Opinion
No. COA13–40.
2013-06-4
In re R.J.M.
Elizabeth Myrick Boone for petitioner-appellee, Gaston County Department of Social Services. Robert W. Ewing for respondent-appellant, father.
Appeal by respondent-father from order entered 22 October 2012 by Judge Thomas G. Taylor in Gaston County District Court. Heard in the Court of Appeals 13 May 2013. Elizabeth Myrick Boone for petitioner-appellee, Gaston County Department of Social Services. Robert W. Ewing for respondent-appellant, father.
T. Richmond McPherson, III, for the guardian ad litem.
HUNTER, JR., ROBERT N., Judge.
Respondent-father appeals from an order terminating his parental rights to his son, R.J.M. (“Ron”). We affirm.
A pseudonym is used to protect the juvenile's identity.
Respondent-father and the mother are the parents of Ron, born July 2010 . In December 2010, the Gaston County Department of Social Services (“DSS”) filed a juvenile petition alleging that Ron was a neglected and dependent juvenile. DSS alleged domestic violence between respondent and the mother; untreated mental health and substance abuse issues of the mother; untreated alcohol abuse of respondent; and unstable housing. DSS took nonsecure custody of Ron. The trial court entered subsequent juvenile orders in which the court continued custody of Ron with DSS. By an order entered in May 2011, the court ordered respondent and the mother “to submit to parental capacity evaluations[.]”
The mother is not a party to this appeal.
The trial court adjudicated Ron a neglected and dependent juvenile on 26 September 2011. The trial court ordered custody of Ron to remain with DSS. The court also ordered respondent and the mother to follow through with recommendations made in the DSS Predisposition Report to regain custody of Ron. Pursuant to the Predisposition Report, respondent was required to: (1) obtain a psychological evaluation and comply with all recommendations; (2) take any medication only as prescribed; (3) obtain a substance abuse assessment and comply with all recommendations; (4) submit to random alcohol and drug screens; (5) obtain a domestic violence assessment and comply with all recommendations; (6) obtain and maintain housing appropriate for himself and Ron; (7) obtain and maintain gainful employment or other legal income to support himself and Ron; (8) violate no laws throughout the reunification period; (9) resolve pending criminal charges; (10) demonstrate appropriate parenting skills during visitation with Ron; (11) maintain financial stability by paying bills in a timely manner; (12) maintain regular contact with Ron throughout the reunification period; and (13) contact the social worker weekly.
The trial court held a review and permanency hearing in January 2012. The trial court found that respondent and the mother “have the ability to complete their case plans but have made no significant progress, thus a concurrent plan of guardianship and adoption is the best plan to achieve a safe, permanent home for [Ron] within a reasonable time period.” The court ordered respondent and the mother to follow through with the recommendations of DSS to regain custody of Ron.
The trial court held subsequent review hearings and, on 30 May 2012, DSS filed a petition to terminate respondent's parental rights. By order filed 22 October 2012, the trial court concluded that grounds for termination of respondent's parental rights existed under N.C. Gen.Stat. § 7B–1111 (a)(1) (neglect); and N.C. Gen.Stat. § 7B–1111(a)(2) (failure to make reasonable progress). The trial court also concluded that it was in Ron's best interest to terminate respondent's parental rights. Respondent appeals.
On appeal, respondent argues the trial court erred in concluding a ground existed to terminate his parental rights to Ron based on failure to make reasonable progress under N.C. Gen.Stat. § 7B–1111(a)(2). We disagree.
In reviewing a trial court's order terminating parental rights, this Court must determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support the trial court's conclusions of law. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 58–59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009). “The trial court's conclusions of law are fully reviewable de novo by the appellate court.” Id. at 146,669 S.E.2d at 59 (internal quotation marks omitted).
A parent's rights to a child may be terminated upon finding that:
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) (2011). Willfulness does not imply fault on the part of the parent, but may be 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 (2001). Even if a parent has made some efforts to regain custody, a trial court may still find that he or she willfully left the child in foster care under N.C. Gen.Stat. § 7B–1111(a)(2). In re O.C. & O.B., 171 N.C.App. 457, 465, 615 S.E.2d 391, 396 (2005).
The trial court made the following findings of fact which pertain to the ground of willfully leaving the minor child in foster care while failing to make reasonable progress:
26. Respondent/father was ordered by the Court to follow through with the recommendations of the Department in order to regain custody of the juvenile.
....
28. The Court has regularly reviewed Respondent/father's progress toward regaining custody of the juvenile[ ], and the Court has never concluded at any review hearing that Respondent/father has made reasonable progress to warrant returning custody to Respondent/father.
29. Respondent/father has failed to maintain any contact with the Department or cooperate with the Department to work towards regaining custody of the juvenile.
....
31. Respondent/father has failed to complete a substance abuse assessment and any recommended treatment and has failed to demonstrate the ability to remain sober and drug-free.
32. Respondent/father has failed to demonstrate the ability to maintain safe, appropriate housing for himself and the juvenile.
....
36. Respondent/father has failed to complete a Parental Capacity Evaluation, as ordered by the court.
Of the above findings of fact, respondent challenges findings 29 and 36. Findings of fact 26, 28, 31, and 32 are presumed to be correct and supported by the evidence. See In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). We note that respondent does challenge other findings of fact made by the trial court in its order terminating his parental rights; however, we need not address the additional arguments on the trial court's other findings of fact because they are unnecessary to support its ultimate conclusions, and any error in them would not constitute reversible error. In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006).
In his brief, respondent lists finding of fact 31 as a fact found in error; however, respondent does not make any supporting argument. Instead, respondent makes an argument challenging finding of fact 30. As such, respondent has abandoned any challenge to finding of fact 31. See In re S.N.H. & L.J.H., 177 N.C.App. 82, 83, 627 S.E.2d 510, 512 (2006).
In finding of fact 29, respondent only challenges the finding that he “failed to maintain any contact with the Department[.]” Respondent's case plan required him to contact DSS on a weekly basis. However, social worker Temeshia Dawkins–Abney testified that respondent did not maintain contact with his case worker on his own volition and that “ [t] he majority of the communication with [respondent] was made from the department to see if he was coming to his visitations.” Accordingly, finding of fact 29 is based upon competent evidence and respondent's argument is without merit.
We also conclude finding of fact 36 is supported by competent evidence. The trial court ordered both parents to obtain a Parental Capacity Evaluation in its May 2011 juvenile order. The guardian ad litem's court reports filed 29 March 2012 and 22 June 2012, which were incorporated into trial court orders, state that respondent had not completed a parental capacity assessment. Respondent's argument is without merit.
We further conclude that findings of fact 26, 28, 29, 31, 32, and 36 support the trial court's conclusion of law that a ground existed under N.C. Gen.Stat. § 7B–1111(a)(2) to terminate respondent's parental rights. The trial court was free to conclude, as it did, that respondent's failure to address his alcohol abuse and his failure to maintain appropriate housing was not reasonable progress under the circumstances. Accordingly, we hold the trial court properly concluded that grounds existed to terminate respondent's parental rights based on failure to make reasonable progress.
Because we hold the trial court did not err in concluding grounds existed to terminate respondent's parental rights to his child pursuant to section 7B–1111(a)(2), we do not address respondent's additional arguments regarding the trial court's conclusion that other grounds existed to terminate his parental rights. In re P.L .P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
AFFIRMED. Judges STROUD and DILLON, concur.
Report per Rule 30(e).