Opinion
No. COA12–1012.
2013-04-16
In the Matter of H.S.G.
Paul W. Freeman, Jr., for petitioner-appellee Wilkes County Department of Social Services. Duncan B. McCormick, for respondent-appellant father.
Appeal by father from orders entered 3 February 2011 by Judge David V. Byrd and 22 May 2012 by Judge Mitchell L. McLean in Wilkes County District Court. Heard in the Court of Appeals 3 April 2013. Paul W. Freeman, Jr., for petitioner-appellee Wilkes County Department of Social Services. Duncan B. McCormick, for respondent-appellant father.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. by J. Mitchell Armbruster, for guardian ad litem.
STEELMAN, Judge.
The trial court did not err in terminating father's parental rights when there was clear, cogent, and convincing evidence to support the conclusion of law that he willfully failed to make reasonable progress in correcting the conditions that led to the removal of the juvenile. The trial court did not err in ceasing reunification efforts when there was credible evidence that reunification efforts would be inconsistent with the juvenile's health, safety, and need for a safe permanent home.
I. Factual and Procedural Background
The Wilkes County Department of Social Services (DSS) began investigating H.S.G.'s family after receiving a report on 16 November 2009 alleging inappropriate discipline by his father, resulting in bruises to H.S.G.'s buttocks and redness around his genitals. Father informed DSS that he was in Florida, but later that day was arrested in Wilkes County for misdemeanor child abuse. At the request of DSS, H.S.G. was placed with his maternal grandparents. On 15 January 2010, DSS obtained nonsecure custody of H.S.G. and filed a juvenile petition alleging abuse and neglect, after father violated DSS's safety plan by attempting to pick up H.S .G. from his maternal grandparents.
By order entered on 9 March 2010, the trial court adjudicated H.S .G. abused and neglected. The trial court continued custody of H.S.G. with DSS and ordered father to comply with a case plan.
Following a hearing, the trial court entered a permanency planning order on 3 February 2011. H.S.G. had been residing in a licensed foster home since March 2010. The trial court concluded that a permanent plan of adoption was in the best interests of H.S.G, and ordered DSS to cease reunification efforts and initiate a termination of parental rights proceeding. On 17 February 2011, father filed a notice to preserve his right to appeal from the order ceasing reunification efforts, pursuant to N.C. Gen.Stat. §§ 7B–507(c) and 7B–1001 (a)(5).
On 10 February 2011, DSS filed a petition to terminate father's parental rights, alleging the following grounds for termination: (1) neglect; (2) failure to make reasonable progress; and (3) willful abandonment. SeeN.C. Gen.Stat. §§ 7B–1111 (a)(1), (2), (7) (2011). The hearing on this petition concluded on 22 March 2012. In an order entered on 22 May 2012, the trial court found all three of the grounds for termination alleged in the petition. The trial court concluded that it was in H.S.G.'s best interests to terminate father's parental rights.
Father appeals.
II. Issues on Appeal
We note that the trial court also terminated the parental rights of H.S.G.'s mother. She did not appeal. Our review of this case is limited to issues arising from the termination of father's parental rights.
III. Termination of Parental Rights
In his first argument, father contends that the evidence failed to show that he willfully failed to make reasonable progress and that the trial court erred in terminating his parental rights based upon this finding. We disagree.
A. Standard of Review
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) (citation omitted). Unchallenged findings of fact are presumed to be supported by sufficient evidence and consequently, are binding on appeal. See In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009).
B. Father's Challenges to the Findings of Fact
To terminate parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), the trial court must find that (1) the parent willfully left the juvenile in foster care for over twelve months, and (2) 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 (2005). We note that father does not dispute that H.S.G. was in DSS custody for the requisite period of time, and we only address his arguments with respect to the requirement of reasonable progress. SeeN.C.R.App. P. 28(b)(6).
Father challenges the sufficiency of the evidence supporting findings of fact 25, 36(d)(2)-(4), 36(d)(9), 44(e), 46, 48, 49, 54, 58, 61, and 62. Father does not contest the remaining findings of fact and they are binding on appeal. See In re M.D., 200 N.C.App. at 43, 682 S.E.2d at 785. Additionally, we hold that challenged findings of fact 44(e), 46, 48, and 49 are unnecessary to affirm the trial court's conclusion that grounds for termination exist pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) and we decline to address them. Even assuming arguendo that these findings are not supported by clear, cogent, and convincing evidence, there are ample other findings of fact to support the termination of father's parental rights. See In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (holding that even if some findings of fact are not supported by evidence in the record, “[w]hen ... ample other findings of fact support an adjudication of neglect, erroneous findings unnecessary to the determination do not constitute reversible error.”).
We first address finding of fact 25, which summarizes the findings from the 9 March 2010 adjudication order:
25. On or about November 16, 2009, while [father] was supposed to have been providing care for [H.S.G.] and while [the mother] was absent from the home, [father] physically abused [H.S.G.]. [Father] has steadfastly refused to acknowledge that he did anything to [H.S.G.] other than “use a heavy hand.” However, as more particularly appears from the testimony before the undersigned and the adjudicatory Order in this case, [father] struck [H.S.G.] or otherwise abused him thereby causing multiple bruising on [H.S.G.'s] buttocks, as well as causing his penis to be red and swollen. [Father] has not, at any time, attempted to explain the redness and swelling of [H.S.G.'s] genital area.
Father challenges the portion of this finding which states: “as well as causing his penis to be red and swollen.” Father contends that there is no evidence that he caused the redness and swelling to H.S.G.'s genitals. He asserts that the basis for the adjudication was solely his spanking of H.S.G. However, father's claims are contradicted by the previous order adjudicating H.S.G. abused and neglected, and he cannot now challenge that order. In finding of fact 5, the trial court took judicial notice of the previous orders in the underlying juvenile proceedings. Father neither appealed from the adjudication order nor did he object to finding of fact 5. Consequently, he cannot now challenge finding of fact 25. C.f. In re Wheeler, 87 N.C.App. 189, 194, 360 S.E.2d 458, 461 (1987) (holding that the father in a parental rights termination proceeding was collaterally estopped from relitigating whether he had sexually abused his children when the issue of sexual abuse was fully litigated in a prior proceeding finding the children abused and neglected, and the issue was necessary to the prior adjudication of abuse). Even assuming arguendo that father's argument is correct, the bruising to H.S.G.'s bottom was sufficient by itself to sustain the adjudication of abuse and neglect. Father therefore cannot demonstrate any prejudice arising from the challenged portion of the finding.
In findings of fact 35 and 36, the trial court detailed the parents' case plans. Father challenges the following parts of finding of fact 36:
36. ....
D. The Case Plans ... required that the parents do the following:
....
2. Have mental health assessments and follow up with any recommended counseling and treatment. Neither of the parents did this;
3. Have a psychological evaluation.... As referenced above, [father] had several psychiatric evaluations;
4. Maintain stable and appropriate housing. Neither parent did this.... [Father] would not provide [Social Worker Mary Severt] with a meaningful address. [Father] moved between Florida and North Carolina repeatedly while Ms. Severt was involved in the case;
...
9.... [F]ather was to have an anger management assessment and participate in anger management classes. Although ... father attempted to fulfill this requirement by taking online classes, these did not fulfill the requirement of his Case Plan. As more particularly appears from the record in this matter and from Ms. Severt's testimony, ... father needed to have a face to face session or course of classes with a counselor or therapist, not some type of online counseling.
We address each of the challenged findings.
In findings of fact 36(D)(2) and (D)(3), the trial court found that father failed to follow up with mental health counseling and had several different psychiatric evaluations. These findings are directly supported by findings of fact 55, 56, 57, 59, and 60, which father does not challenge on appeal. These findings of fact show that father sought evaluations from three different mental health providers because he was unsatisfied with the diagnoses and recommendations of the first two psychologists. These findings further show that father misrepresented several pertinent facts regarding his case during his third and final evaluation. Testimony from H.S.G's Social Worker, Mary Severt (Severt), further supports the finding that father failed to follow up with the recommended counseling. Father claimed that he attended counseling in Florida. Severt, however, testified that father failed to produce any documentation showing that he was in fact attending counseling and that the counseling complied with the recommendations of his assessment. There is clear, cogent, and convincing evidence in the record supporting findings of fact 36(D)(2) and (D)(3).
Father also challenges finding of fact 36(D)(4), which states that he failed to maintain stable housing. In an uncontested finding of fact, finding of fact 22, the trial court found that father lives with friends in Florida; he claims to have a residence in Ashe County, but could not recall when he last spent significant time there; and his driver's license lists neither of these residences, and instead lists an address at which he has not resided for two years. Severt further testified that father was untruthful and evasive regarding his residence. Father told Severt that he was living with a friend in Ashe County, but upon visiting the friend's residence, she saw no signs that father was actually residing there. The unchallenged factual findings contained in finding of fact 22 provide support for the trial court's finding that father failed to maintain stable housing. Finding of fact 22 and Severt's testimony provide clear, cogent, and convincing evidence to support finding of fact 36(D)(4).
Father also contests the trial court's finding of fact 36(D)(9) stating that he failed to complete an anger management assessment and participate in anger management classes. Father contends that he complied with this requirement by completing a 36–hour online course in May 2010 and a live seven-hour class in June 2010. However, the evidence in the record clearly demonstrates that these classes did not comply with father's case plan. Severt testified that father was required to attend interactive anger management classes; however, father felt that such classes were not necessary and never completed them. Clear, cogent, and convincing evidence supports the trial court's finding of fact 36(D)(9).
Finally, father challenges the trial court's ultimate findings of fact pertaining to N.C. Gen.Stat. § 7B–1111(a)(2):
54. Although [father] has completed some of the items and things on his Case Plan, the Court specifically finds that any such progress in [sic] not reasonable. In support of this Finding, the Court has read and considered the material from [father's] website: “return my child.com.” The Court has also considered the psychological evaluations which [father's] attorney put into evidence.... From an examination of these materials and from [father's] testimony, it is apparent, and the Court finds, that [father] accepts no responsibility for his child having been placed into the care ... of [DSS][or] for any of the things which have transpired since then. [Father] portrays himself as having successfully completed all items of his Case Plan and having been unfairly treated by virtually everyone involved in this case.
Father also contests findings of fact 61 and 62, which reiterate the findings contained in finding of fact 54. In arguing that these findings are in error, father contends that his progress was reasonable and sufficient. We hold that findings of fact 54, 61, and 62 were supported by clear, cogent, and convincing evidence in the record.
C. Willful Failure to Make Reasonable Progress
Father contends that there was not sufficient evidence to support the conclusion of law that he willfully failed to make reasonable progress in correcting the conditions that led to the removal of H.S .G. “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 (2001). “A finding of willfulness is not precluded even if 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).
In the instant case, the findings show that father failed to comply with his case plan, routinely attempted to circumvent the plan's requirements, and persistently failed to accept responsibility for his actions. These findings are sufficient to support the conclusion of law that grounds existed to terminate the parental rights of H.S.G's father pursuant to N.C. Gen.Stat. § 7B–1111(a)(2). The trial court did not err in terminating father's parental rights.
D. Willful Abandonment and Neglect
In father's second and third arguments, he contends the trial court erred in terminating his parental rights under N.C. Gen.Stat. §§ 7B–1111(a)(7) and (a)(1). 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, 426–27 (2003). Thus, we do not address father's arguments challenging the other two grounds for termination of his parental rights.
IV. Reunification Efforts
In his fourth argument, father contends that the trial court erred by ceasing reunification efforts in its 3 February 2011 permanency planning order. We disagree.
A. Standard of Review
“This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007) (citations omitted). “The trial court may ‘only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts.’ “ In re N.G., 186 N.C.App. 1, 10, 650 S.E.2d 45, 51 (2007) (quoting In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003)), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
B. Analysis
In order to cease reunification efforts with a parent, the trial court must “make[ ] written findings of fact that ... [s]uch efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]” N.C. Gen.Stat. § 7B–507(b) (2011).
Father challenges findings of fact 11, 13, 20, 28, 38, and 48 in the 3 February 2011 permanency planning order. In challenging these findings, he incorporates his previous arguments regarding the trial court's termination order. He also argues that the trial court erred in finding that visitation and telephone calls with father caused a recurrence of H.S.G.'s behavior problems and that removing H.S.G. from foster care would be detrimental to his emotional health.
Even assuming arguendo that the challenged findings of fact are not supported by sufficient evidence, the trial court's remaining findings of fact support the cessation of reunification efforts. The uncontested findings of fact establish: that father had been deceitful and misleading regarding the DSS investigation; that he was untruthful to one of his mental health evaluators; that he had not followed through with recommended mental health treatment; that he consistently presented an unrealistic picture of himself, his relationships, and his psychological condition; and that he did not ask about H.S.G. during phone calls with the social worker. The trial court further found that H.S.G. did not want to visit with father; that H.S.G. was attached to his foster parents and wanted to continue living with them; that H.S.G.'s mental health evaluators recommended counseling and that parental visitation cease; and that H.S.G.'s parents were directly responsible for H.S.G.'s need for counseling. We hold that these findings of fact support the trial court's conclusion that “[a]ny further efforts to eliminate the need for placement of the child would be contrary to the child's need for a safe, permanent home within a reasonable time.” The trial court did not err in ceasing reunification efforts.
This argument is without merit.
AFFIRMED. Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).