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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

YERANIA O. v. JUAN P.

Cite as 310 Neb. 749

Yerania 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 reasonable 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 significantly different from one another, and each require different offerings 

of proof.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/11/2022 08:07 AM CST
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7. 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 mornings 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 protection 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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Cite as 310 Neb. 749

more 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 directions 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 petition 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 hearing 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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YERANIA O. v. JUAN P.

Cite as 310 Neb. 749

Yerania 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 harassment. 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 contacting 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. 749

there was no probable cause to arrest Juan and the investigations 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 gathering 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 inappropriately 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. 749

Juan 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 marriage 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, additional 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. 749

went 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 specific 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. 749

III. 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 district 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 protected 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 definition, 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 subject and issues involved in the proceeding; a reasonable 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. 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.
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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 requirements. 7 A brief explanation of prior opinions concerning protection 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 petition 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 domestic 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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court 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 requirements 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 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. Following this procedure ensures 

that a judge does not cross the line from judge to advocate 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 considered 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 considering 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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On 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 harassment 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 procedure 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 inapplicable “where a petitioner, as informed by counsel, pursues a 

domestic abuse theory and the potential application of a harassment 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 respondent, A.G., had subjected her to sexual intercourse when she 

was incapacitated. D.W. further alleged that A.G. had violated 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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attended, “‘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 provided 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 recognition 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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After 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 protection 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 protection 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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argues that the amendments to § 28-311.11 “[do] not relieve a 

trial court from giving the respondent notice that it is considering 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 render 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 submitted a petition and affidavit seeking a sexual assault protection 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 entitled “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 mentioned 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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of 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, testimony 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 protection 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 evidence presented.

It was not until after the close of evidence that the trial 

court sua sponte refiled the petition under a new case number and entered a harassment protection order. Much like the 

respondent in D.W.,

 25 by the time Juan learned that a harassment 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 meaningful opportunity to defend himself or be heard on the issue of 

harassment.

25 See id.
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(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 protection 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 subject 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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However, even where trial courts have made such specific 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 harassment 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 fundamental 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).
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foreclosing a party’s opportunity to be heard, that the party has 

been notified of the ultimate theory and has had a fair opportunity to address it.

[7,8] Courts should also be attentive to another fundamental 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 presentation 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 protection 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 alternate 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.
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sexual 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 theory 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 properly 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 petitioner 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 informing 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.
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protection order in lieu of the ex parte sexual assault protection 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 utilized 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.