O.C. v. Arkansas Department of Human Services

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION [NO. 60PR-18-1504] HONORABLE W. MICHAEL REIF, JUDGE

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

          Ellen K. Howard, 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 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 that O.C. had a primary diagnosis of schizoaffective disorder, bipolar type, which could be treated with medications. The affidavit also listed a secondary diagnosis of "Unspecified Neurocognitive Disorder (dementia), likely Alzheimer's type." Dr. Powell did not recommend institutional care but advised that O.C. should live in a private home, group home, or assisted-living facility and should remain in the custody of DHS to protect her health and safety.

         The court also heard testimony from Shannon Halijan, the director of adult protective services at DHS. She testified about the history of the case and DHS's involvement with O.C. She said that DHS had secured a placement for O.C. at a residential facility in DeWitt called West Haven, which she described as a group-home setting. O.C. would be provided medication assistance, transportation, and help making sure she got to appointments. Ms. Halijan said that West Haven would not force O.C. to take her medications, and it was not a locked facility; O.C would be free to come and go as she pleased. Ms. Halijan also said that O.C. did not appreciate the danger she was in or understand that she did not have a home to return to if she did not go to West Haven.

         The court entered an order on September 14, 2018, rejecting O.C.'s arguments against custody; finding by clear and convincing evidence that O.C. suffered from a mental impairment (specifically unspecified neurocognitive disorder (dementia), likely Alzheimer's type); and finding that placement at West Haven was the least restrictive environment appropriate for her care. The court also found that O.C. lacked the capacity to comprehend the nature and consequences of remaining in a situation that presented an imminent danger to her health and safety; that she had no caregiver responsible for her protection or care; and that she was in need of placement because there was not a viable alternative to protective custody. The court awarded long-term custody to DHS.

         The standard of review for probate orders is well established. We review probate proceedings de novo, and we will not disturb the decision of the probate court unless it is clearly erroneous, giving due regard to the opportunity and superior position of the probate court to determine the credibility of witnesses. Nicholson v. Ark. Dep't of Human Servs., 2017 Ark.App. 52, at 6, 511 S.W.3d 903, 907. We review issues of statutory interpretation de novo, as it is for ...