                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                              AUG 23 2004
                          FOR THE TENTH CIRCUIT
                                                          PATRICK FISHER
                                                                   Clerk

LISA F. WALLACE, an incapacitated
person by and through her next friend,
Stephen P. Wallace; STEPHEN PAUL
WALLACE,

            Plaintiffs-Appellants,

v.                                             No. 03-5175
                                         (D.C. No. CV-00-1086-E)
OKLAHOMA DEPARTMENT OF                         (N.D. Okla.)
HUMAN SERVICES, ex rel.
John/Jane Doe, in their official
capacity as District Supervisor for
Tulsa County, Oklahoma; PATRICIA
WALLACE HASTINGS, individually
and as curatrix of Lisa F. Wallace,

            Defendants-Appellees,

PATRICIA W. BULLOCK, guardian
ad litem

            Appellee,

and

RONALD J. SAFFA, individually,

          Defendant.
___________________________

MARY ROMA WALLACE JAGE,
limited guardian of the person of
Lorice Wallace,

            Intervenor.
                            ORDER AND JUDGMENT           *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Stephen P. Wallace appeals from an order of the district court denying his

motions seeking amendment of its orders concerning the care of Lisa F. Wallace,

an incapacitated person. We dismiss for lack of standing all claims raised by

Mr. Wallace as Lisa’s next friend. To the extent he appeals from the district

court’s denial of his attempt to obtain removal of and/or appointment of

additional fiduciaries for Lisa, we affirm.

       This action arises out of a class action suit brought by hundreds of residents

of Hissom Memorial Center, a former Oklahoma state-run facility for the mentally

retarded. In 1987, the district court entered a comprehensive order closing



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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Hissom, de-institutionalizing its residents, and setting the standard of care to be

provided to former residents by the Oklahoma Department of Human Services.

See Homeward Bound, Inc. v. Hissom Mem’l Ctr.      , No. 85-C-437-E, 1987 WL

27104 (N.D. Okla. July 24, 1987). As a former resident of Hissom, Lisa Wallace

is a member of the class protected by the   Homeward Bound decree.

      In December 2000, Mr. Wallace brought this action as next friend of Lisa

Wallace. He asserted that after her release from Hissom, Lisa had been placed in

an institution in Shreveport, Louisiana, and that her placement there did not

comport with her rights under the    Homeward Bound decree. He further asserted

that her placement had caused her physical and emotional deterioration and was in

violation of her constitutional rights and her rights as a developmentally disabled

person.

      Lisa was moved to Oklahoma sometime in late December 2000 or early

January 2001. On January 26, 2001, the district court entered an order, stipulated

and consented to by the parties to this action responsible for Lisa’s care–including

Mr. Wallace, Ms. Hastings, Patricia W. Bullock (Lisa’s guardian ad litem), the

Department of Family Services, and other family members–governing Lisa’s care

and placement. Less than three months later, Mr. Wallace filed the first of

several motions seeking to modify the January 26, 2001 order. The district court

clarified its order in a subsequent minute order dated May 3, 2001, but left its


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essential terms in effect. The district court’s refusal to modify these orders of

January 26, 2001 and May 3, 2001 forms the basis for Mr. Wallace’s appeal.


       1. Appellate jurisdiction

       Appellee Patricia Wallace Hastings has challenged our jurisdiction to

entertain this appeal. She contends that the order appealed from is not final and

appealable. We disagree.

       The January 26, 2001 stipulated order is in the nature of a consent decree.

Mr. Wallace appeals from the denial of his motions to modify the decree. The

denial of a motion to modify a consent decree is a final, appealable order under

28 U.S.C. § 1292(a)(1), provided that it has the same practical effect as the denial

of an injunction.   United States v. Colorado , 937 F.2d 505, 507 (10th Cir. 1991).

In order to sustain our jurisdiction under this “practical effect” test, Mr. Wallace

must show not only that the denial of his motion to modify had the same practical

effect as the denial of an injunction, but also that the order denying modification

has irreparable consequences and that it can be effectively challenged only by an

immediate appeal.    Id.

       The denial of Mr. Wallace’s motions to modify meets the first element of

the “practical effect” test. Both the stipulated order and the relief Mr. Wallace

seeks are injunctive in nature. The order instructs the parties to participate in

family counseling sessions, provides that Lisa will continue to reside in her

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current placement until further order of the court, and sets the terms for visitation

of family members with Lisa. Mr. Wallace seeks to modify the order by (among

other things) having himself appointed as family representative to Lisa’s planning

team, having Ms. Hastings removed from this position, appointing a new

independent volunteer guardian for Lisa, and allowing visits between Lisa and

family members in their homes.

      Mr. Wallace has also made a sufficient showing on the remaining two

elements of the “practical effect” test. He asserts irreparable consequences,

contending that Lisa’s health and emotional well-being may be in jeopardy if the

modifications are not approved. Because the consent decree governs Lisa’s care,

which is the entire subject of Mr. Wallace’s complaint, this may be his only

opportunity to challenge the district court’s refusal to modify its terms. We have

jurisdiction over this appeal under § 1292(a)(1).


      2. Lack of “next friend” standing to bring appeal

      While we have jurisdiction, Mr. Wallace lacks standing to bring any claims

in this appeal as Lisa’s next friend. As the party invoking federal jurisdiction, it

is Mr. Wallace’s burden to demonstrate that he has standing.     See Utah Animal

Rights Coalition v. Salt Lake City Corp.   , 371 F.3d 1248, 1255 (10th Cir. 2004).

He has failed to do so.



                                           -5-
       A “next friend” is one who pursues an action on behalf of the real party in

interest, when that person cannot appear on her own behalf for some legitimately

recognized reason “such as inaccessibility, mental incompetence, or other

disability.” Whitmore v. Arkansas , 495 U.S. 149, 163 (1990) (discussing doctrine

in habeas context). Where an incompetent person is represented by “a general

guardian, committee, conservator, or other like fiduciary,” that representative is

the proper person to sue or defend on her behalf. Fed. R. Civ. P. 17(c). Only if

the incompetent person is unrepresented by such a fiduciary may she be

represented by a next friend.     Id. ; see Garrick v. Weaver , 888 F.2d 687, 692-93

(10th Cir. 1989).

       It is settled in this circuit that where a guardian ad litem has been appointed

for an incompetent person, the guardian is an “other like fiduciary” for purposes

of Rule 17(c). Garrick , 888 F.2d at 693. There is, therefore, no “next friend”

standing in such cases.    Id. Lisa has a guardian ad litem in this action,

Patricia W. Bullock. Therefore, Mr. Wallace does not have standing to proceed

as Lisa’s “next friend” in this appeal.


       3. Standing to assert Mr. Wallace’s own interests

       Relatives like Mr. Wallace are not totally without recourse. They may

“apply to the district court to . . . have the court appoint another guardian ad litem

to protect the children’s interests.”   Id. It follows that an aggrieved relative may

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have standing to appeal the district court’s refusal to remove an existing fiduciary

or to appoint another on the incompetent person’s behalf. We note that

Mr. Wallace signed the notice of appeal in his own name, and that his pro se

brief, broadly construed, appears to request a change of guardian for Lisa.     See

Aplt. Opening Br. at 6. To the extent he purports to appeal the district court’s

determination on this issue, however, we hold that the district court did not abuse

its discretion in rejecting his attempts to replace or supplement Lisa’s guardian ad

litem or other fiduciary representatives.

       This appeal is DISMISSED for lack of standing with the exception of the

district court’s decision not to remove or appoint additional fiduciaries for Lisa F.

Wallace, which is AFFIRMED. All pending motions are DENIED.



                                                        Entered for the Court



                                                        John C. Porfilio
                                                        Circuit Judge




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