Robert M. on behalf of Bella O. v. Danielle O.
928 N.W.2d 407
| Neb. | 2019Background
- Parents Robert and Danielle share custody of daughter Bella (born 2007); Robert has primary residential responsibility under a 2013 order; Danielle has unsupervised parenting time subject to relapse condition.
- On July 9, 2018, Danielle took Bella on parenting time in Minnesota; several hours later they returned to a duplex where Danielle allegedly assaulted her brother Neill and mother Nancy in Bella’s presence, damaged property, and was arrested for misdemeanor domestic assault.
- Robert filed an ex parte petition in Nebraska on behalf of Bella under Neb. Rev. Stat. § 42-924 seeking a domestic abuse protection order; the court issued an ex parte order and set a show-cause hearing.
- At the show-cause hearing, the court received Robert’s affidavit and a police report; Danielle admitted the police report’s description and agreed she was not abusive toward Bella, but contested that her conduct constituted abuse of Bella under the statute.
- The trial court sustained the protection order, finding Danielle’s conduct constituted a credible threat that placed Bella in fear of bodily injury; Danielle appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bella is a "victim" under § 42-903(1)(b) though not the direct target of a threat | Robert: Bella is a victim because the target’s fear for family members (e.g., Bella) is covered by the statute | Danielle: Bella was not the target; conduct was directed at others, so Bella cannot be a victim under § 42-903(1)(b) | Court: A family member may be a victim if the threat caused the target to reasonably fear for that family member’s safety; Bella qualifies |
| Whether Danielle’s conduct amounted to a "credible threat" implied by pattern of conduct | Robert: Danielle’s violent acts and property damage in Bella’s presence implied a threat and showed ability to carry it out | Danielle: No explicit threat; single incident; no implied threat or pattern directed at Bella | Court: Actions (multiple assaults, property damage, attempts to approach Bella) communicated an implied threat and demonstrated a pattern |
| Whether "pattern of conduct" requires multiple acts and was present here | Robert: Series of violent acts during incident constitutes a pattern sufficient for an implied threat | Danielle: "Pattern" implies multiple separate occurrences; this was a single incident | Court: "Pattern" requires multiple acts, but Danielle’s multiple violent acts and destructive behavior that occurred during the episode sufficed to show a pattern |
| Whether targets (Neill/Nancy) reasonably feared for Bella’s safety (preponderance standard) | Robert: Circumstantial evidence shows Neill and Nancy shielded Bella and acted to protect her, demonstrating reasonable fear for her safety | Danielle: Targets did not testify; evidence insufficient to show reasonable fear for Bella | Court: Circumstantial evidence (locking door, Bella’s fear, attempts to shield Bella, Danielle’s follow-up conduct) supports finding targets reasonably feared for Bella’s safety |
Key Cases Cited
- Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (Neb. 2018) (standard for affirming ex parte domestic abuse protection order)
- Linda N. on behalf of Rebecca N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (Neb. 2014) (domestic abuse protection order standards)
- State ex rel. Peterson v. Creative Community Promotions, 302 Neb. 606, 924 N.W.2d 664 (Neb. 2019) (statutory interpretation principles)
- Knopik v. Hahn, 25 Neb. App. 157, 902 N.W.2d 716 (Neb. App. 2017) (distinguished; harassment statute pattern requirement)