2014 Ark. App. 466 ARI(ANSAS COURT DIVISION No. CV-14-304 TYRONE MOSES, SR. APPELLANT V. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND T.M. and 4.M., MINORS APPELLEES BRANDON J. HARRISON, Tyrone Moses, Sr., appeals a Conway County parental rights to his children T.M. and A.M. parental rights were also terminated, but she is court's termination of Moses's rights. l. Backgrounil The Arkansas Department of Human Services and A.M., ige three months, from their mother's emergency-room x-rays at Arkansas Children's Hospital multiple unexplained bone fractures. The circuit dependent-neglected in March 2073 efter finding current or healing fractures and that A.M. had several the children were with their mother, or her OF APPEALS IV opinion Delivered September 17, 2074 APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT lNo. N-2013-61 HONORABLE TERRY SULLIVAN, JUDGE AFFIRMED Judge Circuit Court order terminating his The children's mother, Kiara'Walker's, not a party to this appeal. '!7e affirm the (DHS) removed T.M., age one year, custody in February 2013 after revealed that both children had couft adjudicated the children that T.M. had approximately thirty-six broken ribs. The court found that boyfiend-now-husband Jamarcus Gage,
2014 Ark. App. 466 when the iqiuries occurred and that Walker children's serious injuries. The court terminated based on the children's best interest and several statutory circumstances, because the children had experienced extreme Tyrone Moses, Sr., is the children's father. child-abuse dlegations because he was in prison court nonetheless terminated Moses's parental rights DHS only alleged one of the grounds in ie petition-namely, sentenced in a criminal proceeding for a period period of the juvenile's life. Ark. Code Ann. ("incarceration" ground). Moses challenges Because DHS never amended its petition, proof, our review is limited to the incarceration Human Smts., 2013 Ark. App. 417, 429 S.U/.3d statutory grounds not alleged in the petition). ll. Discussion 'We review termination-of-parentd-rights unless the circuit court's clear-and-convincing Pratt u. Ark. Dq't oJ Human Sents., 2072 Ark. App. review). Moses challenges the circuit court's finding in the children's best interest. To terminate gave no plausible explanation for the 'Walker's parental rights in January 2074 grounds, including aggravated cruelty under her watch. He was not involved with any of the when the injuries occurred. The circuit on three statutory grounds, although that Moses had been of time that would constitute a substantid S g-27-341(bx3xBxviii) (Supp. 2Ol3) the "incarceration" surtutory ground here. or moved to conform the pleadings to the ground. See Jmkson u. Ark. Dq't of 276 (crcuit court cannot terminate on cases de novo, but we do not reverse evidence findings are clearly erroneous. 399, 413 S.w.3d 267 (standard of that terminating his parental rights was parentd rights, a circuit court must find, by
2014 Ark. App. 466 clear and convincing evidence, that doing so is in considering (1) the likelihood that the juvenile is granted and (2) the potential harm, specifically saGty of the child, caused by.returning the child Ark. Dry't of Human serus., 2014 Ark App. requirement that every factor considered be instead, after considering all factors, the evidence termination is in the child's best interest. Id. Here, Moses concedes that his children court's best-interest finding on potential harm. court lacked sufficient evidence to make the ' He proactively completed an anger-resolution on a waiting list for parenting classes. ' FIe testified at the termination hearing or so" with T.M. before his incarceration. ' He has a relationship with his other t'wo ' His mother testified that the children and Moses's fianc6e could care for incarceration. ' Though he was not immediately available to make an effort to place the children These statemenB were only part of the record ultimate decision was based primarily on its risk of harm if returned to Mr. Moses who is history of violence including physical abuse to the best interest of the juvenile, while will be adopted if the terminarion petition addressing the effect on the health and to the custody of the parent. Hamman v. 295, 435 s.w.3d 495. There is no established by clear and convincing evidence; must be clear and convincing that are adoptable. He only challenges the For a number of reasons, Moses says the best-interest finding that it did: seminar while in prison and was that he had interacred "every other week children and they visit him in prison. would be saG with Moses and that she the children for the remainder of Moses's to take the children, DHS has a dury with his relatives. before the circuit court. The court's determination that "the children would be at currendy incarcerated and has a significant the mother and a police officer." Moses
2014 Ark. App. 466 testified at the hearing that he had hit\iValker and he was convicted of second-degree battery, assault on a family member, for which he was sentenced still imprisoned when the termination hearing abused her physicdly in the past and that Moses financidly. Moses's testimony at the termination hearing with T.M. or cared for him on his own for any length pictures of A.M.; he had never met her. Although upon his release from prison, he acknowledged have a job and that it may be hard for him because DHS caseworker Cynthia Thompson Moses's parental tightt. The gist of her testimony where he can provide for the children" in the We have considered the entire record err in finding that termination was in the children's is not at all certain that, even upon his release, children. Our juvenile code is intended to protect see" instabrhty. Hamtnan, supra. Having affirmed the circuit court's best-interest separate, but closely related, point that 341(bX3XBX"iii) (Supp. 2013) provides for termination an officer on separate occasions and that third-degree domestic batter[, and aggravated to 6ve years in prison and was occurred. 'Walker testified how Moses had had never supported the children also revealed that he had never lived of time. And Moses had only seen Moses planned to live with his fianc6e that he did nor know when he would of his bad diabetes. recorunended that the court terminate was that Moses was "not in a position near future. and hold that the circuit court did not clearly best interest. Among other things, it Moses would be approved to take the children from this type of "wait-and-determination, we turn to the Arkansas Code Annotated section 9-27-when "[t]he parent is sentenced in
2014 Ark. App. 466 a criminal proceeding for a period of time that juvenile's lif.[.]" We look at the Iength of the prison date, when reviewing whether this statutory ground Human Sents., 2072 Ark. App. 477. The circuit court found that Moses had Moses testified, and DHS submitted documentary five years in the Arkansas Department of Correction. than one year old and A.M. was less than one court reasoned that by the time of Moses's release incarcerated for a subsantial period of the juveniles' Moses makes several factual and legal ground here. To boil them down, he argues through unequivocd disregard, both as a party favon preservation, not severance, of family bonds, what constitutes a substantial period of time in maximum, five years out of eighteen is not a substantial The incarceration statutory ground does not Moses while he is in prison as a prerequisite do when Moses is released. So the circuit services DHS should have or could have section 9 -27 -341 bX3XBXviii).would constitute a subsantid period of the sentence, not the potential release was met. Boutman v. Ark. Dq't of been incarcerated since September 2012. evidence, that Moses was sentenced to The court noted that T.M. was less month old when Moses went to jail. The from prison, he would have been lives. argumenm concerning the incarceration that DHS "stripped [t"*] of his identity to the case and as a man," that the law and "the statute is not definitive of a child's life." Moses claims that, at period of the children's lives. require DHS to provide services to to termination or to contemplate what it will court's seeming lack of consideration of the offered Moses is not reversible error under
.Fa 2014 Ark. App. 466 Regarding the time of incarceration, incarceration encompassed a substantial period bounds of our caselaw. At one end of the spectmm Dqartmmt of Human Sentices,59 Ark. App. 141, sentence, children ages ten and nine) and Moore u. 333 Ark. 288,297,969 S.W.2d 186 (1998) (trventy-eight-year year old). The other end of the spectrum is Hill 2072 Ark App. 108, 389 S.W.3d 72 (tlree-year court terminated parent's rights and reasoned that prison the child would have spent "half of her liG" v. Arkansas Dqartment of Human Smtices, 104 Ark. year concurrent prison sentences, child age ten months). 'We hold that the circuit court did not prison sentence was a substantial portion of T.M.'s III. Condusion The termination ofMoses's parentd righs is Affirmed. Wylwn and GrovrR, JJ., agree. Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant. Tabitha B. McNulty, County Legal Operations, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.the circuit court's decision that Moses's of the children's lives falls within the are cases Eke Thompson ,r, Arkaflsas 954 S.W.2d292 (199n (forty-year prison Arkarcas Departrnent of Human Smtices, prison sentence, child one v. Arkansas Dqartmmt of Human Smtica, prison sentence, child wvo years old; by time the parent was released from in foster care). In the middle is Fielils App. 37, 289 S.W.3d 734 (2008) (ten-clearly err by finding that Moses's five-year and A.M.'s lives. affirmed.
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