Opinion
No. COA12–858.
2012-11-20
In the Matter of R.B., JR.
Office of the Wake County Attorney, by Deputy Wake County Attorney Roger A. Askew, for petitioner-appellee. Michael N. Tousey for Guardian ad Litem.
On writ of certiorari from order entered 3 February 2012 by Judge Monica Bousman in Wake County District Court. Heard in the Court of Appeals 29 October 2012. Office of the Wake County Attorney, by Deputy Wake County Attorney Roger A. Askew, for petitioner-appellee. Michael N. Tousey for Guardian ad Litem.
Ewing Law Firm, P.C., by Robert W. Ewing for respondent-appellant.
STEELMAN, Judge.
Trial court's conclusion of law that father failed to make reasonable progress was supported by its findings of fact. We affirm the trial court's order terminating father's parental rights.
I. Factual and Procedural History
R.B. (“father”) is the father of R.B., Jr. (“Junior”), who was born out of wedlock in 2007. On 26 November 2009, law enforcement officers stopped a vehicle operated by father, in which Junior was a passenger. The vehicle was stopped for not having proper insurance. Father was arrested for refusal to obey the instructions of the officers during the traffic stop. Father could not identify a suitable person to care for Junior while he was in custody, and Junior's mother was not residing in North Carolina. Law enforcement officers contacted Wake County Human Services (hereinafter “petitioner”) for assistance.
On 30 November 2009 petitioner filed a petition alleging that Junior was a dependent juvenile. The court adjudicated Junior dependent on 25 February 2010. At a permanency planning hearing on 15 February 2011, the court changed the permanent plan from reunification to adoption. A petition for termination of father's parental rights was filed on 20 June 2011. Following a hearing on 6 January 2012, the court entered an order terminating the parental rights of father on the grounds of (1) neglect and (2) that father willfully left the child in foster care for more than twelve months without making reasonable progress in correcting the conditions which led to the removal of the child.
Father filed notice of appeal on 23 March 2012. Because the notice of appeal was not filed in a timely manner, father filed a petition for writ of certiorari seeking review of the order terminating his parental rights. That petition was granted on 24 May 2012.
II. Termination of Parental Rights
Father contends that the trial court's findings of fact do not support its conclusion of law that a termination of parental rights was justified. Father also contends that finding of fact 24 was not supported by sufficient evidence in the record. We disagree.
A. Standard of Review
We review an order terminating parental rights to determine whether the findings of fact are supported by clear and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6,disc. review denied sub nom In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). We conduct de novo review of the court's conclusions of law. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
B. Finding of Fact 24
Father contends that finding of fact 24 was not supported by clear and convincing evidence in the record. In finding of fact 24, the trial court stated:
24. That there are facts sufficient to warrant a determination that grounds exist for the termination of parental rights, said grounds as follows:
a. That the parents neglected the child within the meaning of N.C.G.S. § 7B–101(15), and it is probable that there would be a repetition of the neglect if the child was returned to the care of the parents.
b. That the parents willfully left the child in foster care for more than twelve (12) months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting the conditions which led to the removal of the child. Poverty is not the sole reason that the parents are unable to care for the child.
c. That the mother of the child has willfully abandoned the child for at least six months immediately preceding the filing of the Petition.
The third part of this finding of fact, that Junior's mother willfully abandoned him, is not relevant to this appeal. Father contends, however, that there was not clear and convincing evidence to support the first two sub-parts of finding of fact 24:(1) that father neglected the child, and (2) that father failed to make progress in correcting the conditions which led to Junior's removal.
“Where ‘findings of fact’ should have been ‘more properly designated conclusions of law[,]’ this Court will ‘treat them as such for the purposes of ... appeal.’ “ Sheffer v. Rardin, 208 N.C.App. 620, ––––, 704 S.E.2d 32, 35 (2010) (quoting In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997)). We hold that the relevant portions of finding of fact 24 are in reality conclusions of law, reviewable de novo, and treat them as such.
C. Reasonable Progress
Father contends that the conclusion of law that he failed to make reasonable progress in correcting the conditions which led to the removal of the juvenile is not supported by the trial court's findings of fact.
Parental rights may be terminated if 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.
N.C. Gen.Stat. § 7B–1111(a)(2) (2011). “[T]he plain language of the statute focuses on whether the parent has made ‘reasonable progress' toward ‘correcting those conditions which led to the removal of the juvenile’ from the parent's custody.” In re S.N., 180 N.C.App. 169, 178, 636 S.E.2d 316, 321 (2006) (citations omitted).
Father contends that Junior was placed in foster care because father was arrested and unable to identify someone to care for Junior during his incarceration. He further argues that since the trial court's findings do not show that father remains incarcerated or was unable to identify an appropriate caretaker as of the time of the termination hearing, the conditions which led to the removal of Junior from father's custody no longer exist.
Father's vehicle was stopped for having lapsed insurance. Once pulled over, father got out of the vehicle, and then refused to comply with the officer's instructions. As a result of his failure to obey law enforcement's orders, father was arrested. Father's conduct escalated a routine traffic stop into a confrontation with law enforcement and an arrest. Father was unable to provide information on an alternative caregiver, and the police contacted petitioner.
It appears that father's conduct on the night in question was influenced by his underlying psychological condition. A court-ordered psychological evaluation showed that father's “powers of attention and concentration may have been impaired[,]” and that “[h]e appeared easily distracted[.]” During the evaluation, father stated that “he found out that the officer [who stopped him that night] was the same officer who was attacked by his wife with an ax and the officer shot her.” The evaluation further revealed that father “alluded to hearing voices in the past when he was diagnosed with schizophrenia[,]” and when asked if he still heard voices, “stated that it was only in the past and he did not wish to speak about that.” The court required father seek and submit to psychological treatment as part of its plan for reunification.
Specifically, the trial court's plan required:
6. That [father] shall enter into and comply with the Out of Home Family Services Agreement to include:
....
d. Follow all recommendations of the psychological evaluation.
....
g. Comply with a medication evaluation.
The recommendation of the psychological evaluation was that father “initiate individual counseling services[,]” that he “be referred for a physical examination ... to check out his medical complaints[,]” and that he “be referred for a psychiatric evaluation to determine if medication would be an appropriate treatment for his symptoms.”
The trial court made the following unchallenged findings of fact in its order terminating father's parental rights:
18. The father entered into an Out of Home Family Services Agreement, completed a psychological evaluation, completed the Positive Parenting class provided by Wake County Human Services, was able to demonstrate the skills learned during his visitation with the child, completed a medical evaluation, and submitted to a medical evaluation as was recommended by the psychological evaluation.
....
22. The father did not comply with court-ordered mental health therapy. Although he agreed during a review hearing held in February 2011 that he would engage in therapy, he has not done so despite being given both the contact information and the location of an agency which would accept Medicaid. The social worker also recommended that he take advantage of therapy services provided by the Veteran's Administration. While the father is familiar with the local VA facility and has obtained other services from that agency, he did not obtain therapy services through the VA. Prior to February 2011, the father did not engage in therapy, would not accept a referral for therapy, and claimed that he did not need the service.
These findings of fact, unchallenged on appeal, support the trial court's conclusion of law that father “willfully left the child in foster care for more than twelve (12) months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting the conditions which led to the removal of the child.” The removal of the child was precipitated not by father's incarceration or inability to identify an alternative caregiver, but by his mental condition, which escalated a routine traffic stop into an arrest.
This argument is without merit.
III. Other Ground for Termination
Because “[t]he finding of any one of the grounds [for termination under § 7B–1111] is sufficient to order termination[,]” Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003), we need not address father's arguments as to whether the trial court's determination that Junior was neglected was proper.
IV. Conclusion
The trial court's conclusion of law that father failed to make reasonable progress in correcting the circumstances which led to Junior's removal was supported by its findings of fact.
AFFIRMED. Judges ELMORE and STROUD concur.
Report per Rule 30(e).