                                  Cite as 2014 Ark. App. 505



                   ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CV-13-770


JEAN DORAN                                      Opinion Delivered   September 24, 2014
                               APPELLANT
                                                APPEAL FROM THE SEBASTIAN
V.                                              COUNTY CIRCUIT COURT, FORT
                                                SMITH DISTRICT
ARKANSAS DEPARTMENT OF                          [NO. PR-13-227]
HUMAN SERVICES
                    APPELLEE HONORABLE JAMES COX, JUDGE

                                                AFFIRMED

                             WAYMOND M. BROWN, Judge

       Appellant appeals from the circuit court’s order committing appellant to the

protective custody of the Arkansas Department of Human Services (DHS). On appeal,

appellant argues that the circuit court erred in finding (1) that the evidence presented

clearly and convincingly established that appellant was in need of long-term placement in

the custody of DHS and (2) that the least restrictive means of placement was institutional

care. This case was previously before this court wherein we remanded for supplementation

of both the record and the addendum. 1 Appellant has now cured the deficiencies, and we

proceed to address the merits of her two points for reversal. We affirm.

       On April 23, 2013, the Adult Protective Services hotline received a referral on

appellant alleging that appellant was blind, paranoid regarding having surgery to have

cataracts removed, unable to get to the grocery store or prepare food, had no


       1
           Doran v. Ark. Dep’t of Human Servs., 2014 Ark. App. 238.
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transportation, and could not bathe.        Visits to appellant were attempted by Louise

Spaunhurst 2 on the following two days, but appellant would not come to the door and

yelled for Spaunhurst to go away on both visits. Despite being unable to enter the home,

Spaunhurst was able to speak with appellant on the phone. A seventy-two-hour hold was

taken on appellant on April 25, 2013; however, appellant refused to leave her home.

       On April 26, 2013, DHS filed a petition for emergency custody of appellant

pursuant to the Adult Maltreatment Custody Act (AMCA). 3 In the petition, DHS argued

that appellant’s circumstances and conditions were such that returning to or continuing at

the appellant’s place of residence or in the care and custody of a parent, guardian, or other

person responsible for appellant’s care presents imminent danger to appellant’s health or

safety. It also argued that appellant lacked the capacity to comprehend the nature and

consequences of remaining in a situation that presents imminent danger to her health or

safety and that appellant had mental and physical impairments that prevented her from

protecting herself from imminent danger to her health or safety. DHS specifically

requested that law enforcement and appropriate medical personnel be directed to assist

DHS in obtaining custody of appellant.

       An ex parte order for emergency custody was entered on April 26, 2013, finding

probable cause to believe that grounds existed to take emergency custody, as alleged by

DHS. In support of its probable cause finding, the court cited the affidavit of Spaunhurst,


       2
           Spaunhurst is a registered nurse with DHS’s Adult Protective Services.
       3
       Ark. Code Ann. §§ 9-20-101 to 121 (Repl. 2009). Alternatively, DHS argued
pursuant to the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,
Ark. Code Ann. §§ 28-74-101 to 505 (Repl. 2012).
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noting, among other things, that appellant suffered from “blindness, frontal lobe dementia,

reasoning impairment, left ventricular hypertrophy, paranoia, and congestive heart

failure.” The court referenced “statements from five of the [appellant’s] physicians that the

[appellant] is unsafe to be on her own and cannot make decisions for herself.” The court

also noted appellant’s deterioration since December 2012; non-compliance with medicine

prescriptions; refusal to allow any home medical care providers to enter her home or

provide care or assistance; and lack of a known caregiver currently responsible for her

protection, care, or custody. Finding “it necessary to place the [appellant] in the

emergency custody of Adult Protective Services in order to protect the [appellant’s] health

and safety,” the court awarded DHS emergency custody of appellant. A probable cause

order was entered on May 13, 2013.

       A long-term custody hearing was held on June 3, 2013, and an amended order for

long term protective custody was entered on July 10, 2013. Therein, the court awarded

long-term custody of appellant to DHS, specifically relying on DHS’s court report; the

affidavit of Robert Baker, D.O.; the affidavit of Margaret Tremwel, M.D.; the testimony

of Louise Spaunhurst, R.N.; and the testimony of Dr. Tremwel. This timely appeal

followed.

       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




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

probate court to determine the credibility of witnesses. 4

                                    I.   Insufficient Evidence

       Pursuant to the AMCA, the probate court may order long-term custody with DHS

if the court determines that:

       (1) The adult 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. 5

The court made the required findings; therefore, we need only address whether these

findings were clearly erroneous as appellant asserts.

       Adult maltreatment, as defined by the Act, includes abuse, exploitation, neglect,

physical abuse, or sexual abuse of an adult. 6 Appellant accurately argues that no evidence

was presented that appellant had been abused, sexually or physically, and there was no

evidence of exploitation. However, appellant ignores neglect as a form of adult




       4
        Adams v. Ark. Dep’t of Human Servs., 375 Ark. 402, 409, 291 S.W.3d 172, 177
(2009) (citing Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999) and Campbell v. State,
51 Ark. App. 147, 912 S.W.2d 446 (1995)).
       5
        Id., 375 Ark. at 409–10, 291 S.W.3d at 177 (citing Ark. Code Ann. § 9-20-117(c)
(Repl. 2008)).
       6
           Ark. Code Ann. § 9-20-103(2) (Supp. 2013).


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maltreatment. Neglect, as defined by the act, includes an act or omission by an endangered

or an impaired adult such as self-neglect. 7

       At the long-term custody hearing, DHS called four witnesses; appellant called two

witnesses including herself. Dr. Margaret Tremwel testified regarding two encounters she

had with appellant. During the first encounter, occurring “towards the end of 2012,” Dr.

Tremwel diagnosed appellant with “dementia of the frontal lobe type.” 8 She explained

that the frontal lobe deals with “the ability to make a decision, to take a complex problem

from beginning to completion;” opined that frontal lobe dementia is “more a problem

with judgment;” and asserted that appellant’s major problem, for which Dr. Tremwel was

consulted, was her health and her ability to manage her healthcare. Dr. Tremwel testified

that she came into contact with appellant again in April 2013 when appellant returned to

the hospital and was admitted to Sparks Senior Care due to “difficulty caring for herself at

home.” Dr. Tremwel detailed appellant’s various refusals of cataract surgery to correct her

blindness, which was due at least in part, to cataracts; and noted instances of appellant’s

inability to independently complete her personal care tasks. Dr. Tremwel asserted that she

believed that appellant was “at risk or in danger of self-neglect or something else if she

were to be returned home without care or supervision.”

       Spaunhurst testified regarding her contact with appellant beginning with her first

visit to appellant after receiving the hotline report on April 24, 2013, and ending with


       7
           Ark. Code Ann. § 9-20-103(17).
       8
       Dr. Tremwel came into contact with appellant on a hospital consult regarding
concerns that appellant suffered from dementia.


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appellant being placed in emergency custody on April 26, 2013. Spaunhurst described

appellant as “appear[ing] to be disoriented” during those contacts and “could not answer

questions.” Spaunhurst also detailed appellant’s interactions with various service providers

as reported to her by the service providers when she contacted them:

            (1) Tina Shores at Blind Services 9 stated that it had “attempted for quite some
                time to assist Ms. Doran in her home . . . but she had refused all of those
                services,” 10 and that it had sent Jimmy Jones to appellant’s home to try to
                provide assistance;” 11

            (2) Elder Choice Services sent a nurse, Lynn Hubbard, to appellant’s home,
                “but [appellant] refused to sign their consent form;”

            (3) Pam Langston at Amedisys Home Health advised that it sent someone out
                to see appellant at her home “several times” but appellant “refused services
                as far back as February;” 12

            (4) Langston also noted that she had made “a couple of home visits with Mrs.
                Doran restricting their abilities to provide care,” and refusing occupational
                therapy and social worker services; and

            (5) Visiting Angels, a private pay organization, had been contacted by appellant,
                but she limited the aide’s abilities during his three visits with her.

Spaunhurst also described appellant’s home as “quite messy” to the point of posing “a

challenge [to appellant] to maneuver herself throughout her home;” detailed finding
       9
        Though referred to by Spaunhurst and other witnesses as “Blind Services” it
appears from the record that the name was actually Division of Services for the Blind; it is
a department under DHS.
       10
         Spaunhurst would later testify that Blind Services had been attempting to assist
appellant for “over a year and a half.”
       11
         According to later testimony from Jimmy Jones, appellant was never actually a
client because she would not consent for their care.
       12
         Appellant requested assistance from Amedisys in April 2013 after refusing services
as recently as February 2013.


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unused medicine in various places throughout the home; and identified appellant’s

financial assets and liabilities which included utility bills that had “a couple of months

accrued.”

       Jimmy Jones, a rehabilitation teacher with Services for the Blind, testified that his

initial contact with appellant occurred in “late spring, just early summer” 2011 and was for

eye problems which he remedied by giving appellant a magnifier. 13 He testified that

appellant contacted him in the fall of 2011 because the initial magnifier was not working

as well; he gave her a stronger magnifier. Appellant contacted him again in 2012 because

she “was having a lot more vision problems” so that the magnifying glass “didn’t work

that well.” In the fall of 2012, after Services for the Blind obtained some independent

living money, Jones notified appellant who did not want to sign up for services because

she thought she was already signed up for services. 14 Jones testified to his belief that

appellant’s vision “really went down pretty quick” around Thanksgiving 2012 due to

appellant calling 911 to have herself transported to the hospital because she was blind.

       Jones testified that during appellant’s stay in the hospital following the 911 call, she

requested that he come visit, which he did, but that they did not get anywhere because

“the conversation just kind of went around in circles” regarding what services she could

receive and the need for her to sign up for these services via application, which appellant

denied needing to do because of her erroneous belief that she was already signed up. He
       13
            Appellant needed the magnifying glass to read.
       14
         Jones asserted that no case was, or could be, opened on appellant prior to this
time because Services for the Blind had lost the grant that would have paid for the services
appellant needed.


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eventually testified that he did not believe “based on [his] interaction with [appellant] over

the last two years that she is able to take care of herself without assistance.” Though he

testified that he thought appellant was “sharp” mentally, he asserted that her issue was with

“following through to get things done.”

       Melissa Herring, a certified nursing assistant with Visiting Angels, testified that

during March and April 2013, she assisted appellant on three occasions with daily living

tasks, like cleaning the house or doing laundry, but that appellant would not permit

Herring to help with appellant’s personal care, like bathing. 15 However, Herring testified

to having other concerns with appellant including her ability to get “lost very easily.”

       Pamela Langston, a registered nurse with Amedisys Home Health, testified to her

interaction with appellant since March 2013 and appellant’s unwillingness to receive

services. She noted that appellant will “agree to services but then resist when we actually

[try] to put them in place” and was “paranoid of anybody being around her.” Based on

her interactions with appellant, she testified that she did not believe appellant was able to

take care of herself without assistance.

       In addition to testimony before the court, which included appellant’s own

testimony that she could not make her own bed alone, there was photographic evidence

showing appellant’s home covered in clutter and a missing section of the ceiling.

       In the face of this evidence, it is clear that appellant was neglecting herself.

Accordingly, the court made the necessary findings that appellant lacked the capacity to


       15
        Herring testified that she had no reason to believe appellant was not taking care of
her hygiene.


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

imminent danger to her health or safety and was unable to provide for her own protection

from maltreatment, specifically including self-neglect, due to her mental and physical

ailments.

       In support of her argument, appellant cites her own testimony often as it often

contradicted the testimony of the service providers. Disputed facts and determinations of

witness credibility are within the province of the fact-finder. 16 It is our duty to reverse if

our own review of the record is in marked disagreement with the circuit court’s

findings. 17 After reviewing the evidence in the instant case, we cannot say that the circuit

court clearly erred in granting DHS’s petition for long-term custody.

                               II.    Least Restrictive Environment

       Appellant argues alternatively that if the court’s finding that appellant was in need

of long-term protective custody, the court erred in failing to determine whether

institutional care was the least restrictive method for appellant’s protection. This argument

was not raised below. It is well established that failure to raise an issue before the trial

court is fatal to an appellate court’s consideration on appeal. 18

       Affirmed.
       GLADWIN, C.J., and WOOD, J., agree.
       Robert M. “Robby” Golden, for appellant.
       Tabitha B. McNulty, Arkansas Department of Human Services, for appellee.
       16
         Acuna v. Watkins, 2012 Ark. App. 564, at 7, ___ S.W.3d ___ (citing Ridenoure v.
Ball, 2011 Ark. App. 63, 381 S.W.3d 101).
       17
            Id.
       18
         Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, at 10, 413 S.W.3d 542,
548 (citing Lauman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 564).
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