Campos v. Ark. Dep't of Human Servs.

2022 Ark. App. 221

644 S.W.3d 465

Miguel CAMPOS, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES; and S.M. and M.C., Appellees

No. CV-21-603

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered May 11, 2022

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Jonesboro, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, Little Rock, attorney ad litem for minor children.

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 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.

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 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.

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 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...