{ "id": 6139023, "name": "Jerome MOORE v. ARKANSAS DEPARTMENT OF HEALTH & HUMAN SERVICES", "name_abbreviation": "Moore v. Arkansas Department of Health & Human Services", "decision_date": "2006-05-03", "docket_number": "CA 05-759", "first_page": "138", "last_page": "143", "citations": [ { "type": "official", "cite": "95 Ark. App. 138" }, { "type": "parallel", "cite": "234 S.W.3d 883" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "77 Ark. App. 191", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138630 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/77/0191-01" ] }, { "cite": "310 Ark. 633", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898848 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0633-01" ] }, { "cite": "823 S.W.2d 912", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1904290, 6136093 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0612-01", "/ark-app/37/0012-01" ] }, { "cite": "37 Ark. App. 12", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136093 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/37/0012-01" ] }, { "cite": "340 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365223 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0042-01" ] }, { "cite": "72 Ark. App. 290", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140500 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/72/0290-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-341", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)(l)(2)(A)(i)" } ], "opinion_index": 0 }, { "cite": "355 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2649615 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/355/0274-01" ] }, { "cite": "344 Ark. 207", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210108 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0207-01" ] } ], "analysis": { "cardinality": 571, "char_count": 10540, "ocr_confidence": 0.768, "pagerank": { "raw": 2.701012047527744e-07, "percentile": 0.8284585317522373 }, "sha256": "856dd82a9ad5a2e2054481bec10b2e847189442bf697e969aeda02c1a3db7805", "simhash": "1:ab4a81ac18c6d174", "word_count": 1717 }, "last_updated": "2023-07-14T15:50:54.342319+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Vaught and Roaf, JJ., agree." ], "parties": [ "Jerome MOORE v. ARKANSAS DEPARTMENT OF HEALTH & HUMAN SERVICES" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nJerome 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.\nT.D. was born on November 16, 1996. Moore is the child\u2019s biological father, and Mary Crabtrey is the child\u2019s biological mother. For almost all of T.D.\u2019s life, Moore has been absent, either by choice or because he was incarcerated. T.D. has never resided with Moore.\nOn 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.\nOn November 3, 2004, DHS petitioned to terminate Moore\u2019s 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\u2019s 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.\nAt the termination hearing, Crabtrey testified that Moore \u201crun out the day I told him I was pregnant [which was in 1996] and didn\u2019t show back up until Ninety-nine or Two Thousand.\u201d 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.\nIn its February 28, 2005, order terminating Moore\u2019s parental rights, the trial court recited that it was \u201ccontrary to [T.D.J\u2019s best interests, health and safety, and welfare to return him to the parental care and custody\u201d of Moore. It further found that Moore had \u201cwillfully failed to maintain meaningful contact with the child and has willfully failed to provide significant material support.\u201d The trial court did not, however, terminate Crabtrey\u2019s parental rights. Instead it directed DHS to develop a case plan with the goal of reunification.\nMoore 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 \u201cit is absolutely required that there be an appropriate permanency placement plan for the juveniles before the trial court can consider termination,\u201d and that his rights should not have been terminated because \u201cthe legislature has mandated that the termination of parental rights statute only be used when it is necessary to clear a juvenile for permanent placement.\u201d We find no merit in this argument.\nTermination of parental rights cases are reviewed de novo. Dinkins v. Arkansas Dep\u2019t 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\u2019s decision. See Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003).\nThe portion of Arkansas Code Annotated section 9-27-341 that Moore urges us to find dispositive states:\n(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.\n(2) It shall be used only in cases in which the department is attempting to clear a juvenile for permanent placement.\nHowever, we note that the statute merely requires DHS to be \u201cattempting\u201d to clear a juvenile for permanent placement. Id. In the instant case, DHS was attempting to terminate both Moore\u2019s and Crabtrey\u2019s parental rights, which would have \u201ccleared\u201d T.D. for adoption or, more appropriately, long-term therapeutic foster care. The fact that DHS failed to convince the trial court to terminate Crabtrey\u2019s parental rights is of no moment as the statute clearly contemplates termination of only a single parent\u2019s parental rights. See Ark. Code Ann. \u00a7 9-27-341(c)(l)(2)(A)(i).\nRegarding Moore\u2019s 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.\nFor 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 \u201cabandoned\u201d T.D., claiming that \u201cin and of itself\u2019 it does not establish a reason for termination because \u201cmany parents do not have their children in their physical custody [and] that does not necessitate termination.\u201d 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\u2019t of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000), he contends that the trial court\u2019s finding that he failed to materially support T.D. cannot be a dispositive finding because DHS never requested that he pay support. We disagree.\nIn reviewing the trial court\u2019s evaluation of the evidence in termination-of-parental-rights proceedings, we will not reverse unless the court\u2019s finding of clear and convincing evidence is clearly erroneous. Baker v. Ark. Dep\u2019t 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 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\u2019t of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992).\nIn pertinent part, Arkansas Code Annotated section 9-27-341(b)(3) lists as grounds for termination of parental rights the situation where:\n(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\u2019s means or to maintain meaningful contact with the juvenile.\n(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\u2019s custodian or any other person, taking into consideration the distance of the juvenile\u2019s placement from the parent\u2019s home.\n(c) Material support consists of either financial contributions or food, shelter, clothing, or other necessities when the contribution has been requested by the juvenile\u2019s custodian or ordered by a court of competent jurisdiction.\n(d) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(ii)(a) of this section immediately precede the fifing of the petition for termination of parental rights or that it be for twelve (12) consecutive months;\n(iv) A parent has abandoned the juvenile;\nWe hold that the trial court did not err in finding that Moore failed to maintain meaningful contact with T.D. By-Moore\u2019s 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.\u2019s life. As noted above, Crabtrey testified that Moore absented himself from the child\u2019s 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\u2019s superior position to make credibility determinations, we cannot conclude that the trial court\u2019s 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\u2019s alleged failure to support T.D.\nFinally, 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. 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\u2019t of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002).\nAffirmed.\nVaught and Roaf, JJ., agree.\nWe note that T.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 \u201csome\u201d kittens by bouncing them on the floor and \u201csome\u201d puppies by placing them in a microwave. Given this history, we question whether the child may be reasonably considered \u201cadoptable.\u201d", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "DeeNita D. Moak, for appellant.", "Gray Allen Turner, Dept, of Human Servs., Office of Chief Counsel, for appellee." ], "corrections": "", "head_matter": "Jerome MOORE v. ARKANSAS DEPARTMENT OF HEALTH & HUMAN SERVICES\nCA 05-759\n234 S.W.3d 883\nCourt of Appeals of Arkansas\nOpinion delivered May 3, 2006\nDeeNita D. Moak, for appellant.\nGray Allen Turner, Dept, of Human Servs., Office of Chief Counsel, for appellee." }, "file_name": "0138-01", "first_page_order": 164, "last_page_order": 169 }