FROM THE PULASKI COUNTY CIRCUIT COURT, TENTH DIVISION. NO.
JN2015-1058. HONORABLE JOYCE WILLIAMS WARREN, JUDGE.
Appellant: Jerald A. Sharum.
Appellee: Kimberly Joanne Eden, Brian Austin Butler, Evan
MICHAEL KINARD, Judge. GLOVER and HOOFMAN, JJ., agree.
MICHAEL KINARD, Judge
30, 2015, the Department of Human Services (DHS) took an
emergency hold on three of appellee Toronto Walker's
children: C.W., age fifteen; L.R.1, age eleven; and L.R.2,
age ten. DHS filed a petition for ex parte
emergency custody and dependency-neglect based on abuse,
neglect, and parental unfitness as to the juveniles or their
sibling. An ex parte order for emergency custody was entered,
followed by a probable cause order. After the adjudication
hearing, the trial court adjudicated only C.W.
dependent-neglected and closed the case as to L.R.1 and
L.R.2. DHS now appeals the order of the trial court denying
its petition to adjudicate L.R.1 and L.R.2
dependent-neglected. We reverse and remand.
Adjudication hearings are held to determine whether the
allegations in a petition are substantiated by the proof.
Ark. Code Ann. § 9-27-327(a)(1)(A) (Repl. 2015).
Dependency-neglect allegations must be proven by a
preponderance of the evidence. Ark. Code Ann. §
9-27-325(h)(2)(B). We will not reverse the circuit
court's findings unless they are clearly erroneous.
Turner v. Arkansas Department of Human Services,
2014 Ark.App. 655. 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. Id. In
reviewing a dependency-neglect adjudication, we defer to the
circuit court's evaluation of the credibility of the
Arkansas Code Annotated section 9-27-303(18)(A) defines a
dependent-neglected juvenile as any juvenile who is at
substantial risk of serious harm as a result of, among other
things, abuse of the juvenile or a sibling. The definition of
abuse includes any nonaccidental physical injury;
intentionally or knowingly striking a child with a closed
fist when physical injury occurs; and intentionally or
knowingly interfering with a child's breathing with or
without physical injury. Ark. Code Ann. §
shall not include physical discipline of a child when it is
reasonable and moderate and is inflicted by a parent or
guardian for purposes of restraining or correcting the child.
Ark. Code Ann. § 9-27-303(3)(C)(i). Reasonable and
moderate physical discipline shall not include any act that
is likely to cause and that does cause injury more serious
than transient pain or minor temporary marks. Ark. Code Ann.
§ 9-27-303(3)(C)(iii). The age, size, and condition of
the child and the location of the injury and the frequency or
recurrence of injuries shall be considered when determining
whether the physical discipline is reasonable or moderate.
Ark. Code Ann. § 9-27-303(3)(C)(iv).
case originated when police were called to an assault that
had just occurred on July 29, 2015. Little Rock Police
Officer Mark Ison testified that both C.W. and Walker told
him that they had argued because Walker believed C.W. was
cooking too many burritos in the toaster oven. C.W. told Ison
that Walker had hit him in the head and hands with a cookie
sheet. Walker claimed that she hit C.W. with the cookie sheet
because he hit her in the chest with his hand. Ison observed
a small cut above one of C.W.'s eyes and a nick on one of
his hands; he did not see any marks on Walker. Walker was
charged with domestic battery in the third degree.
told Ison that Walker had abused him and his siblings for
years. C.W. said that Walker beat him with an extension cord,
and he showed Ison older scars, including one in a loop shape
caused by Walker doubling the cord over. Ison also spoke with
C.W.'s adult brother, Damonteago Barnum, who told Ison
that Walker had choked L.R.1 and L.R.2. Ison said that he
spoke with L.R.1 and L.R.2 based on what he had been told
about the " lifetime of abuse." When he spoke with
L.R.1 and L.R.2 on the front porch of their home, they looked
at the ground and refused to make eye contact; however,
Walker was inside and the door was cracked open. Later at the
police station, Ison spoke with L.R.1 and L.R.2 separately,
and they both told him that they had been choked by Walker
Henderson, a DHS investigator, spoke with the children on
July 30. C.W. told her that, in addition to hitting him with
the cookie sheet, Walker had also punched him with a closed
fist in the head and the stomach. Henderson observed a bruise
near C.W.'s temple and scratches in the center of his
chest, as well as older bruising on his arm. Henderson
observed loop-shaped bruising on the backs of both L.R.1 and
L.R.2, and the children told her that the injuries were
caused by Walker. Pictures of the children's injuries
were admitted into evidence.
admitted to Henderson that she had whipped the children with
an extension cord. Walker told her that the goal was to hit
them on their bottoms, but they may have been hit on their
backs because they did not stay still. DHS had several prior
contacts with the family. A protective-services case was
opened in December 2008 after an allegation that C.W. had
cuts, welts, and bruises. Other reports to the child-abuse
hotline in July 2012 and June 2015 alleged that Walker had
physically abused the children, but these allegations were
testified that during the assault, Walker hit him with the
cookie sheet several times and hit him in the head with a
closed fist. He denied hitting her or doing anything that
would have caused her to hit him. C.W. said that he had
witnessed Walker abuse L.R.1 and L.R.2 and that the abuse