An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-114
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 5 August 2014


IN THE MATTER OF:

       B.A.S.,                                  Henderson County
       Juvenile                                 No. 12 JT 38




       Appeal by Respondent-Father from order entered 1 November

2013   by   Judge       Peter   B.   Knight    in    District      Court,    Henderson

County.     Heard in the Court of Appeals 8 July 2014.


       Deputy County Attorney Rebekah R. Price for Petitioner-
       Appellee Henderson County Department of Social Services.

       Levine & Stewart, by James E. Tanner III, for Respondent-
       Appellant Father.

       Alston & Bird LLP, by Matthew D. Montaigne, for Guardian ad
       Litem.


       McGEE, Judge.


       Respondent-Father        (“Respondent”)           appeals   from     the   order

terminating       his     parental    rights        to   B.A.S.    (“the     child”)1.

Respondent contends the trial court erred by concluding three


1
  The order also terminated the parental rights of the child’s
mother, who is not a party to this appeal.
                                             -2-
grounds existed to support termination of his parental rights.

We affirm.

      The Henderson County Department of Social Services (“DSS”)

became involved with the child’s family in February 2012, when

police investigated a report that the child’s mother had been

raped.    Officers found the mother to be intoxicated and the home

to be in disarray, and referred the matter to DSS.                             Respondent

had fled the home before the police arrived.                             DSS discovered

that,    in    the    child’s    presence,         the    parents       had    engaged   in

domestic violence and drug use.                     The child was placed in a

kinship placement with the paternal grandmother on 20 February

2012.

      DSS filed a petition on 9 March 2012, alleging that the

child    was    neglected       and,    on    14    June        2012,    the   child     was

adjudicated neglected.            To correct the conditions that led to

the   child’s       removal   from     the    home,       the    trial    court   ordered

Respondent to, inter alia:              (1) obtain substance abuse, mental

health,       and     psychological          assessments          and     complete       any

recommended         treatment;    (2)    attend          an     anger    management      and

domestic violence program and avoid further domestic violence;

(3) establish and maintain stable income and housing sufficient

for the family; (4) not be involved with any criminal activity;
                                     -3-
(5) maintain face-to-face contact with the social worker and

provide the social worker with current contact information; (6)

complete parenting classes and demonstrate appropriate parenting

skills;   (7)   complete    individual     and     family    therapy;    (8)    pay

child support; (9) cooperate and help obtain appropriate medical

treatment for the        child; (10) make regular contact with the

child; and (11) sign any necessary releases to allow information

exchanges between DSS and service providers.

    DSS filed a motion in the cause to terminate both parents’

parental rights on 27 June 2013.               As to Respondent, DSS alleged

grounds   to    terminate    Respondent’s        rights     based   on   neglect,

willful   failure   to     make   reasonable      progress     to   correct    the

conditions that led to the child’s removal from the home for a

period of twelve months, and failure to pay a reasonable portion

of the cost of the child’s care for the six months preceding the

filing of the motion to terminate.                The matter came on for a

termination hearing on 10 October 2013.

    The    trial    court     entered      a     judgment    terminating       both

parents’ rights on 1 November 2013.                As to Respondent, in its

judgment, the trial court found all three grounds alleged in the

termination motion, and concluded it was in the child’s best
                                    -4-
interest to terminate Respondent’s parental rights.                    Respondent

appeals.

    On appeal, Respondent contends the trial court erroneously

concluded that the three grounds supported termination of his

parental rights.     We do not agree.

    At     the   adjudicatory   stage    of    a    termination       of    parental

rights hearing, the burden is on the petitioner to prove by

clear   and   convincing    evidence    that       at   least   one   ground     for

termination exists.        N.C. Gen. Stat. § 7B-1109(f) (2013); In re

Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).

Review in the appellate courts is limited to determining whether

clear and convincing evidence exists to support the findings of

fact, and whether the findings of fact support the conclusions

of law.    In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840

(2000).

    “When the trial court is the trier of fact, the court is

empowered to assign weight to the evidence presented at the

trial as it deems appropriate.”           In re Oghenekevebe, 123 N.C.

App. 434, 439, 473 S.E.2d 393, 397 (1996).                “‘[F]indings of fact

made by the trial court . . . are conclusive on appeal if there

is evidence to support them.’”          In re H.S.F., 182 N.C. App. 739,

742, 645 S.E.2d 383, 384 (2007) (citation omitted).                        “‘[W]here
                                     -5-
no exception is taken to a finding of fact by the trial court,

the finding is presumed to be supported by competent evidence

and is binding on appeal[.]’”        In re S.D.J., 192 N.C. App. 478,

486, 665 S.E.2d 818, 824 (2008) (quoting Koufman v. Koufman, 330

N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).

     Although the trial court concluded three grounds existed to

terminate Respondent’s parental rights, we find it dispositive

that the evidence supports termination of his parental rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2013), based upon

Respondent’s willful failure to make reasonable progress toward

correcting the conditions that led to the child’s removal from

the home.       See In re Humphrey, 156 N.C. App. 533, 540, 577

S.E.2d   421,    426   (2003)   (finding     one    statutory   ground   is

sufficient to support the termination of parental rights).

     In terminating parental rights pursuant to N.C. Gen. Stat.

§   7B-1111(a)(2),     the   trial   court   must    conduct    a   two-part

analysis:

            The trial court must determine by clear,
            cogent and convincing evidence that a child
            has been willfully left by the parent in
            foster care or placement outside the home
            for over twelve months, and, further, that
            as   of  the   time  of   the  hearing,   as
            demonstrated by clear, cogent and convincing
            evidence, the parent has not made reasonable
            progress under the circumstances to correct
            the conditions which led to the removal of
                                         -6-
           the child.     Evidence and findings which
           support   a   determination   of   “reasonable
           progress” may parallel or differ from that
           which   supports    the    determination    of
           “willfulness”   in   leaving   the  child   in
           placement outside the home.

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).

      A respondent’s failure to make reasonable progress must be

willful, with willfulness being established when the respondent

has the ability to show reasonable progress but is unwilling to

make the effort.        In re Fletcher, 148 N.C. App. 228, 235, 558

S.E.2d   498,   502     (2002)    (citation    omitted).       “A   finding    of

willfulness does not require a showing of fault by the parent.”

Id.   (citation    omitted).        “A    finding    of   willfulness   is    not

precluded even if respondent has made some efforts to regain

custody of the children.”           In re Shepard, 162 N.C. App. 215,

224, 591 S.E.2d 1, 7 (internal citation omitted), disc. review

denied, sub nom In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004).

      In the present case, the trial court’s findings of fact

support its conclusion that Respondent willfully failed to make

reasonable progress.       We note that Respondent does not challenge

the trial court’s findings of fact, but rather contends those

findings   do     not   support    the    trial     court’s   conclusion     that

Respondent willfully failed to make reasonable progress, because
                                 -7-
his failure to make progress on his case plan was due to his

incarceration and his poverty.    Thus, we must primarily consider

whether   the   findings   establish   that   Respondent’s    lack   of

progress was willful.

    In    terminating   Respondent’s   parental   rights,    the   trial

court found, in relevant part, that:

           31. [Respondent] has not obtained a mental
           health   assessment,   even   though   HCDSS
           scheduled and gave written and/or verbal
           reminders to [Respondent] of appointments on
           two different occasions.

           32. [Respondent]    has   not  attended   and
           completed   an    anger   management/domestic
           violence prevention program.

           33. [Respondent]    does  not   have  stable
           income.     [Respondent] has provided the
           social worker with one pay stub from MDT
           Personnel’s “day labor” program for the time
           period of August 10, 2012 working 14 hours
           in   the    amount   of   $77.77.      Since
           [Respondent’s] release from incarceration on
           February 7, 2013, he has not provided HCDSS
           with any documentation to verify employment
           and/or financial means.

           34. [Respondent] has been unsuccessful in
           establishing and maintaining a safe and
           consistent residence.     Since his release
           from incarceration, he has stayed with
           friends and at the Hendersonville Rescue
           Mission. [Respondent] has failed to provide
           HCDSS with updated residential information.

           35. [Respondent]   was  incarcerated from
           November 9, 2012 to February 6, 2013 for
           probation violations related to April 1,
                     -8-
2012 charges of Felony Larceny of Fire Arm,
Felony    Breaking   and    Entering,   and
Misdemeanor Possession of Stolen Goods.
[Respondent’s] probation officer told HCDSS
that [Respondent’s] probation is in effect
until May 22, 2014 and that he currently
owes $3,150.00.

36. [Respondent] met with the social worker
on at least a monthly basis through May
2013.   Since the last hearing, [Respondent]
has met with the social worker once in June
2013 and has not provided updated contact
information.

37. [Respondent]      started      Mainstay’s
parenting program on September 14, 2012 and
was terminated from the program on October
29, 2012 as a result of missed sessions.
[Respondent] has not completed the course.

38. [Respondent]    has    not   engaged   in
individual or family therapy.

39. [Respondent] has not attended any of
the   [child’s]    medical,   dental,   and/or
developmental appointments.       [Respondent]
was   advised   of   the  [child’s]   surgical
procedure on February 21, 2013 at Park Ridge
Hospital and he failed to come to the
hospital to be with the [child].

40. [Respondent] failed to appear for his
April 26, 2013 child support hearing. As of
October   1,  2013,   he  owes   $350.00 in
arrearage.   [Respondent] did not pay any
amount towards his child support until
yesterday; [Respondent] testified he paid
$50.00 to child support the day before the
hearing.

41. From the May 3, 2012 Adjudication and
Disposition    hearings   to   May   2013,
[Respondent] has failed to attend 32 of 56
                                         -9-
              scheduled   supervised   visits    with   the
              [child].     [Respondent] has attended 19
              supervised   visitations  and   has   had  no
              contact with the [child] since May 2013.

              42. [Respondent] signed consents to release
              information.

              43. [Respondent] paid $0.00 towards the
              support and care of the [child] until the
              day before court when he paid $50.00.  He
              has an arrearage of $350.00.

       The above findings of fact were unchallenged by Respondent.

More     strikingly,       in   his    brief,        Respondent        made     several

affirmative        statements   that     he    had    failed      to     fulfill    the

reunification conditions contained in the dispositional order.

Contrary to Respondent’s argument, these unchallenged findings

portray more than a parent who simply lacked the resources or

opportunity to make progress on his case plan.                     Instead, these

findings demonstrate that Respondent willfully failed to make

the effort necessary to complete the plan set out by the trial

court at disposition, including failing to even begin many of

the assessments and treatments required by the trial court.

       The    trial   court’s   findings       of    fact   delineate         the   many

efforts      DSS    made   to   ensure     Respondent       had    the        resources

necessary to make progress on his case plan.                           These efforts

included giving Respondent: (1) referrals for day care for the

child,       (2)   Medicaid,    (3)    food    stamps,      (4)        mental    health
                                         -10-
assessment and treatment, and (5) substance abuse assessment and

treatment.      DSS facilitated face-to-face visits for Respondent

and    the    child,    and     placed     the    child     with    his     paternal

grandparents while Respondent was supposed to be making progress

on his case plan.            Additionally, DSS provided Respondent with

bus    passes    to    ensure     that     Respondent       had    the     requisite

transportation to meet the requirements of his case plan.

       Respondent had the time and resources necessary to make

reasonable progress on his case plan.                 The above findings of

fact by the trial court show that Respondent willfully failed to

make    reasonable      progress.          We    affirm     the    trial     court’s

conclusion that Respondent failed to make reasonable progress,

and    we    affirm    the    order   terminating         Respondent’s      parental

rights.

       Affirmed.

       Judges STEELMAN and ERVIN concur.

       Report per Rule 30(e).
