In re F.L.C.

STROUD

Appeal by respondent-mother and respondent-father from order entered 4 August 2011 by Judge Michael Duncan in District Court, Ashe County and from order entered 2 April 2012 by Judge David V. Byrd in District Court, Ashe County. Heard in the Court of Appeals 3 January 2013. Grier J. Hurley, for petitioner-appellee Ashe County Department of Social Services. Mercedes O. Chut, for respondent-appellant-mother.
Mark Hayes, for respondent-appellant-father.
Raleigh Divorce Law Firm (Williams Law Firm, PLLC), by Lauren R. Hinzey and Heather Williams Forshey, for guardian ad litem.
STROUD, Judge.

Respondent-mother and respondent-father appeal from an order ceasing reunification efforts with their children and an order terminating their parental rights. For the following reasons, we affirm.

On 19 March 2010, the Ashe County Department of Social Services (“DSS”) filed petitions alleging that Fran and Zeke were abused, neglected, and dependent. The petitions alleged that the children

were taken to Ashe Memorial Hospital due to the severe redness on [Zeke's] bottom, a band-aid on his arm which had an oozing sore and several other lesions on his torso. [Fran] was taken due to her right eye being matted shut.

The mother ... and her boyfriend[, the children's father], ... had been arrested and were in the Ashe County Jail for selling prescription medication....

Both the mother and [father] ... admitted to abusing substances while in the care of the infants.

....

A child medical examination was completed by Boone Pediatrics and Zeke was diagnosed with having MRSA, and three “circumscribed lesions on right arm and right lateral chest with scab concerning for burn marks.”
On 2 September 2010, “by the stipulation and consent of the parties[,]” the trial court adjudicated Fran and Zeke abused and neglected.

On 4 August 2011, the trial court ceased reunification efforts between respondents and the children (“Order Ceasing Reunification Efforts”). On 2 September 2011, DSS filed petitions to terminate respondents' parental rights. DSS alleged respondent-mother's parental rights should be terminated due to neglect and “willfully [leaving] the child[ren] in foster care or placement outside the home for more than twelve (12) months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made within 12 months in correcting those conditions which led to the child[rens'] removal” (“willfully leaving”). DSS alleged respondent-father's parental rights should be terminated due to abuse, neglect, and willfully leaving. On 2 April 2012, the trial court terminated respondents' parental rights based on all the grounds alleged by DSS (“Termination Order”). Respondents appeal from the Order Ceasing Reunification Efforts and the Termination Order.

Respondents challenge the Order Ceasing Reunification Efforts. However, respondents do not challenge any evidentiary findings of fact as unsupported by the evidence rebating to what led to the need for the removal of the children, the continued need for the children to be removed, and the need to ultimately cease reunification efforts with them. Furthermore, respondents do not challenge the conclusions of law as either unsupported by the findings of fact or as incorrectly applying the law for ceasing reunification efforts. Rather, respondents essentially ask us to reweigh the ultimate findings of fact made by the trial court. See generally Woodard v.. Mordecai, 234 N.C. 463, 470–72, 67 S.E.2d 639, 644–45 (1951)(“There are two kinds of facts: Ultimate facts, and evidentiary facts. Ultimate facts are the final facts required to establish the plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts. .... Ultimate facts are those found in that vaguely defined area lying between evidential facts on the one side and conclusions of law on the other. In consequence, the line of demarcation between ultimate facts and legal conclusions is not easily drawn. An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts. Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning or by an application of fixed rules of law.” (citations omitted)). However, this Court does not reweigh the unchallenged findings of fact, be they evidentiary or ultimate. See State v. Roberson, 163 N.C.App. 129, 132, 592 S.E.2d 733, 735–36 (citation omitted) (“Where, however, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal.”), disc. review denied,358 N.C. 240, 594 S.E.2d 199 (2004); see also State v. Key, 182 N.C.App. 624, 628, 643 S.E.2d 444, 448 (2007)(“Where there is competent evidence supporting the findings of fact of the trial court, this Court cannot reweigh the evidence and make its own findings, but is bound by the trial court's findings.”). As such, we have considered respondents' contentions and after a thorough review of the Order Ceasing Reunification Efforts we conclude that the unchallenged findings of fact support the trial court's conclusions of law which in turn support the trial court's ultimate decision to cease reunification efforts. See In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007) (“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.”)

Respondents both argue that the trial court erred by concluding that grounds existed to terminate their parental rights based upon willfully leaving.

N.C. Gen.Stat. § 7B–1111(a)(2) provides,

(a) The court may terminate the parental rights upon a finding of one or more of the following:

....

(2) 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).

The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law. The trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.

Pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), a court may terminate parental rights when 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. The willful leaving of the juvenile in foster care is something less than willful abandonment and does not require a showing of fault by the parent.
In re J.L.H., ––– N.C.App. ––––, ––––, ––– S.E.2d ––––, –––– (Dec. 4, 2011)(No. COA12–452). Furthermore,

to find grounds to terminate a parent's rights under G.S. § 7B–1111(a)(2), the trial court must perform 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 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.

A finding of willfulness does not require a showing of fault by the parent. Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort. A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.
In re O.C. & O.B., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (citations and quotation marks omitted), disc. review denied,360 N.C. 64, 623 S.E.2d 587 (2005).

The trial court found unchallenged that Fran and Zeke “had been in the custody of the Ashe County Department of Social Services since March 19, 2010 [,]” approximately two years at the time the order was filed. The trial court also noted that Fran and Zeke “have now been in the custody of the Ashe Department 23 months of their 24 month life.” The trial court found and respondent-mother has not challenged that “due to the particular facts of this case, it was of critical importance that the mother strictly comply with all directives of DSS concerning substance abuse treatment and drug tests.” While respondent-mother contends she had made more progress in substance abuse treatment than found by the trial court, not even she contends that she “strictly compl[ied.]” In fact, the trial court found unchallenged that “Family Solutions closed her case in March 2011 due to her lack of involvement.” As this Court has stated, “[e]xtremely limited progress is not reasonable progress.” In re Nolen, 117 N.C.App. 693, 700, 453 S.E.2d 220, 224–25 (1995).

Respondent-father also argues that he has made “reasonable progress[,]” but does not direct this Court to any evidence which contradicts the trial court's findings of fact nor does he argue the trial court's findings of fact are not supported by the evidence establishing that respondent-father “has at no time had stable housing of his own” or “had steady employment[.]” SeeN.C. Gen.Stat. § 7B–1111(a)(2). Accordingly, we conclude that the trial court did not err by concluding that grounds existed to terminate respondents' parental rights.

For the foregoing reasons, we affirm the trial court's Order Ceasing Reunification Efforts and Termination Order. As we are affirming the Termination Order based upon § 7B–1111(a)(2), we need not address respondents' other contentions on appeal.

AFFIRMED. Chief Judge MARTIN and Judge ERVIN concur.

Report per Rule 30(e).
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