An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-114
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
IN THE MATTER OF:
B.A.S., Henderson County
Juvenile No. 12 JT 38
Appeal by Respondent-Father from order entered 1 November
2013 by Judge Peter B. Knight in District Court, Henderson
County. Heard in the Court of Appeals 8 July 2014.
Deputy County Attorney Rebekah R. Price for Petitioner-
Appellee Henderson County Department of Social Services.
Levine & Stewart, by James E. Tanner III, for Respondent-
Appellant Father.
Alston & Bird LLP, by Matthew D. Montaigne, for Guardian ad
Litem.
McGEE, Judge.
Respondent-Father (“Respondent”) appeals from the order
terminating his parental rights to B.A.S. (“the child”)1.
Respondent contends the trial court erred by concluding three
1
The order also terminated the parental rights of the child’s
mother, who is not a party to this appeal.
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grounds existed to support termination of his parental rights.
We affirm.
The Henderson County Department of Social Services (“DSS”)
became involved with the child’s family in February 2012, when
police investigated a report that the child’s mother had been
raped. Officers found the mother to be intoxicated and the home
to be in disarray, and referred the matter to DSS. Respondent
had fled the home before the police arrived. DSS discovered
that, in the child’s presence, the parents had engaged in
domestic violence and drug use. The child was placed in a
kinship placement with the paternal grandmother on 20 February
2012.
DSS filed a petition on 9 March 2012, alleging that the
child was neglected and, on 14 June 2012, the child was
adjudicated neglected. To correct the conditions that led to
the child’s removal from the home, the trial court ordered
Respondent to, inter alia: (1) obtain substance abuse, mental
health, and psychological assessments and complete any
recommended treatment; (2) attend an anger management and
domestic violence program and avoid further domestic violence;
(3) establish and maintain stable income and housing sufficient
for the family; (4) not be involved with any criminal activity;
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(5) maintain face-to-face contact with the social worker and
provide the social worker with current contact information; (6)
complete parenting classes and demonstrate appropriate parenting
skills; (7) complete individual and family therapy; (8) pay
child support; (9) cooperate and help obtain appropriate medical
treatment for the child; (10) make regular contact with the
child; and (11) sign any necessary releases to allow information
exchanges between DSS and service providers.
DSS filed a motion in the cause to terminate both parents’
parental rights on 27 June 2013. As to Respondent, DSS alleged
grounds to terminate Respondent’s rights based on neglect,
willful failure to make reasonable progress to correct the
conditions that led to the child’s removal from the home for a
period of twelve months, and failure to pay a reasonable portion
of the cost of the child’s care for the six months preceding the
filing of the motion to terminate. The matter came on for a
termination hearing on 10 October 2013.
The trial court entered a judgment terminating both
parents’ rights on 1 November 2013. As to Respondent, in its
judgment, the trial court found all three grounds alleged in the
termination motion, and concluded it was in the child’s best
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interest to terminate Respondent’s parental rights. Respondent
appeals.
On appeal, Respondent contends the trial court erroneously
concluded that the three grounds supported termination of his
parental rights. We do not agree.
At the adjudicatory stage of a termination of parental
rights hearing, the burden is on the petitioner to prove by
clear and convincing evidence that at least one ground for
termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
Review in the appellate courts is limited to determining whether
clear and convincing evidence exists to support the findings of
fact, and whether the findings of fact support the conclusions
of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “‘[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.’” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (citation omitted). “‘[W]here
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no exception is taken to a finding of fact by the trial court,
the finding is presumed to be supported by competent evidence
and is binding on appeal[.]’” In re S.D.J., 192 N.C. App. 478,
486, 665 S.E.2d 818, 824 (2008) (quoting Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
Although the trial court concluded three grounds existed to
terminate Respondent’s parental rights, we find it dispositive
that the evidence supports termination of his parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2013), based upon
Respondent’s willful failure to make reasonable progress toward
correcting the conditions that led to the child’s removal from
the home. See In re Humphrey, 156 N.C. App. 533, 540, 577
S.E.2d 421, 426 (2003) (finding one statutory ground is
sufficient to support the termination of parental rights).
In terminating parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(2), the trial court must conduct a two-part
analysis:
The trial court must determine by clear,
cogent and convincing evidence that a child
has been willfully left by the parent in
foster care or placement outside the home
for over twelve months, and, further, that
as of the time of the hearing, as
demonstrated by clear, cogent and convincing
evidence, the parent has not made reasonable
progress under the circumstances to correct
the conditions which led to the removal of
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the child. Evidence and findings which
support a determination of “reasonable
progress” may parallel or differ from that
which supports the determination of
“willfulness” in leaving the child in
placement outside the home.
In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396,
disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005).
A respondent’s failure to make reasonable progress must be
willful, with willfulness being established when the respondent
has the ability to show reasonable progress but is unwilling to
make the effort. In re Fletcher, 148 N.C. App. 228, 235, 558
S.E.2d 498, 502 (2002) (citation omitted). “A finding of
willfulness does not require a showing of fault by the parent.”
Id. (citation omitted). “A finding of willfulness is not
precluded even if respondent has made some efforts to regain
custody of the children.” In re Shepard, 162 N.C. App. 215,
224, 591 S.E.2d 1, 7 (internal citation omitted), disc. review
denied, sub nom In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004).
In the present case, the trial court’s findings of fact
support its conclusion that Respondent willfully failed to make
reasonable progress. We note that Respondent does not challenge
the trial court’s findings of fact, but rather contends those
findings do not support the trial court’s conclusion that
Respondent willfully failed to make reasonable progress, because
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his failure to make progress on his case plan was due to his
incarceration and his poverty. Thus, we must primarily consider
whether the findings establish that Respondent’s lack of
progress was willful.
In terminating Respondent’s parental rights, the trial
court found, in relevant part, that:
31. [Respondent] has not obtained a mental
health assessment, even though HCDSS
scheduled and gave written and/or verbal
reminders to [Respondent] of appointments on
two different occasions.
32. [Respondent] has not attended and
completed an anger management/domestic
violence prevention program.
33. [Respondent] does not have stable
income. [Respondent] has provided the
social worker with one pay stub from MDT
Personnel’s “day labor” program for the time
period of August 10, 2012 working 14 hours
in the amount of $77.77. Since
[Respondent’s] release from incarceration on
February 7, 2013, he has not provided HCDSS
with any documentation to verify employment
and/or financial means.
34. [Respondent] has been unsuccessful in
establishing and maintaining a safe and
consistent residence. Since his release
from incarceration, he has stayed with
friends and at the Hendersonville Rescue
Mission. [Respondent] has failed to provide
HCDSS with updated residential information.
35. [Respondent] was incarcerated from
November 9, 2012 to February 6, 2013 for
probation violations related to April 1,
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2012 charges of Felony Larceny of Fire Arm,
Felony Breaking and Entering, and
Misdemeanor Possession of Stolen Goods.
[Respondent’s] probation officer told HCDSS
that [Respondent’s] probation is in effect
until May 22, 2014 and that he currently
owes $3,150.00.
36. [Respondent] met with the social worker
on at least a monthly basis through May
2013. Since the last hearing, [Respondent]
has met with the social worker once in June
2013 and has not provided updated contact
information.
37. [Respondent] started Mainstay’s
parenting program on September 14, 2012 and
was terminated from the program on October
29, 2012 as a result of missed sessions.
[Respondent] has not completed the course.
38. [Respondent] has not engaged in
individual or family therapy.
39. [Respondent] has not attended any of
the [child’s] medical, dental, and/or
developmental appointments. [Respondent]
was advised of the [child’s] surgical
procedure on February 21, 2013 at Park Ridge
Hospital and he failed to come to the
hospital to be with the [child].
40. [Respondent] failed to appear for his
April 26, 2013 child support hearing. As of
October 1, 2013, he owes $350.00 in
arrearage. [Respondent] did not pay any
amount towards his child support until
yesterday; [Respondent] testified he paid
$50.00 to child support the day before the
hearing.
41. From the May 3, 2012 Adjudication and
Disposition hearings to May 2013,
[Respondent] has failed to attend 32 of 56
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scheduled supervised visits with the
[child]. [Respondent] has attended 19
supervised visitations and has had no
contact with the [child] since May 2013.
42. [Respondent] signed consents to release
information.
43. [Respondent] paid $0.00 towards the
support and care of the [child] until the
day before court when he paid $50.00. He
has an arrearage of $350.00.
The above findings of fact were unchallenged by Respondent.
More strikingly, in his brief, Respondent made several
affirmative statements that he had failed to fulfill the
reunification conditions contained in the dispositional order.
Contrary to Respondent’s argument, these unchallenged findings
portray more than a parent who simply lacked the resources or
opportunity to make progress on his case plan. Instead, these
findings demonstrate that Respondent willfully failed to make
the effort necessary to complete the plan set out by the trial
court at disposition, including failing to even begin many of
the assessments and treatments required by the trial court.
The trial court’s findings of fact delineate the many
efforts DSS made to ensure Respondent had the resources
necessary to make progress on his case plan. These efforts
included giving Respondent: (1) referrals for day care for the
child, (2) Medicaid, (3) food stamps, (4) mental health
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assessment and treatment, and (5) substance abuse assessment and
treatment. DSS facilitated face-to-face visits for Respondent
and the child, and placed the child with his paternal
grandparents while Respondent was supposed to be making progress
on his case plan. Additionally, DSS provided Respondent with
bus passes to ensure that Respondent had the requisite
transportation to meet the requirements of his case plan.
Respondent had the time and resources necessary to make
reasonable progress on his case plan. The above findings of
fact by the trial court show that Respondent willfully failed to
make reasonable progress. We affirm the trial court’s
conclusion that Respondent failed to make reasonable progress,
and we affirm the order terminating Respondent’s parental
rights.
Affirmed.
Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).
In re B.A.S.
Combined Opinion