
terrified, threatened, or intimidated, for no legitimate purpose,
as a result of a knowing and willful course of conduct by the
respondent. 29 And a sexual assault protection order requires
proof that the petitioner was subjected to sexual contact or
penetration by the respondent without consent. 30
Despite the different offerings of proof required to support
entry of any of these types of protection orders, the court, per
the amended statute, is allowed to sua sponte change theories
after the close of evidence and at a time when the defendant
is no longer able to respond or present a defense regarding
the newly selected theory, as long as it gives a good reason
on the record. 31 Accordingly, the only way that a respondent
in this situation could adequately prepare his or her defense is
to prepare to defend against all possible theories that may be
raised at a show cause hearing. To uphold our longstanding
principles of due process, which embody and require a funda-
mental fairness to all parties, 32 courts should ensure, prior to
27
See Linda N. v. William N., supra note 11.
28
See §§ 42-903(1) and 42-924 (Cum. Supp. 2020).
29
See Neb. Rev. Stat. §§ 28-311.02 (Reissue 2016) and 28-311.09(1) (Cum.
Supp. 2020).
30
See § 28-311.11(1) and (14) (Cum. Supp. 2020).
31
See § 28-311.11 (Supp. 2019).
32
D.W. v. A.G., supra note 15. Accord In re Interest of Spencer O., 277 Neb.
776, 765 N.W.2d 443 (2009).
- 766 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
YERANIA O. v. JUAN P.
Cite as 310 Neb. 749foreclosing a party’s opportunity to be heard, that the party has
been notified of the ultimate theory and has had a fair oppor-
tunity to address it.
[7,8] Courts should also be attentive to another fundamen-
tal principle of due process: a hearing before an impartial
decision­maker. 33 For this reason, we have repeatedly held that
a judge must be careful not to appear to act in the dual capacity
of judge and advocate. 34 A judge’s official conduct must be free
from even the appearance of impropriety, and a judge’s undue
interference in a trial may tend to prevent the proper presenta-
tion of the cause of action. 35
In Sherman, the Court of Appeals noted that the judge’s
actions had crossed the line into advocacy when it made the
determination of which theory to pursue. 36 To avoid advocacy,
the Sherman court suggested that the judge in such situation
should explain the requirements for the different types of pro-
tection orders and allow the petitioner to choose which theory
to pursue. In Linda N., we approved of Sherman’s suggested
procedure, noting that it “preserves the adversarial system” and
protects the rights of both parties by requiring a petitioner to
make an informed choice regarding the theory to be pursued
while also granting a continuance to the respondent if an alter-
nate theory is selected. 37
In Torres v. Morales, 38 we held that the trial court judge had
not acted as an advocate when it merely informed a party of
the legal consequences of a protection order but did not direct
the party’s decision. But in D.W., we noted that the court’s
decision to enter a harassment protection order in lieu of a
33
See Zahl v. Zahl, supra note 4.
34
Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014).
35
In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
36
Sherman v. Sherman, supra note 8.
37
Linda N. v. William N., supra note 11, 289 Neb. at 619, 856 N.W.2d at
446.
38
Torres v. Morales, supra note 34.
- 767 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
YERANIA O. v. JUAN P.
Cite as 310 Neb. 749sexual assault protection order “on its own initiative” raised
questions as to the source of the harassment protection order
theory, stating:
The trial court appears to have correctly sensed that
there was something standing in the way of its entering
a harassment protection order in the case filed by D.W.
We can discern no other reason why the trial court would
take the puzzling step of sua sponte refiling D.W.’s initial
petition under a new case number and then entering the
harassment protection order in that case. 39
There is a danger that by sua sponte selecting an alternate the-
ory and form of protection order by making specific findings,
but without a request by the petitioner, a court may erroneously
act as an advocate for the petitioner.
Simply put, the amendments made to § 28-311.11 in 2019
and since that time do not relieve courts of their duty to ensure
the due process described by this court in D.W. and Linda N.
and by the Court of Appeals in Sherman.
To avoid future due process violations, courts faced with
similar circumstances should continue to utilize the procedure
as laid out by Sherman: When presented with a situation in
which an ex parte protection order has been entered, but at the
hearing, it becomes apparent that the matter may more prop-
erly be considered as a different type of protection order than
the type previously entered ex parte, the judge should explain
the requirements for each type of protection order and allow
the petitioner to choose which theory to pursue. If the peti-
tioner chooses to pursue an alternative theory to the petition
and affidavit filed, and the respondent objects, the court should
inquire if the respondent is requesting a continuance, which
should be granted if so requested, while leaving the ex parte
protection order temporarily in place.
Here, Juan was not provided with sufficient notice inform-
ing him of the court’s authority to consider a harassment
39
D.W. v. A.G., supra note 15, 303 Neb. at 51, 52, 926 N.W.2d at 658.
- 768 -
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310 Nebraska Reports
YERANIA O. v. JUAN P.
Cite as 310 Neb. 749protection order in lieu of the ex parte sexual assault protec-
tion order previously entered against him. After such order
was under consideration by the court, Juan no longer had a
meaningful opportunity to respond to or be heard on the issue
of harassment.
Accordingly, we find that the procedure utilized in this case
deprived Juan of sufficient notice and an opportunity to be
heard in violation of his due process rights. For these reasons,
we reverse the decision of the district court and remand the
cause with directions to vacate the harassment protection order.
Having remanded the cause with directions to vacate the
order, we need not consider Juan’s other assignments of error.
V. CONCLUSION
Juan was not provided with sufficient notice informing him
of the court’s authority to consider a harassment protection
order in lieu of the ex parte sexual assault protection order
previously entered against him. By the time Juan was informed
that a harassment protection order was under consideration by
the court, he no longer had a meaningful opportunity to respond
to or be heard on the issue of harassment. The procedure uti-
lized against Juan did not afford him fundamental fairness, and
it additionally violated his right to an impartial decisionmaker.
For these reasons, we reverse the decision of the district court
and remand the cause with directions to vacate the harassment
protection order.
Reversed and remanded with directions.