FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36JV-15-77]
HONORABLE KEN D. COKER, JR., JUDGE
Lanford, Arkansas Public Defender Commission, for appellant.
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
J. GLADWIN, JUDGE
appeal of the termination of his parental rights, Duane
Ewasiuk argues that the trial court relied on insufficient
evidence. We affirm.
Facts and Procedural History
early September 2015, the Arkansas Department of Human
Services (DHS) took custody of J.E. (born December 4, 2010)
and K.E. (born June 5, 2014) because their mother, Elizabeth
Ewasiuk, had left their nine-year-old half brother in a hotel
room without food or supervision, and Elizabeth could not be
found. J.E. and K.E. had been left with a friend during that
time. Elizabeth admitted using methamphetamine but refused to
be drug tested, and her parental rights were eventually
terminated. Duane's drug screen was negative.
Duane and Elizabeth were separated when the children were
taken into DHS custody, and Duane was living at a separate
residence and working out of town Monday through Friday.
on these facts, DHS filed a petition for emergency custody
alleging that the children were dependent-neglected due to
neglect or parental unfitness. An ex parte order granting
custody to DHS was filed, and a probable-cause hearing was
set in the Johnson County Circuit Court. The resulting
probable-cause order continued custody with DHS; awarded
Duane supervised visitation contingent on drug screening; and
ordered Duane to obtain and maintain stable housing and
children were adjudicated dependent-neglected on November 3,
2015. The trial court found that the children were at
substantial risk of serious harm based on neglect because of
inadequate supervision due to their mother's drug use.
The children remained in DHS custody for their protection,
and the goal of the case was reunification. The orders
pertaining to Duane remained unchanged.
case was reviewed in January 2016, and it was found to be in
the children's best interest to remain in DHS custody,
and the goal of the case remained reunification. The trial
court found that DHS had made reasonable efforts to provide
services to achieve the goal. There were no specific findings
related to Duane, and his orders remained the same with the
added requirement that he submit to a drug-and-alcohol
assessment and complete all its recommendations. In its
review order from the April 19, 2016 hearing, no findings
were made related to Duane, but the trial court ordered that
he submit to, and successfully complete, outpatient drug
permanency-planning order was filed on July 27, 2016, and the
goal of the case was changed to adoption. No findings were
listed regarding either parents' compliance with the case
plan. Duane's orders remained unchanged.
filed a termination-of-parental-rights (TPR) petition on
September 6, 2016, and alleged that, subsequent to the filing
of the original petition, other factors arose that
demonstrated that returning the children to their
parents' custody would be contrary to their health and
safety and that the parents had manifested the incapacity or
indifference to remedy the subsequent issues. See
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)
(Repl. 2015). DHS alleged that Duane did not have stable
housing; had not submitted to any random drug screens; had
not attended outpatient drug treatment as ordered; had six
positive drug screens during the case; had been jailed during
the case for failure to pay fines; and had not visited the
children on a regular basis. DHS claimed that it was in the
children's best interest that its petition be granted.
hearing on November 15, 2016, the trial court filed an order
denying DHS's petition for termination of Duane's
parental rights. The court specifically found:
[DHS] has not proven by clear and convincing evidence that
termination of the father's parental rights is in the
best interests of the children. The children have a
significant bond with the father. He is visiting regularly
and the visits are going well. The father needs to complete
only one outpatient drug abuse treatment session in order to
complete the treatment. He last tested positive during the
summer. While he did drink beer and had to restart the
treatment in August, he is now nearing completion of the
treatment without further issues. He is presently employed
and has housing available.
The Court is aware that most of the father's progress
occurred after the permanency planning hearing and that the
father remains legally married (albeit separated) to the
mother whose rights have been terminated. However, the
evidence presented regarding the bond between the father and
the children, his maintaining this bond by visiting
regularly, along with his impending completion of outpatient
drug treatment leads the Court to the conclusion that clear
and convincing evidence has not been presented that
termination is in the best interests of the children.
It remains in the best interests of the children to remain in
the custody of [DHS] and that the goal be returned to
reunification with the father.
permanency-planning order followed a February 2017 hearing,
and the goal of reunification was ordered because Duane had
been complying with the case plan and orders and had made
significant measurable progress toward reunification. Duane
was subject to the court's original orders that he submit
to random drug screens and obtain and maintain stable housing
and employment. In a second permanency-planning order from a
May 2, 2017 hearing, the goal of the case was again changed
to adoption. There were no specific findings regarding
filed a petition for TPR on May 19, 2017, alleging that Duane
had tested positive for methamphetamine, amphetamines, and
THC on April 14, 2017, and this was confirmed by a lab. After
confirmation, Duane admitted smoking THC but continued to
deny methamphetamine use. DHS alleged that Duane was
unemployed at the time of the permanency-planning hearing,
had not had stable housing during the case, had not visited
the children on a consistent basis, and continued to ...