Tyrone MOSES, Sr., Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and T.M. and A.M., Minors, Appellees.
No. CV-14-304.
Court of Appeals of Arkansas.
Sept. 17, 2014.
2014 Ark. App. 466
We disagree. As discussed above, substantial evidence supports the Commission‘s decision. The Commission found that the symptoms of sciatica resulting from the knee injury, as opposed to a back injury, and anything related to it should be covered as spelled out in the Commission‘s decision.
Affirmed on appeal and cross-appeal.
PITTMAN and WHITEAKER, 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.
BRANDON J. HARRISON, Judge.
Tyrone Moses, Sr., appeals a Conway County Circuit Court order terminating his parental rights to his children T.M. and A.M. The children‘s mother, Kiara Walker‘s, parental rights were also terminated, but she is not a party to this appeal. We affirm the court‘s termination of Moses‘s rights.
I. Background
The Arkansas Department of Human Services (DHS) removed T.M., age one year, and A.M., age three months, from their mother‘s custody in February 2013 after emergency-room x-rays at Arkansas Children‘s Hospital revealed that both children had multiple unexplained bone fractures. The circuit court adjudicated the children dependent-neglected in March 2013 after finding that T.M. had approximately thirty-six current or healing fractures and that A.M. had several broken ribs. The court found that the children were with their mother, or her boyfriend-now-husband Jamarcus Gage,
Tyrone Moses, Sr., is the children‘s father. He was not involved with any of the child-abuse allegations because he was in prison when the injuries occurred. The circuit court nonetheless terminated Moses‘s parental rights on three statutory grounds, although DHS only alleged one of the grounds in its petition—namely, that Moses had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile‘s life.
II. Discussion
We review termination-of-parental-rights cases de novo, but we do not reverse unless the circuit court‘s clear-and-convincing evidence findings are clearly erroneous. Pratt v. Ark. Dep‘t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261 (standard of review).
Moses challenges the circuit court‘s finding that terminating his parental rights was in the children‘s best interest. To terminate parental rights, a circuit court must find, by clear and convincing evidence, that doing so is in the best interest of the juvenile, while considering (1) the likelihood that the ju
Here, Moses concedes that his children are adoptable. He only challenges the court‘s best-interest finding on potential harm. For a number of reasons, Moses says the court lacked sufficient evidence to make the best-interest finding that it did:
- He proactively completed an anger-resolution seminar while in prison and was on a waiting list for parenting classes.
- He testified at the termination hearing that he had interacted “every other week or so” with T.M. before his incarceration.
- He has a relationship with his other two children and they visit him in prison.
- His mother testified that the children would be safe with Moses and that she and Moses‘s fiancee could care for the children for the remainder of Moses‘s incarceration.
- Though he was not immediately available to take the children, DHS has a duty to make an effort to place the children with his relatives.
These statements were only part of the record before the circuit court. The court‘s ultimate decision was based primarily on its determination that “the children would be at risk of harm if returned to Mr. Moses who is currently incarcerated and has a significant history of violence including physical abuse to the mother and a police officer.” Moses testified at the hearing that he had hit Walker and an officer on separate occasions and that he was convicted of second-degree battery, third-degree domestic battery, and aggravated assault on a family member, for which he was sentenced to five years in prison and was still imprisoned when the termination hearing occurred. Walker testified how Moses had abused her physically in the past and that Moses had never supported the children financially.
Moses‘s testimony at the termination hearing also revealed that he had never lived with T.M. or cared for him on his own for any length of time. And Moses had only seen pictures of A.M.; he had never met her. Although Moses planned to live with his fiancee upon his release from prison, he acknowledged that he did not know when he would have a job and that it may be hard for him because of his bad diabetes.
DHS caseworker Cynthia Thompson recommended that the court terminate Moses‘s parental rights. The gist of her testimony was that Moses was “not in a position where he can provide for the children” in the near future.
We have considered the entire record and hold that the circuit court did not clearly err in finding that termination was in the children‘s best interest. Among other things, it is not at all certain that, even upon his release, Moses would be approved to take the children. Our juvenile code is intended to protect children from this type of “wait-and-see” instability. Hamman, supra.
Having affirmed the circuit court‘s best-interest determination, we turn to the separate, but closely related, point that
The circuit court found that Moses had been incarcerated since September 2012. Moses testified, and DHS submitted documentary evidence, that Moses was sentenced to five years in the Arkansas Department of Correction. The court noted that T.M. was less than one year old and A.M. was less than one month old when Moses went to jail. The court reasoned that by the time of Moses‘s release from prison, he would have been incarcerated for a substantial period of the juveniles’ lives.
Moses makes several factual and legal arguments concerning the incarceration ground here. To boil them down, he argues that DHS “stripped [him] of his identity through unequivocal disregard, both as a party to the case and as a man,” that the law favors preservation, not severance, of family bonds, and “the statute is not definitive of what constitutes a substantial period of time in a child‘s life.” Moses claims that, at maximum, five years out of eighteen is not a substantial period of the children‘s lives.
The incarceration statutory ground does not require DHS to provide services to Moses while he is in prison as a prerequisite to termination or to contemplate what it will do when Moses is released. So the circuit court‘s seeming lack of consideration of the services DHS should have or could have offered Moses is not reversible error under
Regarding the time of incarceration, the circuit court‘s decision that Moses‘s incarceration encompassed a substantial period of the children‘s lives falls within the bounds of our caselaw. At one end of the spectrum are cases like Thompson v. Arkansas Department of Human Services, 59 Ark. App. 141, 954 S.W.2d 292 (1997) (forty-year prison sentence, children ages ten and nine) and Moore v. Arkansas Department of Human Services, 333 Ark. 288, 291, 969 S.W.2d 186 (1998) (twenty-eight-year prison sentence, child one year old). The other end of the spectrum is Hill v. Arkansas Department of Human Services, 2012 Ark. App. 108, 389 S.W.3d 72 (three-year prison sentence, child two years old; court terminated parent‘s rights and reasoned that by time the parent was released from prison the child would have spent “half of her life” in foster care). In the middle is Fields v. Arkansas Department of Human Services, 104 Ark. App. 37, 289 S.W.3d 134 (2008) (ten-year concurrent prison sentences, child age ten months).
We hold that the circuit court did not clearly err by finding that Moses‘s five-year prison sentence was a substantial portion of T.M.‘s and A.M.‘s lives.
III. Conclusion
The termination of Moses‘s parental rights is affirmed.
Affirmed.
WYNNE and GLOVER, JJ., agree.