The registry hearing is yet another setback for Smith as he is also not allowed around his other three children, Mignott said.
"It's clear this is now a witch hunt," she said. "This was a tragic accident and sadly tragic accidents happen every day." Mignott also said her client shouldn't be placed on the list since his alleged crime occurred before the state Child Abuse Registry began, which was July 1.
Smith allegedly drowned his stepson on June 28.
In documents provided at the court hearing, DFCS argued “forensics interviews confirmed the untimely death of the child and law enforcement found illegal drugs in the home which was in reach of the children.”
At the time of the incident, Smith told authorities he stepped away to check on two other children inside the home, and went back to the bathroom to find the boy in the tub.
Authorities say Smith changed his story multiple times when interrogated and that further investigation revealed he stepped outside to smoke marijuana.
But Mignott told Channel 2 Action News there is no evidence Smith had been abusive to his stepson. Smith also had no criminal history prior to his arrest.
Mignott filed an emergency motion hearing in attempt to alter Smith’s bond requirements. His next hearing is Nov. 18.