Robert M. ex rel. Bella O. v. Danielle O.

303 Neb. 268

928 N.W.2d 407

ROBERT M. ON BEHALF OF BELLA O., a minor child, appellee,

v.DANIELLE O., appellant.

No. S-18-818.

Supreme Court of Nebraska.

Filed May 31, 2019

Darren J. Pekny, Omaha, and Annie E. Mathews, of Johnson & Pekny, L.L.C., for appellant.

No appearance for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.Danielle O. appeals a domestic abuse protection order obtained by Robert M. on behalf of their daughter, Bella O. Danielle physically attacked two other family members while Bella was present, but did not attack Bella. The trial court determined Danielle’s conduct put Bella in fear of bodily injury by means of a credible threat and thus constituted domestic abuse as defined by Neb. Rev. Stat. § 42-903(1)(b) (Cum. Supp. 2018). Although our reasoning differs somewhat from that of the trial court, we nonetheless affirm.

BACKGROUND

Robert and Danielle are the parents of Bella, born in 2007. Robert and Danielle never married. In 2013, a North Dakota court issued an order setting forth Robert’s and Danielle’s rights and responsibilities concerning Bella. The court granted the parties joint "decision-making responsibilit[ies]" but gave Robert "primary residential responsibility," subject to Danielle’s unsupervised parenting time, with the caveat that such parenting time would be supervised if Danielle "has a relapse with regard to alcohol abuse." At the time of these proceedings, Robert lived in Nebraska and Danielle lived in Minnesota. This case arises from an incident that occurred in Minnesota on July 9, 2018, at a duplex Danielle’s mother, Nancy O., shared with Danielle’s brother, Neill O.

Petition and Ex Parte Domestic Abuse Protection Order.

On July 10, 2018, Robert filed a petition and affidavit to obtain a domestic abuse protection order for Bella against Danielle under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018). The affidavit alleged that on July 9, Danielle and Bella left the duplex to go to a store but were absent from approximately 6 p.m. to 12 a.m. Nancy was unable to reach Danielle or Bella during that time, even though Bella had a cell phone when she left. Nancy told Robert that Danielle took Bella’s cell phone away after Nancy attempted to call and text several times and that Danielle refused to tell Nancy where they were. According to Robert’s affidavit, Danielle had only supervised visitation rights and was not permitted to take Bella anywhere without supervision due to Danielle’s extensive drug and alcohol abuse and criminal history.

Robert’s affidavit stated that Danielle returned to the duplex with Bella when Nancy threatened to call the police. Once there, Danielle assaulted Neill and Nancy in Bella’s presence, inflicting multiple injuries on Neill’s face and body. Danielle also kicked in a door, breaking it off the frame. Bella called Robert and told him she was scared for her safety and for Nancy’s safety and that police were on their way. Danielle was arrested for domestic abuse. According to the affidavit, Bella reported to Robert that Danielle "was believed to be" under the influence of drugs and/or alcohol. Robert expressed fear that Danielle would take Bella and not return her.

The matter was assigned to a county court judge, pursuant to § 42-924(2) and Neb. Rev. Stat. § 25-2740(2) (Cum. Supp. 2018). The trial court issued an ex parte domestic abuse protection order on July 10, 2018, generally enjoining Danielle from in-person contact with Bella and from threatening, restraining, or assaulting her.

Show Cause Hearing.

Danielle requested a hearing to show cause why the protection order should not remain in effect. See Neb. Rev. Stat. § 42-925 (Cum. Supp. 2018). At the show cause hearing, Robert appeared without counsel and the trial court received his petition and affidavit, summarized above.

Danielle also appeared at the show cause hearing and was represented by counsel. She offered a police report concerning the incident. According to the report, when police arrived, Bella was running out of the house with Nancy behind. They observed Bella holding onto Nancy, crying, and screaming, " ‘[S]he is hurting my uncle,’ " multiple times. Nancy told police that Danielle was inside, damaging things and fighting Neill. In the duplex, police observed an overturned coffee table and Danielle and Neill engaged in a struggle.

Neill reported to police that Danielle had picked Bella up to go shopping at about 6 p.m. Nancy called multiple times, and Danielle repeatedly said they were 45 minutes away. When Danielle and Bella finally returned several hours later, Bella ran inside the duplex to Nancy. Neill confronted Danielle and attempted to block her access to the duplex. A physical struggle ensued, during which Danielle punched and scratched Neill while he tried to get her out of the residence. Neill estimated that the struggle lasted 20 minutes.

Neill said that at some point, Danielle broke open a door and moved upstairs to where Nancy and Bella were. Neill said that Danielle then "swung on" Nancy and was trying to talk to Bella, but Bella was telling her to leave. Neill told police that Danielle was never abusive toward Bella, but also that Bella was "scared" and that Neill instructed Bella to go downstairs. Neill said that after Bella went downstairs, Danielle followed her and began to throw and damage things. Neill again attempted to restrain Danielle, and police arrived shortly thereafter. They observed scratch marks on Neill’s left elbow, red marks below his left eye, a small swollen lump above his right eyebrow, and redness around his neck and ear.

Nancy told the police that Neill tried to get Danielle to leave because Bella was crying. Nancy stated that when she observed Neill struggling with Danielle, who was "swinging, and scratching at Neill’s face," she locked a door leading to the upstairs. Danielle then kicked in that door, breaking the doorframe, and went to Bella’s room. Nancy reported that Bella told Danielle to leave and that Danielle went downstairs, started a fight with Neill again, and threw some things. Nancy then called the police, and she and Bella ran outside.

Bella told police that prior to the incident at the duplex, she and Danielle went to a store, but then went to other places that Bella did not expect to go. Bella said that when they returned to the duplex, Danielle "got ‘really weird’ " and began hitting Neill and hitting and kicking Nancy. Bella said she asked Danielle to leave, because Danielle was "scaring her."

According to the police report, Danielle refused to give a statement to police and was arrested for misdemeanor domestic assault. Police noted that Danielle stated her fingers or knuckles were hurt.

Danielle also testified regarding the incident. She stated that on July 9, 2018, she was exercising her court-ordered parenting time with Bella. Danielle testified that when Bella asked to return to the duplex, Danielle took her there. According to Danielle, Bella had access to Danielle’s cell phone when she was with Danielle and Danielle gave Bella the cell phone whenever she asked for it.

Danielle provided relatively little testimony about the physical confrontation at the duplex. She did not take issue with the description of the incident in the police report she offered into evidence, and she specifically agreed with the statement in the report attributed to Neill that Danielle was never abusive toward Bella. She also testified that she did not make any threats toward Bella and presented evidence that she was not under the influence of drugs or alcohol at the time of the incident.

Trial Court’s Ruling.

At the conclusion of the evidence, the trial court ruled that the protection order would remain in place. In explaining its ruling on the record, the trial court referenced the evidence that Danielle attacked Neill and Nancy and threw objects in Bella’s presence and that Bella was scared. It concluded that because Danielle’s behavior showed a "pattern of conduct to suggest a credible threat," the protection order should remain in place. The trial court subsequently entered a written order affirming the ex parte domestic abuse protection order.

Danielle appeals.

ASSIGNMENT OF ERROR

Danielle assigns that the trial court erred in finding that her actions constituted abuse within the meaning of § 42-903.

STANDARD OF REVIEW

A protection order pursuant to § 42-924 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. Maria A. on behalf of Leslie G. v. Oscar G. , 301 Neb. 673, 919 N.W.2d 841 (2018).

ANALYSIS

Statutory Background.

Before proceeding to Danielle’s arguments, we briefly review the law governing domestic abuse protection orders. Under the Protection from Domestic Abuse Act (the Act), Neb. Rev. Stat. § 42-901 et seq. (Reissue 2016 & Cum. Supp. 2018), "[a]ny victim of domestic abuse" may seek a domestic abuse protection order. § 42-924. Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by § 42-903, a protection order may not remain in effect. § 42-924. See Maria A. on behalf of Leslie G., supra . See, also, Linda N. on behalf of Rebecca N. v. William N. , 289 Neb. 607, 856 N.W.2d 436 (2014).

For purposes of the Act, "[a]buse" is defined by § 42-903(1) as the occurrence of one or more of the following acts "between family or household members":

(a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;

(b) Placing, by means of

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