                                   Cite as 2014 Ark. App. 592

                   ARKANSAS COURT OF APPEALS
                                          DIVISION III
                                          No.CV-14-584

                                                    Opinion Delivered   October 29, 2014
HEATHER CALLISON and JOSEPH
DAVIDSON                                            APPEAL FROM THE GARLAND
                    APPELLANTS                      COUNTY CIRCUIT COURT
                                                    [No. JV-2014-47]
V.
                                                    HONORABLE VICKI SHAW COOK,
ARKANSAS DEPARTMENT OF HUMAN                        JUDGE
SERVICES and MINOR CHILD
                       APPELLEES                    AFFIRMED



                                LARRY D. VAUGHT, Judge

          Appellants, Heather Callison and Joseph Davidson, appeal from the order entered on

April 2, 2014, by the Garland County Circuit Court, adjudicating their daughter, ED (d/o/b

July 16, 2012), dependent-neglected and finding the existence of aggravated circumstances.

Appellants concede the dependency-neglect finding. Their sole challenge on appeal is that there

is insufficient evidence to support the trial court’s finding of aggravated circumstances. We

affirm.

          The relevant evidence presented at the adjudication hearing revealed that on January 9,

2014, the Department of Human Services (DHS) exercised a seventy-two-hour hold on ED

after an incident that had occurred earlier that day. Davidson left ED, who was approximately

eighteen months old, in the care of Callison for about thirty minutes while he ran an errand.

When he returned, Callison ran into the yard with an unresponsive ED in her arms. Callison
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told Davidson that ED had fallen off the couch. Davidson administered CPR and called 911.

Meanwhile, Callison attacked the family dog, whom she blamed for the child’s condition.

        ED was taken to the emergency room in Hot Springs for treatment. There, she was

intubated on a ventilator for respiratory support. Also, drug testing on ED indicated the

presence of methadone and benzodiazepines. ED was transferred that same day to Arkansas

Children’s Hospital in Little Rock, where she was treated by pediatrician Dr. Karen Farst. Dr.

Farst testified that ED’s altered level of consciousness and breathing distress raised concern

that she had been exposed to or ingested a drug. Subsequent drug testing of ED at Children’s

Hospital did not confirm the presence of methadone;1 however, it did confirm the presence of

tramadol, one of Callison’s prescribed pain medications. Dr. Farst testified that the

consumption of too much tramadol can cause respiratory depression and coma. She further

testified that

        the event that [ED] suffered was a life-threatening event. She had to have . . . help with
        her breathing because she was so impaired from what had happened. So without
        medical care she could . . . have actually either had some permanent brain damage from
        lack of oxygen or even died from this. And so . . . it was a very severe situation. And .
        . . my biggest concern, really, was for her . . . ongoing safety if she . . . stayed in an
        environment where this type of thing could happen to her.

        Judy Jenson, the Department of Children and Family Services Investigator, testified that

based on her investigation, the allegations of failure to protect, inadequate supervision, and



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       Dr. Farst testified that the failure of the second test to detect methadone did not
necessarily mean that it was not present in the first sample taken from ED in Hot Springs
because methadone can “clear out of [a person’s] system on the next void.” She also said that
the benzodiazepine, which showed up on the initial drug screen, could have been given to ED
by hospital personnel in order to intubate her.

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medical neglect were true. She said that her investigation revealed that Davidson was aware that

Callison suffered from untreated mental-health issues (bipolar disorder and schizophrenia); she

had been acting erratically for the last six weeks; she left her medicine on the floor, within ED’s

reach, and Davidson was afraid that ED would put it in her mouth; and Callison was not able

to safely and appropriately care for the child.

       Davidson testified that Callison suffered from “bipolar depression” and that he had

been concerned about her behavior in November and December of 2013, but that he took her

to the doctor, who prescribed a medication, and her condition improved. He added that

Callison’s behavior on the day of the incident was normal and that he would not have left ED

with Callison otherwise. He offered no explanation for how ED could have consumed

tramadol, stating that Callison kept her medicine away from ED.

       At the conclusion of the hearing, the trial court from the bench found that ED was

dependent-neglected based on inadequate supervision. The trial court cited evidence that

Callison had been acting erratically for the six weeks leading up to the incident and that she had

dropped her medication on the floor. The trial court further found that ED was subjected to

aggravated circumstances of extreme cruelty based on Dr. Farst’s testimony that ED

experienced a life-threatening event and could have died or suffered permanent brain damage.

       Thereafter, the trial court entered an adjudication and disposition order, reiterating its

dependency-neglect finding and stating,

       [T]he Court finds that the parents subjected the juvenile to aggravated circumstances in
       that the juvenile was subjected to extreme cruelty and was neglected or abused such that
       the abuse or neglect could endanger the life of the child. The Court further finds that
       the father’s testimony was not credible.

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Additionally, the trial court found that the goal of the case was reunification, and it approved

the DHS case plan. It is from this order that appellants appeal.

       In dependency-neglect cases, the standard of review on appeal is de novo, but we do not

reverse the trial court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence. Churchill v. Ark. Dep’t of Human Servs., 2012 Ark. App. 530, at

9, 423 S.W.3d 637, 641. 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 committed. Id., 423 S.W.3d at 641. In reviewing a dependency-neglect

adjudication, we defer to the trial court’s superior position to observe the parties and judge the

credibility of the witnesses. Parker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 18, at 14, 380

S.W.3d 471, 478. Deference to the trial court is even greater in cases involving child custody,

as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers

of perception in evaluating the witnesses, their testimony, and the best interest of the children.

Culclager-Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 518, at 2.

       A dependent-neglected juvenile includes one who is at substantial risk of serious harm

because of abuse, neglect, or parental unfitness to the juvenile or to a sibling. Ark. Code Ann.

§ 9-27-303(18)(A) (Supp. 2013). Here, the appellants do not challenge the dependency-neglect

finding made by the trial court. Instead, they contend that insufficient evidence supports the

trial court’s finding of aggravated circumstances based on extreme cruelty.

       DHS argues we need not reach the merits of the appellants’ appeal and must affirm

based on our holding in Payne v. Arkansas Department of Human Services, 2012 Ark. App. 500. In

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Payne, the appellant conceded the dependency-neglect adjudication but sought a “partial

reversal” of the adjudication order, arguing that the trial court’s “finding of aggravated

circumstances and disposition of immediate termination” was clearly erroneous. Payne, 2012

Ark. App. 500, at 1. We disagreed and affirmed, noting that the trial court made no aggravated-

circumstances finding; pointing out that the appellant conceded the adjudication finding of

dependency-neglect; and holding that the appellant did not separately appeal the disposition of

the case.2 Id. at 2–3.

       The facts of the instant case are distinguishable from Payne. Here, the trial court made

a finding of aggravated circumstances—which was not made in Payne. The aggravated-

circumstances finding was a separate finding made in addition to the dependency-neglect

finding—it was not a disposition. The disposition of the case, as set forth in the trial court’s

order, was reunification, and the trial court’s order directed that the case plan be followed to

that prospective end. There is no indication on this record that the appellants are seeking to

appeal this disposition.3 Therefore, the holding in Payne is inapplicable to the instant case. We

hold that appellants’ challenge to the aggravated-circumstances finding is part of the

adjudication decision and is properly before our court. See Cole v. Ark. Dep’t of Human Servs.,

2014 Ark. App. 395.




       2
        In Payne, the appellant checked the box labeled “adjudication,” not “disposition,” on
her pre-printed notice of appeal. Payne, 2012 Ark. App. 500, at 2 n. 1.
       3
        Appellants’ notices of appeal reflect that only the adjudication, not the disposition, is
being appealed.

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       On the merits of appellants’ appeal, we hold that the trial court’s finding of aggravated

circumstances because of extreme cruelty was not clearly against the preponderance of the

evidence. Arkansas Code Annotated section 9-27-303(6)(A) (Repl. 2013) defines “aggravated

circumstances” as occurring when a child has been abandoned, chronically abused, subjected

to extreme or repeated cruelty. The evidence in this case supports the trial court’s finding that

ED was subjected to aggravated circumstances in the form of extreme cruelty.

       There was testimony that Callison suffered from significant, untreated mental-health

conditions and had been acting erratically in the weeks leading up to the incident, that Davidson

was aware of Callison’s condition and her erratic behavior, and that he acknowledged that ED

was not safe in Callison’s care. There was also evidence that Callison placed her harmful

medications within the reach of ED and that Davidson was aware of this as well. Despite his

concerns for ED’s safety, the testimony showed that he left ED in the care and custody of

Callison. While in Callison’s care ED experienced what Dr. Farst described as a life-threatening

incident that could have resulted in permanent brain damage or death. ED’s lab testing revealed

tramadol and methadone in her system. Finally, appellants offered no plausible explanation for

ED’s condition.

       We acknowledge Davidson’s testimony at the adjudication hearing that on January 9

Callison’s mental-health condition had improved and that he had no concerns about leaving

ED in Callison’s care. However, the trial court specifically found that Davidson’s testimony

was not credible, and we defer to the trial court’s superior position to observe the parties and

judge the credibility of the witnesses. Parker, 2011 Ark. App. 18, at 14, 380 S.W.3d at 478.


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Accordingly, we hold that the trial court’s finding of aggravated circumstances based on

extreme cruelty was not clearly erroneous and affirm the trial court’s adjudication and

disposition order.

       Affirmed.

       GLOVER and WOOD, JJ., agree.

       Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect

Appellate Division, for appellant.

       Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

       Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.




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