Devin Campbell v. Arkansas Department of Human Services and Minor Child

Cite as 2023 Ark. App. 37ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-544
Opinion Delivered February 8, 2023
DEVIN CAMPBELL APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. 23JV-21-168]
V.
HONORABLE DAVID M. CLARK,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILD AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED
BRANDON J. HARRISON, Chief Judge
Devin Campbell appeals the order terminating his parental rights to his daughter
(Child 1). (The child’s mother consented to the termination of her parental rights and is
not a party to this appeal.) Campbell’s counsel has filed a no-merit brief and motion to
withdraw as counsel pursuant to Linker-Flores v. Arkansas Department of Human Services, 359
Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-9(j) (2022). The clerk of this
court delivered a copy of counsel’s brief and motion to withdraw to Campbell, advising him
of his right to file pro se points for reversal pursuant to Ark. Sup. Ct. R. 6-9(j)(3), but he
has not done so. We affirm the circuit court’s order and grant counsel’s motion to withdraw.
On 8 June 2021, the Arkansas Department of Human Services (DHS) filed a petition
for ex parte emergency custody and dependency-neglect after taking a seventy-two-hour
hold on newborn Child 1. The attached affidavit explained that DHS had an open case on
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the mother, who has two other children—one in foster care (Child 2) and one who had
been placed with her biological father (Child 3). At the time the hold was taken, DHS was
awaiting test results to confirm whether the circumstances of Child 1’s birth presented a
Garrett’s Law 1 case. The mother named Campbell and another man as possible fathers of
the baby. The affidavit noted that Campbell, who is the father of Child 2, had “substance
abuse and domestic violence issues” and would not be a safe placement for the baby.
The circuit court granted emergency custody to DHS and later found probable cause
to continue custody with DHS. On July 21, the court adjudicated Child 1 dependent-
neglected after the parties stipulated that the allegations in the dependency-neglect petition
and attached affidavit are true. Pertinent to this appeal, the circuit court ordered Campbell
to, inter alia, cooperate with DHS, refrain from using illegal drugs and alcohol, and obtain
and maintain stable housing and employment. The court noted that additional services
would be addressed after paternity had been established. In August, DNA testing confirmed
that Campbell is Child 1’s father.
On October 12, the circuit court formally adjudicated Campbell as Child 1’s father.
The court also reviewed the case and found that Campbell had failed to comply with the
case plan and court orders. Specifically, he had not visited the child or participated in any
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Arkansas Code Annotated section 9-27-303(37)(B)(i) (Supp. 2021), also known as
Garrett’s Law, provides that “neglect” includes (a) causing a child to be born with an illegal
substance present in the child’s bodily fluids or bodily substances as a result of the pregnant
mother’s knowingly using an illegal substance before the birth of the child; or (b) at the time
of the birth of a child, the presence of an illegal substance in the mother’s bodily fluids or
bodily substances as a result of the pregnant mother’s knowingly using an illegal substance
before the birth of the child. Garner v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 328, 603
S.W.3d 858.
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services through DHS other than his DNA testing. Another review conducted in January
2022 showed that Campbell had not had any contact with DHS and had not visited the
child since September.
DHS filed a termination petition on 21 March 2022. As statutory grounds for
terminating Campbell’s parental rights, DHS cited abandonment, subsequent factors,
aggravated circumstances, and prior involuntary termination. See Ark. Code Ann. § 9-27-
341(b)(3)(B)(iv), (vii), (ix)(a)(3), and (ix)(a)(4) (Supp. 2021).
The circuit court convened a review hearing on 18 April 2022 and again found that
Campbell had failed to comply with the case plan and court orders. He had failed to appear
at the review hearing, had not participated in services, and had not provided DHS with any
proof that he was addressing his substance-abuse issues.
The circuit court convened a termination hearing on 3 May 2022. Campbell testified
that he had been living with his mother, Christina Campbell, for about a week after staying
with his sister. He was also on his second week at a new job. He had not completed rehab
but had been sober “[g]oing on two months.” He said that he had seen the baby only once,
when she was around a week old, and that he was currently not able to take care of her.
However, he wanted the baby to go to his mother instead of foster parents. He
acknowledged that his mother had never met the baby.
Laura Rogers, the DHS supervisor for Faulkner County, testified that the baby was
placed in a foster home with her older sister (Child 2) and that the foster family wanted to
adopt both girls. Rogers did not foresee any barriers to the baby’s adoption. As to possible
placement of the child with Christina Campbell, Rogers explained that Christina had
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previously been denied as a placement for the older sister because she had tested positive for
marijuana, she has a possession-of-drugs-and-paraphernalia charge from 2018, and there had
been around twenty domestic-violence reports at her address. Rogers did not recommend
that the baby be placed with Christina. Rogers also confirmed that Campbell’s parental
rights to Child 2 had been terminated in February 2022. 2
Christina Campbell testified that she had asked DHS how to get placement or
custody of the baby but “they [wouldn’t] tell me anything.” She explained that the
domestic-violence reports at her address were from ten years ago, when her husband still
lived with her, but he was no longer in the home. She denied having any criminal
convictions, but she later acknowledged that she had entered a guilty plea on diversion.
The circuit court ruled from the bench that DHS had proved all grounds alleged in
its petition. The court’s written order made findings on each statutory basis as well as the
child’s best interest, explaining that the child is adoptable and the foster family wished to
adopt both the child and her sister. Finally, the court found that Campbell’s continued drug
use, instability, and lack of relationship with the child showed that Child 1 would be at risk
of potential harm if placed in his custody. Campbell filed a timely notice of appeal from the
circuit court’s order.
A circuit court’s order terminating parental rights must be based upon findings
proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021).
Clear and convincing evidence is defined as that degree of proof that will produce in the
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Campbell initially objected to the introduction of the order terminating his parental
rights to Child 2 but later withdrew his objection.
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fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep’t
of Health & Hum. Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). The appellate court reviews
termination-of-parental-rights cases de novo but will not reverse the circuit court’s ruling
unless its findings are clearly erroneous. Id. 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. Id. In determining whether a
finding is clearly erroneous, an appellate court gives due deference to the opportunity of the
circuit court to assess the witnesses’ credibility. Lee v. Ark. Dep’t of Hum. Servs., 102 Ark.
App. 337, 285 S.W.3d 277 (2008). Only one ground is necessary to terminate parental
rights. Id.Arkansas Supreme Court Rule 6-9(j)(1) allows counsel for an appellant in a
termination case to file a no-merit petition and motion to withdraw if, after studying the
record and researching the law, counsel determines that the appellant has no meritorious
basis for appeal. The petition must include an argument section that includes all circuit
court rulings that are adverse to the appellant on all objections, motions, and requests made
by the party at the hearing from which the appeal arose and an explanation why each adverse
ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(j)(1)(A). Additionally,
the petition’s statement of the case and facts are required to contain all rulings adverse to the
appellant made by the circuit court at the hearing from which the order on appeal arose.
Ark. Sup. Ct. R. 6-9(j)(1)(B). In evaluating a no-merit brief, the issue for the court is
whether the appeal is wholly frivolous or whether there are any issues of arguable merit for
appeal. Linker-Flores, supra.5
In order to terminate parental rights, a circuit court must find clear and convincing
evidence as to one or more of the grounds for termination listed in Ark. Code Ann. § 9-
27-341(b)(3)(B). Trogstad v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 443, 609 S.W.3d
661. The circuit court must also find by clear and convincing evidence that termination is
in the best interest of the juvenile, taking into consideration (1) the likelihood that the
juvenile will be adopted if the termination petition is granted; and (2) the potential harm,
specifically addressing the effect on the health and safety of the child, caused by returning
the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).
In her no-merit brief, counsel argues that any challenge to the statutory grounds for
termination of Campbell’s parental rights would be frivolous. DHS pled multiple statutory
grounds, but counsel asserts that the involuntary-termination ground and the aggravated-
circumstances ground provide the strongest bases to support termination. First, the
involuntary-termination ground permits the termination of parental rights if the court finds
that the parent has had his or her parental rights involuntarily terminated as to another child.
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4). Counsel explains that Campbell meets the
statutory definition of a parent and that he had his parental rights to Child 2 involuntarily
terminated, thus meeting the requirements of this statutory ground.
Parental rights may also be terminated if the parent is found by the court to have
subjected any juvenile to aggravated circumstances; aggravated circumstances are defined to
include a finding by a circuit court that there is little likelihood that services to the family
will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3).
Counsel again notes that Campbell is a parent and that the history of this case proves there
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was little likelihood of successful reunification. When Child 1 was taken into DHS custody,
Campbell was not a placement option due to his substance-abuse issues. Throughout the
case, Campbell did not participate in any services offered by DHS except DNA testing and
one visit with Child 1. He had not complied with the court orders or the case plan and had
not participated in any substance-abuse treatment. At the termination hearing, he admitted
he was unable to care for Child 1. Further, Campbell had exhibited the same
noncompliance and nonparticipation in Child 2’s case, which ultimately resulted in
termination of Campbell’s parental rights. Under these circumstances, counsel contends,
there is no meritorious argument to be made that the circuit court erred in terminating
Campbell’s parental rights based on this statutory ground.
With regard to best interest, counsel notes that the DHS supervisor testified that the
baby was placed in a foster home with her older sister (Child 2), that the foster family wanted
to adopt both girls, and that there were no barriers to adoption. This court has held the
testimony from a DHS worker that a child is adoptable is sufficient to support an adoptability
finding. Solee v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 640, 535 S.W.3d 687. Thus,
counsel asserts, there can be no meritorious challenge to the circuit court’s adoptability
finding.
Counsel also argues that the circuit court had sufficient evidence to find potential
harm, noting Campbell’s history of instability. He did not have a stable home, had only
recently obtained employment, had not participated in substance-abuse treatment, and had
not seen his daughter in almost a year. In light of this evidence, counsel contends that there
can be no meritorious challenge to the circuit court’s best-interest finding.
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Counsel has also reviewed the record for all adverse rulings to Campbell made by
the circuit court on all objections, motions, and requests made by him at the termination
hearing. Counsel states that other than the termination order itself, there were no adverse
rulings that warrant reversal. Counsel also asserts that Campbell made no objections during
the termination hearing (other than the objection, which he later withdrew, to the
admission of the prior termination order in Child 2’s case). Counsel notes that Campbell
did request that his daughter be placed with his mother, and that request was denied, but
contends that there can be no meritorious challenge on that issue. Christina Campbell
admitted that she had tested positive for marijuana during Child 2’s case and that she had
prior charges. In addition, her home had not been approved by DHS for placement.
Counsel explains that the circuit court received the evidence regarding the agency’s
concerns as to Christina and agreed it was not in the child’s best interest to be placed in that
home, and Campbell made no argument to the contrary. Further, this court has found that
where the relatives have not been approved for placement and the child remained in foster
care, the existence of potential relatives was not a basis to reverse a termination decision.
See Dominguez v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 2 (rejecting an argument that
termination was not warranted where relatives were available but none had been approved
for placement). Counsel concludes that no meritorious argument could be made that the
circuit court committed reversible error when not placing this child in her grandmother’s
home.
Counsel’s statement that Campbell made no other objections during the termination
hearing is not accurate; Campbell did object during DHS’s cross-examination of Christina,
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asserting that DHS was asking a compound question. The court did not explicitly sustain
the objection, but it did appear to agree with Campbell and instructed DHS counsel to “just
ask her the question you want her to answer.” So, while it may have been the better practice
for appellate counsel to discuss this exchange out of an abundance of caution, we hold that
the court’s ruling was not adverse to Campbell. We also note that even if an adverse ruling
is omitted from a no-merit brief in a termination case, we may affirm if the ruling would
clearly not constitute a meritorious ground for appeal. Houseman v. Ark. Dep’t of Hum.
Servs., 2016 Ark. App. 227, 491 S.W.3d 153.
We hold that the circuit court had sufficient evidence upon which to find that it was
in the child’s best interest for Campbell’s rights to be terminated and that statutory grounds
for termination existed. Thus, we grant counsel’s motion to withdraw and affirm the
termination of Campbell’s parental rights.
Affirmed; motion to withdraw granted.
VIRDEN and THYER, JJ., agree.
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.
One brief only.
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