Opinion
No. COA10-1308
Filed 3 May 2011 This case not for publication
Appeal by respondents from order entered 27 August 2010 by Judge Peter B. Knight in Henderson County District Court. Heard in the Court of Appeals 25 April 2011.
Deputy County Attorney Rebekah R. Price for petitioner-appellee Henderson County Department of Social Services. Parker Poe Adams Bernstein, L.L.P., by Deborah L. Edney, for appellee-guardian ad litem. W. Michael Spivey for respondent-appellant mother. Mercedes O. Chut for respondent-appellant father.
Henderson County Nos. 05 JT 37-38, 08 JT 69.
Because the trial court did not refuse to act and an appeal presents a proper legal remedy for the issue presented, respondent-mother's petition for a writ of mandamus is denied. Because the entry of a new order based on previously presented evidence and an existing record did not prejudice the rights of the parties, we do not reverse the trial court's order. Because the record contains clear, cogent and convincing evidence upon which the trial court premised its findings of fact, which amply support its conclusion of law that sufficient grounds existed to terminate respondent-mother and respondent-father's parental rights, we affirm the order of the trial court.
Facts and procedural history
On 4 January 2000, Henderson County Department of Social Services ("DSS") obtained the termination of respondent-mother's parental rights to a child who is not the subject of this action. Respondent-father is not the father of that child.
In March 2005, DSS received a report that, on 23 March, respondent-mother was involved in a traffic accident with another vehicle; V.S. (born in 2001) was in respondent-mother's car. Although V.S. was uninjured, respondent-mother was taken to a hospital; she tested positive for benzodiazepines, amphetamines, and opiates for which she had no prescription; and her arms had signs of needle "track marks." DSS performed a safety assessment for the juvenile and the juvenile's sibling, R.S. (born 2003) . During the course of its investigation, it was reported that both respondent-parents were using illegal intravenous drugs in the presence of the juveniles V.S. and R.S. On 6 April 2005, both respondent-mother and respondent-father agreed to random drug screens, but neither complied with DSS requests to submit to the tests. On 19 April 2005, DSS filed juvenile petitions in the Henderson County District Court alleging V.S. and R.S. were neglected juveniles. Amended juvenile petitions were filed on 9 May 2005 with additional allegations that on 5 May 2005, respondent-mother was taken to a hospital for an apparent drug overdose. Because, she refused to provide a blood or urine sample, no drug test was taken at that time. Although respondent-father signed a safety plan with DSS which required him to submit to drug screens, he refused to comply with two separate requests for drug screens.
Initials have been used throughout to protect the identity of the juveniles.
On 1 September 2005, the matter was heard before the Henderson County District Court. The court dismissed the allegation of neglect and, with the consent of the parties, adjudicated juveniles V.S. and R.S. dependent. DSS was granted legal custody of V.S. and R.S., with physical placement entrusted to respondents. Furthermore, respondents were ordered to obtain a substance abuse assessment and follow all recommendations. On 13 July 2006, the foster care case was closed, the juveniles were returned to respondents; no further reviews were required.
On 20 May 2008, in reaction to a report that, on 10 April 2008, respondent-mother used a kitchen knife to cut respondent-father, DSS filed a motion requesting that the court review the case of V.S. and R.S. The matter came on for hearing on 26 June 2008. Though provided with notice and represented by counsel, respondent-mother did not attend the hearing. In an order entered 31 July 2008, the court noted a history of domestic violence between respondents and found that the 10 April 2008 incident occurred after both respondents had been using alcohol; as of 14 May 2008, DSS had not been able to contact respondent-mother; on 22 June 2008, respondent-mother physically abused respondent-father while juveniles were in the home, including striking respondent-father as he held the youngest juvenile; and sometime thereafter, respondent-mother left the home with V.S. and R.S. The court further found that there was no other willing, responsible relative to whom the juveniles could be released. DSS was ordered to assume custody of the juveniles and arrange for foster care or other placement. The court allowed respondent-mother and respondent-father each one hour of supervised visitation per week and set out the criteria that both must complete a substance abuse assessment and follow all recommendations for treatment, as well as submit to random drug screens in order to achieve reunification.
Also, on 31 July 2008, the court entered an order adjudicating as neglected A.S. (born 2007), the third child born to respondent-mother and respondent-father. The court entered a disposition order granting DSS legal custody of A.S. and requiring respondent-mother to adhere to the same orders imparted with regard to V.S. and R.S.
The Henderson County District Court reviewed the matter on 16 October 2008, 16 April 2009, and 18 June 2009. Following the 16 October 2008 and 16 April 2009 hearings, the court found that "[t]he compliance and actions of the Respondent's [sic] [was] not sufficient to remedy the conditions which led to the juvenile's [sic] removal." The court ordered that DSS retain custody of the juveniles and that respondent-parents be permitted only supervised visitation. The permanent plan remained for DSS to continue reunification efforts with at least one parent. Following the 18 June 2009 hearing, on 27 July 2009, the court entered a review order requiring DSS to develop and implement a permanent plan other than reunification. "It is not possible . . . that the juveniles can safely and lawfully be returned to a parent within six months of this hearing. . . ."
On 11 August 2009, DSS filed a motion in the cause requesting that the parental rights of respondent-mother and respondent-father as to all three children be terminated. DSS alleged that respondent-mother's parental rights be terminated on the grounds that her parental rights with respect to another child had been involuntarily terminated by a court of competent jurisdiction and she lacks the ability or willingness to establish a safe home. As to both respondent-mother and respondent-father, DSS alleged that each willfully left the juveniles V.S., R.S., and A.S. in placement outside of the home for more than 12 months without showing to the satisfaction of the court that reasonable progress had been made in correcting those conditions which led to their removal.
On 21 January and 18 February 2010, Henderson County District Court Judge Peter B. Knight held an adjudication hearing on DSS's petition for termination of parental rights. On 9 March 2010, the court entered an adjudication order finding and concluding that there were sufficient grounds to terminate the parental rights of respondent-mother and respondent-father. The disposition portion of the termination proceedings was held on 18 March 2010. On 29 March 2010, the trial court determined that termination of respondents' parental rights was in the best interests of the minor children, and ordered that respondents' parental rights be terminated. From the orders entered, respondent-mother and respondent-father appealed.
On 26 July 2010, pursuant to N.C. Rule of Appellate Procedure 37, DSS filed with this Court a motion to remand the matter. DSS acknowledged that the district court failed to include in its adjudication order a statement indicating the standard of proof by which the court made its findings of fact. In response, respondent-mother advocated for this Court to vacate the orders of the lower court and remand the matter for a new termination hearing.
On 4 August 2010, this Court allowed DSS's motion to remand, as follows:
The "order regarding grounds for termination of parental rights" entered on 9 March 2010 and the "order regarding termination of parental rights" entered on 29 March 2010 are vacated, and the matter is remanded for a new hearing.
On remand, District Court Judge Peter B. Knight held a hearing during which the court heard arguments on whether a new hearing was required. The court determined that a new hearing was not required. On 27 August 2010, the court entered a termination order setting forth that hearings on the matter were held 21 January, 18 February, and 18 March 2010. Noting that it made findings of fact, based on a standard of clear, cogent and convincing evidence, the district court concluded that sufficient grounds existed to terminate the parental rights of respondent-mother and respondent-father and termination of their parental rights was in the best interests of V.S., R.S., and A.S. Respondents appeal.
On 1 November 2010, while the current appeal was pending, respondent-mother filed with this Court a petition for writ of mandamus and a motion to remand, arguing that the trial court failed to follow the 4 August 2010 mandate of the Court of Appeals. Respondent-mother requested that the matter be again remanded for a new hearing with an additional writ of mandamus compelling that a new hearing take place.
Respondent-mother cites In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008), in support of her petition for writ of mandamus. In T.H.T., our Supreme Court held that "[m]andamus is the proper remedy when the trial court fails to hold a hearing or enter an order as required by statute." Id. at 454, 665 S.E.2d at 59.
Mandamus lies when the following elements are present: First, the party seeking relief must demonstrate a clear legal right to the act requested. Second, the defendant must have a legal duty to perform the act requested. Moreover, the duty must be clear and not reasonably debatable. Third, performance of the duty-bound act must be ministerial in nature and not involve the exercise of discretion. Nevertheless, a court may issue a writ of mandamus to a public official compelling the official to make a discretionary decision, as long as the court does not require a particular result. Fourth, the defendant must have "neglected or refused to perform" the act requested, and the time for performance of the act must have expired. Mandamus may not be used to reprimand an official, to redress a past wrong, or to prevent a future legal injury. Finally, the court may only issue a writ of mandamus in the absence of an alternative, legally adequate remedy. When appeal is the proper remedy, mandamus does not lie.
Id. at 453-54, 665 S.E.2d at 59 (internal citations omitted).
The language set out in the 4 August 2010 order of the Court of Appeals remanded the matter for a new hearing. While the trial court did not conduct a new evidentiary hearing and receive additional evidence on substantive issues, it held a hearing, considered the matter, and determined that a new hearing was not necessary. Thereafter, the trial court entered a new order terminating respondents' parental rights. Because the trial court did not refuse to act, mandamus cannot lie. Further, respondent-mother is unable to demonstrate the absence of an adequate remedy at law. Because respondent's appeal is a proper legal remedy, again, mandamus will not lie. Accordingly, we deny respondent-mother's petition for a writ of mandamus.
Because respondent-mother's motion to remand (filed along with her petition for writ of mandamus) presents essentially the same arguments she brings forth on direct appeal, our reasoning in Issue I, infra, applies to the motion to remand.
On appeal, respondent-mother raises the following questions: Did the trial court err in (I) failing to conduct a new hearing upon remand; and (II III) making findings of fact unsupported by clear, cogent and convincing evidence.
Respondent-father questions whether the trial court erred in (IV) failing to follow the mandate of this Court; and (V VI) making findings of fact unsupported by clear, cogent and convincing evidence.
I and IV
Respondent-mother and respondent-father both argue that the trial court committed reversible error by failing to follow the directive of this Court to hold a new termination hearing upon remand. We disagree.
When a case has been remanded from this Court, "[t]he general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure.'" In re R.A.H., 182 N.C. App. 52, 57, 641 S.E.2d 404, 407 (2007) (quoting Condellone v. Condellone, 137 N.C. App. 547, 551, 528 S.E.2d 639, 642 (2000)). "No judgment other than that directed or permitted by the appellate court may be entered." In re S.R.G., ___ N.C. App. ___, ___, 684 S.E.2d 902, 904 (2009) (quoting Lea Co. v. N.C. Board of Transportation, 323 N.C. 697, 699, 374 S.E.2d 866, 868 (1989)).
Upon the plainest principle, the courts, whose judgments and decrees are reviewed by an appellate court of errors, must be bound by and observe the judgments, decrees and orders of the latter court, within its jurisdiction. . . . This is established principle. But there is no rule of thumb for classifying non-conforming judgments as to whether they are erroneous, irregular or void. Of course general principles apply. But decisions have undoubtedly taken into consideration the circumstances of the particular case, and the necessity for doing justice.
Collins v. Simms, 257 N.C. 1, 8, 125 S.E.2d 298, 303-04 (1962) (internal citations omitted); see also In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (holding the trial court's failure to conduct a new termination hearing, as ordered by this Court, and instead conducting a permanency planning hearing amounted to non-prejudicial error).
On 21 January and 18 February 2010, District Court Judge Peter B. Knight held an adjudication hearing pursuant to a DSS petition for termination of respondents' parental rights. On 9 March 2010, the court entered an adjudication order in which it found a number of facts to support its order of termination. Both respondent-mother and respondent-father have a history of substance abuse. Respondent-mother's parental rights were terminated with respect to another child born 27 April 1997. Her record of random drug screens "could be described as disappointing": despite finishing with good participation in a ninety-hour intensive treatment program respondent-mother failed to attend more than one class of a recommended six month aftercare program; refused several drug screens; and smelled of alcohol and appeared to be intoxicated during a visitation and on another occasion, when observed by a law enforcement officer.
Respondent-father has not been employed since prior to June 2008, has tested positive on several drug screens — including two in April and May 2009 following his release from an inpatient treatment program in April 2009, and failed to provide DSS with his street address after leaving the marital home in April 2009. Respondent-father reported to a social worker that he and respondent-mother had been able to obtain negative results on drug screens by submitting urine samples from other persons. Neither respondent-mother nor respondent-father possess a driver's license but rely on others for transportation. The juveniles last lived with respondent-mother and respondent-father 26 June 2008, their legal and physical custody was thereafter assumed by DSS. The court made these findings of fact based on clear and convincing evidence and concluded that grounds existed to terminate respondent-mother's parental rights on the ground that her parental rights with respect to another child had been involuntarily terminated by a court of competent jurisdiction and she lacked the ability or willingness to establish a safe home. Also, as to respondent-mother and respondent-father, the Court made findings of fact based on clear and convincing evidence and concluded that an independent ground for termination existed as each parent had willfully left the juveniles in placement outside of the home for more than 12 months without showing to the satisfaction of the court that reasonable progress had been made in correcting those conditions which led to their removal. On 29 March 2010, following hearings held on 21 January, 18 February, and 18 March, the court entered a disposition order stating its conclusions regarding the best interests of the juveniles. The court noted that "the foster parents of [V.S.] and [R.S.] desire to adopt these two children. . . ." And "[t]he foster parents of [A.S.] desire to adopt him. . . ."
21. The bond between the children [V.S.] and [R.S.] and their foster parents is strong, and they each call the foster parents "mom" and "dad." The foster parents have provided the children with stability and security, and the children have thrived.
22. The bond between the child [A.S.] and his foster parents is strong; he calls them "mommy" and "daddy." He was about six months old when he was originally place [sic] in foster care, and he has been in the home of these foster parents since February 2009, when he was 15 months of age.
. . . .
25. It is in the best interest of the children that the parental rights of both of the parent respondents be terminated, in order that the children may be adopted by parties who have demonstrated their ability to provide a safe, stable, supportive and loving environment for the children.
Following the entry of the order terminating both respondents' parental rights, respondents individually appealed to this Court. Prior to the matter being heard, DSS filed a motion to remand due to the district court's failure to state the standard of proof it applied when making its findings of fact. On 4 August 2010, this Court vacated the original termination orders and remanded the matter with instructions to conduct a new hearing.
On 27 August 2010, District Court Judge Peter B. Knight conducted a hearing to determine whether a new termination hearing was necessary. Following the arguments from legal counsel representing respondent-mother and respondent-father, the juveniles' attorney advocate, and DSS, the court determined that a new termination hearing was not required. On 27 August 2010, the court entered an order terminating the parental rights of respondent-mother and respondent-father on the same grounds and substantially similar findings of fact as were presented in the district court orders entered 9 March and 29 March 2010. The district court acknowledged that the findings of fact were premised on clear and convincing evidence presented during the hearings held 21 January, 18 February, and 18 March 2010 in the sessions of District Court.
While the trial court's action was not in exact accordance with the mandate of this Court, we do not believe that action impinged the rights of the parties.
Our Juvenile Code, codified within Chapter 7B of our North Carolina General Statutes, includes in its stated purpose:
(5) To provide standards, consistent with the Adoption and Safe Families Act of 1997, P.L. 105-89, for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile's best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time.
N.C. Gen. Stat. § 7b-100(5) (2009).
In response to DSS's motion to remand, respondent-mother advocated for a new hearing on the basis that the district court's findings of fact were not premised on evidence which met a standard of clear, cogent and convincing. However, on remand, the court made substantially similar findings of fact and conclusions of law as stated in its 9 and 29 March 2010 termination orders and further stated that the findings were premised upon clear and convincing evidence.
Respondents now argue that the district court's failure to conduct a new hearing denies them the right to a fair consideration of the evidence and the ability to present new evidence as to the progress each respondent has made in the interim. As to the first contention, "when a trial judge sits as both judge and juror . . . it is that judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (citing Knutton v. Cofield, 273 N.C. 355, 160 S.E. 2d 29 (1968)). Although our Court of Appeals vacated the order of the trial court, both DSS's motion to remand and respondent's response to the motion urging that the order of the trial court be vacated only addressed whether the findings were supported by the proper standard of proof. Moreover, the underlying record remained intact. Nothing prevented the trial court from using the record evidence to support the entry of a new order and indicate that its findings of fact were based on clear, cogent and convincing evidence. Other than the mandate of this Court ordering a new hearing, respondents have presented no convincing argument that the district court's determination was improper or that their ability to present an appeal has been detrimentally impacted.
As to their second contention, that the district court's failure to conduct a new hearing denied respondents the ability to present new evidence available only since the entry of the initial termination orders, respondents offer no authority supporting such a contention. Therefore, we do not further address this part of their argument. Accordingly, respondents' arguments are overruled.
II and III
Respondent-mother argues that the trial court erred in terminating her parental rights upon grounds unsupported by findings of fact based upon clear, cogent and convincing evidence. We disagree.
Our Juvenile Code contemplates a two-stage proceeding for the termination of parental rights. During the initial, adjudicatory stage prescribed by section 7B-1109, "[t]he court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent." N.C. Gen. Stat. § 7B-1109(e) (2005). The second, dispositional stage is governed by North Carolina General Statutes, section 7B-1110, which provides, "[a]fter an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest." N.C. Gen. Stat. § 7B-1110(a) (2005). The trial court need not conduct a separate and distinct hearing for each stage, however, and may hear adjudicatory and dispositional evidence concurrently, provided that it applies the appropriate standard of proof at each stage. Moreover, evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage.
In re M.A.I.B.K., 184 N.C. App. 218, 224-25, 645 S.E.2d 881, 885-86 (2007) (internal citations and quotations omitted). "On appeal, our standard of review for the termination of parental rights is whether the court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003) (quoting In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (2001)) (internal quotations omitted). "The trial court's determination of a child's best interests at disposition is reviewed only for an abuse of discretion." In re M.A.I.B.K., 184 N.C. App. at 225, 645 S.E.2d at 886.
At the conclusion of the adjudicatory stage, the trial court found that the parental rights of respondent-mother with respect to another child had been terminated involuntarily by a court of competent jurisdiction and that respondent-mother lacks the ability or willingness to establish a safe home, a ground for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)(9). On appeal, respondent-mother contests only that the trial court failed to make specific findings of fact regarding the inability or unwillingness to establish a safe home. However, the trial court made several findings of fact regarding respondent-mother's history of substance abuse, failure to participate in a recommended six month substance abuse treatment program, failure to submit to drug screens, arriving at a scheduled visitation intoxicated, and being observed by law enforcement in an intoxicated manner as recently as November 2009. Respondent-mother points out the court's finding that she tested negative on five drug screens in March, April, and May 2010; however, the court also found that respondent-father had reported to his social worker that both he and respondent-mother had been able to obtain negative results from drug screens by substituting urine samples from other people. Moreover, we also note the court's finding that the event which precipitated DSS's request for review in the matter of V.S. and R.S. in June 2008 was that respondent-mother cut respondent-father with a kitchen knife while both were intoxicated. The findings are sufficient to uphold the determination that respondent-mother lacks the ability or willingness to establish a safe home and, as such, satisfies the criteria for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)(9) ("The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home."). See In re Baker, 158 N.C. App. at 493, 581 S.E.2d at 146. In addition, we hold that the district court's conclusion that it was in the best interests of the juveniles to terminate respondent-mother's parental rights was amply supported by the record and, thus, was not an abuse of discretion. See In re M.A.I.B.K., 184 N.C. App. at 225, 645 S.E.2d at 886.
V
Respondent-father argues that the district court erred in making several finding of fact unsupported by clear, cogent and convincing evidence.
Respondent-father first contends that the district court erred in finding that "[t]he denial of the existence of any substance abuse issue continues to be a problem for both [respondent-mother] and [respondent-father]." Respondent-father refers us to the transcript of the adjudication hearing and reiterates on appeal, "[respondent-father] readily admits that he has multiple addictions and needs to stay in treatment." "[Respondent-father] is making steady, but perhaps slow, progress in overcoming his drug and alcohol addictions." In addition to respondent-father's assertions on appeal, the adjudication order entered 27 August 2010 provides sufficient unchallenged findings of fact to support the conclusion that respondent-father failed to show to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the juveniles, namely substance abuse. As these findings are sufficient to support, in pertinent part, the trial court's conclusion that respondent-father violated N.C. Gen. Stat. § 7B-1111(a)(2), we do not address respondent-father's remaining contentions regarding findings of fact.
VI
Last, respondent-father contends that the trial court erred in concluding that grounds exist to terminate his parental rights under N.C. Gen. Stat. § 7B-1111(a)(2). Respondent-father contends that the evidence does not support a finding that he willfully failed to achieve sobriety. We disagree.
Under N.C. Gen. § 7B-1111(a)(2),
The court may terminate the parental rights upon a finding of one or more of the following:
(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
N.C. Gen. Stat. § 7B-1111(a)(2) (2009).
"Willfulness" when terminating parental rights on the grounds of N.C. Gen. Stat. § 7B-1111(a)(2), is something less than "willful" abandonment when terminating on the ground of N.C. Gen. Stat. § 7B-1111(a)(7). A finding of willfulness is not precluded even if respondent has made some efforts to regain custody of the children. Willfulness may be found where the parent, recognizing [his] inability to care for the children, voluntarily leaves the children in foster care.
In re Shepard, 162 N.C. App. 215, 224-25, 591 S.E.2d 1, 7 (2004) (internal citations omitted).
The district court found, and respondent-father does not challenge, that he was initially recommended to complete five days of inpatient detoxification, followed by ninety hours of intensive outpatient detoxification. However, following detoxification, respondent-father tested positive on several drug screens. In September 2008, the recommended treatment was inpatient treatment. In February 2009, respondent-father entered and completed a 61 day inpatient program. Following his release in April 2009, respondent-father tested positive for alcohol and marijuana, did not submit to two drug screens, and had a negative screen on one test. On 6 August 2009, respondent-father was scheduled to have a reassessment of his condition; he arrived impaired. The appointment was rescheduled for 22 October 2009; again, he arrived disheveled and smelling of alcohol. Respondent-father soon admitted to consuming alcohol daily. On 28 October 2009, respondent-father was assessed as being dependent upon alcohol, marijuana, and opiates. The recommended treatment was sixty hours of intensive outpatient therapy. Respondent-father was absent six times and completed only 27 hours of the treatment by 21 January 2010. On 7 January 2010, respondent-father tested positive for oxycodone.
After the dispositional hearing, the trial court concluded that "[e]ach parent has suffered from the effects of their individual substance abuse for many years. . . . Following inpatient treatment submitted to by [respondent-father], he remains subject to the effects of continued substance abuse." While we acknowledge and encourage respondent-father's efforts to address his substance abuse, there are sufficient unchallenged findings of fact to uphold the trial court's conclusion that respondent-father willfully left the juveniles in placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juveniles. N.C.G.S. § 7B-1111(a)(2). Accordingly, respondent-father's argument is overruled.
Affirmed.
Chief Judge Martin and Judge Stephens concur.
Report per Rule 30(e).