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                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                                        IN RE GUARDIANSHIP OF AIMEE S.
                                              Cite as 24 Neb. App. 230




                          In   re   Guardianship     of   A imee S.,      an incapacitated
                                            and protected person.
                             Deborah S., appellant and cross‑appellee, v.
                             Susanne Dempsey‑Cook, Successor Guardian,
                                  appellee and cross‑appellant, and
                                   K elly Henry Turner, guardian
                                          ad litem, appellee.
                                                   ___ N.W.2d ___

                                         Filed July 26, 2016.       No. A‑15‑767.

                1.	 Standing: Jurisdiction. Standing requires that a litigant have such a
                    personal stake in the outcome of a controversy as to warrant invocation
                    of a court’s jurisdiction and justify exercise of the court’s remedial pow-
                    ers on the litigant’s behalf. The defect of standing is a defect of subject
                    matter jurisdiction.
                2.	 Judgments: Jurisdiction. A jurisdictional question that does not involve
                    a factual dispute presents a question of law.
                3.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
                    presented for review, it is the duty of an appellate court to determine
                    whether it has jurisdiction.
                4.	 Jurisdiction: Final Orders: Appeal and Error. 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.
                5.	 Final Orders: Appeal and Error. 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.
                6.	 ____: ____. Pursuant to Neb. Rev. Stat. § 25‑1902 (Reissue 2008), a
                    final, appealable order must affect a substantial right.
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           Nebraska Court of A ppeals A dvance Sheets
                24 Nebraska A ppellate R eports
                    IN RE GUARDIANSHIP OF AIMEE S.
                          Cite as 24 Neb. App. 230

 7.	 Final Orders: Words and Phrases. A substantial right is an essential
     legal right, not merely a technical right.
 8.	 Final Orders: Appeal and Error. 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.
 9.	 Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
     at any time by any party or by the court sua sponte.
10.	 Guardians and Conservators: Parental Rights. A parent of an inca-
     pacitated adult does not have the same rights as a parent of an incapaci-
     tated minor.

  Appeal from the County Court for Douglas County: Susan
Bazis, Judge. Appeal dismissed.
   Brent M. Kuhn, of Brent Kuhn Law, for appellant.
   Barbara J. Prince for appellee Susanne Dempsey‑Cook.
  John M. Walker, Sarah F. Macdissi, 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
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                IN RE GUARDIANSHIP OF AIMEE S.
                      Cite as 24 Neb. App. 230

was 23 years old. Deborah was appointed as Aimee’s guard-
ian 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 succes-
sor 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 sum-
mary 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 sus-
tained 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 visi-
tation order. Accordingly, the appeal from the visitation order
is the only matter now before us.
   [1] We note that although June is listed on the notice of
appeal as a party appealing, Deborah was the only one seek-
ing visits with Aimee. Counsel for Deborah and June agreed
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               24 Nebraska A ppellate R eports
                 IN RE GUARDIANSHIP OF AIMEE S.
                       Cite as 24 Neb. App. 230

at oral argument that June did not ask for visitation and, there-
fore, 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 juris-
diction and justify exercise of court’s remedial powers on
litigant’s behalf; defect of standing is defect of subject mat-
ter jurisdiction).

                 ASSIGNMENTS OF ERROR
   Deborah assigns seven errors, six of which relate to the sum-
mary 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 order-
ing 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 visita-
tion and ordering that visits resume within 30 days of the
court’s order.

                   STANDARD OF REVIEW
   [2] 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
   [3,4] 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.
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                 IN RE GUARDIANSHIP OF AIMEE S.
                       Cite as 24 Neb. App. 230

Echo Financial v. Peachtree Properties, 22 Neb. App. 898, 864
N.W.2d 695 (2015).
   [5] 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 deter-
mines 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 sum-
mary 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).
   [6‑8] 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 sub-
stantial 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).
   [9] Appellees previously filed a motion for summary dis-
missal 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 pres-
ent 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
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               24 Nebraska A ppellate R eports
                 IN RE GUARDIANSHIP OF AIMEE S.
                       Cite as 24 Neb. App. 230

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 visita-
tion 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 pro-
ceedings 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 guard-
ian. Justice Stephan concurred with the majority’s holding that
the county court erred in bypassing the mother’s statutory pri-
ority without stating the reasons for doing so.
   In regard to the parental preference principle, Justice Stephan
explained:
      The parental preference principle arises from the sub-
      stantive 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 chil-
      dren . . . is perhaps the oldest of the fundamental liberty
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                 IN RE GUARDIANSHIP OF AIMEE S.
                       Cite as 24 Neb. App. 230

      interests. . . .” The parental preference principle is based
      on an acknowledgment that parents and their children
      have a recognized unique and legal interest in, and a
      constitutionally protected right to, companionship and
      care as a consequence of the parent‑child relationship,
      a relationship that, in the absence of parental unfitness
      or a compelling state interest, is entitled to protec-
      tion from intrusion into that relationship. The parental
      preference principle protects the parent’s right to the
      companionship, care, custody, and management of his
      or her child and the child’s reciprocal right to be raised
      and nurtured by a biological or adoptive parent. We have
      even stated that establishment and continuance of the
      parent‑child relationship is the most fundamental right a
      child possesses.
In re Guardianship of Benjamin E., 289 Neb. at 706‑07, 856
N.W.2d at 457 (Stephan, J., concurring) (citations omitted).
   Justice Stephan stated that the constitutional protections of
the parental preference principle are not directly applicable
to whether a parent has priority to be the guardian for his or
her incapacitated adult child. In re Guardianship of Benjamin
E., supra (Stephan, J., concurring). He further noted that a
number of federal circuit courts have addressed the issue
of whether the parental preference principle should extend
to protect the relationship between parents and their adult
children in the context of 42 U.S.C. § 1983 (2012) actions
brought by parents of adult children wrongfully killed by
state action (such as a shooting by a police officer). Courts
have declined to extend the parental preference principle in
these cases.
   Justice Stephan stated that he found one case that directly
addressed whether the parental preference principle applies
when a parent wants to be appointed the guardian of an inca-
pacitated adult child and it concluded that it did not apply. In
re Guardianship of Benjamin E., supra. (Stephan, J., concur-
ring) (citing In re Tammy J., 270 P.3d 805 (Alaska 2012)).
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                 IN RE GUARDIANSHIP OF AIMEE S.
                       Cite as 24 Neb. App. 230

The Alaska court in In re Tammy J. recognized that the U.S.
Supreme Court has never taken a position on whether the sub-
stantive due process rights of parents extend to relationships
with adult children and that the Court has been historically
reluctant to expand the concept of substantive due process.
In addressing the question of whether a parent has a constitu-
tionally protected right to make decisions regarding the care,
custody, and control of a developmentally disabled adult, the
Alaska court reasoned that caring for such an individual is
not a form of “‘child rearing.’” In re Tammy J., 270 P.3d at
815. The Alaska court also found that the fundamental liberty
interests of the developmentally disabled adult are a signifi-
cant factor to be weighed against extending substantive due
process protection to the parents’ care for their developmen-
tally disabled adult child. It noted that in the context of minor
children, when a child’s preferences and interests conflict with
the choices of parents, protection of the parents’ rights may
come at the expense of the rights of the child. In re Tammy J.,
supra. However, adult individuals with disabilities have inde-
pendent rights to equality of opportunity, independent living,
and personal and economic self‑sufficiency, and the trend is
that they should not be viewed or treated as “‘“eternal chil-
dren.”’” See id. at 815.
   Similarly, in In re Lake, 7 Kan. App. 2d 586, 644 P.2d 1368
(1982), the Kansas court stated that the discretionary decision
of the court to make a change of guardian is much like a deci-
sion regarding the custody of a child, since both are subject to
a number of countervailing circumstances. In both instances,
the best interests of a person legally incapable of exercising
independent judgment concerning his or her best interests
must be determined. However, unlike a custody action in
which parental rights must be considered, the guardianship of
an incapacitated adult is solely concerned with the rights and
interests of the ward. Id.
   [10] In the present case, Deborah is appealing from an order
regarding visitation with her adult incapacitated child. The
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                IN RE GUARDIANSHIP OF AIMEE S.
                      Cite as 24 Neb. App. 230

limited case law we have found does not support a finding
that a parent of an incapacitated adult has the same rights as
a parent of an incapacitated minor. However, Deborah contin-
ues to have the right to petition the lower court for a change
in guardian, as she attempted to do in the underlying action.
Accordingly, we conclude that the visitation order does not
affect a substantial right because it does not infringe upon
Deborah’s fundamental right to raise her child. The visitation
order is not a final order, and we do not have jurisdiction to
hear the appeal.
                         CONCLUSION
    We conclude that the visitation order is not a final order
because it did not affect a substantial right of Deborah’s.
Accordingly, we do not have jurisdiction over the appeal and
it is dismissed.
                                            A ppeal dismissed.
    Inbody, Judge, participating on briefs.
