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Moses v. Arkansas Dep't of Human Servs.

Court of Appeals of Arkansas, Division IV

September 17, 2014

TYRONE MOSES, SR., APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND T.M. and A.M., MINORS, APPELLEES

APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT. NO. JV-2013-6. HONORABLE TERRY SULLIVAN, JUDGE.

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.

WYNNE and GROVER, JJ., agree.

OPINION

Page 55

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 boyfiend-now-husband Jamarcus Gage, when the injuries occurred and that Walker gave no plausible explanation for the children's serious injuries. The court terminated Walker's parental rights in January 2014 based on the children's best interest and 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 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. Ark. Code Ann. § 9-27-341(b)(3)(B)(viii) (Supp. 2013) (" incarceration" ground). Moses challenges the " incarceration" statutory ground here. Because DHS never amended its petition, or moved to conform the pleadings to the proof, our review is limited to the incarceration ground. See Jackson v. Arkansas Dep't of Human Servs., 2013 Ark.App. 411, 429 S.W.3d 276 (circuit court cannot terminate on statutory grounds not alleged in the petition).

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. Arkansas 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 ...


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