Howard v. Arkansas Department of Human Services

record, in the should not dence Board App. rejected delay. He his reason for HOWARD, Appellant Michael does claims that the the Board decision indicate that found lacking. DEPARTMENT OF ARKANSAS Director, 2014 Ark. He cites Harris v. SERVICES, HUMAN 988933, 163, 2014 where this WL Appellee may that the director waive the held restrictions Arkansas Administrative No. CV-16-595 208.00.2-14(b)(G) (may Code considered filed earlier than fourteen Arkansas, Appeals Court of received) days prior to date if he DIVISION I. extraordinary ex finds circumstances justice require such equity 1, ist and Opinion February Delivered: argues that he was with Fowlkes waiver. legal

out benefit of counsel and extraordinary

midst of an circumstance of his father brother

with the death delay He

short order. claims that

filing equity should be excused because delay justice exist excuse the

filing, alternatively, good due to cause. that Fowlkes Department contends good backdating

did not show cause

claim, and the Board’s decision must be day of agree. Fowlkes’s final

affirmed. We 20, October 2015. He filed his

work 1iawas unemployment

claim for De- insurance once he became available

cember asked that return workforce. He day to his last

the claim be backdated 14(b)(G) Regulation states

work. shown,

good cause is an individual’s claim days. up be backdated fourteen fifty-five days

did not file his claim leaving job.

after even matters, it

though busy he was to find that

was reasonable the Board some time to file his

he could have found

claim before December 2015.

Affirmed.

Gruber, C.J., Brown, J., agree. Standridge, appellant.

Dusti Goff, Counsel, Mary Office Chief Con- way, for appellee. HIXSON, Judge S.

KENNETH | jAppellant appeals Michael Howard County from the Court’s Sebastian Circuit granting Department the Arkansas (DHS) long-term pro- Services custody. appeal, appellant con- tective On presented no tends family were unable notify and that DHS failed required; was revers- ible error for the circuit court find convincing clear and that institu- tional the least alter- care was restrictive We affirm. native. petition

On March DHS filed alleging emergency custody, impaired pellant endangered although a son and a he had adult and sister, caregiver. primary did insurance, that were no utili- placed on medical there seventy-two-hour hold was home, prior Protective Services ties at his after Adult Rehab, (APS) stating call Fort & residing a hotline at Smith Health had received self-neglect. prefer was a victim continued to and that Mercy Hospital Griswald, Appellant was admitted Apollo the name be called floor at home on the after he was found identity. Spaun- self-assumed alternative was on his own. He get up but could not in that opined hurst further her affidavit lapants and feces on found with dried his capacity compre- appellant lacked the to his home had legs, and the entrance consequences |aof and re- hend the nature At large boards. holes and broken arrangements turning living to his former a 0.01 hospital, had blood-alcohol appellant ability he meet and that lacked disoriented, level, believed that he and was . twenty- daily living without activities identity. The completely a had different ap- that four-hour care. recommended She diagnosed appellant with attending doctor pellant protective custody remain in and opined atrial fibrillation and and diabetes placed in least that he continue managing his incapable that he was to meet his needs. restrictive environment twenty-four-hour medications and needed Elangwe Dr. likewise recommended that Appellant supervision. care left and protective custody in appellant remain an hour after DHS hospital room within ap- that Elangwe Dr. noted affidavit. hold, emergency security and placed pellant encephalopathy, had alcohol cirrho- sitting waiting in the room later found liver, personality sis of the and a disorder. emergency of the room. appellant further recommended that parte granted The circuit court ex twenty-four-hour supervision needed and a a emergency custody, and subse- order structured, unit with medication secure quent probable-cause order was entered. management safety checks. and probable-cause specifically not- order Dr. diagnosed appellant ed that Anower testified at the simi- psychosis possible with alcohol-related and explained that larly to her affidavit. She cirrhosis, type as well as diabetes mellitus assigned by APS to appel- she had been II. noted that Dr. that con- lant’s case. She testified she had that appellant Anower was stated numbers that she had tacted adequately manage medications son, Howard, George appellant’s ability that he himself lacked Dahlem, sister, Donna but she pellant’s abuse, neglect, exploitation, from explained that one had returned her alone. messages. phone calls or voice She further testified that she was unaware other hearing regarding long-term protec- neither appel- members and that 14, 2016, custody April held on tive capable son nor his sister would be lant’s into and two affidavits admitted evi- were providing the level care dence, reg- Spaunhurst, one Louise additionally would need. She indicated APS, the other istered nurse prior residence was unsafe Philip Elangwe, appellant’s pri- from Dr. possibility there was a needed mary-care physician. Spaunhurst’s affida- in- to be condemned. based her diag- vit stated that had been her recommendation vestigation, that needed nosed with several conditions time, protective custody remain At she ex- continuous care. appellant’s placement an insti- plained no income and that placement. the least restrictive environ- tution was need The Arkansas De- partment ment. of Human Services is awarded long custody of Respondent. term Place- Appellant testified his own behalf at Respondent ment of the shall be at an hearing. of his Some statements were appropriate facility the least restric- indiscernible, complained but he that he tive environment that best meets the did not his current and that like Respondent’s time, At needs. there prior he wanted to return to his residence. are not sufficient services available to said, That admitted had been Respondent for non-institutionalized feeling and that he had not been Rbetter protective court-ordered services drinking. At the hearing, conclusion protec- viable alternative to appellant specifically objected to his insti- custody. Specifically, tive the Court re- placement being tutionalized the least lies on the report; court the Petitioner’s However, restrictive the cir- environment. M.D.; Phillip Elangwe, of affidavit the orally cuit found court testimony Spaunhurst, of Louise R.N. was the least restrictive environment that worker; testimony APS and the other met his needs. presented. subsequently The circuit court filed long-term protective for

written order cus- appeal This followed.

tody, specifically making following the rel- I. Standard Review findings:

evant of Respondent, 3. The Court finds probate Our standard of for review having endangered or im- been found orders is well established. This court re paired, capacity comprehend lacks the to novo, probate proceedings views de consequences nature of the remain- probate of the decision the court will not immi- ing presents a situation an erroneous, clearly be disturbed ^unless to danger safety. nent his health to giving regard opportunity due the specifically, More Mr. Howard has been probate of superior position the court to diagnosed alcohol encephalopathy with determine the of witnesses. liver, and cirrhosis of the with a second- Dep’t v. Ark. Health Adams & Human of ary diagnosis personality of disorder. Servs., Ark. 291 375 S.W.3d 172 Further, Respondent the is not able to (2009). is erroneous take care of himself or himself when, to although sup there is evidence abuse, exploitation, or other mal- it, port reviewing court on entire the the treatment, including self-neglect, firm evidence is definite and Elangwe Dr. these conditions. recom- conviction that a mistake has been made. monitoring mends 24 hour in a secure Yarborough Dep’t v. Ark. Human unit. and structured Servs., Ark.App. 626 S.W.3d caregiver 4. That there is no known currently for responsible protection, the purpose of the Adult Maltreatment custody Respondent care the (the Act) Custody Act is to: willing Respon-

is or able the (1) long- Protect a maltreated adult or professional dent with the level 24/7 facility is in term resident who nursing supervision that care and the danger; and imminent Respondent requires. cooperation of state Encourage

5. The Court clear and con- finds private providers in the vincing Respondent agencies that the names known to for whose and addresses are delivery system maltreated service petitioner.” Appellant argues adults. this notice re first time 2015). § (Repl. 9-20-102 Ann. Ark. Code However, quirement it is met. well extent, gives jurisdiction Act To that to raise an established failure issue court probate division appel trial court is fatal before the custody, temporary proceedings over late consideration Hall evaluation, custody purposes Servs., Dep’t v. Ark. services, or an protective order ordered Moreover, 542. sec S.W.3d to the investigation pursuant Act. See only requires tion 9-20-111 notice 20—108(a)(1). § Pursuant Code Ann. 9— ... “names and addresses known Act, long- probate added.) (Emphasis Petitioner.” with DHS the court deter- custody term she appellant’s testified that had contacted that: mines through numbers phone physical mental or The adult has a Despite attempts for them. her to com- impairment capacity or lacks the appellant’s no one family, contact returned prehend consequences of the nature and her calls or to assist presents in a remaining situation There care. danger imminent his or her health any fami any that DHS had addresses for safety; ly members, Spaunhurst testified that and provide for to his adult family not know any did members she protection from maltreat- or her own the two to other than she had ment; and that contact numbers she by the convincing clear The court finds and pi-esented Additionally, had. DHS placed is in evidence that the adult be that had been alone provided in this placement need of as he removed and he home when was that chapter. such, twenty-four-] As required care. 7hour 9-20-117(c). §Ann. Ark. Code that the circuit court’s find we cannot find ing placement was | that needed Family Notice to fiII. erroneous, on affirm and we Appellant first contends point presented no that DHS family care for him and were unable Least Restrictive Alternative III. notify that DHS failed required. specifically argues more that additionally contends Appellant that sufficiently prove DHS that there did not was error the circuit reversible caregiver provide him willing convincing find clear and evidence that the care that he needed DHS because care was the least restrictive institutional required, not his next of kin as notify did Appellant dispute not does alternative. therefore, argues that and he care, twenty-four-hour but needs he finding he needed argues bur- he did meet its DHS convincing not supported by clear prove care is den to that institutional disagree. evidence. We section least restrictive alternative under 9-20-117(d) 9-20- best his needs be- Arkansas meets Code Annotated inquiry requires long-term- cause the that notice circuit limited Thus, appel- given into his custody hearing part assets benefits. relevant suggests lant fur- respondent of kin of the had next “[t]he ther assets that would have him to tional allowed evidence of during assets provide Spaunhurst’s cross-examination, for his care any noninstitutional- exclu- however, argument, ized environment. His sion was at most harmless error because is without merit. objection testified without State, Jones he had additional assets. reviewing After of the hear- record 931 S.W.2d 83 ing, appellant Spaunhurst cross-examined regarding his Spaun- assets. After Nurse after all the evi hurst testified that only “the asset avail- dence, the circuit court found clear and [appellant] pay able to his care [was] convincing appellant’s place evidence that house,” appellant inquired whether he ment in an institution was the least restric any point, other assets. At that tive alternative that met his needs. Arkan objected appellant’s question, arguing 20—117(d)(1) sas Code Annotated section 9— scope representa- that was outside the requires the circuit court to determine pursuant tion to Arkansas Code Annotated “the least restrictive alternative be con ruled, section 9-20-108. The circuit court proper circumstances, sidered under is, but already she’s that so “[I]t answered including for noninstitutional care let’s move on.” At the end her cross- Here, possible.” appellant’s physician examination, Spaunhurst testified without recommended institutional objection that she was “not aware care, Appellant care. needed continuous [had] [other] assets.” presented evidence was his home explained already completed that she had was unsafe his return. long-term-care a Medicaid application that willing there were no family members to pay would for his care once it was with the necessary level of proved. Subsequently, testified Although appellant’s care. testimony at the during his direct examination without ob- hearing suggested that he believed he had jection that he |8assets owned care, additional for his 18believed “Iowa bank account” in and “a ranch Sher- we defer to the circuit superior wood that’s deeded in correct [his] name.” position regarding the of wit Adams, supra. nesses. we cannot It is well settled that the deci findings find that the circuit court’s re sion to admit or is within exclude evidence garding placement were erroneous. court, the sound of discretion the circuit and we will not Finally, reverse that decision ab to the extent manifest abuse of discretion. Razor sent a attempts now a constitutional make due- Smith, Amon, back Cab Fort Inc. v. process argument appointed coun of 352, 346; Che App. 2016 Ark. 498 in ascertaining S.W.3d sel was somehow limited Servs., ney Dep’t v. Ark. Human 2012 his assets on section 9-20-108 and based of 209, Ark. App. 396 272. Further that “this case should be S.W.3d reversed and more, this court will not without a remanded so the constitutional safe reverse of showing prejudice, prejudice guards as is not reach place,” are we cannot the presumed. Cheney, supra. Exclusion of of it ev merits this claim because was never v. is not if below. Jones Ark. prejudicial idence the same evi on raised ruled Servs., Dep’t 164, Human through dence Ark. was introduced another 205 361 of before of fact This has source the trier for S.W.3d 778 court made it Fort Razorback Cab abundantly its consideration. it not clear that will consider of Smith, supra. Assuming one, arguendo, argument, even constitutional Id.; improperly excluded addi- raised for the first time on 682 Servs., case, others, as in each of the Dep’t Ark. Human this

Smithee v. of that, 506, 227; argues although section 9- Tuck App. Ark. 471 2015 S.W.3d Ark, 111(d)(2) Servs., requires give DHS notice Dep’t Human 20— of of next of kin of 468, to the 442 S.W.3d 20. we App. adult, not In this was done. none these appeal assignments do not consider put forward cases did unsupported by convincing argument DHS error had been pro- to demonstrate notice apparent it is without authority, unless Unfortunately, we could not reach point is vided. research that the well tak- further because, in each Jones, the merits this issue supra. en. case, preserved appellate for Affirmed. complete This is a failure of review. re- process. give failed notice Virden, J., agrees. statute, attorney quired defense J., Vaught, concurs. object preserve failed error review, trial to protect and the court failed D. Larry Vaught, Judge, concurring. by requiring compliance its record I agree that this case must be While mandatory statute. affirmed the reasons stated the ma Likewise, cases, in each of jority’s opinion, separately I to ad these write attorney for the adult to intro- troubling likely issues that are dress Today, this duce evidence her assets recur. our court hands down in an others with similar facts determine confinement institu- case three tion was the least restrictive alternative legal challenges. and almost identical However, case, Servs., for care. each the trial Dep’t v. Ark. Human Brown 69, 895, objections court sustained to such App. Ark. 511 DHS’s S.W.3d 2017 1, 2017); testimony based its that section (February Johnston WL 437622 Servs., representation only 9-20-108 limits Dep’t v. Ark. Human (Febru 51, liberty issue of the adult’s interest. App. 2017 WL 437419 Howev- 10Ark. prevented er, 2017); again, 1, Dep’t we have been ary and Nicholson v. Ark. Infrom Servs., addressing important issue because attorney preserve the defense failed to (February S.W.3d 2017 WL 437421 2017). proffer case, and failed to exclud- In each due to failures evidence, below, necessary ed financial attorneys and we are unable which from legal prejudice order to establish its exclu- issues about which we have reach result, meaningful sion. grave concerns. As a effectively process have been de due present important These cases issues appellants, nied to these four and due worthy meaningful appellate review. review, our limited standard we are repeatedly The fact that we have been the issues. address prevented, preservation, due lack addressing systemic them a purpose the Adult Mal- indicates

While Act, Custody problem. I to put Arkansas Code write treatment 2015) 9-20-101 on notice that (Repl. et bench and bar the laws Annotated designed protect seq., is to a maltreated adult and Arkansas’s most vul- rushed, require encourage cooperation agen- between state nerable adults more than providers, pro- perfunctory proceedings foregone private-care cies and due required, Simple process mandates cess is still the law must conclusions. followed, meaningful hearing must be fair. In with notice to the im- of the family, representation zealous adult, pres-

paired opportunity and the all

ent evidence. members relevant engaged in

the bench and the bar these responsibility

matters have ethical sub-

protect the best interest the adults least, At

ject proceedings. very to such preserving right appel-

that means their

late review.

Joseph LONGLEY and Annette (Deceased),

Longley

Appellants

Curtis and Christine GATEWOOD

Gatewood, Wife, Husband and

Appellees

No. CV-15-778 Arkansas, of Appeals

Court III.

DIVISION

Opinion February Delivered:

Case Details

Case Name: Howard v. Arkansas Department of Human Services

Court Name: Court of Appeals of Arkansas

Date Published: Feb 1, 2017

Citation: 512 S.W.3d 676

Docket Number: CV-16-595

Court Abbreviation: Ark. Ct. App.