Howard v. Arkansas Department of Human Services
512 S.W.3d 676
Ark. Ct. App.2017Background
- DHS placed Michael Howard on a 72-hour emergency hold after APS received a self-neglect report; he was found disoriented, with poor hygiene, medical conditions (alcohol-related psychosis/encephalopathy, cirrhosis, diabetes), and unable to manage medications.
- Hospital and treating physician recommended 24-hour supervision in a secure/structured unit; DHS sought long-term protective custody under the Adult Maltreatment Custody Act.
- APS worker (Spaunhurst) investigated, attempted to contact Howard’s son and sister by phone (no responses), found no other known relatives or addresses, and concluded no willing caregiver could provide required 24/7 care.
- At the long-term-custody hearing, affidavits from the APS nurse and Howard’s physician were admitted; Howard testified he wanted to return home and claimed possible additional assets.
- The probate court ordered DHS long-term custody, finding Howard lacked capacity, required placement, and that institutional care was the least restrictive alternative given unavailable noninstitutional services or willing caregivers.
- Howard appealed, arguing DHS failed to notify next of kin and that institutional placement was not shown to be the least restrictive alternative; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice to next of kin under §9-20-111 | DHS failed to notify family; thus no proof no willing caregiver existed | DHS contacted known phone numbers; no addresses were known; no responses from kin; statute requires notice only to names/addresses known to petitioner | Affirmed: notice requirement met as to what was known; appellant failed to preserve objection at trial; court’s finding of need for placement not clearly erroneous |
| Sufficiency of evidence that no willing caregiver existed | Family might have been willing/able; DHS didn’t prove lack of willing caregiver | APS investigation showed no willing/able family, home unsafe, and medical need for 24/7 care | Affirmed: credible evidence (affidavits, testimony) supported finding no willing caregiver |
| Least restrictive alternative (institutional vs. noninstitutional) | Howard could have assets to pay for noninstitutional care; court improperly limited inquiry into assets | DHS presented medical and APS evidence that institutional care was necessary; Medicaid application in progress; appellant’s asset testimony came in later | Affirmed: institutional placement was the least restrictive alternative; any exclusion of asset evidence was harmless because appellant later testified to assets |
| Procedural/due-process claims about counsel and evidence limits | Counsel was limited by §9-20-108 and could not fully investigate assets; due-process violation warrants reversal | Issue not raised below; record preservation lacking; appellate review cannot consider new constitutional claim | Affirmed: claim unpreserved; appellate court declines to address constitutional argument |
Key Cases Cited
- Adams v. Ark. Dep’t of Health & Human Servs., 375 Ark. 402, 291 S.W.3d 172 (Ark. 2009) (deference to probate court credibility findings in probate proceedings)
- Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (Ark. Ct. App. 2006) (standard for clearly erroneous review)
- Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, 413 S.W.3d 542 (Ark. Ct. App. 2012) (failure to raise issue below forfeits appellate review)
- Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272 (Ark. Ct. App. 2012) (assessment of prejudice from excluded evidence in DHS cases)
- Razorback Cab of Fort Smith, Inc. v. Amon, 2016 Ark. App. 352, 498 S.W.3d 346 (Ark. Ct. App. 2016) (trial court’s evidentiary rulings reviewed for abuse of discretion; prejudice required to reverse)
- Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (Ark. 1996) (harmless error principles where same evidence appears elsewhere in record)
- Smithee v. Ark. Dep’t of Human Servs., 2015 Ark. App. 506, 471 S.W.3d 227 (Ark. Ct. App. 2015) (appellate court will not consider arguments raised first on appeal)