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ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-594
Opinion Delivered: February 1, 2017
BETTY NICHOLSON
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
ARKANSAS DEPARTMENT OF [NO. 66PR-2016-169]
HUMAN SERVICES
APPELLEE
HONORABLE ANNIE POWELL
HENDRICKS, JUDGE
AFFIRMED
BART F. VIRDEN, Judge
The Sebastian County Circuit Court entered an order for long-term protective
custody of appellant Betty Nicholson. On appeal, Nicholson argues that (1) her family
members were not sufficiently notified of the hearing, and (2) the trial court erred by
limiting counsel’s cross-examination regarding her assets and finances. We affirm.
I. Adult Maltreatment Custody Act 1
A maltreated adult is one who has been abused, exploited, neglected, physically
abused, or sexually abused. Ark. Code Ann. § 9-20-103(15). “Neglect” includes self-neglect
or an act or omission by a caregiver responsible for the care and supervision of an endangered
or an impaired adult constituting negligent failure to, for example, provide necessary
treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an
1
Codified at Ark. Code Ann. §§ 9-20-101 et seq. (Repl. 2015).
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endangered or an impaired adult, or to carry out a prescribed treatment plan. 2 See Ark. Code
Ann. § 9-20-103(17)(A) & (B)(i), (iii).
The Arkansas Department of Human Services (DHS) may take a maltreated adult
into emergency custody if the circumstances or condition of the maltreated adult are such
that returning to or continuing at the maltreated adult’s place of residence or in the care or
custody of a person responsible for the maltreated adult’s care presents imminent danger to
the maltreated adult’s health or safety, and the maltreated adult either lacks the capacity to
comprehend the nature and consequences of remaining in such a situation, or has a mental
or physical impairment that prevents the maltreated adult from protecting himself or herself
from imminent danger to his or her health or safety. Ark. Code Ann. § 9-20-114(a)(1), (2).
Pursuant to Ark. Code Ann. § 9-20-117(c), the trial court may order long-term
custody with DHS if the court determines that
(1) The adult has a mental or physical impairment or lacks the capacity to
comprehend the nature and consequences of remaining in a situation that presents
an imminent danger to his or her health or safety;
(2) The adult is unable to provide for his or her own protection from maltreatment;
and
(3) The court finds clear and convincing evidence that the adult to be placed is in
need of placement as provided in this chapter.
II. Procedural History
In March 2016, DHS petitioned for emergency custody of Nicholson. In an affidavit
attached to the petition, Louise Spaunhurst, a registered nurse for Adult Protective Services
2
See Ark. Code Ann. § 9-20-103(6)(A) & (10)(A), respectively, for the definitions of
an “endangered adult” and an “impaired adult.”
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(APS), attested that she had investigated allegations of caregiver neglect on two occasions
concerning Nicholson. In the affidavit, Spaunhurst listed Nicholson’s family as a husband
and six adult children, only one of whom lived nearby, and indicated that Nicholson had
limited financial means. The affidavit of Dr. Fayz Hudefi was also introduced. He diagnosed
mild neurocognitive disorder consistent with Alzheimer’s dementia, and he recommended
institutional care for Nicholson, opining that she required “24/7 assistance.”
The trial court entered an ex parte order for emergency custody, directed DHS to
place Nicholson in the least restrictive environment necessary to meet her needs, scheduled
a probable-cause hearing, and assigned an attorney to represent Nicholson. Following a
hearing, the trial court found that there was probable cause to issue the emergency order,
that probable cause continued to exist, and that Nicholson would remain in DHS’s
protective custody until a long-term custody hearing could be held.
III. Custody Hearing
A hearing for long-term custody was held in April 2016. Spaunhurst testified that
APS had received a hotline call concerning Nicholson in early December 2015 while she
was staying at a motel with her husband Johnnie. It was alleged that Nicholson weighed
only ninety pounds and had no food. According to Spaunhurst, Nicholson had said that she
was getting plenty to eat and that her weight was normal for her. Spaunhurst stated that
Nicholson’s room at the motel had a small refrigerator containing “a little bit of food” and
that Nicholson and her husband had said they went to the rescue mission for food and were
aware of the local food bank. Spaunhurst visited with Nicholson at the motel and learned
that her room had been paid through the month of December. It was also reported through
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the hotline that “the alleged offender” was abusive, had sold Nicholson’s medications, and
had given her alcohol and cigarettes. Nicholson denied any physical abuse and claimed that
she was happy. Johnnie reported that Nicholson took no medications—just vitamins. He
also reported that Nicholson had memory problems but had assured Spaunhurst that he
stayed with Nicholson.
Spaunhurst testified that in March 2016, she had been notified that Nicholson had
wandered from the motel and had been found near the Savoy Tea Company. It was reported
that Nicholson had been confused, could not say where she lived, and had not known how
she had gotten to where she had been found. Nicholson was able to provide police with
her son’s name. He had been contacted, and he had cared for his mother over the weekend.
According to Spaunhurst, the son had contacted her and said that Nicholson required more
care than he and his wife could provide. Spaunhurst said that DHS then placed a seventy-
two-hour hold on Nicholson.
Spaunhurst further testified that Nicholson had been evaluated by Dr. Philip
Elangwe, whose affidavit was introduced at the hearing. The affidavit indicated that Dr.
Elangwe had diagnosed dementia and COPD with a secondary diagnosis of psychosis. He
attested that Nicholson required twenty-four-hour monitoring in a secure and structured
environment. Dr. Elangwe opined that Nicholson was mentally and physically impaired and
did not have the mental capacity to protect herself from abuse, neglect, or exploitation. He
recommended institutional care for Nicholson.
Spaunhurst testified that Johnnie was staying at the rescue mission after a two-week
stint in the detention center. She said that she had been in contact with Nicholson’s other
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family members but that none of them were able to care for her. According to Spaunhurst,
Nicholson received $654 per month in Social Security benefits and $90 per month in SSI
benefits from Nebraska. Spaunhurst said that Nicholson also had a bank account at Metro
Credit Union in Omaha, Nebraska, with a current balance of approximately $500.
Nicholson had outstanding loans totaling approximately $1,400. Spaunhurst stated that she
had completed a Medicaid Long-Term Care application, which could pay for Nicholson’s
care at a facility and allow her some money for personal spending. Spaunhurst testified that
Nicholson had no other assets. This question by Nicholson’s counsel prompted an objection
from DHS counsel as “outside the scope of . . .,” and the trial court sustained the objection
before counsel could finish her sentence. Nicholson’s counsel then asked whether the court’s
ruling precluded her from cross-examining the witness on statements made about
Nicholson’s finances. The court said, “Well, I think we’ve already covered it, so I don’t
know what else you’d have to ask.” Nicholson’s counsel said, “I have to do it in every case,
so I’m just asking . . .” and moved on. Spaunhurst testified that Nicholson was at Sparks
Senior Care and that it was the physician, and not she, who recommended and found
placements for clients.
Nicholson testified that she liked to live on her own and would like to get her own
place eventually. She said, “I am feeling okay now. They treat you good there and it’s, you
know, I get to go smoke and—it’s not confined-like. It’s not a bad place, really. I don’t
know of anything I need. Except money and a place to live.”
In its order following the hearing, the trial court found that Nicholson was
endangered or impaired and lacked the capacity to comprehend the nature and
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consequences of remaining in a situation that presented an imminent danger to her health
or safety. The trial court found that Nicholson had been diagnosed with dementia and
COPD, with a secondary diagnosis of psychosis, and was not able to take care of herself or
protect herself from abuse, exploitation, or other maltreatment, including self-neglect. The
trial court noted that Dr. Elangwe had recommended twenty-four-hour monitoring in a
secure and structured environment. The trial court further found that there was no known
caregiver currently responsible for Nicholson’s care who was willing or able to provide her
with the level of professional nursing care and supervision that she required. The trial court
found by clear and convincing evidence that Nicholson was in need of placement and that
DHS should retain long-term custody of her. DHS was ordered to place Nicholson at an
appropriate facility in the least restrictive environment that best met her needs.
IV. Standard of Review
The standard of review for probate orders is well established. The appellate court
reviews probate proceedings de novo, and the decision of the probate court will not be
disturbed unless clearly erroneous, giving due regard to the opportunity and superior
position of the probate court to determine the credibility of witnesses. Adams v. Ark. Dep’t
of Human Servs., 375 Ark. 402, 291 S.W.3d 172 (2009).
V. Discussion
A. Failure to Notify Family
Arkansas Code Annotated section 9-20-111(d)(2) provides that “notice of the long-
term custody hearing shall be given to the next of kin of the respondent whose names and
addresses are known to the petitioner.” (Emphasis added.) Nicholson argues that DHS
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presented no evidence that her family members had been notified as required and, therefore,
DHS did not prove that there was no caregiver who was willing and able to provide her
with the care she required. Nicholson makes an alternative argument that there was no
indication that her family members had been unable to assist in collecting entitlements to
provide the care she required.
Spaunhurst testified that she had been “in touch with” and had spoken with
Nicholson’s family members and that no one was able to provide the care Nicholson
required; however, Spaunhurst did not testify that she had notified those family members of
the custody hearing so they could be questioned regarding what they were willing to do.
While we may agree that there was no evidence of notification as required by section 9-20-
111(d)(2), Nicholson did not raise this procedural point below. It is thus not preserved for
review on appeal. Doran v. Ark. Dep’t of Human Servs., 2014 Ark. App. 505, 442 S.W.3d
868. Moreover, we note that the statute does not specify what type of notice is required.
Nicholson further asserts as part of her notification argument that Spaunhurst’s
testimony that her son and daughter-in-law had said that they could not provide the care
she needed was clearly hearsay. She also states that Spaunhurst’s testimony that Nicholson’s
husband was at a rescue mission after serving two weeks in jail was also hearsay and that no
foundation had been laid for such testimony. Nicholson acknowledges that she did not raise
proper objections at the hearing and recognizes that these arguments are not preserved.
Doran, supra.
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B. Limiting Cross-Examination
Next, Nicholson argues that the trial court clearly erred by agreeing with DHS to
limit counsel in inquiring into assets or available benefits and to prohibit additional questions
on the subject on cross-examination. Nicholson states that “[m]aybe the information would
not have been more helpful,” but to place such limitations on counsel was a denial of due
process. Nicholson points to section 9-20-111(4), which provides that the respondent has a
right to cross-examine witnesses who testify against her. We acknowledge such right;
however, Ark. Code Ann. § 9-20-108 provides,
If the maltreated adult is found to be indigent and the court appoints the Arkansas
Public Defender Commission as counsel for the maltreated adult, the commission
shall represent the maltreated adult as to the issue of deprivation of liberty, but not with
respect to issues involving property, money, investments, or other fiscal issues.
(Emphasis added.)
Nicholson argues that it makes no sense that she cannot inquire into the assets of a
maltreated adult if counsel has been appointed to protect her liberty interest by advocating
for placement other than in an institution. We tend to agree; however, Nicholson did not
raise this particular statutory-interpretation argument below so that the trial court would
have had an opportunity to rule on it. Therefore, it is not preserved for review. Doran, supra.
We note that Nicholson’s finances were discussed in detail; thus, we do not see how
Nicholson could demonstrate prejudice. Finally, counsel made no due-process argument
below, so that aspect of her argument was not preserved. Doran, supra.
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VI. Conclusion
Nicholson does not dispute that she is in need of care, and the trial court made the
requisite findings. We cannot say that the trial court clearly erred in placing Nicholson in
the long-term protective custody of DHS.
Affirmed.
HIXSON, J., agrees.
VAUGHT, J., concurs.
Dusti Standridge, for appellant.
Mary Goff, Office of Chief Counsel, for appellee.
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