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

JEAN DORAN Opinion Delivered: April 16, 2014 APPELLANT APPEAL FROM THE SEBASTIAN COUNTY V. CIRCUIT COURT, FORT SMITH DISTRICT ARKANSAS DEPARTMENT OF [NO. PR-13-227] HUMAN SERVICES APPELLEE HONORABLE JAMES O. COX, JUDGE

REMANDED FOR SUPPLEMENTATION OF THE RECORD; SUPPLEMENTATION OF THE ADDENDUM ORDERED

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 that (1) the evidence presented

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

DHS’s custody, and (2) the least restrictive means of placement was institutional care.

Because the record and addendum are incomplete, we remand for supplementation of

both.

On April 23, 2013, DHS’s Adult Protective Services hotline received a referral on

appellant alleging that appellant was blind, paranoid regarding having cataract-removal

surgery, unable to get to the grocery store or prepare food, had no transportation, and Cite as

could not bathe. Visits to appellant were attempted by Louise Spaunhurst1 on the

following two days, but appellant would not come to the door and yelled for Spaunhurst

to go away on both visits. However, though appellant would not allow Spaunhurst to

enter her home, Spaunhurst was able to speak with appellant on the phone. A seventy-

two-hour hold was taken on appellant on April 25, 2013, but 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 Act2 and, alternatively, the Uniform Adult

Guardianship and Protective Proceedings Jurisdiction Act. 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.

1 Spaunhurst is a registered nurse with DHS’s Adult Protective Services. 2

to -121 (Repl. 2009). 3

to -505 (Repl. 2009). 2 Cite as

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

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

custody of appellant. In support of its probable cause finding, the court cited the affidavit

of Spaunhurst, noting that appellant suffers from “blindness, frontal lobe dementia,

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

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

[appellant] is unsafe to be on her own and cannot make decisions for herself.” 4 We only

have statements from two physicians in the record: Dr. Robert Baker 5 and Dr. Margaret

Tremwel. Even if we accept the affidavit of Spaunhurst as a physician’s statement, though

she is in fact a registered nurse, the record before us is still missing two statements.

Arkansas Rule of Appellate Procedure–Civil 6(e) states that if anything material to

either party is omitted from the record, the appellate court, on its own initiative, may

direct that the omission shall be corrected and that a supplemental record be certified and

transmitted.6 The missing physician statements are material to this matter because the

court relied on those statements in finding probable cause to issue an ex parte order for

emergency custody of appellant. Therefore, we remand for supplementation of the

record, correcting the above-referenced deficiencies within thirty days.

4 It appears that the five statements may have been attached to DHS’s petition for emergency custody as the court states, “The Petitioner’s affidavit provides evidence . . . with statements from five of Respondent’s physicians.” 5 Dr. Baker’s affidavit was admitted as part of the record at the long-term custody hearing. 6 (2012). 3 Cite as

Because the physician statements were not included in the record, they also were

not included in the addendum. Arkansas Supreme Court Rule 4-2(a)(8) requires appellant

to submit an addendum containing true and legible copies of the non-transcript

documents in the record on appeal that are essential for the appellate court to understand

the case and to decide the issues on appeal.

Because we do not have the physician statements, we do not have all the evidence

which informed and supported the court’s medical findings and its assertion that five

physicians opined that appellant could not care for herself. Accordingly, we order

appellant to submit a supplemental addendum correcting the above-referenced deficiencies

within fifteen days from the date on which the supplemental record is filed.

We encourage appellant’s counsel to review Rule 4-2 of the Rules of the Arkansas

Supreme Court and Court of Appeals to ensure that the supplemental record and

supplemental addendum comply with the rules and that no additional deficiencies are

present.

Remanded for supplementation of the record; supplementation of the addendum

ordered.

GLADWIN, C.J., and WOOD, J., agree.

Robert M. “Robby” Golden, for appellant.

Tabitha B. McNulty, for appellee.

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