                                  Cite as 2017 Ark. App. 68


                 ARKANSAS COURT OF APPEALS

                                         DIVISION I
                                       No. CV-16-595

                                                 Opinion Delivered:   February 1, 2017

MICHAEL HOWARD                           APPEAL FROM THE SEBASTIAN
                               APPELLANT COUNTY CIRCUIT COURT,
                                         FORT SMITH DISTRICT
V.                                       [NO. 66PR-16-170]

                                                 HONORABLE ANNIE HENDRICKS,
ARKANSAS DEPARTMENT OF                           JUDGE
HUMAN SERVICES
                    APPELLEE AFFIRMED


                             KENNETH S. HIXSON, Judge

       Appellant Michael Howard appeals from the Sebastian County Circuit Court’s order

granting the Arkansas Department of Human Services (DHS) long-term protective custody.

On appeal, appellant contends that (1) DHS presented no evidence that appellant’s family

were unable to care for him and that DHS failed to notify his family as required; and (2) it

was reversible error for the circuit court to find by clear and convincing evidence that

institutional care was the least restrictive alternative. We affirm.

       On March 25, 2016, DHS filed a petition for emergency custody, alleging that

appellant was an endangered or impaired adult and that although he had a son and a sister,

he did not have a primary caregiver. A seventy-two-hour hold was placed on appellant

after Adult Protective Services (APS) had received a hotline call stating that appellant was a

victim of self-neglect. Appellant was admitted to Mercy Hospital after he was found at

home on the floor but could not get up on his own. He was found with dried feces on his
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pants and legs, and the entrance to his home had large holes and broken boards. At the

hospital, appellant had a 0.01 blood-alcohol level, was disoriented, and believed that he had

a completely different identity.    The attending doctor diagnosed appellant with atrial

fibrillation and diabetes and opined that he was incapable of managing his medications and

needed twenty-four-hour care and supervision. Appellant left his hospital room within an

hour after DHS placed an emergency hold, and security later found him sitting in the

waiting room of the emergency room.

       The circuit court granted an ex parte order for emergency custody, and a subsequent

probable-cause order was entered.        The probable-cause order specifically noted that

Dr. Anower diagnosed appellant with possible alcohol-related psychosis and cirrhosis, as

well as diabetes mellitus type II. Furthermore, the order noted that Dr. Anower stated that

appellant was unable to adequately manage his medications and that he lacked the ability to

protect himself from abuse, neglect, or exploitation, if left alone.

       A hearing regarding long-term protective custody was held on April 14, 2016, and

two affidavits were admitted into evidence, one from Louise Spaunhurst, a registered nurse

with APS, and the other from Dr. Philip Elangwe, appellant’s primary-care physician.

Spaunhurst’s affidavit stated that appellant had been diagnosed with several conditions that

needed continuous care. At that time, she explained that appellant had no income or

medical insurance, that there were no utilities at his prior home, that appellant was residing

at Fort Smith Health & Rehab, and that appellant continued to prefer to be called by the

name Apollo Griswald, his self-assumed alternative identity. Spaunhurst further opined in

her affidavit that appellant lacked the capacity to comprehend the nature and consequences


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of returning to his former living arrangements and that he lacked the ability to meet his

activities of daily living without twenty-four-hour care. She recommended that appellant

remain in protective custody and that he continue to be placed in the least restrictive

environment to meet his needs.

       Dr. Elangwe likewise recommended that appellant remain in protective custody in

his affidavit. Dr. Elangwe noted that appellant had alcohol encephalopathy, cirrhosis of the

liver, and a personality disorder. He further recommended that appellant needed twenty-

four-hour supervision and a structured, secure unit with medication management and safety

checks.

       Spaunhurst testified at the hearing similarly to her affidavit. She explained that she

had been assigned by APS to appellant’s case. She testified that she had contacted the phone

numbers that she had for appellant’s son, George Howard, and appellant’s sister, Donna

Dahlem, but she explained that no one had returned her phone calls or voice messages. She

further testified that she was unaware of any other family members and that neither

appellant’s son nor his sister would be capable of providing the level of care that appellant

would need. She additionally indicated that appellant’s prior residence was unsafe and that

there was a possibility that it needed to be condemned. Thus, based on her investigation,

it was her recommendation that appellant remain in protective custody and that appellant’s

placement in an institution was the least restrictive environment.

       Appellant testified on his own behalf at the hearing. Some of his statements were

indiscernible, but he complained that he did not like his current placement and that he

wanted to return to his prior residence. That said, he admitted that he had been feeling


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better and that he had not been drinking. At the conclusion of the hearing, appellant

specifically objected to his institutionalized placement as being the least restrictive

environment. However, the circuit court orally found that his placement was the least

restrictive environment that met his needs.

       The circuit court subsequently filed a written order for long-term protective custody,

specifically making the following relevant findings:

              3.      The Court finds that Respondent, having been found endangered or
       impaired, lacks the capacity to comprehend the nature and consequences of
       remaining in a situation that presents an imminent danger to his health or safety.
       More specifically, Mr. Howard has been diagnosed with alcohol encephalopathy and
       cirrhosis of the liver, with a secondary diagnosis of personality disorder. Further, the
       Respondent is not able to take care of himself or protect himself from abuse,
       exploitation, or other maltreatment, including self-neglect, due to these conditions.
       Dr. Elangwe recommends 24 hour monitoring in a secure and structured unit.

              4.     That there is no known caregiver currently responsible for the
       protection, care or custody of the Respondent that is willing or able to provide the
       Respondent with the level of 24/7 professional nursing care and supervision that the
       Respondent requires.

               5.    The Court finds by clear and convincing evidence that the Respondent
       is in need of placement. The Arkansas Department of Human Services is awarded
       long term custody of Respondent. Placement of the Respondent shall be at an
       appropriate facility in the least restrictive environment that best meets the
       Respondent’s needs. At this time, there are not sufficient services available to the
       Respondent for non-institutionalized care or court-ordered protective services to
       provide a viable alternative to protective custody. Specifically, the Court relies on
       the Petitioner’s court report; the affidavit of Phillip Elangwe, M.D.; the testimony
       of Louise Spaunhurst, R.N. APS worker; and the other testimony presented.

This appeal followed.

                                    I. 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


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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. Adams v. Ark. Dep’t of Health &

Human Servs., 375 Ark. 402, 291 S.W.3d 172 (2009). A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t

of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).

       The purpose of the Adult Maltreatment Custody Act (the Act) is to:

              (1) Protect a maltreated adult or long-term care facility resident who is in
              imminent danger; and

              (2) Encourage the cooperation of state agencies and private providers in the
              service delivery system for maltreated adults.

Ark. Code Ann. § 9-20-102 (Repl. 2015). To that extent, the Act gives jurisdiction to the

probate division of the circuit court over proceedings for custody, temporary custody for

purposes of evaluation, court ordered protective services, or an order of investigation

pursuant to the Act. See Ark. Code Ann. § 9-20-108(a)(1). Pursuant to the Act, the probate

court may order long-term custody with DHS 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.

Ark. Code Ann. § 9-20-117(c).




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                                      II. Notice to Family

       Appellant first contends on appeal that DHS presented no evidence that his family

were unable to care for him and that DHS failed to notify his family as required. He more

specifically argues that DHS did not sufficiently prove that there was no willing caregiver to

provide him with the care that he needed because DHS did not notify his next of kin as

required, and therefore, he argues that the circuit court’s finding that he needed placement

was not supported by clear and convincing evidence. We disagree.

       Arkansas Code Annotated section 9-20-111 requires that notice of the long-term-

custody hearing be given in relevant part to “[t]he next of kin of the respondent whose

names and addresses are known to the petitioner.” Appellant argues for the first time on

appeal that this notice requirement was not met. However, it is well established that failure

to raise an issue before the trial court is fatal to an appellate court’s consideration on appeal.

Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, 413 S.W.3d 542. Moreover, section

9-20-111 only requires notice to “names and addresses . . . known to the Petitioner.”

(Emphasis added.) Spaunhurst testified that she had contacted appellant’s family through

the phone numbers that she had for them. Despite her attempts to contact appellant’s family,

no one returned her phone calls or attempted to assist in appellant’s care. There was no

evidence that DHS had any addresses for any family members, and Spaunhurst testified that

she did not know of any family members other than the two she had attempted to contact

by the phone numbers that she had. Additionally, DHS presented evidence that appellant

had been left alone in his home when he was removed and that he required twenty-four-




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hour care. As such, we cannot find that the circuit court’s finding that appellant needed

placement was clearly erroneous, and we affirm on this point on appeal.

                               III. Least Restrictive Alternative

       Appellant additionally contends that it was reversible error for the circuit court to

find by clear and convincing evidence that institutional care was the least restrictive

alternative. Appellant does not dispute that he needs twenty-four-hour care, but he argues

that DHS did not meet its burden to prove that institutional care is the least restrictive

alternative under section 9-20-117(d) that best meets his needs because the circuit court

limited his inquiry into his assets and benefits. Thus, appellant suggests that he may have

had further assets that would have allowed him to provide for his care in a

noninstitutionalized environment. His argument, however, is without merit.

       After reviewing the record of the hearing, appellant cross-examined Spaunhurst

regarding his assets. After Nurse Spaunhurst testified that “the only asset available to

[appellant] to pay for his care [was] his house,” appellant inquired whether he had any other

assets. At that point, DHS objected to appellant’s question, arguing that it was outside the

scope of representation pursuant to Arkansas Code Annotated section 9-20-108. The circuit

court ruled, “[I]t is, but she’s already answered that so let’s move on.” At the end of her

cross-examination, Spaunhurst testified without objection that she was “not aware that he

[had] any [other] assets.” Therefore, she explained that she had already completed a

Medicaid long-term-care application that would pay for his care once it was approved.

Subsequently, appellant testified during his direct examination without objection that he




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believed that he owned an “Iowa bank account” and “a ranch in Sherwood that’s deeded

in [his] correct name.”

       It is well settled that the decision to admit or exclude evidence is within the sound

discretion of the circuit court, and we will not reverse that decision absent a manifest abuse

of discretion. Razorback Cab of Fort Smith, Inc. v. Amon, 2016 Ark. App. 352, 498 S.W.3d

346; Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272.

Furthermore, this court will not reverse without a showing of prejudice, as prejudice is not

presumed. Cheney, supra. Exclusion of evidence is not prejudicial if the same evidence was

introduced through another source and was before the trier of fact for its consideration.

Razorback Cab of Fort Smith, supra. Assuming arguendo, that the circuit court improperly

excluded additional evidence of appellant’s assets during Spaunhurst’s cross-examination,

any exclusion was at most harmless error because appellant testified without objection that

he had additional assets. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).

       Thus, after hearing all the evidence, the circuit court found by clear and convincing

evidence that appellant’s placement in an institution was the least restrictive alternative that

met his needs. Arkansas Code Annotated section 9-20-117(d)(1) requires the circuit court

to determine “the least restrictive alternative to be considered proper under the

circumstances, including a finding for noninstitutional care if possible.” Here, appellant’s

physician and Spaunhurst recommended institutional care. Appellant needed continuous

care, and evidence was presented that his home was unsafe for his return. Furthermore,

there were no willing family members to provide him with the necessary level of care.

Although appellant’s testimony at the hearing suggested that he believed he had additional


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assets to provide for his care, we defer to the circuit court’s superior position regarding the

credibility of witnesses. Adams, supra. Thus, we cannot find that the circuit court’s findings

regarding placement were clearly erroneous.

       Finally, to the extent appellant now attempts to make a constitutional due-process

argument that his appointed counsel was somehow limited in ascertaining his assets based

on section 9-20-108 and that “this case should be reversed and remanded so that the

constitutional safeguards are in place,” we cannot reach the merits of this claim because it

was never raised or ruled on below. Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205

S.W.3d 778 (2005). This court has made it abundantly clear that it will not consider an

argument, even a constitutional one, raised for the first time on appeal. Id.; Smithee v. Ark.

Dep’t of Human Servs., 2015 Ark. App. 506, 471 S.W.3d 227; Tuck v. Ark. Dep’t of Human

Servs., 2014 Ark. App. 468, 442 S.W.3d 20. Furthermore, we do not consider on appeal

assignments of error unsupported by convincing argument or authority, unless it is apparent

without further research that the point is well taken. Jones, supra.

       Affirmed.

       VIRDEN, J., agrees.

       VAUGHT, J., concurs.

       LARRY D. VAUGHT, Judge, concurring. While I agree that this case must be

affirmed for the reasons stated in the majority’s opinion, I write separately to address

troubling issues that are likely to recur. Today, our court hands down this case and three

others with similar facts and almost identical legal challenges. Brown v. Ark. Dep’t of Human

Servs, 2017 Ark. App. 69 (February 1, 2017); Johnston v. Ark. Dep’t of Human Servs., 2017


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Ark. App. 51 (February 1, 2017); and Nicholson v. Ark. Dep’t of Human Servs., 2017 Ark.

App. 53 (February 1, 2017). In each case, due to failures by the attorneys and court below,

we are unable to reach legal issues about which we have grave concerns. As a result,

meaningful due process may have been effectively denied to these four appellants, and due

to our limited standard of review, we are unable to address the issues.

       While the purpose of the Adult Maltreatment Custody Act, Arkansas Code

Annotated section 9-20-101 (Repl. 2015) et seq., is to protect a maltreated adult and to

encourage cooperation between state agencies and private-care providers, due process is still

required, the law must be followed, and the hearing must be fair. In this case, as in each of

the others, the appellant argues that, although section 9-20-111(d)(2) requires DHS to give

notice of the hearing to the next of kin of the adult, this was not done. In none of these

cases did DHS put forward any evidence to demonstrate that notice had been provided.

Unfortunately, we could not reach the merits of this issue because, in each case, it was not

preserved for appellate review. This is a complete failure of due process. DHS failed to give

notice as required by statute, the defense attorney failed to object and preserve the error for

review, and the trial court failed to protect its record by requiring compliance with a

mandatory statute.

       Likewise, in each of these cases, the attorney for the adult attempted to introduce

evidence of his or her assets in order to determine if confinement in an institution was the

least restrictive alternative for care. However, in each case, the trial court sustained DHS’s

objections to such testimony based on its finding that section 9-20-108 limits representation

to only the issue of the adult’s liberty interest. However, again, we have been prevented


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from addressing this important issue because the defense attorney failed to preserve it for

appeal and failed to proffer the excluded financial evidence, which is necessary in order to

establish prejudice from its exclusion.

       These cases present important issues worthy of meaningful appellate review. The fact

that we have repeatedly been prevented, due to lack of preservation, from addressing them

indicates a systemic problem. Therefore, I write to put the bench and bar on notice that the

laws designed to protect Arkansas’s most vulnerable adults require more than rushed,

perfunctory proceedings with foregone conclusions. Simple due process mandates a

meaningful hearing with notice to the family, a zealous representation of the impaired adult,

and the opportunity to present all relevant evidence. The members of the bench and the

bar engaged in these matters have an ethical responsibility to protect the best interest of the

adults subject to such proceedings. At the very least, that means preserving their right to

appellate review.

       Dusti Standridge, for appellant.

       Mary Goff, Office of Chief Counsel, for appellee.




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