Rachel C. on behalf of Clayton R. v. Amos R.
Citation32 Neb. Ct. App. 473
Date Filed2023-12-12
DocketA-23-285
Cited5 times
StatusPublished
Full Opinion (html_with_citations)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/19/2023 09:07 AM CST
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RACHEL C. ON BEHALF OF CLAYTON R. V. AMOS R.
Cite as 32 Neb. App. 473
Rachel C. on behalf of Clayton R.,
appellee, v. Amos R., appellant.
___ N.W.2d ___
Filed December 12, 2023. No. A-23-285.
1. Protection Orders: Injunction: Appeal and Error. A protection order
pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2022) is analogous to
an injunction; thus, the grant or denial of a protection order is reviewed
de novo on the record.
2. Protection Orders: Appeal and Error. In a de novo review of the
grant or denial of a domestic abuse protection order, an appellate court
reaches conclusions independent of the factual findings of the trial court.
3. ____: ____. In a de novo review of the grant or denial of a domestic
abuse protection order 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 wit-
nesses and accepted one version of the facts rather than another.
4. Appeal and Error. An appellate court will not consider an argument or
theory that is raised for the first time on appeal.
5. Protection Orders: Proof. At a show cause hearing in domestic abuse
protection order proceedings, the petitioner must establish by a pre-
ponderance of the evidence the truth of the facts supporting his or her
entitlement to relief; 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.
6. Protection Orders. In determining whether an ex parte protection
order should be affirmed, the occurrence of domestic abuse is a thresh-
old issue.
7. ____. Because the goal of protection orders is preventing future harm,
the court may consider factors pertinent to the likelihood of future harm,
including the remoteness, severity, nature, and frequency of past abuse;
past or pending credible threats of harm; the psychological impact of
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domestic abuse; the potential impact on the parent-child relationship;
and the nuances of household relationships.
8. ____. In domestic abuse protection order proceedings, different rem-
edies are required when there has been an isolated act of abuse that is
unlikely to recur, as compared to an egregious act of abuse preceded by
a pattern of abuse.
9. Protection Orders: Time: Appeal and Error. When the period between
the abuse and the filing of the petition for a protection order spans
months, appellate courts have found the past abuse to be remote; how-
ever, in some cases, even though the instances of abuse were remote in
time, protection orders have been affirmed pursuant to Neb. Rev. Stat.
§ 42-924 (Cum. Supp. 2022).
Appeal from the District Court for Buffalo County: John
P. Rademacher, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Nicholas R. Glasz, of Glasz Law, for appellant.
Mark T. Bestul, of Legal Aid of Nebraska, for appellee.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Amos R. appeals from the order of the district court for
Buffalo County, which affirmed the previously entered ex parte
protection order against Amos and in favor of Clayton R., the
child Amos shares with Rachel C. Originally, the ex parte order
was entered on behalf of Rachel, her daughter Merrick C., and
Clayton. After a show cause hearing, the court dismissed the
protection order as to Rachel and Merrick, but affirmed the ex
parte protection order for Clayton and ordered that it remain in
full force and effect for a period of 1 year from the date of its
original issuance.
On appeal, Amos claims that the trial court erred in con-
sidering the petition for a protection order filed by Rachel,
because it lacked particularity pursuant to Neb. Rev. Stat.
§ 42-924 (Cum. Supp. 2022). Amos further argues that the
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court erred by continuing the ex parte protection order as to
Clayton. Upon our de novo review, we find that the court erred
by not modifying the terms of the protection order to allow
telephone, videoconference, and supervised contact between
Amos and Clayton. We therefore reverse that portion of the
courtâs order and remand the cause with directions to modify
the protection order.
BACKGROUND
On February 27, 2023, Rachel was granted a 1-year ex parte
domestic abuse protection order against Amos for herself, her
daughter Merrick, and her son Clayton. In her petition and
affidavit seeking the order, Rachel stated that Amos had a
child abuse charge stemming from an incident that occurred
in October 2022. No description of the incident was made in
the petition, but photographs of Clayton were attached and ref-
erenced in the petition. The photographs demonstrate bruises
on Claytonâs body. In addition, Rachel listed seven incidents
that she claimed were the most recent and most severe acts of
domestic abuse perpetrated by Amos. These incidents included
allegations that Amos pressured Rachel into unwanted sexual
contact and intercourse, that Amos tracked Rachelâs loca-
tion without her permission, and that Amos made inappropri-
ate comments toward Merrick. Amos timely filed a request
for hearing, and a show cause hearing was held in March
2023. Amos and Rachel were the only witnesses to testify at
the hearing.
Amos and Rachel have never been married, but they have
known each other for roughly 11 years and have been roman-
tically involved in the past. Prior to these proceedings, the
couple lived together with Merrick and Clayton. At the time
of the hearing, Merrick was 12 years old and Clayton was
7 years old. Amos is Claytonâs biological father. According
to Amos, there are no custody or visitation orders in place
for Clayton, but Amos does pay Rachel child support pursu-
ant to an order of paternity. Merrick is not Amosâ biological
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(3) (Cum.
Supp. 2022).
While the criminal case was pending, there was a no contact
order in effect that prevented Amos from having contact with
either Merrick or Clayton. In December 2022, prior to entering
into the plea agreement, Amos requested that the no contact
order be vacated, and Rachel supported his request. The order
was vacated, and Amos reentered the family home. However,
as a condition of his bond, the county court in the criminal
case ordered that Amos could have contact with the children
only if Rachel was present. The county court further ordered
that Amos was not allowed to physically discipline the chil-
dren. Rachel admitted that after returning to the home, Amos
did not physically harm the children, but she testified that he
repeatedly instructed her to physically discipline them.
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Prior to being sentenced on his negligent child abuse convic-
tion, Amos completed an anger management class at the recom-
mendation of a friend. Amos also began individual counseling
in December 2022. He testified that neither of these activities
were court-ordered and that he started counseling because of
the incident with Clayton.
At Amosâ sentencing hearing, the county court in the crimi-
nal case was made aware of the ex parte domestic abuse pro-
tection order for Rachel, Merrick, and Clayton. Amos was sub-
sequently sentenced to 18 months of probation. His probation
order does not mention the ex parte order and does not limit his
contact with Clayton. Certified copies of Amosâ criminal case
records were submitted to the trial court in this case, but these
records do not include a factual description of the October
2022 incident.
Rachel also testified about an incident observed, at least in
part, by Clayton on January 30, 2023, approximately 3 weeks
prior to her filing her petition for a protection order. Rachel,
Amos, and the children were all home one evening, and Amos
was making popcorn in the kitchen. Rachel went to her bed-
room, and when she returned to the kitchen, popcorn and hot
oil were spilled on the floor. Rachel believed that Amos might
have thrown the popcorn onto the floor.
Amos testified that he did not purposefully throw the pop-
corn and hot oil onto the floor. He claimed that as he was
emptying the popcorn maker, the pot fell and hit the floor. He
further testified that he had experienced multiple stressors at
work and home that day and that he had hit his limit when the
pot fell. Following his counselorâs advice, he recognized that
he was upset and walked away from the mess until he calmed
down and felt reasonable enough to address it.
Rachelâs assessment of the situation left her feeling that
it was not safe for her and the children to spend the night
in the house with Amos. She testified that she was afraid of
âhim getting mad at us and him throwing things.â Amos and
Rachel began arguing about whether she and the children
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were leaving. Both children were present for this argument
and began to cry. Rachel testified that Amos told her that she
and the children were not leaving. She further testified that
Amos stood in front of the bedroom doorway, blocking her
exit, as they argued and that she felt threatened by his behav-
ior. As Amos and Rachel continued arguing, Merrick called
her maternal grandfather, who came and removed her and
Clayton from the home. Rachel stayed with Amos for another
hour or two before she left as well. She testified that Amos
was crying and only allowed her to leave once she agreed to
return the following day. Amos, however, testified that he did
not ask Rachel to promise to return.
Several other incidents involving unwanted sexual con-
tact and intercourse instigated by Amos were detailed in the
petition and Rachelâs testimony. These events occurred most
closely in time to the point at which Rachel filed her peti-
tion. Rachel stated that Merrick and Clayton are scared as a
result of her relationship with Amos and that they worry about
Amosâ being mad at them. She felt that if the protection order
was not continued, Amos would cause future harm to herself
and the children. On cross-examination, Rachel admitted that
days before she filed the petition, she had sent Amos intimate
photographs and text messages telling him she loved him.
However, she explained that she did these things â[t]o keep
[Amos] happy.â
At the conclusion of Rachelâs evidence, Amos moved to dis-
miss the ex parte protection order on the grounds that Rachel
failed to meet her burden of proof. The court sustained the
motion to dismiss as to Merrick, but overruled the motion as to
Rachel and Clayton. Amos then testified in his own behalf as
detailed above. At the conclusion of all the evidence, the mat-
ter was taken under advisement.
On April 4, 2023, the trial court entered an order dismissing
the protection order as to Rachel and Merrick, but continuing
the ex parte protection order for Clayton. After reviewing the
petition, Rachelâs testimony, and the text messages between
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Amos and Rachel, the court found that there were inconsisten-
cies regarding the allegations of nonconsensual sexual contact.
The court concluded that it was ânot persuaded [Amos] know-
ingly or intentionally caused [Rachel] bodily injury.â
In regard to Clayton, the court found that Amos intention-
ally and knowingly caused bodily injury to him, because
Rachel witnessed the event and Amos did not dispute the
abuse. The court explained that the reduction in Amosâ crimi-
nal charge did not mean that domestic abuse did not occur.
Additionally, the trial court stated, â[I]t is reasonable to
conclude that the criminal court may have found a no con-
tact condition of probation was unnecessary because of [its
knowledge of] the protection order.â The fact that no addi-
tional incidents of abuse of Clayton occurred since October
2022 was attributed to Amosâ bond conditions. The court also
found that the October 2022 abuse was âlikely psychologi-
cally harmful to Clayton.â The court concluded that there was
a reasonable likelihood of future harm to Clayton and that
a protection order was needed to prevent such future harm.
Amos appeals.
ASSIGNMENTS OF ERROR
Amos assigns, summarized and restated, that the trial court
erred in (1) considering Rachelâs petition and affidavit for a
protection order as it lacked particularity under § 42-924 and
(2) continuing the protection order as it relates to Clayton.
STANDARD OF REVIEW
[1-3] 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. Maria A. on behalf of
Leslie G. v. Oscar G., 301 Neb. 673,919 N.W.2d 841
(2018). In such de novo review, an appellate court reaches conclu- sions independent of the factual findings of the trial court.Id.
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
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ANALYSIS
Sufficiency of Petition
Amos first argues that the trial court erred in considering the
petition, because it lacked particularity under § 42-924(1)(c)
(Cum. Supp. 2023). Section 42-924(1)(c) (Cum. Supp. 2023)
requires that â[t]he petition for a protection order shall state
the events and dates or approximate dates of acts constitut-
ing the alleged domestic abuse, including the most recent
and most severe incident or incidents.â We note that although
Amos references § 42-924(1)(c) (Supp. 2023), that version was
not operative until after the April 2023 order being appealed.
However, the language of § 42-924(1)(c) (Supp. 2023) is iden-
tical to that of § 42-294(1)(b) (Cum. Supp. 2022), which is the
applicable version of the statute herein.
Rachel asserts that this assignment of error is akin to a Neb.
Ct. R. Pldg. § 6-1112(b)(6) motion to dismiss, such that Amos
is arguing Rachelâs pleading fails to state a claim upon which
relief can be granted. Rachel then counters that Amos failed to
raise this issue with the trial court and that therefore, it cannot
be considered by this court.
[4] Nebraska law states that an appellate court will not
consider an argument or theory that is raised for the first time
on appeal. Eletech, Inc. v. Conveyance Consulting Group,
308 Neb. 733,956 N.W.2d 692
(2021). After reviewing the
record, we find that Amosâ particularity argument was never
raised at trial. When the court asked whether Amos objected
to the introduction of the petition as an exhibit, Amosâ trial
counsel responded, â[f]or the purposes â not for the limited
purpose of this hearing and not for the truth of the matter
asserted.â The petition was received as an exhibit without
limitation. Amosâ current assignment of error and argument
are raised for the first time on appeal. Therefore, we will not
consider it.
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Sufficiency of Evidence
Amosâ second assignment of error is that the trial court erred
in continuing the ex parte protection order as to Clayton. The
Protection from Domestic Abuse Act, Neb. Rev. Stat. § 42-901
et seq. (Reissue 2016 & Cum. Supp. 2022), provides that a
victim of domestic abuse may file a petition and affidavit
for a protection order with the clerk of the district court. See
§ 42-924. See, also, Maria A. on behalf of Leslie G. v. Oscar
G., supra. Section 42-903(1) defines abuse as the occurrence
of one or more of the following acts between family or house-
hold members:
(a) Attempting to cause or intentionally and know-
ingly causing bodily injury with or without a dangerous
instrument;
(b) Placing, by means of credible threat, another person
in fear of bodily injury. . . ; or
(c) Engaging in sexual contact or sexual penetration
without consent as defined in section 28-318.
Family or household members include biological parents and
persons who have resided together in the past. § 42-903(3).
[5] Section 42-925(1) allows a domestic abuse protection
order to be issued ex parte under certain circumstances, but
such order is temporary and the respondent may request a
show cause hearing. At the show cause hearing, the petitioner
must establish by a preponderance of the evidence the truth of
the facts supporting their entitlement to relief. See, Amanda F.
v. Daniel K., 313 Neb. 573,984 N.W.2d 909
(2023); Maria A. on behalf of Leslie G. v. Oscar G.,301 Neb. 673
,919 N.W.2d 841
(2018). If the petitioner is successful, the burden shifts to the respondent to show cause as to why the protection order should not remain in effect. Amanda F. v. DanielK., supra.
[6-8] In determining whether an ex parte protection order
should be affirmed, the occurrence of domestic abuse is a
threshold issue. Maria A. on behalf of Leslie G. v. Oscar
G., supra. Further, the Nebraska Supreme Court has recog-
nized that
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in many, if not most, instances, a showing of abuse under
§ 42-903 is sufficient to merit the affirmation of an ex
parte protection order; but as we have explained, it is not
the only consideration in resolving the issue presented:
whether an ex parte protection order should remain in
effect to prevent future harm. We agree . . . that protecting
victims of domestic abuse is of the utmost importance,
but courts do not have license to assume future risk where
the record does not support such a finding.
Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. at 688,919 N.W.2d at 851
. Because the goal of protection orders is preventing future harm, the court may consider factors per- tinent to the likelihood of future harm, including the remote- ness, severity, nature, and frequency of past abuse; past or pending credible threats of harm; the psychological impact of domestic abuse; the potential impact on the parent-child rela- tionship; and the nuances of household relationships. Maria A. on behalf of Leslie G. v. Oscar G., supra. This court has speci- fied that different remedies are required when there has been an isolated act of abuse that is unlikely to recur, as compared to an egregious act of abuse preceded by a pattern of abuse. Sarah K. v. Jonathan K.,23 Neb. App. 471
,873 N.W.2d 428
(2015) (citing Coburn v. Coburn,342 Md. 244
,674 A.2d 951
(1996)).
Applying these principles to the present case, we first note
that Rachel did not appeal the courtâs decision to dismiss the
petition as to herself and Merrick. We, therefore, limit our
analysis to Clayton.
In her petition and in her trial testimony, Rachel discussed
the October 2022 incident where Amos had physical contact
with Clayton. She witnessed the contact and described it
as a beating. Amos did not contest that he was the cause of
Claytonâs bruises. Based on this event, the trial court found
that Rachel showed by a preponderance of the evidence that
Clayton was a victim of domestic abuse by Amos. The court
explained that while Amos was convicted of negligent child
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Cite as 32 Neb. App. 473abuse, not intentional child abuse, Rachelâs testimony and Amosâ failure to dispute the incident established the abuse as intentional. We agree that Rachel sustained her burden of proof to show Clayton was a victim of domestic abuse by Amos. While we acknowledge that Amos was actually convicted of negligent child abuse, his plea to that charge was pursuant to a plea agreement agreed to by the State. The only evidence of the actual events that precipitated the original charge presented at trial herein was that Amos beat Clayton in a manner suf- ficient to cause bruising. No rebuttal was given to this evi- dence. Thus, we give weight to the circumstances that the trial judge heard and observed the witnesses and accepted Rachelâs testimony. Because Rachel has met her burden, the burden now shifts to Amos to show cause why Claytonâs protection order should not remain in effect or, in other words, why future harm is unlikely in this case. To determine the likelihood of future harm, we review below several factors for future harm as dis- cussed in the pertinent case law. [9] We first address the remoteness of past abuse. When the period between the abuse and the filing of the petition for a protection order spans months, we have found the past abuse to be remote. See, e.g., Sarah K. v. JonathanK., supra
(past abuse was remote due to 12-week period between inci- dent and filing); Ditmars v. Ditmars,18 Neb. App. 568
,788 N.W.2d 817
(2010) (past abuses were remote due to 2-month and 7-month delay in filing). In some cases, even though the instances of abuse were remote in time, we have affirmed protection orders pursuant to § 42-924. See, e.g., Sarah K. v. JonathanK., supra
(affirming protection order despite remote-
ness because petitioner delayed filing until criminal caseâs no
contact order expired).
Here, Rachelâs petition was filed on February 24, 2023,
exactly 4 months after the abuse of Clayton occurred on
October 24, 2022. While there was originally a no contact
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order preventing Amos from having contact with Clayton, that
order was vacated on December 15, with Rachelâs support.
Therefore, at the time the petition was filed, the past abuse was
somewhat remote.
However, we do not end our inquiry here. We must con-
sider more recent events that may have given Clayton cause
to believe he was in danger. The only other event noted in
the testimony that clearly was observed by Clayton involved
the aftermath of the popcorn spilled by Amos on January 30,
2023. We note that Rachel did not testify whether Clayton
was present during any of the occasions where she stated
that Amos instructed her to physically discipline a child.
However, according to Rachel, Clayton did observe the argu-
ment between Amos and her when she wanted to remove the
children from his presence out of fear of what Amos might
do while angry. According to Rachel, this caused Clayton
to cry prior to being removed from the family home by
his grandfather.
There was also evidence that Amos had experienced issues
with anger management and had voluntarily taken a course
and sought counseling to help him better manage stressful
situations. Amos testified that he sought to follow his coun-
selorâs advice by withdrawing from the scene of the spill and
calming down before he dealt with the issue at hand. This
event happened approximately 3 weeks prior to Rachelâs fil-
ing her petition for a protection order. While we would hesi-
tate to find this event to be characterized as abusive toward
Clayton, it did include an exhibition of anger on Amosâ part
that could have made Clayton fearful. Nonetheless, Rachel
returned home with the children at some point thereafter
because she detailed four events specifically related to her
interactions with Amos that occurred in February 2023. The
trial court eventually found those events not to be sufficient
to justify the continuation of the protection order in favor of
Rachel and Merrick.
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The trial court did note that the bond conditions requiring
that Rachel be present any time Amos was around the children
were still in effect at the time the protection order was sought
and initially entered. Five days after the protection order was
received, the bond conditions ended because Amos was at that
time sentenced. The probation order did not prohibit contact
between Amos and Clayton.
In conclusion, the past actual abuse toward Clayton is
remote. However, other factors, such as Amosâ continued strug-
gles with anger control during a period of restricted contact
with Clayton, are still present. These factors tend to negate a
finding that the risk of future harm is minimal based on the
remoteness of the past abuse.
Next, we consider the physical nature of the past abuse.
Rachel testified that the October event was a beating inflicted
by Amos, and as a result of the abuse, Clayton was bruised
on his arm and leg. She submitted photographs of the bruises
to the trial court, but our review of these photographs is
hampered by the poor image quality contained therein. Amos
ultimately entered into a plea agreement wherein he was con-
victed of negligently abusing Clayton, but not causing serious
bodily injury. The October 2022 incident was the only actual
event of abuse toward Clayton proved by a preponderance of
the evidence.
Rachel also testified to the January 2023 popcorn incident
and the ensuing argument that caused Clayton to cry. While
this incident was upsetting to Clayton and possibly placed him
in fear of Amos, it included no physical abuse. There was no
attempt to cause bodily injury and no verbal threat of impos-
ing bodily injury. There is some evidence that prior to the
October 2022 incident, Amos may have imposed physical dis-
cipline on Clayton, because according to Rachel, he instructed
her to physically discipline the children once he was allowed
back into the home.
The trial court attributed the lack of additional incidents
of abuse to Amosâ bond conditions. We note that abiding by
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bond conditions is a choice that some defendants make, and
others do not. Amosâ choosing to follow his bond conditions
can be seen as a positive aspect of his case. However, we must
recognize that the evidence indicated that when Amos was not
constrained by court order, physical discipline and, at least on
one occasion, physical abuse, was utilized by Amos.
The next question to consider is whether, based on the
evidence adduced, there remains a credible threat of harm.
The Supreme Court has found that the term âcredible threatâ
in § 42-903 means that the evidence at trial must include
some threat of intentional physical injury or any other physi-
cal threat. Linda N. v. William N., 289 Neb. 607,856 N.W.2d 436
(2014). Here, the record is devoid of any pending cred-
ible threats of harm made by Amos toward Clayton. While
Amos does appear to have an ongoing anger control issue,
the evidence shows that he has taken steps to better himself
and prevent future harm to Clayton, such as attending coun-
seling and completing an anger management class. There is
little evidence to suggest that Amos wants to harm Clayton.
The evidence is less clear as to whether Amos would respond
appropriately if his anger was aroused, particularly if the trig-
ger for that anger involved misbehavior by Clayton.
Rachelâs petition does not contain any allegations that
Clayton has suffered a psychological impact as a result of
Amosâ domestic abuse. At trial, Rachel testified that Clayton
is scared as a result of her relationship with Amos and that
he worries if Amos is mad at him. The trial court ultimately
found that the physical abuse Clayton suffered was likely
psychologically harmful to him. We recognize that Rachelâs
testimony is concerning. To the degree that it indicates Clayton
may fear his father, we agree that it could be harmful. But our
record regarding the overall nature of the father-son relation-
ship herein is not well developed. And we note that within 2
months of the October 2022 incident and within a few days
of the January 2023 incident, Rachel and the children were
reunited in the family home with Amos. Given the lack of
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other evidence provided regarding Claytonâs psychological sta-
tus, it is difficult to determine whether contact between Amos
and Clayton would be likely to have a detrimental psychologi-
cal impact.
As it stands, the protection order prohibits Amos from con-
tacting or communicating with Clayton for a period of 1 year
from the date the ex parte order was issued. A year without
communication between Amos and Clayton would negatively
impact their relationship, as it would any parent-child relation-
ship. While the prior abuse is cause for concern, we question
whether an absolute deprivation of contact between father and
son is called forâparticularly where Amos has demonstrated
an ability to abide by his bond conditions for an extended
period of time. After Amos reentered the home, there is no
evidence that he had contact with the children outside the
presence of Rachel or that he imposed any type of physical
discipline. Consequently, the question becomes not simply
whether or not Amos should be allowed contact with Clayton,
but what level of contact is appropriate.
Prior to these proceedings, Amos and Rachel had a romantic
relationship and functioned as a parental unit for both Merrick
and Clayton. The couple and the two children lived together
in a family home, and Rachel testified that Merrick was like
Amosâ stepdaughter. During his testimony, Amos even referred
to Merrick as âour daughter.â However, by the time Rachel
sought the protection order, her relationship with Amos had
clearly broken down.
The record does not comment on how the children have
reacted to this shift in family dynamics or Amosâ absence
from the home. However, we note that the trial courtâs order
presents an awkward situation for the family unit, as Amos
can have contact with Rachel and Merrick, but he cannot con-
tact Clayton. We question whether the court needed to abso-
lutely prohibit Amos from having any contact with Clayton.
Condition 3 of the protection order provides as follows:
âRespondent is enjoined and prohibited from telephoning,
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RACHEL C. ON BEHALF OF CLAYTON R. V. AMOS R.
Cite as 32 Neb. App. 473contacting, or otherwise communicating with the petitioner(s), except . . . .â But the ex parte protection order provided no exceptions. The courtâs order affirming the ex parte protection order as to only Clayton also provided for no exceptions. While we agree that, though a close call, the record does support the continuation of the protection order as to Clayton, the evidence does not support continuing a protection order that absolutely prohibits all contact between father and son. The evidence demonstrates that Amos is willing to comply with orders that limit his contact with his children. Therefore, we find it hard to fathom how telephone, videoconference, or supervised contact between Amos and Clayton would pose a risk of harm to Clayton, particularly given that condition 2 of the protection order prohibits Amos from threatening, assault- ing, molesting, attacking, or otherwise disturbing the peace of Clayton. Therefore, we find that rather than simply affirming the ex parte order, the court should have provided for a means of contact between Amos and Clayton that would minimize any potential for future harm while still allowing some level of relationship to exist. As such, we reverse the finding of the trial court only to the extent of directing the court to deter- mine conditions under which Amos could have contact with Clayton by telephone, by videoconference, or in an in-person supervised setting. In sum, our analysis of factors involving the potential of future harm do support the continuation of a protection order in favor of Clayton. They do not, however, support an abso- lute prohibition of contact between Amos and Clayton. As the Supreme Court has stated, â[C]ourts do not have license to assume future risk [of harm] where the record does not support such a finding.â Maria A. on behalf of Leslie G. v. Oscar G.,301 Neb. 673, 688
,919 N.W.2d 841, 851
(2018). In keeping with Sarah K. v. Jonathan K.,23 Neb. App. 471
,873 N.W.2d 428
(2015), a different remedy is required in these
types of cases as compared to the cases with an egregious
act of abuse preceded by a pattern of abuse. Thus, we find
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Cite as 32 Neb. App. 473
that Amos has met his burden of proof in part and that it was
improper to continue the ex parte protection order as origi-
nally written as it relates to Clayton. Therefore, we remand
the cause to the trial court with directions to modify the terms
of the protection order to allow telephone, videoconference,
and supervised contact between Amos and Clayton.
CONCLUSION
Following our de novo review, we affirm the trial courtâs
conclusion that the ex parte protection order should remain
in effect in favor of Clayton and against Amos. However, we
also conclude that the trial court erred by not modifying the
terms of the protection order to allow telephone, videoconfer-
ence, and supervised contact between Amos and Clayton. We,
therefore, reverse that portion of the judgment and remand
the cause with directions to modify the terms of the pro-
tection order with respect to allowable contact as it relates
to Clayton.
Affirmed in part, and in part reversed
and remanded with directions.