Maria A. on behalf of Leslie G., appellant.
Oscar G., Appellee.
Protection Orders: Injunction: Appeal and Error. A protection
order pursuant to Neb. Rev. Stat. § 42-924 (Reissue
2016) is analogous to an injunction. Thus, the grant or
denial of a protection order is reviewed de novo on the
record. In such de novo review, an appellate court reaches
conclusions independent of the factual findings of the trial
court. However, where the credible evidence is in conflict on
a material issue of fact, the appellate court considers and
may give weight to the circumstances that the trial judge
heard and observed the witnesses and accepted one version of
the facts rather than another.
Protection Orders. Whether domestic abuse occurred is a
threshold issue in determining whether an ex parte protection
order should be affirmed; absent abuse as defined by Neb.
Rev. Stat. § 42-903 (Reissue 2016), a protection order
may not remain in effect.
.In considering whether to continue an ex parte domestic
abuse protection order following a finding that domestic
abuse has occurred, a court is not limited to considering
only whether the ex parte order was proper, but may also
consider a number of factors pertinent to the likelihood of
Injunction: Proof. A party seeking an injunction must
establish by a preponderance of the evidence every
controverted fact necessary to entitle the claimant to
Protection Orders: Proof. The petitioner at a show cause
hearing following an ex parte order has the burden to prove
by a preponderance of the evidence the truth of the facts
supporting a protection order. Once that burden is met, the
burden shifts to the respondent to show cause as to why the
protection order should not remain in effect.
from the District Court for Saline County: Vicky L. Johnson,
Neb. 674] Sara K. Houston, of Nebraska Coalition, for
A. Monzon and David V. Chipman, of Monz6n, Guerra &
Associates, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Hall, District Judge.
behalf of her minor daughter, Leslie G., Maria A. appeals the
order of the district court for Saline County that rescinded
an ex parte domestic abuse protection order against
Leslie's father, Oscar G. Upon our de novo review of the
specific facts of this case, we cannot say that the district
court, which heard and observed the witnesses as the trier of
fact, erred in finding that the evidence as a whole was
sufficient to show cause why the protection order should not
remain in effect. We affirm.
and Oscar are the biological parents of two minor children
involved in this case, Emily G. and Leslie. Maria and Oscar
are not married and do not reside in the same household.
Maria has "[f]ull [c]ustody" of Emily and Leslie,
with Oscar exercising regular parenting time every other
weekend. This appeal arises from an incident that occurred at
Oscar's residence on June 4, 2017, during his parenting
time with Leslie, then age 10, and Emily, then age 12. It is
undisputed that on that date, Oscar hit Leslie several times
on the leg with his open hand.
3, 2017, Maria filed a petition and affidavit on Leslie's
behalf to obtain a domestic abuse protection order against
Oscar pursuant to Neb. Rev. Stat. § 42-924 (Reissue
2016). The standardized form alleged that Maria was "in
fear of domestic abuse" on behalf of Leslie. Maria's
petition and affidavit also provided facts to support her
request for a protection order. According to Maria, on June
4, Emily called [301 Neb. 675] her and informed her that
Oscar had hit Leslie because Leslie was involved in breaking
her stepbrother's electronic tablet. Maria reported that
Oscar was angry and that Leslie had run into her room and
locked the door to avoid being hit by Oscar. Maria stated
that Oscar then broke the door with his foot and hit Leslie
with his hand. Emily, who was in the room at the time, shared
a video of the incident with Maria and asked her not to show
anyone. Upon viewing the video, Maria said she was
"shocked" by Oscar's violent actions toward
Leslie. Maria reported that she feared Oscar would hit her
daughters in the future with more violence or become angry
that Emily had shown her the video. As a result, Maria
immediately reported the incident to law enforcement. The
record shows that Oscar was arrested and charged with child
abuse pursuant to Neb. Rev. Stat. § 28-707 (Reissue
2016), but our record does not contain the disposition of
same day that Maria filed her petition and affidavit, the
district court found that Maria had stated facts showing that
Oscar had committed abuse as defined in Neb. Rev. Stat.
§ 42-903 (Reissue 2016) and that there was immediate
danger of abuse before the matter could be heard on notice.
Therefore, the district court entered an ex parte domestic
abuse protection order, barring Oscar from any contact with
Leslie. Oscar requested a hearing on the matter pursuant to
Neb. Rev. Stat. § 42-925 (Reissue 2016) to show cause
why the protection order should not remain in effect.
show cause hearing, the district court received Maria's
petition and affidavit. Oscar's counsel called Maria to
testify, and she confirmed the allegations. Maria further
confirmed that minor children, other than Emily and Leslie,
remained in Oscar's home. The district court also
received the 9-second video recorded by Emily and referenced
in the petition and affidavit. It shows Oscar breaking
through the door, lunging at Leslie, and striking her five
times with an open hand while Leslie is on a bed on her side
with her legs drawn up. Emily and Leslie can be heard
screaming, and Oscar can [301 Neb. 676] be heard yelling in a
language that is not English and striking Leslie. During the
encounter, Leslie's facial expression is not discernible.
Maria testified that Emily and Leslie were in the courthouse,
the district court advised the parties that they could be
called as witnesses. Oscar called Emily to testify. Emily
testified, questioned only by the district court in chambers
and with counsel present, but outside the presence of the
parents. She stated that after Leslie broke the electronic
tablet, Leslie ran to the bedroom they shared and locked the
door. Emily testified that Oscar screamed at Leslie to open
the door and that Leslie refused. Emily testified that she
could not recall whether Oscar threatened to hit someone at
that point, but in an earlier interview at the Child Advocacy
Center in Lincoln, Nebraska (CAC), summarized by the
sheriff's report offered by Oscar and received into
evidence along with the probable cause affidavit for
Oscar's arrest, both Emily and Leslie stated that when
Oscar was outside the door, he threatened to hit Leslie.
According to Leslie, Oscar yelled, '"Open the door,
then I am going to hit you.'" Emily reported that
Oscar threatened to hit Leslie if she did not open the door.
hearing, Emily testified that Oscar next broke the door,
entered the room, and hit Leslie on the leg. Emily stated
that after she told Oscar to stop, he left the room and went
to the kitchen to prepare food for the family. Sometime after
Oscar left the room, Emily text messaged Maria and asked her
to pick up her and Leslie because Emily did not want to be
testified that on the day of the incident, she
"wasn't really afraid" of Oscar, but that she
was afraid for Leslie because she thought that Leslie
"would have gotten more in trouble." Emily
explained that by "more in trouble" she meant that
Leslie "could get grounded or get her stuff taken
away." She testified that she was not afraid of Oscar on
the day of the hearing. The district court had the following
exchange with Emily at the end of her testimony:
[301 Neb. 677] [Court:] ... I can see you're kind of
upset. Can you tell me why you're upset? Just take a big
breath. Okay? All right. Can you tell me why you're
[Emily:] Because I miss my dad and my brothers.
Q. Okay. I understand that. Do you think you would be safe
with your dad?
A. ([Emily] nodded affirmatively)
Q. She is nodding her head yes. Was that a yes?
did not testify. However, the parties stipulated that if she
had, she would have testified that "she was afraid [on]
the day of [the incident], but she has also said that she is
not afraid of her dad at this time." Additionally, the
parties stipulated that Leslie's testimony as to the
facts of the incident would have been "substantially
similar" to Emily's testimony. In her interview with
the CAC, Leslie reported that when Oscar asked her who had
broken the electronic tablet and referred to her calling
Oscar '"[s]tupid'" during a family outing
to a lake the night before, she ran to her room because she
was scared of being in trouble.
probable cause affidavit stated that Leslie had no
"marks or bruises of any kind." However, in her
interview at the CAC the next day, Leslie reported "a
little mark on her leg." Leslie also stated during that
interview that Oscar had hit her in the past, but that she
could not recall the circumstances. Emily stated during her
CAC interview that Oscar had not previously used hitting as a
consequence, but, rather, '"grounds'" them
or takes items away.
to the probable cause affidavit, on the day of the incident,
Oscar admitted to law enforcement that he had hit Leslie
because, in addition to breaking the electronic tablet, she
had called him '"[s]tupid'" the night
before. He further reported that the door to the bedroom was
previously broken before ...