Philip Wallace v. Arkansas Department of Human Services and Minor Children

2020 Ark. App. 67, 595 S.W.3d 396

• Court: Court of Appeals of Arkansas
• Decided: February 5, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 67 Reason: I attest to the accuracy and integrity of this document Date: 2021-06-30 10:29:42 Foxit PhantomPDF Version: 9.7.5 ARKANSAS COURT OF APPEALS DIVISION I No. CV-19-715

Opinion Delivered: February 5, 2020 PHILIP WALLACE APPELLANT APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. 72JV-18-756] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE STACEY APPELLEES ZIMMERMAN, JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED

RITA W. GRUBER, Chief Judge

Appellate counsel for Philip Wallace brings this no-merit appeal from the

Washington County Circuit Court’s order entered on July 1, 2018, terminating appellant’s

parental rights to his three children: NG, born November 11, 2015; AG, born November

17, 2016; and MG, born November 20, 2017. Pursuant to 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), counsel has filed a no-merit brief setting forth all adverse rulings from

the termination hearing and asserting that there are no issues that would support a

meritorious appeal. Counsel has also filed a motion asking to withdraw. The clerk of this

court sent a copy of the brief and motion to withdraw to appellant, informing him that he

had the right to file pro se points for reversal under Arkansas Supreme Court Rule 6-9(i)(3), which he has filed. We grant counsel’s motion to withdraw and affirm the order terminating

appellant’s parental rights.

On September 7, 2018, the Arkansas Department of Human Services (DHS)

exercised an emergency hold on the children based on allegations of sexual abuse of NG by

appellant. DHS filed a petition for emergency custody. The affidavits in support of the

petition explained that appellant’s roommate had hidden his phone in appellant’s bedroom

with the recorder on. The phone recorded an encounter between appellant and NG

indicating that NG had performed oral sex on appellant. The affidavit also detailed a

subsequent interview of appellant by the Fayetteville Police Department in which appellant

admitted having NG perform oral sex on him.

The circuit court adjudicated the children dependent-neglected in December 2018

due to appellant’s sexual abuse of NG. The circuit court stated that it had listened to an

audio file of the abuse in which appellant asked NG to perform oral sex on him; that it

found credible the testimony of Officer Carnahan of the Fayetteville Police Department,

who said appellant admitted the abuse in an interview after the event; and that the Crimes

Against Children Division (CACD) of the Arkansas State Police had issued true findings

against appellant for this incident and for two separate sexual-abuse incidents in 2009 with

his nieces as victims. The court found the children were at imminent risk of more sexual

abuse if placed with their father. The court also found that the Indian Child Welfare Act

(ICWA), 25 U.S.C. sections 1902 et seq., applied to the children because the mother is a

member of the Pawnee Tribe of Oklahoma.

2 The same day the court entered the adjudication order, the court entered an order

granting DHS’s motion to terminate reunification services, specifically finding that appellant

had sexually abused and exploited NG and finding by clear and convincing evidence that

there were no reunification services that could be offered to appellant that would result in

successful reunification due to the clear pattern of sexual abuse that he had perpetrated on

numerous female juvenile family members. Finally, the court found that appellant’s putative

parental rights had attached as to all three children.

On January 10, 2019, the court entered a permanency-planning order as to appellant,

finding that DNA test results entered into evidence at the hearing confirmed appellant is the

biological father of the children, finding him indigent, and appointing him an attorney. The

court noted that the goal remained reunification with the mother with a concurrent goal of

adoption, that the court had previously entered an order relieving DHS of the obligation to

provide reunification services to appellant, and that the Indian child welfare expert had

testified that the Pawnee Tribe agreed to change the goal to termination of appellant’s rights

based on the true findings of sexual abuse. Appellant testified at the hearing that he did not

agree to change the goal of the case as to him because the circumstances surrounding the

removal of the children were “speculatory” and “not complete.” The court changed the

goal to termination as to appellant, noting that it was not bound by the results of appellant’s

criminal case, finding that the evidence was not “speculatory” and that it had already found

appellant had sexually abused NG, and finding that he had subjected the children to

aggravated circumstances—specifically, by subjecting the children to extreme and repeated

3 cruelty and that there is little likelihood that services to appellant would result in successful

reunification.

On February 5, 2019, DHS filed a petition to terminate appellant’s parental rights.

A final hearing was held on May 30, 2019. Appellant requested that the audio recording—

previously introduced into evidence and played at the adjudication hearing—be played at

the termination hearing. DHS entered the recording into evidence, and it was played at the

hearing without objection.

Amanda Farren, the Pawnee Nation Indian child welfare coordinator, testified

without objection as the Indian child-welfare expert. She testified that the children could

not return to appellant due to the “horrendous abuse that occurred.” Eugenia Marks, the

DHS family-service worker, testified that appellant remained incarcerated on charges

connected with the abuse of NG. She said that appellant had three true findings since 2009

with juvenile family members and that she did not believe there were any services that could

be provided to appellant to correct his behavior.

Appellant testified and disputed the charges against him. He said that he did not

believe a “factual case” had been made. He also contested the statements made by any

detectives against him.

At the conclusion of the hearing, the court made the appropriate findings and

terminated appellant’s parental rights. The court’s order was entered on July 1, 2019, finding

that the children had been subjected to aggravated circumstances, specifically, extreme or

repeated cruelty, sexual abuse as to NG, and that there is little likelihood that services to

appellant would result in successful reunification. The court also found that it was in the

4 best interest of the children to terminate appellant’s parental rights. Finally, the court found

that a return of custody to appellant would result in serious emotional or physical damage

to all three children.

We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep’t of

Human Servs., 2010 Ark. App. 543. We will not reverse the circuit court’s ruling unless its

findings are clearly erroneous. Holmes v. Ark. Dep’t. of Human Servs., 2016 Ark. App. 495,

505 S.W.3d 730. To terminate parental rights, the court must find the existence of at least

one statutory ground and that it is in the child’s best interest to terminate. Ark. Code Ann.

§ 9-27-341 (Supp. 2019); Kohlman v. Ark. Dep’t of Human Servs., 2018 Ark. App. 164, 544

S.W.3d 595. A best-interest finding under the Arkansas Juvenile Code must include

consideration of two factors: the likelihood of adoption and potential harm. Ark. Code Ann.

§ 9-27-341(b)(3)(A)(i) & (ii). Potential harm must be viewed in a forward-looking manner

and in broad terms. Riggs v. Ark. Dep’t of Human Servs., 2019 Ark. App. 185, at 5–6, 575

S.W.3d 129, 132.

For termination proceedings subject to the ICWA, the burden of proof is beyond a

reasonable doubt. Ark. Code Ann. § 9-27-325(h)(3)(B)(2) (Supp. 2019). The ICWA also

prohibits termination of parental rights to an Indian child “in the absence of a determination,

supported by evidence beyond a reasonable doubt, including testimony of qualified expert

witnesses, that the continued custody of the child by the parent or Indian custodian is likely

to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f).

Counsel correctly asserts that there can be no meritorious challenge to the sufficiency

of the evidence supporting the termination of appellant’s parental rights. There was ample

5 evidence presented in the form of an audio recording of the abuse of NG and three true

findings of sexual abuse against appellant to support the court’s finding of aggravated

circumstances. In addition, the court had previously ordered termination of reunification

services and found that aggravated circumstances existed as a result of sexual abuse, extreme

or repeated cruelty, and little likelihood that services would result in successful reunification.

Counsel has also adequately explained why there is sufficient evidence to support the

court’s best-interest finding. The DHS worker testified that all three children are adoptable.

In addition, the court was warranted in finding that appellant posed potential harm to the

children considering his pattern of sexual abuse to female juvenile relatives. The focus is on

the potential harm to the health and safety of a child that might result from continued

contact with the parent. Tadlock v. Ark. Dep’t of Human Servs., 2009 Ark. App. 841, 372

S.W.3d 403. The court is not required to find that actual harm would result or to

affirmatively identify a potential harm. Whitaker v. Ark. Dep’t of Human Servs., 2018 Ark.

App. 61, at 15, 540 S.W.3d 719, 728. On this record, the circuit court’s finding that

termination of appellant’s parental rights was in the children’s best interest was not clearly

erroneous.

There is one additional adverse ruling addressed by counsel that occurred during

appellant’s testimony. Appellant’s counsel attempted to go line by line through the

adjudication order with appellant so that appellant could explain whether he thought each

sentence was true or false. The court interjected, stating that it had already adjudicated the

children dependent-neglected, the adjudication order had been admitted into evidence, and

appellant’s opinion about the court’s findings were irrelevant. Appellant’s counsel explained

6 that appellant’s opinions were solely in regard to the findings about Officer Callahan’s

testimony because appellant had no counsel present at the hearing to dispute the officer’s

allegations. The attorney ad litem then objected, and the court sustained the objection. The

court stated that its adjudication order was res judicata, it was not going to revisit its findings,

and appellant’s opinion about the findings was not relevant. Counsel contends in her no-

merit brief that the adjudication order and its findings were not necessary to support the

court’s termination decision because evidence was admitted at the termination hearing to

support termination. Counsel states that the audio recording reintroduced and played at the

termination hearing, the testimony of the DHS caseworker, and the testimony of the ICWA

expert amply support the termination. The aggravated-circumstances ground does not

require DHS to prove that the children were adjudicated dependent-neglected. Ark. Code

Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) (Supp. 2019).

Appellant raises several pro se points for reversal. Primarily, he argues that the facts

of his case are illegitimate, “speculatory,” and misleading; that inadmissible hearsay was

introduced; and that he has not wronged his children and it is his right to raise them. He

also requests that we appoint him competent appellate counsel because his counsel “no

longer feels she is competent to handle my case for appeal.” We agree with DHS and the

attorney ad litem that most of appellant’s arguments are new and cannot be made for the

first time on appeal. Mercado v. Ark. Dep’t of Human Servs., 2017 Ark. App. 495, at 5. In

addition, this court will not reweigh the evidence on appeal or second-guess the court’s

credibility determinations. Westbrook v. Ark. Dep’t of Human Servs., 2019 Ark. App. 352, at

5, 584 S.W.3d 258, 262. Finally, appellate counsel was appointed for appellant, and she has

7 filed this no-merit appeal pursuant to 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). To the

extent appellant is attempting to argue that appellate counsel is ineffective, he offers no

specific instances of ineffective assistance other than counsel’s decision to file this no-merit

appeal. He cites no authority for his contention that this constitutes ineffective assistance of

counsel. We will not consider an argument, even a constitutional one, when the appellant

presents no citation to authority or convincing argument in its support, and it is not apparent

without further research that the argument is well taken. Strong v. State, 372 Ark. 404, 419,

277 S.W.3d 159, 170 (2008).

From our review of the record and the brief presented to us, including consideration

of appellant’s pro se points, we find that counsel has complied with Rule 6-9(i) and hold

that the appeal is without merit.

Affirmed; motion to withdraw granted.

ABRAMSON and MURPHY, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Callie Corbyn, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor

children.