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Ewasiuk v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

January 31, 2018

DUANE EWASIUK APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36JV-15-77] HONORABLE KEN D. COKER, JR., JUDGE

          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          ROBERT J. GLADWIN, JUDGE

         In this appeal of the termination of his parental rights, Duane Ewasiuk argues that the trial court relied on insufficient evidence. We affirm.

         I. Facts and Procedural History

         In 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.[1] 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.

         Based on these facts, DHS filed a petition for emergency custody alleging that the children were dependent-neglected due to neglect or parental unfitness.[2] 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 employment.

         The 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.

         The 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 treatment.

         The 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.

         DHS 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.

         After a 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.

         A 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 Duane's compliance.

         DHS 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 ...


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