In re Adoption of Amea R.

I n re A doptIon of A meA 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.
807 N.W.2d 736
Filed December 2, 2011. 	No. S-10-1163.
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. ____: ____. 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 spe-
cial 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.
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 incapaci-
tated 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 disabili-
ties 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.
IN RE ADoptIoN oF AmEA R. 	751
Cite as 282 Neb. 751
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

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.
Appeal from the County Court for Douglas County: crAIg
Q. mcdermott, Judge. Appeal dismissed.
Susan J. Spahn, of Fitzgerald, Schorr, Barmettler & Brennan,
p.C., L.L.o., for appellant.
William m. Lamson, Jr., Anne marie o’Brien, and Gage R.
Cobb, of Lamson, Dugan & murray, L.L.p., for appellees.
wrIght, connolly, gerrArd, StephAn, mccormAck , and
mIller-lermAn, JJ.
gerrArd, J.
this is an adoption case involving the petition of a married
couple to adopt the wife’s biological granddaughter. the hus-
band 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 ques-
tion 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.
BACkGRoUND
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.
752 	282 NEBRASkA REpoRtS

Edward Jr. filed a “petition in Intervention and objection to
petition for Adoption” in the county court adoption case, alleg-
ing that he had standing to participate pursuant to his appoint-
ment 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,” permit-
ting 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 conclu-
sion on the merits of the parties’ arguments about Edward Sr.’s
representation.)
After several delays, Edward Jr. moved for a summary judg-
ment 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 con-
servatorship 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 con-
servator 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 func-
tion 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
IN RE ADoptIoN oF AmEA R. 	753
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“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 pro-
ceedings 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 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 repre-
sent 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 proceed-
ing.” 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 repre-
sent Edward Sr.’s interests in the adoption proceeding. Edward
Jr. appeals.
ASSIGNmENtS oF ERRoR
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
754 	282 NEBRASkA REpoRtS

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 con-
tend in their brief that the order effectively dismissing Edward
Jr. from the case was not a final, appealable order.
StANDARD oF REvIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
ANALySIS
[2] 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.2 As noted, Edward Sr. and
Ethel argue that we lack appellate jurisdiction, because Edward
Jr.’s appeal was not taken from a final, appealable order.3
[3,4] 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 sum-
mary application in an action after judgment is rendered.4 the
first and third categories are not at issue here, so the question
is whether the county court’s order affected a substantial right
and was made in a special proceeding. Specifically, because
adoption proceedings are special proceedings,5 the question is
whether the order affected a substantial right. We find that it did
not. But explaining that conclusion will require an examination
of some of the principles underlying the merits of Edward Jr.’s
1 In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
2 In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011).
3 See In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).
4 Id.
5 See id.
IN RE ADoptIoN oF AmEA R. 	755
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arguments, because those principles clarify the nature of the
order from which Edward Jr.’s appeal was taken.
[5] 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 statutes6 have no specific
provision that would permit his intervention, and under the
general intervention statute,7 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.8 So, while an order denying
intervention as a real party in interest might be a final order
for purposes of appeal,9 the court’s November 1, 2010, order in
this case was not such an order.
[6,7] 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.10 It is generally recognized that
a next friend must have a significant relationship with the real
party in interest, such that the next friend is an appropriate
6 See Neb. Rev. Stat. § 43-101 et seq. (Reissue 2008).
7 See Neb. Rev. Stat. § 25-328 (Reissue 2008).
8 See, Douglas Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664, 694 N.W.2d
668 (2005); In re Change of Name of Davenport, 263 Neb. 614, 641
N.W.2d 379 (2002).
9 See Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363
N.W.2d 500 (1985).
10 See, Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 828 (2000); State on
behalf of B.A.T. v. S.K.D., 246 Neb. 616, 522 N.W.2d 393 (1994). See,
also, T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997); Miller v. Miller,
677 A.2d 64 (me. 1996); Dye v. Fremont County School Dist. 24, 820 p.2d
982 (Wyo. 1991).
756 	282 NEBRASkA REpoRtS

alter ego for the party who is not able to litigate in his or her
own right.11
[8] 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.12
Under Nebraska law, an action does not abate by the death
or other disability of a party, if the cause of action survives;
instead, “[i]n the case of the death or other disability of a
party, the court may allow the action to continue by or against
his or her representative or successor in interest.”13 In such a
situation, it is the court’s duty as the general conservator of the
estates of all persons under disabilities to see that the incapaci-
tated 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.14
[9-11] And even when a person is not completely incompe-
tent, but is incapable, through age or weakness of mind, of con-
ducting 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.15 But that is clearly discretionary, and the court
also 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.16 A next friend is under control of the court and
can be removed if, in the court’s discretion, the next friend
is unsuitable.17 And there is no substantial difference between
11 See Brophy, supra note 10.
12 Stephan v. Prairie Life Ins. Co., 113 Neb. 469, 203 N.W. 626 (1925).
13 Neb. Rev. Stat. § 25-322 (Reissue 2008).
14 See Simmons v. Kelsey, 72 Neb. 534, 101 N.W. 1 (1904).
15 See, Westerdale v. Johnson, 191 Neb. 391, 215 N.W.2d 102 (1974); Fiala
v. Tomek, 164 Neb. 20, 81 N.W.2d 691 (1957); Stephan, supra note 12.
16 In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991).
17 See, Miller, supra note 10; In re Estate of Beghtel, 236 Iowa 953, 20
N.W.2d 421 (1945); Wager v. Wagoner, 53 Neb. 511, 73 N.W. 937
(1898).
IN RE ADoptIoN oF AmEA R. 	757
Cite as 282 Neb. 751

a guardian ad litem and a next friend except that historically,
a guardian ad litem represented a defendant and a next friend
represented a plaintiff.18
We have explained that when an alleged incompetent con-
troverts 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 under-
stand 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.19 And we
assume, without deciding, that there does exist some degree of
mental incapacity that would prevent a person from being able
to join in a petition for adoption. While the Nebraska adoption
statutes do not expressly address mental capacity, there are
well-established general principles of law regarding the effect
of mental incapacity on the power to enter into legal transac-
tions, such as contracts and marriages.20 Although we expressly
do not decide the extent of disability that would be necessary
to preclude adoption,21 it is apparent from those assumptions
that the adoption court’s discretion would permit the court to
inquire into a prospective adoptive parent’s competency22 and
to appoint someone to represent that person’s interests while
inquiring into competency.
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 deter-
mine whether or not Edward Sr. was incompetent. the court’s
order simply determined that Edward Jr. was not an appropri-
ate person to protect Edward Sr.’s interests. And a subsequent
18 Dye, supra note 10.
19 See Dafoe v. Dafoe, 160 Neb. 145, 69 N.W.2d 700 (1955).
20 See, Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980); Taylor
v. Koenigstein, 128 Neb. 809, 260 N.W. 544 (1935).
21 Compare Edmunds, supra note 20.
22 See Fiala, supra note 15.
758 	282 NEBRASkA REpoRtS

order determined that a neutral guardian ad litem was. So, the
question is: Whose substantial right, if any, was affected?
[12] Edward Jr. had no substantial right that could be
affected. A substantial right is an essential legal right, not a
mere technical right.23 Edward Jr. does not claim to have any
direct interest in the adoption proceedings, so any right he has
to participate or appeal is vicarious. And he does not argue
otherwise. Instead, his jurisdictional argument rests on the
contention that because the court’s order affected Edward Sr.’s
substantial right, it was appealable.
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 inter-
ests. In the procedural context of this case, because the adop-
tion itself remained pending, the court’s order was not appeal-
able. our decision in In re Adoption of Krystal P. & Kile P.24
has some bearing here. In that case, the Nebraska Department
of Social Services sought to intervene in an adoption pro-
ceeding and challenge the validity of the biological parents’
relinquishments and consents to adoption. the county court
found that the relinquishments and consents were valid, and
the Department of Social Services appealed.25 We dismissed
the appeal for lack of a final, appealable order, concluding
that the court’s order had not affected a substantial right.26 We
reasoned that the validity of the relinquishments and consents
was only one of the matters which must be determined in an
adoption proceeding.27 the court’s order had done nothing
more than permit the county court to entertain the adoption
proceedings.28
23 In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
24 In re Adoption of Krystal P. & Kile P., 248 Neb. 907, 540 N.W.2d 312
(1995).
25 See id.
26 See id.
27 See id.
28 See id., citing Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).
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our decision in In re Estate of Isaac29 is also pertinent here.
In that case, a guardian ad litem was appointed to represent the
interests of a decedent’s widow, who was alleged to be incom-
petent. A guardian ad litem was appointed, who elected on
the widow’s behalf to take an elective share of the decedent’s
estate. When the decree of distribution was finally made, the
widow was awarded her elective share. on appeal, the author-
ity of the guardian ad litem to elect on behalf of the widow
was questioned, but it was argued that the order appointing the
guardian ad litem could not be attacked because it had been a
final order from which no appeal had been taken.30
We disagreed, concluding that the order appointing the
guardian ad litem “does not fall within the statutory definition
of a final order.”31 Such an order, we explained, “is merely an
incident in the proceedings, and of itself affects no substan-
tial right, although such rights may be affected by subsequent
action, or omission to act, by the appointee.”32 So, we found,
“[t]he authority of the appointee to act may be challenged at
the time of the final hearing, and may be reviewed in an appel-
late court.”33
[13] 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 guard-
ian ad litem was appointed. the authority of the guardian
to act would instead be challengeable on an appeal from the
court’s final decree.34 And a substantial right under § 25-1902
is not affected when that right can be effectively vindicated
in an appeal from the final judgment.35 An order appointing
a guardian ad litem in lieu of a next friend is, similarly, not
appealable. In short, the court’s orders merely permitted the
29 In re Estate of Isaac, 108 Neb. 662, 189 N.W. 297 (1922).
30 See id.
31 Id. at 665, 189 N.W. at 298-99.
32 Id. at 665, 189 N.W. at 299.
33 Id. at 665-66, 189 N.W. at 299.
34 See § 43-112.
35 In re Estate of Muncillo, supra note 23.
760 	282 NEBRASkA REpoRtS

court to evaluate Edward Sr.’s competency with the assistance
of a guardian ad litem, and perhaps to continue entertaining
the adoption proceedings.36 And if Edward Sr. could not have
appealed, it is axiomatic that Edward Jr. cannot appeal, when
Edward Jr.’s only claim to standing is based upon standing in
Edward Sr.’s shoes.
We note, in passing, Edward Jr.’s argument that the plead-
ings purportedly filed on Edward Sr.’s behalf should be stricken
because Edward Sr. does not have the capacity to retain coun-
sel. 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.37 Second, Edward Jr. does not dispute that
Ethel has capacity to retain counsel and standing to litigate as
a party to these proceedings, so the disputed pleadings were
properly filed at least on her behalf.
CoNCLUSIoN
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.
A ppeAl dISmISSed.
wrIght, J., not participating in the decision.
heAvIcAn, C.J., not participating.
36 See In re Adoption of Krystal P. & Kile P., supra note 24.
37 Cf. Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004).
IN RE ADoptIoN oF AmEA R. 	761
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