GERRARD, J.
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.
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.
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 "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
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 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 matter of law.
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.
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.
To begin with, it is important to note that Edward Jr. does not claim that he should have been permitted to intervene in the adoption proceeding and participate as a party. Although his initial motion was styled as a "motion to intervene," it did not seek intervention in the usual sense, because Edward Jr. did not seek to join the proceedings in defense of his own rights or interests. Nor could he have—he was not a real party in interest. The Nebraska adoption statutes
Instead, Edward Jr. claims that he should have been permitted to participate in the proceedings in a representative capacity as "next friend" of Edward Sr. A next friend is one who, in the absence of a guardian, acts for the benefit of an infant or incapacitated person.
We have recognized the general rule that where a person is under disability, but has not been judicially so declared, a suit may be maintained on his or her behalf by a next friend.
And 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.
We have explained that when an alleged incompetent controverts the right of the next friend to act in his or her behalf, the next friend must plead and prove that the incompetent on whose behalf the suit is brought does not reasonably understand the nature and purpose of the suit, does not reasonably understand the effect of his or her acts with reference to the suit, and does not have the will to independently decide whether or not the suit should be brought and prosecuted.
But the jurisdictional issue in this appeal does not depend on evidence of Edward Sr.'s alleged incompetency, because the order from which Edward Jr.'s appeal was taken did not determine whether or not Edward Sr. was incompetent. The court's order simply determined that Edward Jr. was not an appropriate person to protect Edward Sr.'s interests. And a subsequent order determined that a neutral guardian ad litem was. So, the question is:
Edward Jr. had no substantial right that could be affected. A substantial right is an essential legal right, not a mere technical right.
But the only purported right of Edward Sr. that was affected by the court's orders was the right to have a next friend, rather than a guardian ad litem, independently protecting his interests. In the procedural context of this case, because the adoption itself remained pending, the court's order was not appealable. Our decision in In re Adoption of Krystal P. & Kile P.
Our decision in In re Estate of Isaac
We disagreed, concluding that the order appointing the guardian ad litem "does not fall within the statutory definition of a final order."
Those principles are applicable here. Under In re Estate of Isaac, it is clear that Edward Sr. could not have himself appealed from the court's order on the ground that a guardian ad litem was appointed. The authority of the guardian to act would instead be challengeable on an appeal from the court's final decree.
We note, in passing, Edward Jr.'s argument that the pleadings purportedly filed on Edward Sr.'s behalf should be stricken because Edward Sr. does not have the capacity to retain counsel. We do not consider this argument for two reasons. First, it is intertwined with the merits of the dispute, over which we have no jurisdiction.
For the foregoing reasons, we conclude that Edward Jr.'s appeal was not taken from a final, appealable order. Edward Jr. could not appeal on his own behalf because he has asserted no personal stake in this controversy. And Edward Jr. could not appeal on Edward Sr.'s behalf because the court's dismissal of Edward Jr. did not affect any of Edward Sr.'s substantial rights. Therefore, we lack jurisdiction over this appeal, and it is dismissed.
APPEAL DISMISSED.
WRIGHT, J., not participating in the decision.
HEAVICAN, C.J., not participating.