FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO.
42PPR-12-48] HONORABLE DAVID H. MCCORMICK, JUDGE
Avery, for appellant.
Richard W. Atkinson, Arkansas Department of Human Services,
MARK KLAPPENBACH, Judge
an appeal from the order entered on June 22, 2016, by the
Logan County Circuit Court denying appellant Harold
Foster's petition to terminate a guardianship over his
person and estate. Foster asserts that he was able to care
for himself and that the trial court clearly erred in denying
his request to end the guardianship. We affirm.
entered a residential-care facility at Short Mountain Lodge
in Paris, Arkansas (hereinafter "the facility" or
"the lodge"), in August 2011, following his
separation from his wife and during the process of divorcing.
Foster was diagnosed with bipolar disorder and depression
with a history of poly-substance abuse, and he required
medication supervision. In February 2012, an administrator at
the facility sought to have a guardian appointed for him.
hearing conducted in April 2012 on this request, Johnna
Kelley (the facility's owner and administrator) testified
that Foster had been referred to the facility in August 2011
by a Northwest Arkansas medical center's
behavioral-health unit. Foster moved to the facility, where
he lived with a roommate, underwent therapy, and was
administered medications. His medications included lithium
carbonate to stabilize his mood, sertraline to treat his
depression, and Seroquel to inhibit psychotic behavior.
Kelley did not think that Foster was able to take care of
himself successfully on his own at that time. Following this
hearing, Foster was found to be incompetent by virtue of a
mental deficiency. The order reflecting this finding was
filed in April 2012, and a public guardian was appointed.
2012, Foster's guardian requested permission from the
court to hire Foster an attorney to represent him in the
divorce action. This request was approved in July 2012. In
August 2012, Foster's guardian requested and was given
court approval to enter into a property-settlement agreement,
which had been accepted by all parties to the divorce
proceedings, on behalf of Foster. The six-page
property-settlement agreement was attached to the order
remained at the residential facility. In October 2014, at the
request of his guardian, the trial court authorized
Foster's guardian to place Foster in a secure placement
for mental-health treatment without first petitioning the
court at any time Foster met that criteria due to his history
of having periods of psychosis and multiple acute placements
in the past. The alleged facts that prompted this request
were that Foster had recurring hostility toward his ex-wife,
who had a ten-year order of protection against him; he at
times made threats of extreme violence toward her and others;
he had recently refused to take his medications, attend
treatment, or abide by directions; and he had expressed
intent to return to the county where his ex-wife resided.
This behavior indicated that Foster posed a risk to both
himself and others.
January 2015, Foster filed a pro se motion to terminate the
guardianship. Foster was age 59. Also in January 2015,
his guardian filed a petition for emergency injunctive
relief, listing Foster's refusal to cooperate with
treatment or with his guardian; his persistent attempts to
contact his ex-wife via threatening letters and phone calls;
his presentation of a fabricated letter purportedly from his
sister in which she vouched that he was competent; his
fabrication of doctor's appointments to cover his reasons
for leaving the lodge; his constant threats to leave the
lodge; and his fits of hostility and rage toward lodge staff.
Foster's guardian requested that Foster be prohibited
from mailing anything without permission from his guardian or
lodge staff and that Foster be required to participate in his
treatment. Foster, who was then represented by a separate
attorney, resisted the guardian's request for emergency
March 2015, Foster's attorney filed another petition to
terminate the guardianship, alleging that Foster did not have
a mental deficiency, that he had sufficient capacity to
handle his own affairs, and that a guardianship was no longer
in his best interest. Foster's guardian opposed his
hearing was conducted in June 2016 to consider Foster's
petition. Foster's guardian abandoned the attempt to
obtain emergency injunctive relief. Dr. Paul Deyoub, a
forensic psychologist, testified that he had performed a
psychological evaluation on Foster in February 2016. Deyoub
conducted intelligence testing, personality testing, and an
interview, and he reviewed documents related to Foster's
care. Foster was determined to have an average IQ, and the
personality-testing results were within normal limits.
Foster's poly-substance abuse disorder was in remission,
which Deyoub attributed to his being in a residential
facility. Deyoub opined that Foster continued to be
incapacitated for purposes of guardianship law.
recounted that Foster was not participating in therapy,
although he was taking his medication. Deyoub opined that
Foster continued to need supervision given his obsession with
his ex-wife; his stated belief that the divorce matters were
not final; his bitterness toward her; his anger about the
property issues related to their divorce; and his
"half-baked" idea to move with his 29-year-old
mentally ill girlfriend to a city near his ex-wife. Deyoub
said that Foster's condition was essentially the same as
when he had been declared incompetent in 2012 and that he had
no rational, reasonable plan for independent living. Deyoub
noted that Foster told him that he would pursue outpatient
mental-health treatment if released but that this made no
sense since he refused treatment at the lodge where he lived.
stated that it was possible for Foster to work with his
guardian toward a less restrictive and more independent
living environment in a step-down approach if that was what
he really wanted. Deyoub testified that he was "trying
to caution the court before something disastrous
happens." The doctor opined that the combination of his
bipolar disorder, obsessions, and bitterness created a lack
of safety. He thought that the guardianship was effective and
working because Foster was presently "restrained from
more egregious behavior." ...