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O.C. v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

December 11, 2019

O.C., Appellant

Page 813


         William R. Simpson, Jr., Public Defender, by: Andrew Thornton, Deputy Public Defender, for appellant.

         Ellen K. Howard, Jonesboro, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.


         RITA W. GRUBER, Chief Judge

          O.C. appeals from an order of the Pulaski County Circuit Court placing her in the long-term custody of the Arkansas Department of Human Services (DHS) under the Arkansas Adult Maltreatment Custody Act. She argues that the circuit court’s decision must be reversed because an adult may not be placed in DHS custody if he or she needs acute psychiatric or chronic mental-health treatment. We reject her argument and affirm the circuit court’s decision.

          The events precipitating the circuit court’s order began in mid-June 2018 when one of O.C.’s neighbors contacted law enforcement for a welfare check. The officers observed that the kitchen faucet was broken, the drains were clogged, and the home was extremely hot and without air conditioning. Although O.C. appeared unaware that she did not own the home

Page 814

when officers conducted the welfare check, O.C.’s home had been sold for nonpayment of taxes, and the new owner had cut off all utilities to the home. Law enforcement also observed O.C. acting paranoid: making comments that people were listening to her in her home, that someone was planting poison ivy in her yard, and that someone would not turn off her water.

         Law enforcement contacted DHS, and a caseworker visited O.C. on June 22. O.C. would not allow the caseworker inside her home. After attempting to execute an eviction notice on July 10, law enforcement again contacted DHS and expressed concern that O.C., who was sixty-eight years old, was impaired and in no shape to be inside the home. On July 20, DHS filed a Petition for Order of Investigation, which the circuit court granted, and DHS and law enforcement went to O.C.’s home on July 30. She was taken to Baptist Hospital for evaluation because of her confused mental status. While at Baptist, O.C. was seen having a conversation with an air conditioner and was initially given a diagnosis of dementia or an infection, but Baptist told DHS that it could not do further testing without proper authorization and would be discharging O.C. to a shelter.

         On August 2, DHS took a seventy-two-hour hold on O.C. and transferred her to Unity Health Hospital in Searcy for further evaluation and possible treatment. DHS filed a petition for emergency custody pursuant to Arkansas Code Annotated sections 9-20-101 (Repl. 2015 & Supp. 2017) et seq., the Arkansas Adult Maltreatment Custody Act (the Act or AMCA), which the circuit court granted. The order authorized temporary custody and further medical and psychological evaluations. The circuit court held a probable-cause hearing on August 10 and found that probable cause continued to exist to allow O.C. to remain in DHS custody.

         On August 20, the circuit court began a long-term-custody hearing. Dr. Andrew Powell, O.C.’s treating psychiatrist at Unity Health Hospital, testified that he had diagnosed O.C. with bipolar disorder with psychotic features. He said that she would probably need medication for the rest of her life, although she had refused to take any medication at the time of the hearing. He said that he would not discharge her with a prescription for therapy but that generally someone with her diagnosis would make an appointment with a psychiatrist at an outpatient clinic. The treating psychiatrist would then determine with the patient whether individual or group therapy was appropriate in addition to medication. Dr. Powell did not recommend institutional care but did recommend twenty-four-hour supervision and assistance to make sure she was safe, had good nutrition, and took her medicine. He did not think that O.C. had the mental capacity to protect herself from abuse, neglect, or exploitation and opined that she should remain in DHS custody. Dr. Powell also testified that he and the hospital staff were continuing to evaluate whether O.C. also had dementia.

          O.C.’s court-appointed attorney argued at the hearing that O.C. should not be placed in DHS custody under the AMCA because it does not allow DHS to take custody of persons in need of "acute psychiatric treatment" or "chronic mental health treatment." The court declined to make a final determination and ordered O.C. to remain in DHS custody while DHS gathered all evaluations concerning her condition and available potential services.

         On September 13, the court resumed the long-term-custody hearing and admitted Dr. Powell’s affidavit dated September 12. In the affidavit, Dr. Powell opined ...

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