Jerome Moore v. Arkansas Department of Human Services
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Jerome MOORE v. ARKANSAS DEPARTMENT OF
HUMAN SERVICES
CA05-759
Court of Appeals of Arkansas
Opinion delivered May 3, 2006
1.
F AMILY LAW – TERMINATION OF PARENTAL RIGHTS.– TERMINATION OF APPELLANT’S
PARENTAL RIGHTS WAS PROPER UNDER A RKANSAS C ODE A NNOTATED SECTION 9-27-
341.– The trial court did not err in terminating appellant’s parental rights pursuant to
Arkansas Code Annotated section 9-27-341 where the statute merely requires DHS
to be “attempting” to clear a juvenile for permanent placement, and in the instant case,
DHS was attempting to terminate the parental rights of both appellant and the mother,
which would have “cleared” the minor child for adoption; the fact that DHS failed to
convince the trial court to terminate the parental rights of the mother was of no
moment as the statute clearly contemplates termination of only a single parent’s
parental rights.
2.
F AMILY LAW – TERMINATION OF PARENTAL RIGHTS – APPELLANT FAILED TO MAINTAIN
MEANINGFUL CONTACT WITH THE CHILD.–
The trial court did not err in finding that
appellant failed to maintain meaningful contact with his son where, by his own
testimony, it was established that his contact with his son was limited to a single twoweek period; furthermore, while it is true that appellant was incarcerated for a portion
of this time, there was other evidence that appellant chose not to be a part of his son’s
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
Cite as 95 Ark. App. ___ (2006)
Page 2
life; the mother testified that appellant absented himself from the child’s life as soon
as he found out that she was pregnant, and he did not return until some three or four
years later.
Appeal from Conway County Circuit Court; Terry Sullivan, Judge; affirmed.
DeeNita D. Moak, for appellant.
Gray Allen Turner, Dept. of Human Servs., Office of Chief Counsel, for appellee.
J OSEPHINE L INKER H ART, Judge. Jerome Moore appeals from an order of the Conway
County Circuit Court terminating his parental rights. Moore argues that the trial court erred:
1) in terminating his parental rights pursuant to Arkansas Code Annotated section 9-27-341
(Supp. 2005) because termination is only permissible when it is required for a permanent
placement that would be
compromised with maintaining his parental rights; 2) in finding that there was sufficient
evidence to terminate his parental rights; and 3) by repeatedly and flagrantly violating his
constitutional rights with regard to notice and an opportunity to be heard. We affirm.
T.D. was born on November 16, 1996. Moore is the child’s biological father, and
Mary Crabtrey is the child’s biological mother. For almost all of T.D.’s life, Moore has been
absent, either by choice or because he was incarcerated. T.D. has never resided with Moore.
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MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
Cite as 95 Ark. App. ___ (2006)
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On February 16, 2004, Crabtrey turned her children over to DHS and went to Living
Hope for inpatient-mental-health services. Crabtrey had already had extensive contact with
DHS, and she previously had her parental rights terminated as to other children. T.D. was
subsequently adjudicated dependent-neglected and entered therapeutic foster care.
On November 3, 2004, DHS petitioned to terminate Moore’s parental rights, alleging
that he had abandoned T.D. The petition also recited that DHS was seeking termination of
the parental rights of Crabtrey and David Morgan, the biological father of Crabtrey’s other
child, K.M., who is not the subject of this appeal. After the filing of the petition, Moore, who
was in prison for sexually molesting a three-year-old girl, was notified for the first time that
T.D. was in foster care and that DHS had filed a petition to terminate his parental rights.
At the termination hearing, Crabtrey testified that Moore “run out the day I told him
I was pregnant [which was in 1996] and didn’t show back up until Ninety-nine or Two
Thousand.” She admitted that Moore had sent presents through Angel Tree one time in 2000
and sent a single letter that she was aware of. Moore did not dispute that his contact with
T.D. was limited to a single two-week period in 2000. He asserted, however, that he had sent
several cards and letters, as well as gifts to T.D. through Angel Tree. Moore confirmed that
he was currently serving a fifteen-year sentence after being convicted of molesting the
daughter of David Morgan, but denied having committed the offense. Moore stated that he
was eligible for parole, and in any case, would leave prison in 2011.
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
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In its February 28, 2005, order terminating Moore’s parental rights, the trial court
recited that it was “contrary to [T.D.]’s best interests, health and safety, and welfare to return
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him to the parental care and custody” of Moore. It further found that Moore had “willfully
failed to maintain meaningful contact with the child and has willfully failed to provide
significant material support.” The trial court did not, however, terminate Crabtrey’s parental
rights. Instead it directed DHS to develop a case plan with the goal of reunification.
Moore first argues that the trial court erred in terminating his parental rights pursuant
to Arkansas Code Annotated section 9-27-341 because termination is only permissible when
it is required for a permanent placement that would be compromised with maintaining his
parental rights. He contends that “it is absolutely required that there be an appropriate
permanency placement plan for the juveniles before the trial court can consider termination,”
and that his rights should not have been terminated because “the legislature has mandated
that the termination of parental rights statute only be used when it is necessary to clear a
juvenile for permanent placement.” We find no merit in this argument.
Termination of parental rights cases are reviewed de novo. Dinkins v. Arkansas Dep't
of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). However, while we review the
factual basis for terminating parental rights under a clearly erroneous standard, with regard
to errors of law, no deference is given to the trial court’s decision. See Sanford v. Sanford,
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
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355 Ark. 274, 137 S.W.3d 391 (2003).
The portion of Arkansas Code Annotated section 9-27-341 that Moore urges us to find
dispositive states:
(a)(1)(A) This section shall be a remedy available only to the
Department of Health and Human Services or a court-appointed attorney ad
litem.
We note that T.1 D. has been seriously abused as a child and suffers from
significant mental illness. Among his demonstrated symptoms was his penchant for
killing animals. It is documented that he killed “some” kittens by bouncing them on the
floor and “some” puppies by placing them in a microwave. Given this history, we
question whether the child may be reasonably considered “adoptable.”
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...
(2) It shall be used only in cases in which the department is attempting
to clear a juvenile for permanent placement.
However, we note that the statute merely requires DHS to be “attempting” to clear a juvenile
for permanent placement. Id. In the instant case, DHS was attempting to terminate both
Moore’s and Crabtrey’s parental rights, which would have “cleared” T.D. for adoption or,
more appropriately, long-term therapeutic foster care.1 The fact that DHS failed to convince
the trial court to terminate Crabtrey’s parental rights is of no moment as the statute clearly
contemplates termination of only a single parent’s parental rights. See Ark. Code Ann. § 9-
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
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27-341(c)(1)(2)(A)(i).
Regarding Moore’s assertion that the trial court proceeded without an appropriate
permanency placement plan, we find that this contention is not supported by the record.
While it is true that a permanency-planning hearing was not held, a permanency planning
report was filed for record and has been made a part of the addendum.
For his second point, Moore argues that the trial court erred in finding that there was
sufficient evidence to terminate his parental rights because DHS failed to meet its burden of
proof. Without citation of authority, he attacks the finding that he “abandoned” T.D.,
claiming that “in and of itself” it does not establish a reason for termination because “many
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parents do not have their children in their physical custody [and] that does not necessitate
termination.” He notes that he testified that he had tried to send cards and gifts to T.D., but
largely was frustrated by his inability to find Crabtrey. Further, citing Minton v. Ark. Dep’t
of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000), he contends that the trial court’s
finding that he failed to materially support T.D. cannot be a dispositive finding because DHS
never requested that he pay support. We disagree.
In reviewing the trial court’s evaluation of the evidence in termination-of-parentalrights
proceedings, we will not reverse unless the court's finding of clear and convincing
evidence is clearly erroneous. Baker v. Ark. Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d
499 (2000). Clear and convincing evidence is that degree of proof which will produce in the
factfinder a firm conviction regarding the allegation sought to be established. Id. In
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
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resolving the clearly erroneous question, we must give due regard to the opportunity of the
trial court to judge the credibility of witnesses. Beeson v. Ark. Dep’t of Human Servs., 37
Ark. App. 12, 823 S.W.2d 912 (1992).
In pertinent part, Arkansas Code Annotated section 9-27-341(b)(3) lists as grounds
for termination of parental rights the situation where:
(ii)(a) The juvenile has lived outside the home of the parent for a period
of twelve (12) months, and the parent has willfully failed to provide significant
material support in accordance with the parent’s means or to maintain
meaningful contact with the juvenile.
(b) To find willful failure to maintain meaningful contact, it must be
shown that the parent was not prevented from visiting or having contact with
the juvenile by the juvenile’s custodian or any other person, taking into
consideration the distance of the juvenile’s placement from the parent’s home.
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(c) Material support consists of either financial contributions or food,
shelter, clothing, or other necessities when the contribution has been requested
by the juvenile’s custodian or ordered by a court of competent jurisdiction.
(d) It is not necessary that the twelve-month period referenced in
subdivision (b)(3)(B)(ii)(a) of this section immediately precede the filing of
the petition for termination of parental rights or that it be for twelve (12)
consecutive months;
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
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(iv) A parent has abandoned the juvenile;
We hold that the trial court did not err in finding that Moore failed to maintain
meaningful contact with T.D. By Moore’s own testimony, it was established that his contact
with his son was limited to a single two-week period. Furthermore, while it is true that
Moore was incarcerated for a portion of this time, there was other evidence that Moore chose
not to be a part of T.D.’s life. As noted above, Crabtrey testified that Moore absented
himself from the child’s life as soon as he found out that Crabtrey was pregnant, and he did
not return until some three or four years later. Accordingly, giving the deference that we
must to the trial court’s superior position to make credibility determinations, we cannot
conclude that the trial court’s finding that Moore had failed to maintain meaningful contact
with T.D. was clearly erroneous. Because only a single ground is required for termination
under the statute, we need not address the second reason for termination, Moore’s alleged
failure to support T.D.
Finally, Moore argues that the trial court erred by repeatedly and flagrantly violating
his constitutional rights with regard to notice and an opportunity to be heard. He concedes
that this argument was not raised to the trial court, but nonetheless urges us to consider it.
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We must decline. It is settled law that we do not reach constitutional arguments in
termination cases if the argument is not raised to the trial court. Anderson v. Douglas, 310
Ark. 633, 839 S.W.2d 196 (1992); Walters v. Arkansas Dep’t of Human Servs., 77 Ark. App.
MOORE v. ARKANSAS DEP’T OF HUMAN SERVS.
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191, 72 S.W.3d 533(2002).
Affirmed.
VAUGHT and ROAF , JJ., agree.
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