Ethel S. v. Edward S. (In re Amea R.), S–10–1163.

CourtSupreme Court of Nebraska
Citation282 Neb. 751,807 N.W.2d 736
Docket NumberNo. S–10–1163.,S–10–1163.
PartiesIn re ADOPTION OF AMEA R., a minor child.Ethel S. and Edward S., Sr., appellees, v. Edward S., Sr., an incapacitated person, by and through Edward S., Jr., his son and next friend, appellant.
Decision Date02 December 2011

282 Neb. 751
807 N.W.2d 736

In re ADOPTION OF AMEA R., a minor child.Ethel S. and Edward S., Sr., appellees,
Edward S., Sr., an incapacitated person, by and through Edward S., Jr., his son and next friend, appellant.

No. S–10–1163.

Supreme Court of Nebraska.

Dec. 2, 2011.

[807 N.W.2d 737]

Syllabus by the Court

[282 Neb. 751] 1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

3. Final Orders: Appeal and Error. Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.

4. Final Orders: Adoption. Adoption proceedings are special proceedings.

[807 N.W.2d 738]

5. Interventions. Under Neb.Rev.Stat. § 25–328 (Reissue 2008), an intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment that may be rendered in the action.

6. Guardians and Conservators: Words and Phrases. A next friend is one who, in the absence of a guardian, acts for the benefit of an infant or incapacitated person.

7. Guardians and Conservators. A next friend must have a significant relationship with the real party in interest, such that the next friend is an appropriate alter ego for the party who is not able to litigate in his or her own right.

8. Courts: Guardians and Conservators: Guardians Ad Litem: Estates. It is a court's duty as the general conservator of the estates of all persons under disabilities to see that an incapacitated party's rights and estate are protected, either by a general guardian or by a next friend or guardian ad litem appointed by the court for the purposes of the action.

9. Guardians and Conservators: Mental Competency. Even when a person is not completely incompetent, but is incapable, through age or weakness of mind, of conducting his or her affairs, it is within the discretion of the trial court to permit a suit to proceed in his or her behalf through a next friend.

10. Courts: Guardians Ad Litem: Mental Competency. A court has discretion to appoint a guardian ad litem for a litigant when the litigant is not mentally competent to comprehend the significance of legal proceedings, or is unable to intelligently and understandingly participate in the protection of his or her best interests, and such a guardian is needed to protect those interests.

11. Courts: Guardians and Conservators. A next friend is under control of the court and can be removed if, in the court's discretion, the next friend is unsuitable.

[282 Neb. 752] 12. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

13. Final Orders: Words and Phrases: Appeal and Error. A substantial right under Neb.Rev.Stat. § 25–1902 (Reissue 2008) is not affected when that right can be effectively vindicated in an appeal from the final judgment.

Susan J. Spahn, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., Omaha, for appellant.

William M. Lamson, Jr., Anne Marie O'Brien, and Gage R. Cobb, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees.



This is an adoption case involving the petition of a married couple to adopt the wife's biological granddaughter. The husband has Alzheimer's-type dementia, so his adult son sought to participate in the adoption proceedings on his behalf and object to his mental capacity to pursue the adoption. The question presented in this appeal is whether the son can stand as his father's “next friend” and participate in such a proceeding. But we do not reach that issue, because we conclude that the son's appeal was not taken from a final, appealable order.

[807 N.W.2d 739]


Ethel S. and Edward S., Sr. (Edward Sr.), a married couple, filed a petition for adoption in the county court on December 19, 2007, seeking to adopt then–6–year–old Amea R. Amea's biological father is Ethel's son and Edward Sr.'s stepson. On the same day, in a separate proceeding, Edward S., Jr. (Edward Jr.), was appointed temporary conservator of Edward Sr.'s estate. Edward Jr. is Edward Sr.'s son and Ethel's stepson. The conservatorship was based upon Edward Jr.'s allegation that Edward Sr. suffered from dementia and lacked capacity to make financial decisions for himself, and specific allegations that Ethel was misusing a power of attorney to divert Edward Sr.'s assets for personal use.

[282 Neb. 753] Edward Jr. filed a “Petition in Intervention and Objection to Petition for Adoption” in the county court adoption case, alleging that he had standing to participate pursuant to his appointment as temporary conservator and as Edward Sr.'s son and next friend. Edward Jr. alleged that Edward Sr. suffered from Alzheimer's-type dementia and possessed neither the mental capacity to care for Amea nor the capacity to consent to the adoption. The county court entered an order on February 7, 2008, based in part on “the agreement of the parties,” permitting Edward Jr. to participate.

But on February 19, 2008, Edward Sr. and Ethel answered Edward Jr.'s petition and alleged that he lacked standing to object to the adoption. (We recognize that the parties also dispute whether Edward Sr. has the capacity to retain counsel and whether those who purport to represent his interests are actually doing so. Our description of the pleadings as having been filed by Edward Sr. is based on the representations they make on their face, and should not be construed as a conclusion on the merits of the parties' arguments about Edward Sr.'s representation.)

After several delays, Edward Jr. moved for a summary judgment dismissing the petition for adoption. Edward Sr. and Ethel in turn filed a motion for partial summary judgment seeking to have Edward Jr. removed from the proceedings for lack of standing.

But by this time, Edward Jr. was no longer Edward Sr.'s temporary conservator. The separate guardianship and conservatorship case had proceeded to trial, and an independent lawyer had been appointed as Edward Sr.'s conservator. The court found from the evidence that Ethel “may have not acted reasonably in making certain financial decisions that clearly affected” Edward Sr. The court found that a third-party conservator was necessary because of animosity between Ethel and Edward Jr. But the court declined to appoint a guardian, “because it appears that [Edward Sr.] can still somewhat function on his own and also does have his wife to take care of him on a day-to-day basis.” And Ethel and Edward Jr. each had power to act as Edward Sr.'s attorney-in-fact for health care decisions, pursuant to a durable power of attorney that was [282 Neb. 754] “now effective because [Edward Sr.] has been diagnosed with dementia and is therefore incapacitated.”

Then, before the parties' motions for summary judgment were heard, the county court judge entered an order recusing himself from the adoption case. The court acknowledged “the ever present debilitating effect of [Edward Sr.'s] Alzheimer's disease as opposed to [his] condition when the adoption proceedings first began.” And the court explained that “any and all proceedings need to be absolutely free from any bias and to safeguard such from arising, particularly due to facts and acts by parties that were revealed and noted by

[807 N.W.2d 740]

the court in related proceedings under [the guardianship/conservatorship case].” So, the court concluded, “the parties would best be served by a neutral magistrate with a fresh perspective of the facts as related solely in the adoption.”

A replacement judge was appointed in the case. Edward Jr. filed a motion to disqualify the law firm purporting to represent Ethel and Edward Sr., contending that Edward Sr. lacked capacity to retain counsel. Edward Jr. also filed a “Motion to Compel [Edward Sr.] to Appear and to Dismiss,” which sought an order compelling Edward Sr. to appear before the court “and answer nonleading questions and to dismiss this proceeding.” The motion to compel was styled, however, as having been filed by Edward Sr. “by and through” Edward Jr. as his next friend.

After a hearing, the court took the standing issue under advisement and entered an order finding that Edward Jr. did not have standing in the adoption case. The court therefore denied all the motions filed by Edward Jr. and held over the adoption petition for further hearing. And a few days later, the court appointed an attorney to act as guardian ad litem to represent Edward Sr.'s interests in the adoption proceeding. Edward Jr. appeals.


Edward Jr. assigns that the court erred in (1) determining that Edward Jr. was required to have standing, personally, and in removing him from these proceedings and granting the motion objecting to standing; (2) failing to find that Edward [282 Neb. 755] Jr. was involved in these proceedings based upon Edward Sr.'s standing; and (3) dismissing the pleadings filed by Edward Sr. by and through Edward Jr., including, but not limited to, the “Motion to Compel [Edward Sr.] to Appear and to Dismiss.”

Edward Sr. and Ethel do not cross-appeal, but they do contend in their brief that the order effectively dismissing Edward Jr. from the case was not a final, appealable order.


A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a...

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