Jack Nelson Jones Professional Association
January 6-12, 2020
O.C. v. Arkansas Department of Human Services, 2019 Ark. App. 581 Dec. 11, 2019
This case arose as on appeal from the Pulaski County Circuit Court, Honorable W. Michael Reif, presiding. It involved an order placing O.C. in the long-term custody of the Arkansas Department of Human Services (DHS) under the Arkansas Adult Maltreatment Custody Act. She argued that the circuit court’s decision must be reversed since she could not be placed in DHS custody because she needed acute psychiatric or chronic mental-health treatment.
The precipitating events began in mid-June 2018 when a neighbor contacted law enforcement for a welfare check. The officers found that the kitchen faucet was broken, the drains were clogged, and the home was extremely hot and without air conditioning. O.C. appeared unaware that her home had been sold for nonpayment of taxes, and the new owner had cut off all utilities to the home. Officers noted O.C. acting paranoid: making comments that people were listening to her in her home, planting poison ivy in her yard, and would not turn off her water.
Law enforcement contacted DHS, and a caseworker visited O.C. on June 22. O.C. would not allow the caseworker inside her home. After attempting to execute an eviction notice on July 10, law enforcement again contacted DHS and advised that O.C. was sixty-eight years old, was impaired and in no shape to be inside the home. On July 20, DHS filed a Petition for Order of Investigation, which the circuit court granted, and DHS and officers went to O.C.’s home on July 30. She was taken to Baptist Hospital for evaluation because of her confused mental status. While there, O.C. was seen having a conversation with an air conditioner and was initially given a diagnosis of “dementia or an infection”, but Baptist told DHS that it could not do further testing without proper authorization and would discharge O.C. to a shelter.
On August 2, DHS took a seventy-two-hour hold on O.C. and transferred her to Unity Health Hospital in Searcy for further evaluation and possible treatment. DHS filed a petition for emergency custody pursuant to the Arkansas Adult Maltreatment Custody Act (the Act), which the circuit court granted. The order authorized temporary custody and further medical and psychological evaluations. The circuit court held a probable-cause hearing on August 10 and found that probable cause continued to exist to allow O.C. to remain in DHS custody.
On August 20, the circuit court began a long-term-custody hearing. O.C.’s treating psychiatrist at Unity Health Hospital testified that he had diagnosed O.C. with bipolar disorder with psychotic features. He said that she would probably need medication for the rest of her life, although she had refused to take any medication at the time of the hearing. He said that he would not discharge her with a prescription for therapy but that generally someone with her diagnosis would make an appointment with a psychiatrist at an outpatient clinic. That psychiatrist would then determine with the patient whether individual or group therapy was appropriate in addition to medication. He did not recommend institutional care but did recommend twenty-four-hour supervision and assistance to make sure she was safe, had good nutrition, and took her medicine. He did not think that O.C. had the mental capacity to protect herself from abuse, neglect, or exploitation and opined that she should remain in DHS custody. He also testified that he and the hospital staff were continuing to evaluate whether O.C. also had dementia.
O.C.’s court-appointed attorney argued that O.C. should not be placed in DHS custody under the Act because it does not allow DHS to take custody of persons in need of “acute psychiatric treatment” or “chronic mental health treatment.” The court ordered O.C. to remain in DHS custody while DHS gathered all evaluations concerning her condition and available potential services.
On September 13, the court resumed the long-term-custody hearing and admitted the doctor’s affidavit dated September 12. In the affidavit, he opined that O.C. had a primary diagnosis of schizoaffective disorder, bipolar type, which could be treated with medications. The affidavit also listed a secondary diagnosis of “Unspecified Neurocognitive Disorder (dementia), likely Alzheimer’s type.” He did not recommend institutional care but advised that O.C. should live in a private home, group home, or assisted-living facility and should remain in the custody of DHS to protect her health and safety.
The court also heard testimony from the director of adult protective services at DHS who testified about the history of the case and that DHS had secured a placement for O.C. at a residential facility in DeWitt called West Haven, a group-home setting. O.C. would be provided medication assistance, transportation, and help making sure she got to appointments. West Haven would not force O.C. to take her medications, and it was not a locked facility; O.C would be free to come and go as she pleased. She also said that O.C. did not appreciate the danger she was in or understand that she did not have a home to return to if she did not go to West Haven. The court entered an order on September 14, 2018, finding by clear and convincing evidence that O.C. suffered from a mental impairment (specifically unspecified neurocognitive disorder (dementia), likely Alzheimer’s type); and finding that placement at West Haven was the least restrictive environment appropriate for her care. The court also found that O.C. lacked the capacity to comprehend the nature and consequences of remaining in a situation that presented an imminent danger to her health and safety; that she had no caregiver responsible for her protection or care; and that she was in need of placement because there was not a viable alternative to protective custody. The court awarded long-term custody to DHS. O.C. appealed.
The Court of Appeals (Court) first noted that the standard of review for probate orders is de novo, and the decision of the lower court will not be reversed unless it is clearly erroneous, giving due regard to the opportunity and superior position of the probate court to determine the credibility of witnesses. Issues of statutory interpretation are reviewed de novo, but the Court decides what a statute means.
The Court held that the purpose of the Act was to protect a maltreated adult who was in imminent danger and to encourage the cooperation of state agencies and private providers in the delivery of services for maltreated adults. It noted a court may order long-term custody with DHS under the Act if it determines that the adult has a mental or physical impairment, or lacks the capacity to comprehend the consequences of remaining in a situation that presents an imminent danger to her health or safety; the adult is unable to provide for her own protection; and the court finds clear and convincing evidence that the adult is in need of placement under the Act.
Here, the circuit court was found to have made the following necessary findings by clear and convincing evidence: O.C. had a mental impairment (dementia), likely Alzheimer’s type – and she lacked the capacity to comprehend the nature and consequences of remaining in a situation that presented an imminent danger to her health or safety; she was unable to protect herself from maltreatment; and she was in need of placement. O.C.’s sole argument on appeal was that the circuit court erred in awarding DHS long-term custody over her because she was a person in need of acute psychiatric treatment when the petition was filed and continued to be a person in need of chronic mental-health treatment.
The Court observed that the statute provides that no person may be taken into or placed in the custody of DHS if that person is in need of acute psychiatric treatment or chronic mental health treatment (or certain other situations not raised herein). The Court did not address O.C.’s argument regarding acute psychiatric treatment because she no longer needed such treatment. Instead, the Court looked to her argument that she was a person in need of chronic mental health treatment.
The Court noted she was diagnosed with bipolar disorder in August 2018 when she was sixty-eight years old. There was no evidence that O.C. had any history of mental illness, that she had ever been diagnosed with or treated for any condition related to her mental health before then. The only “treatment” the psychiatrist recommended for O.C.’s bipolar disorder was medication, which at the time of the hearing she had refused to take. He did not prescribe any treatment or therapy for O.C. He explained that generally someone with her diagnosis would make an appointment with a psychiatrist at an outpatient clinic, who would determine with the patient whether individual or group therapy was appropriate. Moreover, the Court noted the psychiatrist specifically stated that he did not recommend institutional care. He advised that she also had a neurocognitive disorder and needed twenty-four-hour supervision and assistance to make sure she was safe, had good nutrition, and took her medicine. Finally, he stated that he did not think O.C. had the mental capacity to protect herself from abuse, neglect, or exploitation and said that she should remain in DHS custody.
The Court found that the circuit court’s order was directed not to any particular treatment for bipolar disorder but to O.C.’s mental impairment, which is the specific situation that the Act was designed to address. It further determined that the Department had shown by clear and convincing evidence that O.C. suffered dementia, a mental impairment, and that placement at the residential care facility was the least restrictive environment appropriate for her care and ordered DHS to file written reports of its reviews of her case every six months.
The Court found that custody under the Act was not intended to replace other treatment options for persons in need of chronic mental-health treatment, and for whom another solution is appropriate. It also found that the statute did not preclude application in cases such as O.C.’s, where the lower court found she had a neurocognitive disorder, lacked the capacity to comprehend the nature and consequences of remaining in a situation presenting imminent danger to her health or safety, and was unable to provide for her own protection. O. C. had been evicted from her home and did not understand that she had no home to which she could return. She did not challenge the sufficiency of the circuit court’s findings but argued only that the Act prohibited DHS from having custody over her to protect her from imminent danger and to assure she received services.
The Court held that to construe the Act as precluding application to an adult in O. C.’s state, who had been found to be in need of protection and who had made no challenge to those findings would eviscerate the purpose of the Act. The Court ruled such an interpretation of the statute would defy common sense and produce absurd results and affirmed the decision.