Campbell v. Ark. Dep't of Human Servs. ( 2017 )

Cite as 2017 Ark. App. 82
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-16-817
Opinion Delivered: February 8, 2017
JESSICA CAMPBELL
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. 66JV-15-134]
ARKANSAS DEPARTMENT OF HONORABLE LEIGH ZUERKER,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
Appellant Jessica Campbell appeals from the termination of her parental rights to her
eight-year-old son, A.F. 1 Jessica’s counsel has filed a no-merit brief and a motion to
withdraw, stating that this appeal is without merit and that she should be relieved of counsel.
We affirm and grant appellant’s counsel’s motion to be relieved.
In compliance with Linker-Flores v. Arkansas Department of Human Services, 359 Ark.
131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Jessica’s counsel
has examined the record for adverse rulings, explaining why each adverse ruling would not
support a meritorious ground for reversal. Jessica’s counsel has accurately asserted that the
only adverse ruling was the termination itself. A copy of Jessica’s counsel’s brief and motion
to withdraw were mailed to Jessica, along with information advising her of her right to file
1
The child’s father had no participation in the case, and his parental rights were also
terminated. The father is not a party to this appeal.
Cite as 2017 Ark. App. 82
pro se points within thirty days. Jessica failed to file her pro se points by the deadline
specified in our rules; therefore, her pro se points are untimely and not properly before us
for review. Ark. Sup. Ct. R. 6-9(i)(3); Everett v. Ark. Dep’t of Human Servs., 2016 Ark.
App. 541 ___ S.W.3d ___.
We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must
exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;
these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)
(Repl. 2015); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851.
Clear and convincing evidence is that degree of proof that will produce in the fact-finder a
firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark.
633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that
the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v.
Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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).
On March 4, 2015, appellee Arkansas Department of Human Services (DHS) filed a
petition for emergency custody of A.F. Attached to the petition was an affidavit of a DHS
caseworker stating that A.F. had been living with Jessica and that A.F.’s father was in prison.
DHS had taken an emergency hold of A.F. due to Jessica’s arrest for possession of
methamphetamine with intent to deliver, possession of drug paraphernalia with intent to
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ingest methamphetamine, simultaneous possession of drugs and firearms, and second-degree
child endangerment. There had been drug use in the home and prior controlled buys of
methamphetamine. When the police executed the search warrant, A.F. was on the couch
and Jessica was hiding in a closet. After being arrested, Jessica tested positive for
methamphetamine. On the same day the petition was filed, the trial court entered an ex
parte order for emergency DHS custody. A probable-cause order was subsequently entered
on March 12, 2015.
On April 24, 2015, the trial court entered an adjudication order finding A.F. to be
dependent-neglected and setting the case goal as reunification. The parties stipulated to
dependency-neglect based on Jessica’s neglect and parental unfitness. The adjudication
order stated that Jessica had admitted using methamphetamine while serving as the child’s
sole caregiver, and that Jessica’s acts and omissions placed the child at a substantial risk of
serious harm. Jessica was ordered to maintain stable housing, income, and transportation,
complete parenting classes, complete a drug-and-alcohol assessment and all recommended
treatments, resolve her criminal issues, submit to drug tests, and visit the child regularly.
A review order was entered on September 17, 2015, wherein the trial court found
that Jessica was in only partial compliance with the case plan and had recently tested positive
for methamphetamine. On March 14, 2016, the trial court entered a permanency-planning
order changing the case goal to termination of parental rights and adoption. In the
permanency-planning order, the trial court found that DHS had made reasonable efforts to
provide family services to achieve the previous goal of reunification and had complied with
the case plan and orders of the court. The trial court found that Jessica had completed
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parenting classes, but had no stable or appropriate housing, no income, and no reliable
transportation. The trial court further found that Jessica had failed to complete a drug-and-
alcohol assessment and had canceled numerous visits due to inadequate transportation.
DHS filed a petition to terminate Jessica’s parental rights on March 14, 2016. The
termination hearing was held on June 10, 2016.
On July 5, 2016, the trial court entered an order terminating Jessica’s parental rights.
The trial court found by clear and convincing evidence that termination of parental rights
was in A.F.’s best interest, and the court specifically considered the likelihood of adoption,
as well as the potential harm of returning the child to the custody of his mother as required
by Arkansas Code Annotated section 9-27-341(b)(3)(A). The trial court also found clear
and convincing evidence of the following three statutory grounds under subsection
(b)(3)(B):
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected
and has continued to be out of the custody of the parent for twelve (12) months and,
despite a meaningful effort by the department to rehabilitate the parent and correct
the conditions that caused removal, those conditions have not been remedied by the
parent.
....
(viii) The parent is sentenced in a criminal proceeding for a period of time that
would constitute a substantial period of the juvenile’s life[.]
....
(ix)(a) The parent is found by a court of competent jurisdiction, including the
juvenile division of circuit court, to:
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “aggravated circumstances” means:
(i) . . . [A] determination has been made by a judge that there
is little likelihood that services to the family will result in
successful reunification[.]
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DHS caseworker Natasha Mantooth testified at the termination hearing.
Ms. Mantooth testified that although Jessica had completed parenting classes, she had not
completed a drug-and-alcohol assessment as ordered, and that during the pendency of the
case Jessica had failed to establish stable housing, income, or transportation. Jessica also
tested positive for methamphetamine five months after the child’s removal. Ms. Mantooth
further stated that Jessica had not resolved her criminal issues. DHS introduced into
evidence a sentencing order entered on February 24, 2016, showing that Jessica had entered
a negotiated guilty plea to possession of drug paraphernalia with intent to ingest
methamphetamine. For this offense Jessica was sentenced to four years in prison followed
by a six-year suspended imposition of sentence. Ms. Mantooth stated that, prior to going
to prison, Jessica had visited A.F. only sporadically. Ms. Mantooth also testified that A.F.
was adoptable.
Jessica testified on her own behalf, and she stated that she is receiving counseling and
guidance during her incarceration. Jessica stated that her earliest possible release date would
be about six months after the date of the termination hearing. Jessica asserted that she loved
her child and thought she could regain custody of him upon her release.
In appellant’s counsel’s no-merit brief, counsel correctly asserts that there can be no
meritorious challenge to the sufficiency of the evidence supporting termination of Jessica’s
parental rights. Although the trial court found three statutory grounds for termination, only
one ground is necessary to support the termination. See Draper v. Ark. Dep’t of Human Servs.,
2012 Ark. App. 112, 389 S.W.3d 58. Appellant’s counsel states that the strongest ground
supporting termination is Arkansas Code Annotated section 9-27-341(b)(3)(B)(viii), which
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provides that the parent is sentenced in a criminal proceeding for a period of time that would
constitute a substantial period of the juvenile’s life. We agree that this ground supported
termination of Jessica’s parental rights and that any argument to the contrary would be
without merit.
The Arkansas Supreme Court has made clear that it is the prison sentence, and not
the potential release date, that determines whether subsection (b)(3)(B)(viii) has been
satisfied. Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356. In this case, A.F. was six
years old when he was removed from Jessica’s custody and eight years old at the time of
termination. Prior to the termination hearing, Jessica was sentenced to four years in prison
followed by a six-year suspended imposition of sentence. By the time his mother may be
released from prison, the child may have spent several years in foster case. Even then, it is
unlikely that A.F. could be returned to Jessica in a reasonable time frame. The purpose of
terminating a parent’s rights to his or her child is to provide permanency in the child’s life
where returning the juvenile to the family home is contrary to the child’s health, safety, or
welfare, and where it appears that a return to the family home cannot be accomplished in a
reasonable period of time as viewed from the juvenile’s perspective. Ark. Code Ann. § 9-
27-341(a)(3). On these facts, the trial court did not clearly err in finding that, from the
child’s perspective, Jessica’s sentence constituted a substantial period of the child’s life and
that this was not a reasonable period of time to remain without permanency.
Appellant’s counsel also asserts that there can be no meritorious challenge to the trial
court’s finding that termination was in A.F.’s best interest, and we agree. The testimony
showed that, even before she was sentenced to prison, Jessica had failed to comply with the
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case plan and was using methamphetamine. She had made no progress toward stable
housing, income, or transportation, and had visited A.F. only sporadically. The caseworker
testified that A.F. was adoptable, and she further stated that A.F. would be at a great risk of
harm if returned to his mother’s custody. On this record, the trial court’s finding that
termination of Jessica’s parental rights was in A.F.’s best interest was not clearly erroneous.
After examining the record and the appellant’s counsel’s brief, we have determined
that this appeal is wholly without merit. Accordingly, we affirm the order terminating
appellant’s parental rights and grant her counsel’s motion to be relieved from representation.
Affirmed; motion granted.
VIRDEN and VAUGHT, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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