dissenting. Because there was no evidence that appellant, Debra Nelson, committed a felony battery upon her grandson, Noah Caldwell, I conclude that the circuit court’s decision to terminate Nelson’s parental rights with respect to her son, J.T., was clearly erroneous. Hence, I respectfully dissent.
In addition to showing by clear and convincing evidence that it is in the best interest of the child, an order terminating parental rights must be based on clear and convincing evidence of one or more grounds, including that the parent is found by a court of competent jurisdiction to “ [h]ave committed a felony battery or assault that results in serious bodily injury to any child....” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(2) (Supp. 2003). In its order terminating Nelson’s parental rights, the circuit court found that she “committed a felony battery or assault that resulted] in serious bodily injury to any child....” The majority affirms, concluding that Nelson committed, as a principal or an accomplice, a felony battery upon Noah.
First, I must note that being an accomplice to a felony battery of any child does not warrant termination of parental rights. In comparison, accomplice liability suffices to support termination of parental rights under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(l) (Supp. 2003), which provides that an order terminating parental rights may be based on a finding that the parent “committed murder or voluntary manslaughter of any child or ... aided or abetted, attempted, conspired, or solicited to commit the murder or voluntary manslaughter....” The subsection on felony battery, however, makes no provision for accomplice liability, and given that the murder and manslaughter subsection specifically provides for accomplice liability, we should not infer that being an accomplice to a felony battery suffices to support termination of parental rights.
Second, even if accomplice liability sufficed, the majority fails to refer to any evidence that Nelson committed the crime as either a principal or an accomplice. In support of its conclusion to the contrary, the majority cites Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994), where this court concluded that Reams’s improbable statements, along with the nature of the injuries to the child, the medical evidence, the opinions of the physicians, and her opportunity to commit the crime, were substantial evidence that she committed a battery upon a child.
Here, while the court found that Nelson’s testimony was not credible, there was nothing about her testimony regarding Noah’s injury that could be considered “improbable.” There was no testimony that Nelson, as did Reams, admitted that she was lying or told anyone they “got [their] story straight.” Further, there was no testimony that Nelson was present when the injury occurred. Reams, on the other hand, had exclusive control of the child. Here, it was an undisputed fact, and the court so found, that Frank Todd kept Noah in his sole care for long periods of time. Moreover, neither of the two testifying physicians could even pinpoint when the injury occurred. Dr. George Schaefer, a pediatrician, testified that he could not with certainty state when the injury occurred. Dr. Jerril Green, a pediatric intensive-care physician, also testified that he could not determine when the injury occurred. He could only say that the injury likely occurred “within hours” of Noah arriving at the hospital, but he could not say how many hours. Even more troubling, though Frank Todd was in jail awaiting trial for capital murder for Noah’s death, there was no testimony from a forensic pathologist. Furthermore, unlike the child in Reams, Noah had not suffered multiple injuries while in the sole care of appellants. While Noah had suffered rib fractures, there was testimony that the rib fractures could have been as old as two months. Appellants had custody of Noah only for one month, and there was no evidence that the rib fractures would have been visible to any person caring for the child.
Thus, while it was apparent that Nelson was with Noah on the day of the injury, there was no evidence, circumstantial or otherwise, that she battered Noah or acted as an accomplice in the commission of the battery. Without more, I simply cannot conclude that the circuit court’s decision to terminate Nelson’s parental rights on this basis was proper.
Neal, J., joins.