Cite as 2014 Ark. App. 238
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-770
JEAN DORAN Opinion Delivered: April 16, 2014
APPELLANT
APPEAL FROM THE SEBASTIAN COUNTY
V. CIRCUIT COURT, FORT SMITH
DISTRICT
ARKANSAS DEPARTMENT OF [NO. PR-13-227]
HUMAN SERVICES
APPELLEE HONORABLE JAMES O. COX, JUDGE
REMANDED FOR SUPPLEMENTATION OF
THE RECORD; SUPPLEMENTATION OF
THE ADDENDUM ORDERED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s order committing appellant to the
protective custody of the Arkansas Department of Human Services (DHS). On appeal,
appellant argues that the circuit court erred in finding that (1) the evidence presented
clearly and convincingly established that appellant was in need of long-term placement in
DHS’s custody, and (2) the least restrictive means of placement was institutional care.
Because the record and addendum are incomplete, we remand for supplementation of
both.
On April 23, 2013, DHS’s Adult Protective Services hotline received a referral on
appellant alleging that appellant was blind, paranoid regarding having cataract-removal
surgery, unable to get to the grocery store or prepare food, had no transportation, and
Cite as 2014 Ark. App. 238
could not bathe. Visits to appellant were attempted by Louise Spaunhurst1 on the
following two days, but appellant would not come to the door and yelled for Spaunhurst
to go away on both visits. However, though appellant would not allow Spaunhurst to
enter her home, Spaunhurst was able to speak with appellant on the phone. A seventy-
two-hour hold was taken on appellant on April 25, 2013, but appellant refused to leave
her home.
On April 26, 2013, DHS filed a petition for emergency custody of appellant
pursuant to the Adult Maltreatment Custody Act2 and, alternatively, the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act. 3 In the petition, DHS argued
that appellant’s circumstances and conditions were such that returning to or continuing at
the appellant’s place of residence or in the care and custody of a parent, guardian, or other
person responsible for appellant’s care presents imminent danger to appellant’s health or
safety. It also argued that appellant lacked the capacity to comprehend the nature and
consequences of remaining in a situation that presents imminent danger to her health or
safety and that appellant had mental and physical impairments that prevented her from
protecting herself from imminent danger to her health or safety. DHS specifically
requested that law enforcement and appropriate medical personnel be directed to assist
DHS in obtaining custody of appellant.
1
Spaunhurst is a registered nurse with DHS’s Adult Protective Services.
2
Ark. Code Ann. §§ 9-20-101 to -121 (Repl. 2009).
3
Ark. Code Ann. §§ 28-74-101 to -505 (Repl. 2009).
2
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An ex parte order for emergency custody was entered on April 26, 2013, finding
probable cause to believe that grounds existed, as alleged by DHS, to take emergency
custody of appellant. In support of its probable cause finding, the court cited the affidavit
of Spaunhurst, noting that appellant suffers from “blindness, frontal lobe dementia,
reasoning impairment, left ventricular hypertrophy, paranoia, and congestive heart
failure.” The court also cited “statements from five of the [appellant’s] physicians that the
[appellant] is unsafe to be on her own and cannot make decisions for herself.” 4 We only
have statements from two physicians in the record: Dr. Robert Baker 5 and Dr. Margaret
Tremwel. Even if we accept the affidavit of Spaunhurst as a physician’s statement, though
she is in fact a registered nurse, the record before us is still missing two statements.
Arkansas Rule of Appellate Procedure–Civil 6(e) states that if anything material to
either party is omitted from the record, the appellate court, on its own initiative, may
direct that the omission shall be corrected and that a supplemental record be certified and
transmitted.6 The missing physician statements are material to this matter because the
court relied on those statements in finding probable cause to issue an ex parte order for
emergency custody of appellant. Therefore, we remand for supplementation of the
record, correcting the above-referenced deficiencies within thirty days.
4
It appears that the five statements may have been attached to DHS’s petition for
emergency custody as the court states, “The Petitioner’s affidavit provides evidence . . .
with statements from five of Respondent’s physicians.”
5
Dr. Baker’s affidavit was admitted as part of the record at the long-term custody hearing.
6
(2012).
3
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Because the physician statements were not included in the record, they also were
not included in the addendum. Arkansas Supreme Court Rule 4-2(a)(8) requires appellant
to submit an addendum containing true and legible copies of the non-transcript
documents in the record on appeal that are essential for the appellate court to understand
the case and to decide the issues on appeal.
Because we do not have the physician statements, we do not have all the evidence
which informed and supported the court’s medical findings and its assertion that five
physicians opined that appellant could not care for herself. Accordingly, we order
appellant to submit a supplemental addendum correcting the above-referenced deficiencies
within fifteen days from the date on which the supplemental record is filed.
We encourage appellant’s counsel to review Rule 4-2 of the Rules of the Arkansas
Supreme Court and Court of Appeals to ensure that the supplemental record and
supplemental addendum comply with the rules and that no additional deficiencies are
present.
Remanded for supplementation of the record; supplementation of the addendum
ordered.
GLADWIN, C.J., and WOOD, J., agree.
Robert M. “Robby” Golden, for appellant.
Tabitha B. McNulty, for appellee.
4
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5