In re Aimee S.

24 Neb.App. 230

885 N.W.2d 330

In re Guardianship of Aimee S., an incapacitated and protected person.

Deborah S., appellant and cross-appellee,

v.Susanne Dempsey–Cook, Successor Guardian, appellee and cross-appellant,andKelly Henry Turner, guardian ad litem, appellee.

No. A–15–767

Court of Appeals of Nebraska.

Filed July 26, 2016

Brent M. Kuhn, of Brent Kuhn Law, Omaha, for appellant.

Barbara J. Prince for appellee Susanne Dempsey–Cook.

John M. Walker, Sarah F. Macdissi, Omaha, and Catherine E. French, of Lamson, Dugan & Murray, L.L.P., for appellee Kelly Henry Turner.

Pirtle and Bishop, Judges.

Pirtle, Judge.

INTRODUCTION

Deborah S. and June Berger (June) appeal from an order of the county court for Douglas County which granted their motion for visitation, thereby allowing Deborah to have visits with her incapacitated adult daughter, Aimee S. Deborah takes issue with the trial court's finding that the successor guardian, as well as other individuals, would make the determination of when and how visits between Aimee and Deborah would take place. We determine that the visitation order from which Deborah appeals is not a final, appealable order. Accordingly, the appeal is dismissed.

BACKGROUND

Aimee was determined to be incapacitated by the county court for Douglas County on January 23, 2002, when she was 23 years old. Deborah was appointed as Aimee's guardian on that same date and continued in that role until 2011. On October 5, 2011, the Nebraska Department of Health and Human Services petitioned for the removal of Deborah as guardian, and she relinquished her role.

In December 2013, Deborah and June, Deborah's friend, petitioned to be appointed coguardians and coconservators for Aimee. In November 2014, the court terminated visits between Aimee and Deborah. In May 2015, Aimee's successor guardian, Susanne Dempsey–Cook, and her guardian ad litem, Kelly Henry Turner (collectively appellees), joined in a motion for summary judgment seeking to have the petition dismissed and seeking attorney fees. Deborah and June filed a motion for visitation, in which Deborah sought to have visits with Aimee. Following a hearing on both motions, the trial court entered an order granting appellees' motion for summary judgment and a separate order granting Deborah and June's motion for visitation. In regard to the order granting visitation, the court ordered that visits between Aimee and Deborah should resume within 30 days of the order and that Aimee's successor guardian, as well as certain individuals who were part of Aimee's treatment team, would determine when and how visits between Aimee and Deborah would take place.

Deborah and June appealed the order granting summary judgment and the order on the motion for visitation. Appellees filed a motion for summary dismissal on both matters. We sustained the motion for summary dismissal in part, concluding that the summary judgment order was not a final, appealable order because a request for attorney fees was still pending. We denied the motion for summary dismissal in regard to the visitation order. Accordingly, the appeal from the visitation order is the only matter now before us.

We note that although June is listed on the notice of appeal as a party appealing, Deborah was the only one seeking visits with Aimee. Counsel for Deborah and June agreed at oral argument that June did not ask for visitation and, therefore, has no standing in this matter. See In re Guardianship of Herrick, 21 Neb.App. 971, 846 N.W.2d 301 (2014) (standing requires that litigant have such personal stake in outcome of controversy as to warrant invocation of court's jurisdiction and justify exercise of court's remedial powers on litigant's behalf; defect of standing is defect of subject matter jurisdiction).

ASSIGNMENTS OF ERROR

Deborah assigns seven errors, six of which relate to the summary judgment issue which, as stated previously, is no longer before us. Accordingly, we do not address those errors.

Deborah assigns, restated, that the trial court erred in ordering that Aimee's successor guardian and other caregivers would determine how and when her visits with Aimee would take place.

On cross-appeal, Aimee's successor guardian assigns that the trial court erred in granting Deborah's motion for visitation and ordering that visits resume within 30 days of the court's order.

STANDARD OF REVIEW

A jurisdictional question that does not involve a factual dispute presents a question of law. Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).

ANALYSIS

Deborah assigns that the trial court erred in ordering that Aimee's successor guardian and other caregivers would determine how and when her visits with Aimee would take place. However, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction. Murray v. Stine, supra. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken.

Echo Financial v. Peachtree Properties , 22 Neb.App. 898, 864 N.W.2d 695 (2015).

Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders that an appellate court may review are (1) an order that affects a substantial right and that determines the action and prevents a judgment, (2) an order that affects a substantial right made during a special proceeding, and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered. In re Guardianship & Conservatorship of Forster, 22 Neb.App. 478, 856 N.W.2d 134 (2014).

Pursuant to § 25–1902, a final, appealable order must affect a substantial right. A substantial right is an essential legal right, not merely a technical right. See In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006). A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken. Big John's Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).

Appellees previously filed a motion for summary dismissal challenging our jurisdiction over the visitation order on the basis that no substantial right had been affected. We denied summary dismissal at that time, citing to In re Guardianship of Sophia M., supra, and the proposition noted above. In re Guardianship of Sophia M. indicated that “ ‘ “whether a substantial right of a parent has been affected ... is dependent upon both the object of the order and the length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed.” ’ ” 271 Neb. at 139, 710 N.W.2d at 317. Since there were no time limitations on the visitation restrictions indicated in the present matter, this court initially construed In re Guardianship of Sophia M. to suggest such an order impacted a substantial right. However, upon further review and consideration, we conclude otherwise. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. City of Omaha v. C.A. Howell, Inc., 20 Neb.App. 711, 832 N.W.2d 30 (2013).

In re Guardianship of Sophia M., supra, involved visitation between a parent and a minor child. The present case, unlike In re Guardianship of Sophia M., involves visitation between a parent and an adult child. Accordingly, the legal principles regarding substantial rights at issue in a juvenile court proceeding are not applicable here. We have found no Nebraska case law that would support a finding that a parent of an incapacitated adult has the same rights as a parent of an incapacitated minor. In a concurrence written by Justice Stephan in In re Guardianship of Benjamin E. , 289 Neb. 693, 856 N.W.2d 447 (2014), he discussed whether the parental preference principle, which is applied in guardianship proceedings involving minor children, should extend to protect the relationship between parents and their adult children. Although this concurrence has no precedential value, it does provide some guidance in regard to the jurisdictional question now before us.

The In re Guardianship of Benjamin E. case dealt with the priority given by Neb.Rev.Stat. § 30–2627 (Reissue 2008) to a parent of an incapacitated person to be appointed as guardian. Justice Stephan concurred with the majority's holding that the county court erred in bypassing the mother's statutory priority without stating the reasons for doing so.

In regard to the parental preference principle, Justice Stephan explained:

The parental preference principle arises from the substantive component of the Due Process Clause of the 14th Amendment, which protects the “fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation's history and tradition.’ ” The U.S. Supreme Court has recognized that “[t]he liberty interest ... of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty

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