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Howard v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

February 1, 2017

MICHAEL HOWARD APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66PR-16-170] HONORABLE ANNIE HENDRICKS, JUDGE

         AFFIRMED

          Dusti Standridge, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

          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 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 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 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, ...

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