An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                          -2-
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.
                                        -3-
       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.
                                            -4-
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
                     -5-
     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
                     -6-
     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.
                     -7-


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
                                    -8-
                   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.
                                                    -9-
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
                                             -10-
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
                                             -11-
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
                                        -12-
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
                                      -13-
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
                                     -14-
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).
