Ewasiuk v. Ark. Dep't of Human Servs.
540 S.W.3d 318
Ark. Ct. App.2018Background
- DHS removed J.E. (b. 2010) and K.E. (b. 2014) after the mother’s drug use and abandonment; mother’s parental rights were later terminated. Father Duane Ewasiuk initially tested negative and was given supervised visitation and a case plan requiring drug treatment, stable housing, and employment.
- Children were adjudicated dependent-neglected; reunification was the initial goal but was later changed to adoption; DHS filed successive termination-of-parental-rights (TPR) petitions against Duane.
- At a November 2016 TPR hearing the trial court denied DHS’s petition, finding Duane had substantial bond with the children and was nearing completion of outpatient drug treatment; the court restored reunification as the goal in a February 2017 order.
- DHS filed another TPR petition after Duane produced a confirmed positive drug test (April 14, 2017) for THC, methamphetamine, and amphetamines, and after evidence that Duane continued contact with the mother (whose rights were terminated) and had unstable employment/housing.
- At the June 2017 TPR hearing the trial court credited the children’s therapist and DHS caseworker, found Duane remained "smitten" with the mother and had relapsed post-treatment, and concluded "other factors" arising after the original petition showed returning the children to Duane would be contrary to their health and safety. The trial court terminated Duane’s parental rights.
Issues
| Issue | Duane's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether DHS proved "other factors" under Ark. Code § 9-27-341(b)(3)(B)(vii)(a) that arose after the original petition and made return contrary to the children’s health/safety | Duane: Trial evidence did not show ongoing risk; contacts with mother were isolated; post-treatment there was only one positive test; no urgent inability to parent | DHS: Duane tested positive after treatment, remained in contact with mother (whose addiction posed risk), and had unstable employment/housing despite services | Court: Affirmed — clear-and-convincing evidence supported the "other factors" ground (drug relapse, ongoing contact with mother, instability) |
| Whether a single positive drug screen and credibility issues were insufficient to support termination | Duane: Single relapse (isolated) and his testimony (and family witness) supported rehabilitation; court improperly speculated about his feelings for mother | DHS: Single confirmed positive can be probative when considered with other evidence (timing with contact with mother, history of instability); trial court properly weighed credibility | Court: Affirmed — trial court’s credibility findings and weighing of the positive test with other evidence were not clearly erroneous |
Key Cases Cited
- Camarillo-Cox v. Arkansas Department of Human Services, 360 Ark. 340 (explains that the issue is whether a parent is a stable, safe caregiver despite case-plan compliance)
- Kight v. Arkansas Department of Human Services, 87 Ark. App. 230 (reversal where one-time relapse was considered in context of sustained compliance and short case duration)
- Posey v. Arkansas Department of Human Services, 370 Ark. 500 (appellate court will not reweigh evidence; deference to trial court credibility findings)
- Jefferson v. Arkansas Department of Human Services, 356 Ark. 647 (TPR is an extreme remedy; DHS bears a high burden of proof)