Yerania O. v. Juan P.

310 Neb. 749

969 N.W.2d 121

YERANIA O., appellant,

v.JUAN P., appellee.

No. S-21-441.

Supreme Court of Nebraska.

Filed January 21, 2022

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 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."

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 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."

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 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...