Yerania O. v. Juan P. , 310 Neb. 749 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    02/25/2022 09:07 AM CST
    - 749 -
    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 reason-
    able 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 signifi-
    cantly different from one another, and each require different offerings
    of proof.
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    YERANIA O. v. JUAN P.
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    310 Neb. 749
    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 morn-
    ings 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 pro-
    tection 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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    YERANIA O. v. JUAN P.
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    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 direc-
    tions 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 peti-
    tion 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 hear-
    ing 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.
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    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 harass-
    ment. 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 con-
    tacting 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.
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    310 Neb. 749
    there was no probable cause to arrest Juan and the investiga-
    tions 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 gather-
    ing 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 inap-
    propriately 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.
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    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 mar-
    riage 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, addi-
    tional 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 spe-
    cific 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.
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    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 dis-
    trict 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 pro-
    tected 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 defini-
    tion, 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 sub-
    ject and issues involved in the proceeding; a reasonable oppor-
    tunity 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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    [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 require-
    ments. 7 A brief explanation of prior opinions concerning pro-
    tection 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 peti-
    tion 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 domes-
    tic 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 require-
    ments 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 respond­
    ent 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 advo-
    cate 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 consid-
    ered 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 con-
    sidering 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 harass-
    ment 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 proce-
    dure 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 inap-
    plicable “where a petitioner, as informed by counsel, pursues a
    domestic abuse theory and the potential application of a harass-
    ment 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 respond­
    ent, A.G., had subjected her to sexual intercourse when she
    was incapacitated. D.W. further alleged that A.G. had vio-
    lated 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 pro-
    vided 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 recogni-
    tion 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 pro-
    tection 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 protec-
    tion 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 consid-
    ering 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 ren-
    der 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 submit-
    ted a petition and affidavit seeking a sexual assault protec-
    tion 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 enti-
    tled “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 men-
    tioned 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, testi-
    mony 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 protec-
    tion 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 evi-
    dence presented.
    It was not until after the close of evidence that the trial
    court sua sponte refiled the petition under a new case num-
    ber and entered a harassment protection order. Much like the
    respondent in D.W., 25 by the time Juan learned that a harass-
    ment 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 meaning-
    ful 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 pro-
    tection 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 sub-
    ject 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 spe-
    cific 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 harass-
    ment 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 funda-
    mental 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 oppor-
    tunity to address it.
    [7,8] Courts should also be attentive to another fundamen-
    tal 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 presenta-
    tion 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 pro-
    tection 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 alter-
    nate 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 the-
    ory 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 prop-
    erly 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 peti-
    tioner 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 inform-
    ing 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 protec-
    tion 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 uti-
    lized 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.