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Doran v. Arkansas Dep't of Human Servs.

Court of Appeals of Arkansas, Division III

September 24, 2014

JEAN DORAN, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES, APPELLEE

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. NO. PR-13-227. HONORABLE JAMES COX, JUDGE.

Robert M. " Robby" Golden, for appellant.

Tabitha B. McNulty, Arkansas Department of Human Services, for appellee.

GLADWIN, C.J., and WOOD, J., agree.

OPINION

Page 869

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 (1) that the evidence presented clearly and convincingly established that appellant was in need of long-term placement in the custody of DHS and (2) that the least restrictive means of placement was institutional care. This case was previously before this court wherein we remanded for supplementation of both the record and the addendum.[1] Appellant has now cured the deficiencies, and we proceed to address the merits of her two points for reversal. We affirm.

On April 23, 2013, the Adult Protective Services hotline received a referral on appellant alleging that appellant was blind, paranoid regarding having surgery to have cataracts removed, unable to get to the grocery store or prepare food, had no transportation, and could not bathe. Visits to appellant were attempted by Louise Spaunhurst[2] on the following two days, but appellant would not come to the door and yelled for Spaunhurst to go away on both visits. Despite being unable to enter the home, Spaunhurst was able to speak with appellant on the phone. A seventy-two-hour hold was taken on appellant on April 25, 2013; however, 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 Act (AMCA).[3] In the petition, DHS argued that appellant's circumstances and

Page 870

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.

An ex parte order for emergency custody was entered on April 26, 2013, finding probable cause to believe that grounds existed to take emergency custody, as alleged by DHS. In support of its probable cause finding, the court cited the affidavit of Spaunhurst, noting, among other things, that appellant suffered from " blindness, frontal lobe dementia, reasoning impairment, left ventricular hypertrophy, paranoia, and congestive heart failure." The court referenced " statements from five of the [appellant's] physicians that the [appellant] is unsafe to be on her own and cannot make decisions for herself." The court also noted appellant's deterioration since December 2012; non-compliance with medicine prescriptions; refusal to allow any home medical care providers to enter her home or provide care or assistance; and lack of a known caregiver currently responsible for her protection, care, or custody. Finding " it necessary to place the [appellant] in the emergency custody of Adult Protective Services in order to protect the [appellant's] health and safety," the court awarded DHS emergency custody of appellant. A probable cause order was entered on May 13, 2013.

A long-term custody hearing was held on June 3, 2013, and an amended order for long term protective custody was entered on July 10, 2013. Therein, the court awarded long-term custody of appellant to DHS, specifically relying on DHS's court report; the affidavit of Robert Baker, D.O.; the affidavit of Margaret Tremwel, M.D.; the testimony of Louise Spaunhurst, R.N.; and the testimony of Dr. Tremwel. This timely appeal followed.

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 unless clearly erroneous, giving due regard to the opportunity and superior position ...


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