In re H.R.A. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-778
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF: Wilkes County
No. 10 JT 23
H.R.A.
Appeal by respondent-father from order entered 3 May 2013
by Judge David V. Byrd in Wilkes County District Court. Heard
in the Court of Appeals 7 January 2014.
No brief filed for petitioner-appellee Wilkes County
Department of Social Services.
Mark L. Hayes for respondent-appellant father.
Louise M. Paglen for guardian ad litem.
DILLON, Judge.
Respondent-father appeals from the trial court’s order
terminating his parental rights to H.R.A. We affirm.
On 7 February 2011, the Wilkes County Department of Social
Services (“DSS”) obtained non-secure custody of H.R.A. and filed
a juvenile petition alleging that H.R.A. was a neglected and
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dependent juvenile. The petition alleged that H.R.A., who was
nearly three years old at the time, and his mother were
hospitalized after a car accident. H.R.A. appeared fine and was
discharged two days later, but his mother had more extensive
injuries. The mother did not know who would care for H.R.A.
during her hospitalization. She claimed that she had a domestic
violence protective order (“DVPO”) against respondent-father,
and his whereabouts were unknown. DSS was unable to find any
other suitable placement for the child. Additionally, while the
mother denied drug usage, she tested positive for marijuana and
opiates following the accident.
In an order entered 15 April 2011, the trial court
adjudicated H.R.A. neglected and dependent. In the order, the
trial court made findings about the mother’s car accident,
history of mental health issues, and past treatment for
substance abuse. The trial court also found that respondent-
father had little contact with H.R.A. in the year prior to the
accident, that he was subject to the DVPO until 2012, that he
had an extensive criminal history, and that he failed one drug
test since H.R.A. was placed in DSS custody. The trial court
continued custody of H.R.A. with DSS.
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On 4 October 2012, DSS filed a petition to terminate
respondent-father’s parental rights to H.R.A., alleging the
following grounds for termination: (1) neglect; (2) failure to
make reasonable progress; and (3) willful failure to pay a
reasonable portion of the cost of care for the juvenile. See
N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3) (2011). The trial
court conducted a termination of parental rights hearing on 2
April 2013. In an order entered 3 May 2013, the trial court
found the existence of all three grounds for termination alleged
by DSS. The trial court also concluded that it was in H.R.A.’s
best interest to terminate respondent-father’s parental rights.1
Respondent-father gave timely, but deficient, notice of appeal,
and he has therefore filed an alternative petition for writ of
certiorari. In light of the fact that certiorari is available
“when the right to prosecute an appeal has been lost by failure
to take timely action,” N.C.R. App. P. 21(a)(1), and in light of
respondent-father’s apparent desire to appeal the order, we
hereby allow issuance of the writ.
Respondent-father challenges the trial court’s grounds for
termination of his parental rights. Pursuant to N.C. Gen. Stat.
§ 7B-1111(a), a trial court may terminate parental rights upon a
1
The trial court also terminated the parental rights of H.R.A.’s
mother, but she does not appeal.
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finding of one of ten enumerated grounds. If this Court
determines that the findings of fact support one ground for
termination, we need not review the other challenged grounds.
In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426
(2003). We review the trial court’s order to determine “whether
the trial court’s findings of fact were based on clear, cogent,
and convincing evidence, and whether those findings of fact
support a conclusion that parental termination should occur[.]”
In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393,
395 (1996).
We conclude that the trial court’s findings of fact are
sufficient to support termination of respondent-father’s
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Under this subsection, the trial court must find that the parent
willfully left the juvenile in foster care for over twelve
months, and the parent has not made reasonable progress to
correct the conditions which led to the removal of the juvenile.
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).
The following findings of fact address this ground for
termination:
18. [Respondent-father] [] executed a
Family Service Case Plan. His Plan
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required that he do the following:
A. Provide answers to two (2) written
questions concerning why his child was
in foster care. He did this.
B. Participate in individual or group
therapy. He did not do this.
C. Refrain from involving himself in
domestically violent relationships.
The Social Worker had no proof
concerning this issue.
D. Avoid violations of criminal laws and
involvement with the criminal justice
system. He did not do this.
[Respondent-father] was incarcerated in
the North Carolina Department of
Correction from February, 2012 until
August, 2012 as a result of violating
his probation. [Respondent-father] had
been convicted of habitual misdemeanor
assault. He has been convicted of this
at least twice. In December, 2011,
[respondent-father] was charged and
ultimately convicted of another assault
charge and of communicating threats.
This violated the terms of his
probation and resulted in the active
prison sentence referenced above.
E. Take and complete parenting classes and
use any skills learned during visits
with [H.R.A.]. [Respondent-father] did
attend and complete parenting classes.
He also was appropriate in his
interactions with [H.R.A.] during such
visitation as he had. However,
concerns persisted that [respondent-
father] appeared at these visits
smelling heavily of alcohol. However,
he did not act intoxicated. In similar
fashion, [respondent-father] appeared
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before the undersigned on today’s date
smelling of alcohol. He was
administered a breathalyzer test and
registered .04. [Respondent-father]
explained, and the Court finds, he had
consumed 10 or 11 beers the night
before.
F. Have a substance abuse assessment and
participate in any recommended
counseling and treatment. He did have
such an assessment. It was recommended
that he take 40 to 60 hours of group
follow up therapy. He did not do this.
He has had no follow up treatment or
care since his release from the
Department of Correction nor has he
attended any AA or NA meetings since
his release.
G. He was to participate in random drug
screens as requested by [DSS]. He did
not do this. [Respondent-father] was
requested to take 17 drug screens. He
took 6. He failed 2 of those. The
last drug screen taken by [respondent-
father] was September 21, 2012. He
passed this screen. However, on
November 2, 2012, [respondent-father]
informed the Social Worker that she
needn’t call[] him any longer for drug
screens because he was not going to be
taking anymore.
H. Participate in individual counseling
for domestic violence perpetrators. He
did not do this.
I. Attend anger management classes. He
did not do this, although he did take a
“Father Accountability Program” while
in prison. It is unclear how much, if
any, of this program dealt with anger
management.
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J. He was to present verification of any
prescription medicines he was taking.
He did this.
K. Maintain weekly contact with the Social
Worker. He did not do this. His last
contact with the Social Worker was
March 14, 2013 at an Agency Review.
Prior to that, he last contacted the
Social Worker [on] October 11, 2012.
L. Notify the Social Worker of any changes
in his contact information. He had no
such changes, with the exception of
being incarcerated.
M. Maintain suitable housing. He has done
this. He has lived in his current
residence for several years.
N. Maintain employment. Prior to his
incarceration, [respondent-father] had
worked for one company for
approximately 22 years. However, he
quit this job ostensibly so he would be
available to take drug screens. During
his incarceration, he had a job
available to him working with the
Department of Transportation. Although
this would have been paid a small wage,
it would have paid him a wage for
virtually the entire time he was
incarcerated. However, [respondent-
father] quit that job and refused any
work while in prison. [Respondent-
father] testified that he did this so
he could take the father accountability
course or other self-help courses.
O. Enter into a Voluntary Support
Agreement and begin paying support for
[H.R.A.]. He did not do this.
Although [respondent-father] has been
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employed or had the opportunity for
employment at all times since [H.R.A.]
has been in the care and custody of
[DSS], [he] has paid no support for the
child nor any portion of the cost of
the child’s care.
P. Have a mental health assessment and
participate in any recommended
counseling and treatment. Although he
did have such an assessment[,] he did
not complete the treatment recommended.
Additional findings demonstrate that H.R.A. was in foster care
for the requisite period of time, but respondent-father does not
dispute this fact.
Respondent-father specifically challenges finding of fact
numbers 18(B), (C), (F), (G), and (I) as lacking in evidentiary
support. The remaining findings of fact remain uncontested
because respondent-father either (1) does not challenge them, or
(2) purports to challenge them, but does not specifically argue
that they are lacking in evidentiary support.2 We therefore
presume that the remaining findings of fact are supported by
competent evidence, and consequently, they are binding on
2
In his remaining purported challenges to the findings of fact,
respondent-father argues that several findings do not support
neglect. These challenges, however, actually amount to
challenges to the conclusion that termination was justified
based on neglect. Because we have found that termination of
respondent-father’s parental rights was justified pursuant to
N.C. Gen. Stat. § 7B-1111(a)(2), we need not address these
challenges and deem these findings to be supported by the
evidence.
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appeal. See In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780,
785 (2009). We address each challenged finding in turn.
Respondent-father first challenges the trial court’s
finding that he did not participate in individual or group
therapy (Finding No. 18(B)). Respondent-father contends that he
completed nearly all of his group and individual therapy and
that his testimony on this issue was not contradicted. We
disagree. Jessica Ashley, the social worker assigned to the
case, testified that respondent-father attended therapy
sporadically and completed only 10 to 12 hours. The evidence
from the hearing shows that pursuant to respondent-father’s
assessment, he was required to complete 40 to 60 hours of
therapy. Thus, there was evidence that he completed at most
one-quarter of the required therapy, and we find this evidence
sufficient to support the trial court’s finding. Ms. Ashley’s
testimony may be contrary to respondent-father’s, but it is not
our duty to re-weigh the credibility of the witnesses and
substitute our judgment for that of the trial court. See In re
Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985) (“The
trial judge determines the weight to be given the testimony and
the reasonable inferences to be drawn therefrom. If a different
inference may be drawn from the evidence, he alone determines
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which inferences to draw and which to reject.”) (citation
omitted).
Next, respondent-father takes exception to the finding that
the social worker “had no proof” concerning whether respondent-
father refrained from engaging in domestic violence (Finding No.
18.(C)). Respondent-father argues that this finding is not
supported by the evidence and is speculative. This finding,
however, is supported by Ms. Ashley’s testimony that she was
unaware of any incidents of domestic violence on the part of
respondent-father. We also point out that this finding does not
necessarily weigh against respondent-father or support DSS’s
case. Therefore, even if it is speculative, it does not
prejudice respondent-father.
In the next challenged finding, the trial court found that
respondent-father did not participate in the recommended 40 to
60 hours of therapy for substance abuse (Finding No. 18(F)).
The evidence in support of finding number 18(B) also supports
this finding. Respondent-father also appears to argue that the
classes he took in prison should have counted towards his
therapy. Ms. Ashley, however, testified that respondent-father
never provided DSS with any curriculum or information regarding
his participation in the prison classes. Without such
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information, DSS was not in a position to determine whether
respondent-father complied with the directives of his case plan.
Thus, it was reasonable for the trial court to infer that
respondent-father did not comply.
Next, respondent-father takes exception to the trial
court’s finding that he tested positive during two drug screens
(Finding No. 18(G)). Respondent-father argues that he had
prescriptions for the drugs which were found in his system and
therefore did not fail the drug screens. Assuming arguendo that
respondent-father is correct, he still failed to comply with the
drug screening component of his case plan. Respondent-father
took only 6 of 17 requested drug screens, and in November 2012,
he explicitly refused to take any more. This evidence is
sufficient to support the finding respondent-father did not
comply with the requirement that he participate in random drug
screening as requested by DSS.
Lastly, respondent-father challenges the finding that he
did not attend anger management classes (Finding No. 18(I)).
Respondent-father again argues that he fulfilled this
requirement in prison. In support of his contention,
respondent-father submits that he took a class called “Father
Accountability.” We first note that nothing in the title of
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this class implies that it pertains to anger management.
Additionally, Ms. Ashley testified that respondent-father never
provided DSS with information regarding the program or proof
that he completed it. Our analysis pertaining to Finding No.
18(F) also applies to this finding; and, therefore, we find
support in the evidence for the trial court’s finding that
respondent-father failed to comply with this directive of his
case plan.
Respondent-father also challenges the trial court’s
conclusion that he willfully left H.R.A. in foster care for more
than twelve months without making reasonable progress to correct
the conditions that led to H.R.A.’s removal. Respondent-father
argues that he did not fail to make reasonable progress because
(1) he had no part in the accident that led to H.R.A.’s removal,
and (2) despite the fact that his case plan had no relation to
the reason for H.R.A.’s removal, he nonetheless made significant
progress on it.
We find respondent-father’s arguments unavailing. It is
well-established that, under N.C. Gen. Stat. § 7B-1111(a)(2),
willfulness does not require a showing of fault by the parent.
Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398 (citation
omitted). “A finding of willfulness is not precluded even if
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the respondent has made some efforts to regain custody of the
children.” In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220,
224 (1995) (citation omitted).
Respondent-father is correct in his assertion that H.R.A.
was originally placed in DSS custody, in part, due to the
mother’s auto accident. However, H.R.A. was also placed in DSS
custody because there was no one else available to care for him,
respondent-father’s whereabouts were unknown, and he was subject
to a DVPO. Respondent-father did little to demonstrate that he
could provide a suitable home for H.R.A. The trial court found
that respondent-father executed the case plan after H.R.A.’s
adjudication of neglect and dependency, and DSS entered into a
case plan with respondent-father for the purpose of aiding him
in reunification with his son. While respondent-father made
some progress on the directives contained in his case plan, his
attempts to obtain custody of H.R.A. fell short of reasonable
efforts.
Respondent-father also argues that he did not willfully
leave H.R.A. in foster care. He claims that DSS would have
rebuffed any attempt by him to remove H.R.A. from foster care,
and therefore, to the extent that H.R.A. was “left” in foster
care, it cannot be attributed to respondent-father. While we
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agree that respondent-father would not have been permitted to
remove H.R.A. from foster care, we disagree with the import of
his argument. Again, we note that DSS entered into the case
plan with respondent-father to aid in reunification with H.R.A.
Respondent-father’s willfulness is not measured by whether he
could have actually removed H.R.A. from foster care, but whether
he undertook the necessary actions to demonstrate that he could
provide a suitable home for H.R.A. “Willfulness is established
when the respondent had the ability to show reasonable progress,
but was unwilling to make the effort.” In re McMillon, 143 N.C.
App. 402, 410, 546 S.E.2d 169, 175 (citing Nolen, 117 N.C. App.
693, 453 S.E.2d 220 (1995)), disc. review denied, 354 N.C. 218,
554 S.E.2d 341 (2001). Here, the findings of fact establish
that respondent-father did not make reasonable progress. Based
on the foregoing, we hold that the trial court did not err by
concluding that termination of respondent-father’s parental
rights was justified pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2).
AFFIRMED.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).