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Foster v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

May 24, 2017



          Laura Avery, for appellant.

          Richard W. Atkinson, Arkansas Department of Human Services, for appellee.

          N. MARK KLAPPENBACH, Judge

         This is 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.

         Foster 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.

         At the 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.[1] 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[2] was appointed.

         In June 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 authorizing settlement.

         Foster 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.

         In January 2015, Foster filed a pro se motion to terminate the guardianship.[3] 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 injunctive relief.

         In 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 petition.

         A 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.

         Deyoub 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.

         Deyoub 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." ...

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