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ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-595
Opinion Delivered: February 1, 2017
MICHAEL HOWARD APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66PR-16-170]
HONORABLE ANNIE HENDRICKS,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Michael Howard appeals from the Sebastian County Circuit Court’s order
granting the Arkansas Department of Human Services (DHS) long-term protective custody.
On appeal, appellant contends that (1) DHS presented no evidence that appellant’s family
were unable to care for him and that DHS failed to notify his family as required; and (2) it
was reversible error for the circuit court to find by clear and convincing evidence that
institutional care was the least restrictive alternative. We affirm.
On March 25, 2016, DHS filed a petition for emergency custody, alleging that
appellant was an endangered or impaired adult and that although he had a son and a sister,
he did not have a primary caregiver. A seventy-two-hour hold was placed on appellant
after Adult Protective Services (APS) had received a hotline call stating that appellant was a
victim of self-neglect. Appellant was admitted to Mercy Hospital after he was found at
home on the floor but could not get up on his own. He was found with dried feces on his
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pants and legs, and the entrance to his home had large holes and broken boards. At the
hospital, appellant had a 0.01 blood-alcohol level, was disoriented, and believed that he had
a completely different identity. The attending doctor diagnosed appellant with atrial
fibrillation and diabetes and opined that he was incapable of managing his medications and
needed twenty-four-hour care and supervision. Appellant left his hospital room within an
hour after DHS placed an emergency hold, and security later found him sitting in the
waiting room of the emergency room.
The circuit court granted an ex parte order for emergency custody, and a subsequent
probable-cause order was entered. The probable-cause order specifically noted that
Dr. Anower diagnosed appellant with possible alcohol-related psychosis and cirrhosis, as
well as diabetes mellitus type II. Furthermore, the order noted that Dr. Anower stated that
appellant was unable to adequately manage his medications and that he lacked the ability to
protect himself from abuse, neglect, or exploitation, if left alone.
A hearing regarding long-term protective custody was held on April 14, 2016, and
two affidavits were admitted into evidence, one from Louise Spaunhurst, a registered nurse
with APS, and the other from Dr. Philip Elangwe, appellant’s primary-care physician.
Spaunhurst’s affidavit stated that appellant had been diagnosed with several conditions that
needed continuous care. At that time, she explained that appellant had no income or
medical insurance, that there were no utilities at his prior home, that appellant was residing
at Fort Smith Health & Rehab, and that appellant continued to prefer to be called by the
name Apollo Griswald, his self-assumed alternative identity. Spaunhurst further opined in
her affidavit that appellant lacked the capacity to comprehend the nature and consequences
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of returning to his former living arrangements and that he lacked the ability to meet his
activities of daily living without twenty-four-hour care. She recommended that appellant
remain in protective custody and that he continue to be placed in the least restrictive
environment to meet his needs.
Dr. Elangwe likewise recommended that appellant remain in protective custody in
his affidavit. Dr. Elangwe noted that appellant had alcohol encephalopathy, cirrhosis of the
liver, and a personality disorder. He further recommended that appellant needed twenty-
four-hour supervision and a structured, secure unit with medication management and safety
checks.
Spaunhurst testified at the hearing similarly to her affidavit. She explained that she
had been assigned by APS to appellant’s case. She testified that she had contacted the phone
numbers that she had for appellant’s son, George Howard, and appellant’s sister, Donna
Dahlem, but she explained that no one had returned her phone calls or voice messages. She
further testified that she was unaware of any other family members and that neither
appellant’s son nor his sister would be capable of providing the level of care that appellant
would need. She additionally indicated that appellant’s prior residence was unsafe and that
there was a possibility that it needed to be condemned. Thus, based on her investigation,
it was her recommendation that appellant remain in protective custody and that appellant’s
placement in an institution was the least restrictive environment.
Appellant testified on his own behalf at the hearing. Some of his statements were
indiscernible, but he complained that he did not like his current placement and that he
wanted to return to his prior residence. That said, he admitted that he had been feeling
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better and that he had not been drinking. At the conclusion of the hearing, appellant
specifically objected to his institutionalized placement as being the least restrictive
environment. However, the circuit court orally found that his placement was the least
restrictive environment that met his needs.
The circuit court subsequently filed a written order for long-term protective custody,
specifically making the following relevant findings:
3. The Court finds that Respondent, having been found endangered or
impaired, lacks the capacity to comprehend the nature and consequences of
remaining in a situation that presents an imminent danger to his health or safety.
More specifically, Mr. Howard has been diagnosed with alcohol encephalopathy and
cirrhosis of the liver, with a secondary diagnosis of personality disorder. Further, the
Respondent is not able to take care of himself or protect himself from abuse,
exploitation, or other maltreatment, including self-neglect, due to these conditions.
Dr. Elangwe recommends 24 hour monitoring in a secure and structured unit.
4. That there is no known caregiver currently responsible for the
protection, care or custody of the Respondent that is willing or able to provide the
Respondent with the level of 24/7 professional nursing care and supervision that the
Respondent requires.
5. The Court finds by clear and convincing evidence that the Respondent
is in need of placement. The Arkansas Department of Human Services is awarded
long term custody of Respondent. Placement of the Respondent shall be at an
appropriate facility in the least restrictive environment that best meets the
Respondent’s needs. At this time, there are not sufficient services available to the
Respondent for non-institutionalized care or court-ordered protective services to
provide a viable alternative to protective custody. Specifically, the Court relies on
the Petitioner’s court report; the affidavit of Phillip Elangwe, M.D.; the testimony
of Louise Spaunhurst, R.N. APS worker; and the other testimony presented.
This appeal followed.
I. Standard of Review
Our standard of review for probate orders is well established. This court reviews
probate proceedings de novo, and the decision of the probate court will not be disturbed
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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 Health &
Human Servs., 375 Ark. 402, 291 S.W.3d 172 (2009). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire evidence is left
with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t
of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
The purpose of the Adult Maltreatment Custody Act (the Act) is to:
(1) Protect a maltreated adult or long-term care facility resident who is in
imminent danger; and
(2) Encourage the cooperation of state agencies and private providers in the
service delivery system for maltreated adults.
Ark. Code Ann. § 9-20-102 (Repl. 2015). To that extent, the Act gives jurisdiction to the
probate division of the circuit court over proceedings for custody, temporary custody for
purposes of evaluation, court ordered protective services, or an order of investigation
pursuant to the Act. See Ark. Code Ann. § 9-20-108(a)(1). Pursuant to the Act, the probate
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.
Ark. Code Ann. § 9-20-117(c).
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II. Notice to Family
Appellant first contends on appeal that DHS presented no evidence that his family
were unable to care for him and that DHS failed to notify his family as required. He more
specifically argues that DHS did not sufficiently prove that there was no willing caregiver to
provide him with the care that he needed because DHS did not notify his next of kin as
required, and therefore, he argues that the circuit court’s finding that he needed placement
was not supported by clear and convincing evidence. We disagree.
Arkansas Code Annotated section 9-20-111 requires that notice of the long-term-
custody hearing be given in relevant part to “[t]he next of kin of the respondent whose
names and addresses are known to the petitioner.” Appellant argues for the first time on
appeal that this notice requirement was not met. However, it is well established that failure
to raise an issue before the trial court is fatal to an appellate court’s consideration on appeal.
Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, 413 S.W.3d 542. Moreover, section
9-20-111 only requires notice to “names and addresses . . . known to the Petitioner.”
(Emphasis added.) Spaunhurst testified that she had contacted appellant’s family through
the phone numbers that she had for them. Despite her attempts to contact appellant’s family,
no one returned her phone calls or attempted to assist in appellant’s care. There was no
evidence that DHS had any addresses for any family members, and Spaunhurst testified that
she did not know of any family members other than the two she had attempted to contact
by the phone numbers that she had. Additionally, DHS presented evidence that appellant
had been left alone in his home when he was removed and that he required twenty-four-
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hour care. As such, we cannot find that the circuit court’s finding that appellant needed
placement was clearly erroneous, and we affirm on this point on appeal.
III. Least Restrictive Alternative
Appellant additionally contends that it was reversible error for the circuit court to
find by clear and convincing evidence that institutional care was the least restrictive
alternative. Appellant does not dispute that he needs twenty-four-hour care, but he argues
that DHS did not meet its burden to prove that institutional care is the least restrictive
alternative under section 9-20-117(d) that best meets his needs because the circuit court
limited his inquiry into his assets and benefits. Thus, appellant suggests that he may have
had further assets that would have allowed him to provide for his care in a
noninstitutionalized environment. His argument, however, is without merit.
After reviewing the record of the hearing, appellant cross-examined Spaunhurst
regarding his assets. After Nurse Spaunhurst testified that “the only asset available to
[appellant] to pay for his care [was] his house,” appellant inquired whether he had any other
assets. At that point, DHS objected to appellant’s question, arguing that it was outside the
scope of representation pursuant to Arkansas Code Annotated section 9-20-108. The circuit
court ruled, “[I]t is, but she’s already answered that so let’s move on.” At the end of her
cross-examination, Spaunhurst testified without objection that she was “not aware that he
[had] any [other] assets.” Therefore, she explained that she had already completed a
Medicaid long-term-care application that would pay for his care once it was approved.
Subsequently, appellant testified during his direct examination without objection that he
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believed that he owned an “Iowa bank account” and “a ranch in Sherwood that’s deeded
in [his] correct name.”
It is well settled that the decision to admit or exclude evidence is within the sound
discretion of the circuit court, and we will not reverse that decision absent a manifest abuse
of discretion. Razorback Cab of Fort Smith, Inc. v. Amon, 2016 Ark. App. 352, 498 S.W.3d
346; Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272.
Furthermore, this court will not reverse without a showing of prejudice, as prejudice is not
presumed. Cheney, supra. Exclusion of evidence is not prejudicial if the same evidence was
introduced through another source and was before the trier of fact for its consideration.
Razorback Cab of Fort Smith, supra. Assuming arguendo, that the circuit court improperly
excluded additional evidence of appellant’s assets during Spaunhurst’s cross-examination,
any exclusion was at most harmless error because appellant testified without objection that
he had additional assets. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).
Thus, after hearing all the evidence, the circuit court found by clear and convincing
evidence that appellant’s placement in an institution was the least restrictive alternative that
met his needs. Arkansas Code Annotated section 9-20-117(d)(1) requires the circuit court
to determine “the least restrictive alternative to be considered proper under the
circumstances, including a finding for noninstitutional care if possible.” Here, appellant’s
physician and Spaunhurst recommended institutional care. Appellant needed continuous
care, and evidence was presented that his home was unsafe for his return. Furthermore,
there were no willing family members to provide him with the necessary level of care.
Although appellant’s testimony at the hearing suggested that he believed he had additional
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assets to provide for his care, we defer to the circuit court’s superior position regarding the
credibility of witnesses. Adams, supra. Thus, we cannot find that the circuit court’s findings
regarding placement were clearly erroneous.
Finally, to the extent appellant now attempts to make a constitutional due-process
argument that his appointed counsel was somehow limited in ascertaining his assets based
on section 9-20-108 and that “this case should be reversed and remanded so that the
constitutional safeguards are in place,” we cannot reach the merits of this claim because it
was never raised or ruled on below. Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205
S.W.3d 778 (2005). This court has made it abundantly clear that it will not consider an
argument, even a constitutional one, raised for the first time on appeal. Id.; Smithee v. Ark.
Dep’t of Human Servs., 2015 Ark. App. 506, 471 S.W.3d 227; Tuck v. Ark. Dep’t of Human
Servs., 2014 Ark. App. 468, 442 S.W.3d 20. Furthermore, we do not consider on appeal
assignments of error unsupported by convincing argument or authority, unless it is apparent
without further research that the point is well taken. Jones, supra.
Affirmed.
VIRDEN, J., agrees.
VAUGHT, J., concurs.
LARRY D. VAUGHT, Judge, concurring. While I agree that this case must be
affirmed for the reasons stated in the majority’s opinion, I write separately to address
troubling issues that are likely to recur. Today, our court hands down this case and three
others with similar facts and almost identical legal challenges. Brown v. Ark. Dep’t of Human
Servs, 2017 Ark. App. 69 (February 1, 2017); Johnston v. Ark. Dep’t of Human Servs., 2017
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Ark. App. 51 (February 1, 2017); and Nicholson v. Ark. Dep’t of Human Servs., 2017 Ark.
App. 53 (February 1, 2017). In each case, due to failures by the attorneys and court below,
we are unable to reach legal issues about which we have grave concerns. As a result,
meaningful due process may have been effectively denied to these four appellants, and due
to our limited standard of review, we are unable to address the issues.
While the purpose of the Adult Maltreatment Custody Act, Arkansas Code
Annotated section 9-20-101 (Repl. 2015) et seq., is to protect a maltreated adult and to
encourage cooperation between state agencies and private-care providers, due process is still
required, the law must be followed, and the hearing must be fair. In this case, as in each of
the others, the appellant argues that, although section 9-20-111(d)(2) requires DHS to give
notice of the hearing to the next of kin of the adult, this was not done. In none of these
cases did DHS put forward any evidence to demonstrate that notice had been provided.
Unfortunately, we could not reach the merits of this issue because, in each case, it was not
preserved for appellate review. This is a complete failure of due process. DHS failed to give
notice as required by statute, the defense attorney failed to object and preserve the error for
review, and the trial court failed to protect its record by requiring compliance with a
mandatory statute.
Likewise, in each of these cases, the attorney for the adult attempted to introduce
evidence of his or her assets in order to determine if confinement in an institution was the
least restrictive alternative for care. However, in each case, the trial court sustained DHS’s
objections to such testimony based on its finding that section 9-20-108 limits representation
to only the issue of the adult’s liberty interest. However, again, we have been prevented
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from addressing this important issue because the defense attorney failed to preserve it for
appeal and failed to proffer the excluded financial evidence, which is necessary in order to
establish prejudice from its exclusion.
These cases present important issues worthy of meaningful appellate review. The fact
that we have repeatedly been prevented, due to lack of preservation, from addressing them
indicates a systemic problem. Therefore, I write to put the bench and bar on notice that the
laws designed to protect Arkansas’s most vulnerable adults require more than rushed,
perfunctory proceedings with foregone conclusions. Simple due process mandates a
meaningful hearing with notice to the family, a zealous representation of the impaired adult,
and the opportunity to present all relevant evidence. The members of the bench and the
bar engaged in these matters have an ethical responsibility to protect the best interest of the
adults subject to such proceedings. At the very least, that means preserving their right to
appellate review.
Dusti Standridge, for appellant.
Mary Goff, Office of Chief Counsel, for appellee.
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