Michael Gordin Maddin v. Arkansas Department of Human Services

Cite as 2021 Ark. App. 177
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and DIVISION IV
integrity of this document No. CV-20-490
2023.06.26 15:34:20 -05'00'
2023.001.20174
OPINION DELIVERED: APRIL 21, 2021
MICHAEL GORDIN MADDIN
APPELLANT
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
V. [NO. 23PR-20-143]

HONORABLE DAVID M. CLARK,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Judge

On July 9, 2020, the Faulkner County Circuit Court ordered long-term protective

custody of Michael Gordon Maddin, an adult. Maddin appeals arguing that the circuit court

erred in finding that his health and safety are in imminent danger and that he is unable to

provide for his own protection from maltreatment. We affirm.

I. Facts

The Arkansas Department of Human Services (DHS) filed a petition for emergency

custody on March 11, 2020, alleging that Maddin was an endangered or impaired adult

under the Adult Maltreatment Custody Act. Ark. Code Ann. §§ 9-20-101 et seq. (Repl.

2020). In an attached affidavit, DHS alleged that a referral was received by Adult Protective

Services, and the reporter had stated that Maddin was a fall risk, had fallen down, and was

not taking care of himself; Maddin’s bed was covered in feces, and he was stuck in it; there
were pills all over the house and on the floor; Maddin had five-gallon buckets full of urine;

Maddin was defecating on the floor and covering it in cat litter; and Maddin was possibly

taking too much medicine.

The affiant stated that on March 9, a DHS agent investigated and found Maddin

alone in his apartment with the door open, sitting in his wheelchair. Maddin stated that he

was ready for an appointment, and he had bowel movement on his legs, his shoes, and the

bottoms of his feet. Police were called when Maddin became loud and verbally aggressive,

and Maddin locked his door, not allowing the officers inside. Ultimately, the fire

department was called, and firefighters forced entry into Maddin’s home.

The affiant stated that records showed Maddin had been involved in five police-

incident reports between June 24, 2019, and March 1, 2020; thirty-six calls “obtained per

CFS History and Search Detail”; and twenty-four assist calls were made to the Conway Fire

Department between February 26, 2019, and March 1, 2020. The affidavit states that

Maddin has type 2 diabetes, hypertension, heart failure, atherosclerotic heart disease, atrial

fibrillation, abnormalities of gait and mobility, weakness, unsteadiness of feet, cognitive

communication deficit, acute kidney failure, sleep apnea, gastro-esophageal reflux disease,

chronic gout, and ulcerative colitis. The affidavit concludes that DHS placed a seventy-

two-hour hold on Maddin because he did not have the physical capacity to protect himself

from abuse, neglect, or exploitation and that he required twenty-four-hour care, which

could only be provided in a long-term-care facility.

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On March 11, an ex parte order granting DHS emergency, protective custody of

Maddin was filed. The order reflects that the court found Maddin indigent, and a public

defender was appointed.

Dr. Gil Johnson examined Maddin and reviewed his medical records on February

24, 2020, and Maddin was diagnosed as morbidly obese with a secondary diagnosis of

diabetes mellitus. Dr. Johnson opined that Maddin requires twenty-four-hour care in a

long-term-care facility; that Maddin is not mentally impaired; that Maddin is physically

impaired; and that Maddin does not have the mental capacity to protect himself from abuse,

neglect, or exploitation. Dr. Johnson recommended that Maddin remain in DHS protective

custody and that he not attend a court hearing due to chronic pain and an inability to

ambulate in a wheelchair.

Dr. Scott Simmons examined Maddin on March 11, and he recommended that

Maddin have institutional care for medication management and administration, safety

monitoring and assistance, and basic hygiene. Dr. Simmons found that Maddin is mentally

and physically impaired and does not have the mental capacity to protect himself. He

recommended that Maddin remain in protective custody and that Maddin not attend a court

hearing because he would not understand the court proceedings and attending would cause

him undue stress and anxiety.

A probable-cause hearing was held on March 17, and the court found that Maddin

had no caregiver responsible for his protection, care, or custody and that probable cause

continued for custody to remain with DHS. The court found that Maddin has a mental or

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physical impairment that prevents him from protecting himself from imminent danger to

his health or safety.

A psychiatric evaluation on May 15 noted that Maddin weighed 422 pounds. The

evaluation plan stated: (1) consider a nutrition consult due to obesity; and (2) Maddin is

cognitively safe to return to his home.

At a hearing on June 16, Tashimma Lacy testified that she is a day nurse at Cottage

Lane Health & Rehab, where Maddin resides in protective custody. She administers

medication to Maddin and assists him with dressing, transferring, and showering. She said

that Maddin is not able to get up and move around without assistance and that he has good

days and bad days. She said that he is not able to shower without assistance and that he is

receiving physical therapy. She said that Maddin seems to be mentally aware, she does not

know of any mental issues that would stop him from caring for himself, and his limitations

are physical in nature. She said that Maddin is cooperative in working with her and accepts

help if he needs it. On cross-examination, she said that from her observation of his physical

therapy, Maddin seems cooperative, and he has progressed in his ability to function day to

day.

Captain Clint Smith of the Conway Fire Department testified that before DHS

obtained custody of Maddin, he had responded to Maddin’s house four times. He said that

three of Maddin’s calls had been for lifting assistance, and he had twice transported Maddin

to a hospital. He said that he had responded to a structure-fire call from Maddin’s apartment;

however, when firefighters arrived, there was no fire, and Maddin needed help getting up.

Maddin told investigators that he had asked his girlfriend to call 9-1-1 because dispatch had

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blocked his number and address “because of the amount of times we had been” to Maddin’s

house. He said that every time he went to Maddin’s house, there was urine and feces from

the front door to the bed, all the way back through the house to the bedroom. He said,

It was animal and human, and it was not clean. Dishes out. Clothes. Rotting
food. That type stuff. Mr. Maddin didn’t appear to be clean or in a good state of
care. Environmentally, it was not comfortable for me to be in the home when
responding to those calls. We would actually wear our fire-fighting gear in the house
and wear masks, N95 masks for the odor, the smell. The smell carried with me a
little after I left.

He said that he was concerned for Maddin’s safety in the home and that his main concern

was whether Maddin would be able to get out if necessary. He said that Maddin appeared

to be aware of his surroundings, and there were times when Maddin was groggy. He said

that he saw pill bottles that were opened and that pills had fallen out. He said that Maddin’s

neighbor would check on him and visit with firefighters about Maddin and that Maddin’s

demeanor was “nice,” but he had also observed Maddin being very rude. On cross-

examination, he said that there had been twenty-seven reports from Maddin’s address

between January 1, 2019, and June 12, 2020. Each of those times, Maddin or someone at

his request had called the fire department for assistance.

Captain Brian Cannon of the Conway Fire Department testified that he had been to

Maddin’s home about six times on assistance calls. He agreed with Captain Smith’s

testimony regarding the necessity of masks due to the odor in Maddin’s apartment. He said

that he was not sure if Maddin had a cat but that there was always cat litter on the floor and

“smells connected to that.” He said that there were times that Maddin was less coherent

than other times. On cross-examination, he said that “lift assist” is a fairly common function

of the fire department.

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Danny Collins, a firefighter with the Conway Fire Department, testified that he had

responded to calls from Maddin’s home when Maddin had fallen or needed assistance. He

had concerns for Maddin’s ability to safely care for himself in the home. He said that the

conditions in the apartment “were unlivable” and that Maddin would be unable to get

himself out of the house. He said that sometimes Maddin would appear to be in good

condition physically and was clean, and sometimes he was not because he had used the

bathroom on himself. On cross-examination, he said that despite Maddin’s calling the fire

department about twice a month, the department would not have stopped responding to

him if he were living at home and called for assistance. On redirect examination, he said

that there were periods of time when Maddin would go weeks without calling, and in

September 2019, Maddin called seven times for assistance.

Janice Mason, a DHS nurse and an adult protective services investigator, testified that

she wrote the original affidavit and exercised the seventy-two-hour hold on Maddin. She

went to Maddin’s home and found feces covered with cat litter in the kitchen, living room,

bedroom, and hallway. There was a dog in the home but no cat. She said that she knew

Maddin was able to move around in his wheelchair because he locked her and the police

out, and through the window, she observed him move into his bedroom and cover the fecal

matter on his sheet with his bedspread. She said that police called the fire department to

gain entry into Maddin’s home that day, that she is aware that Maddin is not happy being

in DHS custody, and that she feels bad for him. She said that his cognitive ability is not the

reason he needs to be in protective custody and that he has some pretty severe physical

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limitations. She said that Maddin lives by himself, that he has a girlfriend who lives in

Oklahoma with her mother, and that it is not safe for Maddin to return to his home.

Carol Franklin, Maddin’s girlfriend, testified that she lives in Sallisaw, Oklahoma,

with her elderly mother. She said that she stays with Maddin when she is living part time

in Conway—she lives “a fourth of the time” with Maddin and the rest with her mother.

She said that Maddin had been staying on his own for about a month when DHS became

involved. She said that when she stayed with Maddin, he never had five-gallon buckets in

his apartment but that Maddin has a dog that frequently has accidents on the floor. She said

that Maddin was able to get into his wheelchair and clean up after the dog and that he would

use cat litter “in the manner that some people use floor cleaner.” She said that she never

saw him put cat litter on feces, but she was sure that he had done so when he was alone.

She said that “home health” came to Maddin’s home for a period of time when she was

staying with him, but they did not provide housecleaning or cooking, and they monitored

his health and took his blood pressure. She said that Maddin owns an automobile that he

drives and that he has a ramp into his apartment that he is able to use to get out of the

apartment by himself. She has never known him to be unable to transfer from his wheelchair

to his car, but she did not know if he could do so by himself. She said that she had ridden

with him in the car before he became wheelchair bound. On cross-examination, she denied

calling in a structure fire to the fire department. She said that with the exception of needing

help with transferring sometimes, Maddin “does pretty well.”

Maddin testified that he had lived in his apartment in Conway since 2005 and that

Denver Prince is his landlord. He said that he had not paid his rent in a couple of months,

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that he had contacted Mr. Prince or his assistant, and his apartment was being held for him.

His rent is $425, and before DHS took him into custody, he paid his rent a month ahead.

He said that he is current on his utility bills and had talked to Conway Corp about DHS

“putting a freeze” on his check. He said that he has an automobile, which is licensed and

insured with GEICO, his premiums are thirty-nine dollars a month, and he is current on

his insurance payments. Maddin said that he makes a regular donation to animal charities,

which is important to him, and he has not been able to do that since he has been in

protective custody. He receives Social Security disability payments of $992 a month, and

he has been disabled since about 1990.

Maddin said that he has a couple of bullets in his spine and that “experts” want to do

surgery on his feet. He said that he also needs dental work and has been trying to “work it

out” through his insurance company, but he has not been able to obtain dental work because

of the COVID lockdown. He has chronic health problems, he uses a CPAP machine for

sleep apnea, and he described other problems caused by the bullets moving out of his spine.

He is diabetic, takes medication for it, regulates it with diet, and is not insulin dependent.

He has some arthritis and gout, and he has trouble breathing. He has problems with his

sciatic nerve and chronic pain.

Maddin denied owning any five-gallon buckets and said that he does not have feces

all over the floor in his house. He said that there were some feces and urine on the floor

because of his dog, and he uses cat litter to soak up the urine so he could scoop it into a

plastic bag, and he would then mop the area. He said that the firefighters who testified had

lied about animal and dog feces being all over the floor. He said that the day DHS came to

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his house, he told the caseworker that he needed to get dressed and that he was going to

lock the door. The caseworker then told police and firefighters that he had refused to come

out, which he said was a lie. When police came into his bedroom and began pulling him

to the front door, he asked them if they had a warrant, and they said no. When he asked

them if they knew he was disabled, they put him back on the bed and told him to hurry.

He said at the time, he was confined to his wheelchair and unable to walk or stand on his

own. He said that he is now able to stand and walk a little, having done some physical

therapy. When asked why he had not hired a housekeeper, he said that every time he

would apply for that, adult protective services or Janice would have him taken to a facility.

Janice told him that where he was going, he would not need anybody for his house. He

also said that he is Medicare and Medicaid qualified and that if he could go home after the

hearing, he intended to apply for home healthcare for help with medication management

and personal-hygiene issues and to hire someone to clean his house. He said that he had

been on the phone with Medicare or Medicaid an entire day trying to apply for help, and

at 4:30 p.m., “[h]e was hung up on.” He said that he is bitter about the situation.

Maddin said that when the photographs of his apartment were taken, he had been in

the middle of cleaning. He said that he drives his vehicle and that he has the ability to

transport himself in an emergency. He asked that the DHS petition be dismissed and that

he be allowed to go home. He said that the therapy he had received had helped him and

that he can stand. He said that he would like to “finish that out here” until he can walk.

He said that if the petition were dismissed, he intended to stay as a voluntary admission and

continue his rehab, and if he needed to go home, he could go home and then come back

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and resume his place. He acknowledged that he would not be able to leave the facility and

go back due to COVID-19, and he said that he intended to stay for the time being and

continue with the physical rehab. Once he is able to walk, he intends to go home.

The circuit court granted DHS’s petition, and the July 9 order for long-term

protective custody states in pertinent part:

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. Maddin suffers from a host of physical issues that prevent him
from being able to independently care for himself. Mr. Maddin requires significant
assistance to carry out tasks related to self-care such as showering, using the restroom,
and getting dressed. Prior to coming into DHS custody, Mr. Maddin lived alone
and often called the Conway Fire Department or Conway Police Department for
emergency assistance when he was unable to get up from his bed or when he had
fallen. There were approximately twenty-seven calls to the fire department over an
approximately 14-month period of time, including a call that was accepted for a false
structure fire, and rescue personnel described Mr. Maddin’s home to be
environmentally unsuitable for him and a risk to his health and safety, as the home
was often littered with feces, urine, and other environmental hazards. Although Mr.
Maddin present as lucid and aware of his surroundings, he is unable to appreciate the
consequences of self-neglect, and if he were released to go home, he would continue
to be in imminent danger.

From this order, Maddin filed a timely notice of appeal, and this appeal followed.

II. Standard of Review and Applicable Law

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. Johnston

v. Ark. Dep’t of Human Servs., 2017 Ark. App. 51, at 6, 515 S.W.3d 620, 623–24. A finding

is clearly erroneous when, although there is evidence to support it, the reviewing court on

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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).

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

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).

DHS 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 circuit 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;

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(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.

III. Impairment

Maddin argues that the circuit court erred in finding that his health and safety are in

imminent danger and that he is unable to provide for his own protection from maltreatment.

See Ark. Code Ann. 9-20-117(c). He argues that he is not an impaired adult—one who, as

a result of impairment, is unable to protect himself from neglect—because he is able to stand,

cooperate, and return home.

He distinguishes his case from Pardew v. Arkansas Department of Human Services, 2017

Ark. App. 70, 513 S.W.3d 265, wherein we affirmed an order for long-term custody holding

that there was no clear error in the circuit court’s finding that Ms. Pardew was an endangered

and impaired adult. Aside from the DHS investigator’s testimony that Ms. Pardew’s

dementia and delirium prevented her from properly caring for herself, there were medical

records that Ms. Pardew suffered from dementia with delusional features and behavioral

disturbances, and a doctor had opined that Ms. Pardew required long-term nursing-home

care due to poor self-care skills and poor insight. Id. at 6, 513 S.W.3d at 268. Maddin

contends that his treating physicians found no mental deficiencies or mental impairment.

He concedes that Dr. Johnson initially opined that Maddin was physically impaired and did

not have the mental capacity to protect himself. He argues that on May 13, 2020, he was

found to be “cognitively safe to return home” by Dr. Simmons. He further points to his

own testimony consistent with Dr. Simmons’s report. He argues that there is no finding

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from Dr. Simmons that he is in a situation that poses a danger to himself and no proof that

he demonstrates a lack of capacity to comprehend the nature and consequences of remaining

in that situation or condition. He contends that the evidence does not support the required

findings and that he is not mentally impaired; he is cognitively safe to return to his home;

he is cooperative; he is able to stand; and he has fair judgment.

“Impairment” means “a disability that grossly and chronically diminishes a person’s

physical or mental ability to live independently or provide self-care as determined through

observation, diagnosis, evaluation, or assessment.” Ark. Code Ann. § 9-20-103(11). DHS

argues that the circuit court’s order should be affirmed because Maddin has a physical

impairment that prevents him from being able to provide for his own protection from

maltreatment and that he is in need of placement in a twenty-four-hour-care facility. See

Ark. Code Ann. § 9-20-117(c)(1). We agree.

The trial testimony and reports from doctors and first responders supports the circuit

court’s finding that Maddin has a physical impairment that grossly impairs his ability to live

independently and provide self-care and that he presents an imminent danger to himself.

The firefighters described the deplorable condition of Maddin’s home, Maddin’s physical

condition, and their concern for his safety and health. Maddin’s nurse at the rehabilitation

facility testified that Maddin lacks the ability to move without assistance, and the DHS

investigator testified to Maddin’s being covered in his own feces on the day of removal.

Maddin’s request for reversal because his psychological evaluation stated that he was

cognitively safe to return home is nothing more than a request for this court to reweigh the

evidence. It is well settled that we will not reweigh the evidence on appeal, and credibility

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determinations are left to the circuit court. Arazola v. Ark. Dep’t of Human Servs., 2019 Ark.

App. 109, at 13, 573 S.W.3d 35, 42. Further, the psychological evaluation did not negate

the other doctors’ reports, which recommended that Maddin be placed in long-term

custody and that he reside in a twenty-four-hour-care facility. Accordingly, the circuit

court’s decision is not clearly erroneous.

Affirmed.

BARRETT and HIXSON, JJ., agree.

Dusti Standridge, for appellant.

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for

appellee.

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