885 N.W.2d 330
Neb. Ct. App.2016Background
- Aimee was declared incapacitated in 2002 at age 23; her mother Deborah was guardian until 2011 when she relinquished the role after DHHS sought removal.
- In Dec. 2013 Deborah and a friend (June) petitioned to be coguardians/coconservators for Aimee; the court later terminated visits between Aimee and Deborah in Nov. 2014.
- In May 2015 the successor guardian (Dempsey-Cook) and the guardian ad litem moved for summary judgment to dismiss Deborah’s petition and for attorney fees; Deborah and June moved for visitation reinstatement.
- The county court granted summary judgment (with attorney-fee issues remaining) and separately granted Deborah’s motion for visitation, ordering visits to resume within 30 days and delegating timing/conditions to the successor guardian and Aimee’s treatment team.
- Deborah appealed the visitation order (June lacked standing), arguing the court erred by allowing the successor guardian and caregivers to determine visit timing and manner; the guardian cross-appealed the visitation grant.
- The Nebraska Court of Appeals concluded it lacked jurisdiction because the visitation order did not affect a substantial right of Deborah (no parental-rights equivalence between parents of incapacitated minors and parents of incapacitated adults) and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the visitation order is a final, appealable order affecting a substantial right | Deborah: visitation restrictions and delegation to guardian/caregivers infringe her rights to visit her adult child | Appellees: order does not affect a substantial right; parental-preference principles for minors don’t extend to incapacitated adults | Court: visitation order did not affect a substantial right of Deborah; not a final appealable order — appeal dismissed |
Key Cases Cited
- Murray v. Stine, 291 Neb. 125 (jurisdictional questions of law)
- In re Guardianship of Sophia M., 271 Neb. 133 (discussion of when visitation affects substantial parental rights in juvenile contexts)
- In re Guardianship of Benjamin E., 289 Neb. 693 (concurrence discussing parental-preference principle and its limits)
- In re Tammy J., 270 P.3d 805 (Alaska case refusing to extend parental-preference substantive-due-process protection to guardianship of incapacitated adults)
- Big John’s Billiards v. State, 283 Neb. 496 (definition of when an order affects a substantial right)