Miguel Campos v. Arkansas Department of Human Services And S.M. and M.C.

Cite as 2022 Ark. App. 221ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-21-603
MIGUEL CAMPOS Opinion Delivered May 11, 2022
APPELLANT
APPEAL FROM THE ST. FRANCIS
V. COUNTY CIRCUIT COURT
[NO. 62JV-20-27]
ARKANSAS DEPARTMENT OF HONORABLE KATHIE HESS, JUDGE
HUMAN SERVICES; AND S.M. AND
M.C.
APPELLEES REVERSED AND REMANDED
KENNETH S. HIXSON, Judge
Appellant Miguel Campos appeals from an order terminating his parental rights to
S.C. and M.C. On appeal, Campos argues that the statutory grounds for termination of his
parental rights had not been met. Specifically, Campos contends that the only statutory
grounds alleged by appellee Arkansas Department of Human Services (DHS) and found by
the trial court pertained to a “parent” and that the trial court failed to find that he is a
“parent” as that term is defined in the Juvenile Code. We agree with Campos’s argument,
and we reverse and remand.
I. Facts and Procedural History
On July 31, 2020, DHS filed a petition for emergency custody of S.C., who was then
three years old, and M.C., a newborn baby. At the time of their removal, S.C. and M.C.
were in the legal custody of their mother, Kayla DeGunya. 1 At that time, DeGunya and
Campos lived together with the children, but they were never married. In an attached
affidavit, a DHS family service worker stated that Campos is the putative father of S.C. and
M.C. and that Campos is listed as the father on S.C.’s birth certificate but not currently
listed as the father on M.C.’s birth certificate. The affidavit stated that both children were
taken into emergency DHS custody after DeGunya and M.C. tested positive for
amphetamines at M.C.’s birth. The affidavit also stated that Campos had tested positive for
amphetamines, methamphetamine, and THC.
On July 31, 2020, the trial court entered an ex parte order of emergency custody of
both children. The emergency-custody order listed Campos as a putative parent of both
children. The trial court found that removal of the children from the legal custody of their
mother, DeGunya, was necessary to protect their health and safety because DeGunya and
M.C. had tested positive for amphetamines at M.C.’s birth. On August 5, 2020, the trial
court entered a probable-cause order listing Campos as a putative parent of the children.
An adjudication hearing was held on October 20, 2020, and an adjudication order
was entered on May 18, 2021, listing Campos as a putative parent of the children. The trial
court found that the children were dependent-neglected “based on drug abuse by the mother
and putative father.” The adjudication order further stated, “The Court finds there IS a
non-custodial parent who is NOT a legal parent of the juveniles. Miguel Campos has
1
DeGunya passed away from COVID complications during these dependency-neglect
proceedings.
2
appeared and requested services.” The trial court ordered “[t]he parents (mother and
putative father)” to submit to random drug screens, complete a drug-and-alcohol assessment,
complete parenting classes, and maintain stable housing. The trial court also found that the
Office of Child Support Enforcement shall conduct DNA testing on Campos to determine
if he is the biological father of the children.2 The goal of the case was reunification.
The trial court entered four review orders between November 6, 2020, and July 13,
2021. In each of these review orders, Campos was listed as a putative parent, and the trial
court found that the parents had somewhat complied with the case plan. In the July 13,
2021 review order, the trial court stated that Campos had requested the appointment of
counsel.
A permanency-planning hearing was held on June 29, 2021, and a permanency-
planning order was entered on October 1, 2021. The permanency-planning order listed
Campos as a putative parent. In the permanency-planning order, the trial court noted, “A
Default Judgment of paternity on Miguel Campos was admitted and entered into evidence.”
The trial court found that the parents had not complied with the case plan and changed the
goal of the case to termination of parental rights and adoption. Noting that Campos had
previously requested appointment of counsel, the trial court appointed Campos counsel. In
the permanency-planning order, the trial court made no finding that Campos was the legal
parent of the children.
2
There is no evidence of a DNA test in the record.
3
On July 7, 2021, DHS filed a petition for termination of parental rights, seeking to
terminate the parental rights of both DeGunya and Campos. DHS listed Campos as a
putative parent in the style of the petition but referred to him as the father in the body of
the petition and stated, “Miguel Campos had a default judgment of paternity entered against
him for S.C. and M.C.” DHS alleged that termination of parental rights was in the children’s
best interest and alleged the following two grounds with respect to both DeGunya and
Campos. Pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2021), DHS alleged
that the juveniles have been adjudicated by the court to be dependent-neglected and have
continued to be out of the custody of the parent for twelve 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. DHS also alleged,
pursuant to subdivision (b)(3)(B)(vii)(a), that other factors or issues arose subsequent to the
filing of the original petition for dependency-neglect that demonstrated that placement of
the juveniles in the custody of the parent is contrary to the juveniles’ health, safety, or welfare
and that, despite the offer of appropriate family services, the parent has manifested the
incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the
parent’s circumstances that prevent the placement of the juveniles in the custody of the
parent.
The termination hearing was scheduled for August 24, 2021. However, DeGunya
passed away three days earlier on August 21, 2021. As a result of DeGunya’s death and on
Campos’s motion, the trial court entered an order rescheduling the termination hearing for
4
September 21, 2021. The rescheduling order noted that DeGunya was deceased, and it
listed Campos as a putative parent. The termination hearing was held on September 21,
2021.
Roshunda Brown, the DHS caseworker assigned to the case, testified at the
termination hearing. Ms. Brown stated that during the case Campos failed to establish stable
housing or proof of employment. Ms. Brown also stated that Campos failed to complete a
drug-and-alcohol assessment and did not submit to drug screens. At the time of the
termination hearing, Campos was in jail on numerous charges, including residential
burglary, criminal mischief, possession of a controlled substance, and possession of drug
paraphernalia. Prior to his incarceration, Campos’s visitation with the children had been
sporadic. Ms. Brown thought that the children would be in danger if placed in Campos’s
custody. Ms. Brown also stated that the children are adoptable and that their foster parent
is willing to adopt them.
Campos also testified at the termination hearing. Campos stated that he is the father
of S.C. and M.C. Campos stated that he had been employed during the dependency-neglect
case. Campos acknowledged that he was incarcerated on felony charges and stated that his
next criminal hearing was in a couple weeks. Campos stated that if he were granted
probation, he would be able to get his old job back and that his employer would rent him a
three-bedroom house that was suitable for the children. Campos asked for more time to
complete the case plan and stated that given the opportunity he would do everything possible
to get the children back.
5
During closing argument, counsel for DHS stated that “the Office of Child Support
Enforcement declared [Campos] to be the legal father of the children by a paternity action.”
However, there was no documentation offered at the termination hearing to substantiate
that claim.
On October 1, 2021, the trial court entered an order terminating Campos’s parental
rights to S.C. and M.C. The termination order listed Campos as a putative parent. In the
termination order, the trial court found by clear and convincing evidence that termination
of parental rights was in the children’s best interest, and the trial court considered the
likelihood that the children would be adopted as well as the potential harm of returning
them to Campos’s custody. The trial court also found clear and convincing evidence of one
of the two statutory grounds alleged by DHS. Pursuant to Ark. Code Ann. § 9-27-
341(b)(3)(B)(i)(a), the trial court found that the juveniles have been adjudicated by the court
to be dependent-neglected and have continued to be out of the custody of the parent for
twelve 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. Although in body of the termination order Campos is referred to as the
“father” in the trial court’s specific findings regarding Campos’s failure to comply with the
case plan, the trial court did not find him to be a “parent” or make a finding as to Campos’s
legal status.
Campos now appeals from the termination order. Campos contends that because
the trial court never found him to be a “parent” of the children, neither of the statutory
6
grounds pled against him or the single ground found by the trial court are legally applicable
to him because those grounds pertain only to parents.3 He argues that because the “parent”
element of the statutory grounds was not met, the termination of his parental rights should
be reversed.4 We agree.
II. Standard of Review
Pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B), an order terminating parental rights
shall be based on clear and convincing evidence of one or more statutory grounds. Proof of
only one statutory ground is sufficient to terminate parental rights. Burks v. Ark. Dep’t of
Hum. Servs., 2021 Ark. App. 309, 634 S.W.3d 527. To terminate parental rights, the trial
court must also find by clear and convincing evidence that termination is in the best interest
of the child, taking into consideration the likelihood that the child will be adopted if the
termination petition is granted and 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).
3
Although the trial court found only one of the two statutory grounds pled by DHS,
we have held that, on de novo review, we can affirm the trial court’s termination decision
on any ground that was alleged in the petition and proved. See Fenstermacher v. Ark. Dep’t of
Hum. Servs., 2013 Ark. App. 88, 426 S.W.3d 483. However, as explained infra, neither of
the statutory grounds pled by DHS can be sustained on appeal because both grounds include
the requirement that Campos is a “parent,” and the trial court never found Campos to be a
“parent.”
4
Although Campos did not raise this argument below, it is preserved for appeal. This
is because in a civil bench trial, a party who does not challenge the sufficiency of the evidence
at trial does not waive the right to do so on appeal. Earls v. Ark. Dep’t of Hum. Servs., 2017
Ark. 171, 518 S.W.3d 81.
7
On appeal, termination-of-parental rights cases are reviewed de novo. Wright v. Ark.
Dep’t of Hum. Servs., 2019 Ark. App. 263, 576 S.W.3d 537. Grounds for termination of
parental rights must be proved by clear and convincing evidence, which is that degree of
proof that will produce in the finder of fact a firm conviction of the allegation sought to be
established. Id. We will not reverse the trial court’s ruling unless its findings are clearly
erroneous. Sharks v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 435, 502 S.W.3d 569. 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. Posey v. Ark. Dep’t of Hum. Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). In
determining whether a finding is clearly erroneous, we give due deference to the opportunity
of the trial court to judge the credibility of witnesses. Id.III. Discussion and Analysis
Pursuant to Ark. Code Ann. § 9-27-303(48) (Supp. 2021), “putative father” means
“any man not deemed or adjudicated under the laws of the United States to be the biological
father of a juvenile who claims to be or is alleged to be the biological father of the juvenile.”
Pursuant to Ark. Code Ann. § 9-27-303(41), “parent” means:
(A) A biological mother;
(B) An adoptive parent; or
(C) A man:
(i) To whom the biological mother was married at the time of conception or birth;
(ii) Who has signed an acknowledgment of paternity pursuant to § 9-10-120;
8
(iii) Who has been found by a court of competent jurisdiction to be the biological
father of the juvenile or to have otherwise established paternity; or
(iv) Who is listed as the parent on the birth certificate of the child[.]
Campos argues that because he was at all times identified as only a putative parent in
the case and the trial court never found him to be a “parent,” the termination order must be
reversed. In support of this argument, Campos cites Earls v. Arkansas Department of Human
Services, 2017 Ark. 171, 518 S.W.3d 81; Northcross v. Arkansas Department of Human Services,
2018 Ark. App. 320, 550 S.W.3d 919; and Burks v. Arkansas Department of Human Services,
2021 Ark. App. 309, 634, S.W2d 527.
In Earls, DNA testing in a dependency-neglect proceeding showed that Earls was the
biological father of the children. Throughout the case, however, Earls was consistently
recognized as the putative father, including in DHS’s petition to terminate parental rights
and the termination order itself. Although Earls’s status as a parent was discussed at the
termination hearing, no order was entered finding him to be a parent. The supreme court
reversed the termination of Earls’s parental rights, stating that “the record does not contain
an order establishing Earls’s legal status, and the termination order lists Earls as the putative
father.” Earls, 2022 Ark. App. 64, at 10, 639 S.W.3d at 87. The supreme court stated that,
although Earls was appointed counsel for the termination hearing and was afforded rights
as a parent, the record did not demonstrate that his legal status as the biological parent was
established such to apply the statutory grounds found by the trial court. The supreme court
in Earls concluded that Earls’s rights had not attached to then be terminated.
9
In Northcross, the trial court ordered Northcross to submit to DNA testing and to
establish paternity. In an amended termination petition, DHS asserted that DNA testing
showed Norcross to be the biological father; he had been appointed counsel at the
permanency-planning hearing; and he had significant contacts with the children for parental
rights to attach. DHS asked for a specific finding whether parental rights had attached and,
if so, requested that those rights be terminated. The termination order listed Northcross as
the putative father in the style of the order, but in the order’s opening paragraph it listed
those present and included “Father, Fred Northcross.” Northcross was also referred to as
the father in the trial court’s findings regarding both statutory grounds, i.e., “other factors”
and “aggravated circumstances.” However, despite the submission of a DNA test showing
Northcross to be the biological father, the trial court never entered an order finding him to
be the legal father. Relying on Earls, we reversed the termination order, holding that
Northcross’s rights could not be terminated without a finding establishing his status as a
parent.
In Burks, we stated that the trial court made Burks’s legal status an issue but failed to
resolve the matter before terminating his parental rights. We noted that pursuant to the
supreme court precedent in Earls, the trial court was required to make a specific finding that
Burks is the parent before terminating his rights. Thus, in Burks, we reversed the
termination.
In addition to the cases cited by Campos, this court also reversed a termination in
Terry v. Arkansas Department of Human Services, 2019 Ark. App. 591, 591 S.W.3d 824. In
10
Terry, we stated that “a lay person’s reference to himself as a father—or even a DNA test
showing a 99% probability that the man is a biological father of a child—is insufficient to
establish “parent” status for purpose of the termination process until and unless there is an
express finding by the circuit court that the man is, in fact, a parent.” Terry, 2019 Ark. App. 591,
at 8, 591 S.W.3d at 829 (emphasis in original). In Terry, we reversed and remanded where
DHS failed to establish Terry’s parental status, and the trial court did not make an express
finding that Terry was the juvenile’s parent even when his parental status was never
questioned throughout the case. In Dreher v. Arkansas Department of Human Services, 2022
Ark. App. 64, 639 S.W.3d 899, we relied on Terry and reversed a termination where there
was no express finding by the trial court that Dreher was a parent. We wrote:
At the May 20, 2021 termination hearing, the court asked if appellant wanted
a DNA test, and his counsel stated that he admits that he is FD’s father. However, at
no point did the circuit court make a finding that appellant was a parent for purposes
of the termination process.
Dreher, 2022 Ark. App. 64, at 10–11, 639 S.W.3d at 905.
In the present case, Campos was identified as a putative parent at the outset of the
case, and he was thereafter consistently listed as a putative parent, including in DHS’s
termination petition and in the termination order itself. At no time was Campos listed as a
parent. In an affidavit attached to DHS’s petition for emergency custody, a family service
worker stated that Campos was listed as the father on S.C.’s birth certificate. However, the
birth certificate was not introduced into evidence, and the trial court clearly did not accept
this statement in the affidavit because in the adjudication order, the trial court listed Campos
11
as the putative father and specifically found that he was “NOT a legal parent of the juveniles.”
In the permanency-planning order, the trial court again listed Campos as the putative parent,
although noting in the order that, “A Default Judgment of Paternity on Miguel Campos was
admitted and entered into evidence.” However, the trial court did not find Campos to be a
parent of the children in the permanency-planning order or in any other order. Campos’s
legal status was not discussed at the termination hearing, and although Campos identified
himself as the father at the hearing, this was insufficient to establish his status as a “parent”
for termination purposes absent an express finding by the trial court that Campos was, in
fact, the parent. See Terry, supra. This case is similar to Earls, supra, in that while Campos
was appointed counsel at the termination hearing, no order was entered establishing his
status as a legal parent, and the termination order listed him as a putative parent. Because
none of the trial court’s orders expressly found Campos to be a “parent,” and, in fact, they
all uniformly referred to him as a putative parent, his status as a “parent” was not established
for purposes of the termination process.5
IV. Conclusion
Both statutory grounds alleged by DHS, and the single statutory ground found by the
trial court, required proof that Campos is a “parent” as a prerequisite to terminating his
parental rights. Because the trial court consistently referred to Campos as a putative parent
5
DHS urges us to affirm Campos’s status as a parent based on Fowler v. State, 2021
Ark. App. 159, and Johnson v. State, 2018 Ark. App. 221, 547 S.W.3d 489. However, these
cases are distinguishable from the present case because, in both cases, the trial court found
the appellant to be a “parent” in its orders.
12
and never entered an order expressly finding him to be a parent, Campos’s rights had not
attached to then be terminated. See Earls, supra. Therefore, we hold that the trial court erred
in terminating Campos’s parental rights. Accordingly, we reverse and remand for further
proceedings.
Reversed and remanded.
GLADWIN and KLAPPENBACH, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
13