                               Cite as 2017 Ark. App. 140

                ARKANSAS COURT OF APPEALS
                                  DIVISIONS III & IV
                                    No. CV-16-601

                                                Opinion Delivered   March 8, 2017

   ARKANSAS DEPARTMENT OF       APPEAL FROM THE PULASKI
   HUMAN SERVICES               COUNTY CIRCUIT COURT,
                     APPELLANT TENTH DIVISION
                                [NO. 60JV-16-319]
   V.
                                HONORABLE JOYCE WILLIAMS
   TOMISHA LEWIS AND MINOR      WARREN, JUDGE
   CHILDREN
                      APPELLEES AFFIRMED


                          BRANDON J. HARRISON, Judge


       The Arkansas Department of Human Services (DHS) appeals an order of the Pulaski

County Circuit Court that dismissed DHS’s petition for dependency-neglect and closed the

case. DHS argues that the circuit court clearly erred and that Tomisha Lewis’s children are

dependent-neglected as a result of neglect and parental unfitness. We affirm.

       On 4 March 2016, DHS filed a petition for emergency custody of three-year-old

Z.L., one-year-old L.L., and one-month-old T.U. The accompanying affidavit explained

that Tomisha Lewis and T.U.’s father, Tony Ussery, had a heated argument on the staircase

outside Ussery’s apartment and that the baby, who was strapped in a car seat, inadvertently

fell down the stairs. According to one of the responding police officers, the car seat was

“turned over on the ground covered in dirt and gravel while the parents were still arguing

and fighting.” The baby was taken to Arkansas Children’s Hospital to be examined, and
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the other two children, who were in a car nearby, were seen at the hosptial as a precaution.

Both parents were arrested for domestic battery and child endangerment. The affidavit

noted that Lewis did not have a permanent residence and stayed with her grandmother, her

cousin, or Ussery. The affidavit also noted that Lewis had initally given the police a false

name “in hopes that her children would not go into DHS custody.” The affidavit expressed

concern that T.U. could have been severely injured and that “the children were

inadequately supervised as well as left without a caregiver upon the arrest of the mother and

father.” The Pulaski County Circuit Court issued an ex parte order for emergency custody

and, on March 9, found probable cause to continue DHS’s custody of the children. The

order set an adjudication hearing for April 6.

       On that date, the following testimony was presented. Little Rock Police Officer

Stephen Lichti testified that on 1 March 2016, at approximately 5:00 a.m., he responded to

calls reporting a loud disturbance between a male and a female in the parking lot of an

apartment complex. As Lichti turned the corner into the parking lot, he could hear yelling

and screaming and observed two people (Lewis and Ussery) at the top of a steep stairwell

landing. He rushed up the stairs and physically separated the two, but Lewis continued to

charge at Ussery. Lichti saw the baby in the carrier at the base of the stairs, sitting out in

the rain; Lichti’s partner attended to the baby while he dealt with the parents. According

to Lichti, Lewis was more interested in fighting than checking on her baby. Lewis reported

to him that she had attempted to leave the baby with Ussery, which is what caused the

scuffle: “She took him [the baby] upstairs, knocked on the door, and I guess he [Ussery]

opened the door and ran with the child downstairs and put him on the car as she was leaving.

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She turned around and brought him back up in the landing at the top, and that’s where

the—the fight occurred.” Lichti also said again that the baby was in the rain, that it was a

cold night, and that the baby “had gravel, dust, and dirt on his forehead and kind of in his

face area.” Lichti explained that Ussery was very intoxicated and that Lewis knew he was

intoxicated, because they had spent most of the night together. Ussery reported to Lichti

that he [Ussery] heard a loud banging on his door; looked out and saw the carrier sitting

outside and Lewis running back to her car; that he grabbed the baby, ran downstairs, and

put the baby on her car; and that Lewis grabbed the baby and ran back upstairs, and they

proceeded to fight on the landing.

       Lewis testified that she had been residing at Dorcas House for about a week and that

the children could stay there with her. She also said she was currently not working, under

the rules of Dorcas House, but would be able to return to her previous employment. She

explained that on the night of the altercation, she and Ussery had been out together and

T.U. was with them. At approximately 3:00 a.m., they went to pick up her other two

children, who were sleeping at her cousin’s house. They all returned to Ussery’s apartment,

but when they pulled into the parking lot, Ussery said he did not want her and the children

to stay there. He told them to leave, Lewis got upset, and she told him that he was going

to keep his child (the baby).

       As he went up, I went up behind him. He hurried up and closed the door.
       I was knocking light at first and he wouldn’t open the door so, you know, I
       began to knock harder; your son, get your son, your son is out here. He
       came to the door, opened the door. As he opened the door, I, you know,
       started walking back to the car. He came down, brought him down. I was
       in the process—after he was getting him in the car, I got back out and bringing
       him back to him; no, you’re going to get your son. . . . We made it to the
       top of the stairs and when I gave him to him, you know, I turned around,
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       like, whatever, I’m fixing to go. . . . He say, you take him . . . he set him
       down. It’s just like I said once before, the car seat, it was too big to set on
       the stairs. . . . [T]he car seat went down.

According to Lewis, the carrier was sitting right side up and had not flipped. She said that

T.U.’s car seat being knocked down the stairs was “one of the scariest moments of my life,”

that she physically “charged at” Ussery in reaction to the fall, and that it was “more so of a

tussle than a fight.” She also said that during this time, her other two children were asleep

in the car. She claimed that she and Ussery were going down the stairs when the police

arrived.

       On cross-examination, Lewis said that she wasn’t really going to leave the baby with

Ussery and that she was just angry. She acknowledged that she did not immediately check

on the baby when he fell but said that she could see him and “he was setting [sic] there and

he was perfectly okay.” She also admitted, as we have mentioned, that she lied to the police

officers about her name because she did not want her kids to “go to DHS.”

       DHS asked the court to find the children dependent-neglected as a result of neglect

and parental unfitness. Lewis’s attorney argued that Lewis had “responded poorly” but that

this was not a case of dependency-neglect. The ad litem argued that Lewis had put her

emotional needs before those of her children and urged the court to find depedency-neglect.

       The court announced it was dismissing the petition, stating, “This is an accident,

unfortunate accident. These things happen in a short period of time. I find mom is

completely credible. I find mom more credible than the police officer[.] . . . I believe her,

she wasn’t going to leave the baby. She’s trying to make a point.” The court also stated

that there was “nothing wrong with being out all night long with your children” and that

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Lewis had “learned from this situation.” The court entered a written order finding that

“DHS failed to meet its burden of proof that the juveniles are dependent-neglected.” The

court ordered the children returned to Lewis’s custody and closed the case. DHS appealed.

       A dependent-neglected juvenile is one at substantial risk of serious harm as the result

of, among other things, abandonment, abuse, or neglect. See Ark. Code Ann. § 9-27-

303(18)(A)(i), (ii), and (v) (Repl. 2015). Dependency-neglect allegations must be proved

by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B). The standard

of review is de novo, but we, giving due deference to the circuit court’s superior position

to observe the parties and judge the credibility of the witnesses, will not reverse the circuit

court’s ruling in a dependency-neglect case unless the ruling was clearly erroneous or clearly

against the preponderance of the evidence. Churchill v. Ark. Dep’t of Human Servs., 2012

Ark. App. 530, 423 S.W.3d 637. A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court on the entire evidence is left with a definite and

firm conviction that a mistake has been made. Dinkins v. Ark. Dep’t of Human Servs., 344

Ark. 207, 40 S.W.3d 286 (2001).

       DHS argues that the evidence in this case shows that the children were placed at a

substantial risk of serious harm “as a result of the mother’s decision to focus on physically

attacking [Ussery], rather than checking on the conditions of a child who had just fallen

down a long flight of stairs and two other unattended toddlers in a vehicle.” DHS contends

that the circuit court’s order erroneously focuses only on the actual fall of the baby, which

was undisputedly an accident. But the court overlooked the circumstances surrounding the

accident, including (1) Ussery’s obvious intoxication, which Lewis was aware of; and (2)

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Lewis’s insistence that Ussery keep the baby, although Lewis had other options, including

returning to her cousin’s house with the children.         DHS says that the circumstances

surrounding this “accident” warranted protecting these children by bringing them within

the supervision of the court so Lewis could receive reunification and parenting services.

        Lewis counters that the children were never left alone, that she never lost sight of

them, and that the baby was not injured by the fall. Lewis acknowledges the “unfortunate

accident” and that her actions were “a poor reaction to the situation.” She believes that the

circuit court correctly determined that the children were not dependent-neglected and that

DHS is asking this court to reweigh the evidence, which is improper.

        There is no dispute that the baby’s fall was an accident. Based primarily on the circuit

court’s credibility determinations, to which we must defer, we hold that the circuit court

did not clearly err in finding insufficient evidence of dependency-neglect and dismissing this

case.

        Affirmed.

        WHITEAKER, VAUGHT, and BROWN, JJ., agree.

        HIXSON and MURPHY, JJ., dissent.

        KENNETH S. HIXSON, Judge, dissenting. It is hard to disagree with anything in

the majority opinion — except the last sentence. As you read the majority opinion or this

dissent, count: one – two – three – four – five – six – seven – eight – nine – ten – eleven –

twelve – thirteen – fourteen – fifteen. That is the number of stairs that the one-month

infant tumbled and bounced down in a car seat to the gravel parking lot below in the rain

at 5:00 a.m., leaving gravel, dust, and dirt on his face and forehead and causing the baby to

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later have fixed eyes and vomit. Instead of even walking down the stairs to check on the

infant, the mother chose to continue her altercation upstairs with the drunk father. The

mother testified: “I failed to go down the stairs immediately, but I looked at my child, I

seen my child. He was setting there and he was perfectly okay. The car seat was still sitting

up.” While the tumble may have been an accident, the conduct of the mother before and

after was neglect. I would reverse and remand for further proceedings to include appropriate

services to protect the children and assist Lewis with her parenting skills.

       Murphy, J., joins.

       Andrew Firth, Office of Chief Counsel, for appellee.

       Tabitha McNulty, Arkansas Public Defender Commission, for appellant.




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