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