                                    Cite as 2017 Ark. App. 51


                    ARKANSAS COURT OF APPEALS
                                          DIVISION I
                                         No.CV-16-592
                                                  Opinion Delivered: February   1, 2017
JACK JOHNSTON
                    APPELLANT APPEAL FROM THE SEBASTIAN
                               COUNTY CIRCUIT COURT, FORT
V.                             SMITH DISTRICT
                               [NO. 66PR-2016-147]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES
                               HONORABLE ANNIE POWELL
                      APPELLEE HENDRICKS, JUDGE
                                                  AFFIRMED


                                    BART F. VIRDEN, Judge

        The Sebastian County Circuit Court entered an order for long-term protective

 custody of appellant Jack Johnston, which he now appeals. Johnston argues that (1) the

 Arkansas Department of Human Services (the Department) failed to present evidence that

 his family was notified as required by Arkansas Code Annotated section 9-20-111, and (2)

 that the circuit court erred in limiting counsel’s cross-examination regarding Johnston’s

 assets and finances. We affirm.

                               I.     Adult Maltreatment Custody Act 1


        A “maltreated adult” means an adult who has been abused, exploited, neglected,

 physically abused, or sexually abused. Ark. Code Ann. § 9-20-103(15). “Neglect” includes

 self-neglect or an act or omission by a caregiver responsible for the care and supervision of


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            Codified at Ark. Code Ann. §§ 9-20-101 et seq. (Repl. 2009).
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an endangered or an impaired adult constituting negligent failure to provide necessary

treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an

endangered or an impaired adult, or to carry out a prescribed treatment plan. See Ark. Code

Ann. § 9-20-103(17)(A) & (B)(i), (iii).

       The Arkansas Department of Human Services or a law enforcement official may take

a maltreated adult into emergency custody if the circumstances or condition of the

maltreated adult are such that returning to or continuing at the maltreated adult’s place of

residence or in the care of a person responsible for the maltreated adult’s care presents

imminent danger to the maltreated adult’s health or safety, and the maltreated adult either

lacks the capacity to comprehend the nature and consequences of remaining in a situation

that presents imminent danger to his or her health or safety, or has a mental impairment or

a physical impairment that prevents the maltreated adult from protecting himself or herself

from imminent danger to his or her health or safety. Ark. Code Ann. § 9-20-114(a)(1), (2).

       Pursuant to Arkansas Code Annotated section 9-20-117(c), the trial court may order

long-term custody with the Department if the court determines that

              (1) The adult has a mental or physical impairment or lacks the capacity to
                  comprehend the nature and consequences of remaining in a situation that
                  presents an imminent danger to his or her health or safety;

              (2) The adult is unable to provide for his or her own protection from
                  maltreatment; and


              (3) The court finds clear and convincing evidence that the adult to be placed
                  is in need of placement as provided in this chapter.
                                             II.

              (4)



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                                      II. Procedural History

        On March 17, 2016, the Department filed a petition for emergency custody of

Johnston pursuant to the Adult Maltreatment Custody Act. In its petition, the Department

alleged that Johnston’s health and safety were in danger. Louise Spaunhurst, a nurse with

Adult Protective Services (APS), stated in the attached affidavit that APS had received a

hotline call on March 9, 2016, concerning Johnston’s self-neglect. Johnston had refused to

allow anyone to treat his wounds, he denied having any wounds, and he stated that he only

had “war injuries.” Examination at Sparks Hospital revealed that he had multiple, severe

open-pressure ulcers. His wounds required debridement and a colostomy aid. Johnston also

had stage-three pressure ulcers to his right and left heels, a pressure ulcer on his left calf, and

stage-three pressure ulcers to his left buttock and sacrum/coccyx area, and the area was

surrounded by cellulitis. Johnston was diagnosed with dementia, a history of alcoholism,

multiple decubitus ulcers, and a history of prostate cancer. Johnston lived with his son at the

time the petition was filed. Nurse Spaunhurst stated that Johnston was impaired and lacked

the mental capacity to comprehend the nature of the consequences of returning to his son’s

home. She concluded that Johnston could not meet his daily nutritional, medication-related,

financial, and medical needs and that Johnston required 24-hour care and supervision.

Spaunhurst recommended that Johnston remain in the custody of APS. In the affidavit

attached to the petition, Dr. Ahmad Koake stated that Johnston was both mentally and

physically impaired, and he recommended that Johnston be placed in a skilled-nursing

facility.




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       The circuit court entered an ex parte order for emergency custody and directed that

Johnston be placed in the least restrictive environment necessary to meet his needs. Johnston

was appointed counsel, and a probable-cause hearing was set for March 18, 2016.

       The circuit court entered a probable-cause order the same day as the hearing. In its

order, the circuit court found that no suitable primary caregiver was known to the

Department, and it set a long-term custody hearing for April 14, 2016. The circuit court

ordered notice to be given to Johnston’s counsel, his next of kin whose names and addresses

were known to the court, the person having physical custody of Johnston, and any other

required entities.

                                        III. Custody Hearing

       Spaunhurst testified at the long-term custody hearing that she had received the call

to the hotline regarding Johnston. She stated that the caller informed her that Johnston was

bedbound, that he would not allow anyone to treat his wounds, and that he was living with

his son. Spaunhurst testified that she had examined Johnston at Sparks Hospital the next

day, and she found him to be “self-oriented” only, confused, and unaware that he was in

the hospital or why he was there. She testified that she had observed multiple wounds to his

heels, legs, buttocks, coccyx, and sacrum. Spaunhurst testified that Johnston was moved to

Select Specialty Hospital where he received antibiotics and wound care. Spaunhurst also

testified that neither of Johnston’s children was willing or able to provide the level of care

he required. Spaunhurst explained that Johnston’s son had told her that his father had

“nothing at his house” except for a chair with a bad spring and that the son believed the

chair was the cause of the bedsores. Spaunhurst stated that, in her investigation of Johnston’s


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case, she spoke to his family, his physician, the nursing staff, the police, and Johnston himself.

Based on her investigation, Spaunhurst believed that a long-term-care facility was the least

restrictive environment possible to meet Johnston’s needs.

       Spaunhurst also testified that Johnston received $1,521.64 from Social Security and

that he had a bank account with a balance of $1,527.29. When counsel for Johnston asked

Spaunhurst if she had made any other efforts to find assets in addition to the social security

check and the bank account, the Department objected, stating that the questioning was

beyond the scope of representation of an impaired or endangered individual. The circuit

court sustained the objection and stated that counsel’s “obligation here is limited to ‘the

issue of deprivation of liberty, but not with respect to issues involving property, money,

investments or other fiscal issues.’” Counsel responded that she had a right to cross-examine

Spaunhurst on the matter of financial information because it had been brought before the

court. The circuit court allowed counsel to ask Spaunhurst the question about any other

assets that might exist in addition to the SSI and the bank account, and Spaunhurst replied,

“I have no knowledge of any other assets that he has.”

       The Department requested that Johnston remain in a skilled-nursing facility and that

the circuit court find that Johnston was endangered and impaired, that he lacked the capacity

to comprehend the nature and consequence of remaining in a situation that presents an

imminent danger to himself and his safety, and that there was no adequate caregiver who

was willing to provide the required level of care, and that the court authorize the

Department to close Johnston’s bank account and transfer the balance to the long-term-care

facility in which he would reside.


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       Counsel for Johnston refused to sign the precedent, and explained that it was

“because of the language in paragraph six, which discusses assets and future assets.”

       On April 14, 2016, the circuit court entered the order for long-term protective

custody. The circuit court found that Johnston was endangered or impaired and lacked the

capacity to comprehend the nature and consequences of remaining in a situation that

presents an imminent danger to his health or safety. The circuit court specifically found that

Johnston had been diagnosed with sacral decubitis ulcers associated with cellulitis, bilateral

heel wounds and bilateral lower-extremity wounds, with a secondary diagnosis of

alcoholism, malnutrition and encephalopathy, dementia, and prostate cancer. The circuit

court found that Johnston was unable to care for himself or to protect himself and that Dr.

Ur Rehman recommended 24-hour-a-day care for feeding, bathing, and for the

administration of medication and that the least restrictive environment to achieve this care

was a skilled-nursing facility. The circuit court found that there was no known caregiver

willing to provide the level of care Johnston required, and it found by clear and convincing

evidence that Johnston required such placement. The circuit court ordered that the

Department have long-term custody of Johnston.

                                   IV. Standard of Review

       Our standard of review for probate orders is well established. This court reviews

probate proceedings de novo, and the decision of the probate court will not be disturbed

unless clearly erroneous, giving due regard to the opportunity and superior position of the

probate court to determine the credibility of witnesses. Adams v. Ark. Dep’t of Health &

Human Servs., 375 Ark. 402, 409, 291 S.W.3d 172, 177 (2009).


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                                             V. Discussion

                                     A. Failure to Notify Family

       Johnston argues that the circuit court erred in finding that he was an adult in need

of placement because the Department presented no evidence that his family members had

received the notice required by Arkansas Code Annotated section 9-20-111(d)(2), which

provides that notice of the long-term-custody hearing shall be given to the next of kin of

the respondent whose names and addresses are known to the petitioner. Johnston reasons

that the Department’s failure to give notice to family members resulted in a lack of proof

that there was no willing or able caregiver available to provide Johnston with the level of

care he required.

       Although Johnston argues that Spaunhurst’s testimony that neither of Johnston’s

children was willing or able to provide for his care is “clearly hearsay” and that “little to no

foundation was laid for the testimony, neither a hearsay nor a foundational objection was

made below thus, these issues are not preserved for review on appeal. Doran v. Ark. Dep’t of

Human Servs., 2014 Ark. App. 505, 442 S.W.3d 868.

       Johnston asserts the alternative argument that there was no evidence presented

concerning his children’s ability to collect entitlements or income that may have been

available to Johnston. Johnston failed to raise this argument below; thus, we do not address

it. Doran, supra. Although we agree that notice was not given, the nature of the argument is

procedural and not one of sufficiency; therefore, we do not address the merits.




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                                    B. Limiting Cross-Examination

       Johnston also argues that it was a violation of his due-process rights and reversible

error for the circuit court to limit his ability to cross-examine Spaunhurst as to his assets or

available benefits. Johnston points to Arkansas Code Annotated section 9-20-108(f)(1),

which provides that

               [i]f a maltreated adult is found to be indigent or the court appoints the
       Arkansas Public Defender Commission as counsel for the maltreated adult, the
       commission shall represent the maltreated adult as to the issue of deprivation of
       liberty, but not with respect to issues involving property, money, investments, or
       other fiscal issues.

       Johnston argues that his liberty interest directly relates to his financial assets, and thus,

questioning should have been allowed on the matter. At the hearing, the circuit court first

sustained the objection to further cross-examination concerning any other financial assets

Johnston might have aside from his social security and the bank account; however, the

circuit court subsequently allowed the question, stating from the bench, “We’ll let her

answer that and then we’ll go from there. But I don’t think we’ll go on any more about

property.” Nurse Spaunhurst responded, “I have no knowledge of any other assets that he

has.” Based on this testimony, we do not see how Johnston can demonstrate prejudice.

                                         IV. Conclusion

       The circuit court made the requisite findings. We cannot say that the circuit court

clearly erred in entering an order placing Johnston in the long-term protective custody of

the Department.

       Affirmed.

       HIXSON, J., agrees.


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VAUGHT, J., concurs.

Dusti Standridge, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.




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