                                   2014 Ark. App. 466
                  ARI(ANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CV-14-304


                                                    opinion Delivered September 17, 2074

  TYRONE MOSES, SR.                                 APPEAL FROM THE CONWAY
                               APPELLANT            COUNTY CIRCUIT COURT
                                                    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 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. '!7e affirm the

court's termination of Moses's rights.

                                          l.   Backgrounil

       The Arkansas Department of Human Services (DHS) removed T.M., age one year,

and A.M., ige 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 couft adjudicated the children

dependent-neglected in March 2073 efter 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,
                                      2014 Ark. App. 466


when the iqiuries occurred and that Walker gave no plausible explanation for the

children's serious injuries. The court terminated 'Walker's parental rights in January 2074

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 dlegations 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               ie petition-namely,   that Moses had been

sentenced   in a criminal proceeding for a period of time that would constitute       a substantid

period of the juvenile's       life. Ark.   Code Ann. S g-27-341(bx3xBxviii) (Supp. 2Ol3)

("incarceration" ground). Moses challenges the "incarceration" surtutory 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   Jmkson u.   Ark.   Dq't   of

Human Smts., 2013 Ark. App. 417, 429 S.U/.3d 276 (crcuit court cannot terminate on

statutory grounds not alleged in the petition).

                                            ll.   Discussion

         'We review
                    termination-of-parentd-rights cases de novo, but we do not reverse

unless   the circuit court's clear-and-convincing evidence findings are clearly erroneous.

Pratt u. Ark.   Dq't   oJ   Human Sents., 2072 Ark. App. 399, 413 S.w.3d 267 (standard             of
review).

         Moses challenges the circuit court's finding that terminating his parental rights was

in the children's best interest. To terminate parentd rights, a circuit court must find, by
                                       2014 Ark. App. 466


clear and convincing evidence, that doing so is       in the best interest of the juvenile, while

considering (1) the likelihood that the juvenile will be adopted     if the terminarion petition

is granted and (2) the potential harm, specifically addressing the effect on the health and

saGty of the child, caused by.returning the child to the custody of the parent. Hamman v.

Ark. Dry't of Human         serus.,   2014 Ark App. 295, 435 s.w.3d 495. There is no

requirement that every factor considered be established by clear and convincing evidence;

instead, after considering all factors, the evidence must be clear and convincing that

termination is in the child's best interest. Id.

       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.

   '       FIe testified at the termination hearing that he had interacred "every other week
           or so" with T.M. before his incarceration.

   '       He has a relationship with his other t'wo children and they visit him in prison.

   '       His mother testified that the children would be saG with Moses and that she
           and Moses's fianc6e 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 dury
           to make an effort to place the children with his relatives.

       These statemenB 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 currendy incarcerated and has a significant

history of violence including physical abuse to the mother and a police officer." Moses
                                      2014 Ark. App. 466


testified at the hearing that he had hit\iValker and an officer on separate occasions and that

he was convicted of second-degree battery, third-degree domestic batter[, and aggravated

assault    on a family member, for which he was sentenced to 6ve years in prison and was

still imprisoned when the termination hearing occurred. 'Walker testified how Moses had

abused her physicdly        in the past and that Moses had never supported the children
financidly.

           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 fianc6e

upon his release from prison, he acknowledged that he did nor know when he would

have   a   job and that it may be hard for him   because of his bad diabetes.

           DHS caseworker Cynthia Thompson recorunended that the court               terminate

Moses's parental     tightt. 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" instabrhty. Hamtnan, supra.

           Having affirmed the circuit court's best-interest determination, we turn to the

separate,     but closely related, point that      Arkansas Code Annotated section 9-27-

341(bX3XBX"iii) (Supp. 2013) provides for termination when "[t]he parent is sentenced in
                                       2014 Ark. App. 466


a criminal proceeding for a period of time that would constitute a subsantid period of the

juvenile's   lif.[.]"   We look at the Iength of the prison sentence, not the potential   release

date, when reviewing whether this statutory ground was          met. Boutman v. Ark. Dq't of
Human Sents., 2072 Ark. App. 477.

       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 subsantial period of the juveniles' lives.

       Moses makes several factual and legal argumenm concerning the incarceration

ground here. To boil them down, he argues that DHS "stripped             [t"*]   of his identity

through unequivocd disregard, both as a party to the case and as a man," that the law

favon 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

section 9 -27 -341 bX3XBXviii).
.Fa
                                            2014 Ark. App. 466


              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 spectmm are            cases   Eke Thompson ,r, Arkaflsas

      Dqartmmt      of Human Sentices,59   Ark. App. 141, 954 S.W.2d292 (199n (forty-year prison

      sentence, children ages ten and 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). The other end of the spectrum is Hill v. Arkansas Dqartmmt of Human Smtica,

      2072    Ark App. 108, 389 S.W.3d 72 (tlree-year          prison sentence, child wvo 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 liG" in foster care). In the middle is Fielils

      v. Arkansas Dqartment of Human Smtices, 104 Ark. App. 37, 289 S.W.3d 734 (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.   Condusion

              The termination ofMoses's parentd righs is affirmed.

              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.
