An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-968

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2003

IN THE MATTER OF HECK, D.,
a minor child, DOB: 1-30-89

IN THE MATTER OF HECK, C.,
a minor child, DOB: 7-1-90
                                Lee County          ;                   
                                Nos. 01 J 03-04
THE LEE COUNTY DEPARTMENT OF
SOCIAL SERVICES,
    Petitioner

    v.

BRIDGETT ANN HECK, DERRICK
LEE HECK, Sr.,
    Respondents

    Appeal by respondent Bridgett Ann Heck from orders entered 12 February 2002 by Judge Jim L. Love, Jr., in Lee County District Court. Heard in the Court of Appeals 12 March 2003.

    Raye Ward, for petitioner-appellee.

    Patterson, Dilthey, Clay & Bryson, L.L.P., by Carrie E. Meigs, for Guardian ad Litem-appellee, Jennifer Duff.


    Elizabeth M. Boone, for respondent-appellant.

    CALABRIA, Judge.

    Bridgett Ann Heck (“respondent”) appeals from orders terminating her parental rights to her sons D.L. and C.E. on the basis of neglect. We affirm the orders of the trial court.
    On 26 February 2001, the court adjudicated the children neglected, finding as fact: respondent was an abuser of alcohol andcocaine; respondent and her children were recently evicted from a condemned house; after the eviction respondent moved herself into a boarding house while the children moved from house to house staying with various friends; and in January 2001, the children were taken into care by petitioner. Turning to the dispositional phase, the court further found:
        1. . . . The respondent mother has always relied on family members to assist in caring for the children and has never taken full responsibility for their care. The respondent mother is unwilling to provide a stable, safe home environment for her children. This is due in part to her admitted use of cocaine and alcohol. She is unemployed and cannot provide for the children's basic needs. The respondent mother has continuously placed the children in unsafe situations due to inappropriate supervision and the lack of food and heat.

        2. The children have adjusted well to their current living arrangements. . . .

        3. The respondent mother has displayed little interest in her children. She has failed to attend any scheduled visitation with [the children].
        
The court concluded it was in the best interests of the children to remain in petitioner's care.
    On 30 April 2001, pursuant to a sixty-day review hearing, the court entered an order continuing the placement of the children with petitioner, and finding as fact: “[e]fforts toward reunification with the children by the respondent mother have been minimal” because respondent did not regularly visit the children, begin parenting classes until just prior to the hearing, participate in a substance abuse assessment, and did not obtaineither employment or a place to live. The court “determine[d] that respondent mother is not making reasonable efforts toward reunification;” nor has she “demonstrated that she is willing to correct the conditions which led to the children's removal from her care.”
    On 7 August 2001, following a 24 July 2001 hearing, the court entered an order pursuant to a permanency planning review. The court found as fact:
        3. Upon inquiry, the Court determines that the respondent mother has not met any of the Court's requirements. She has not attended parenting classes, nor has she secured employment or established independent housing. Visitation with the children has been sporadic which is very disappointing to the children.
        . . .

        7. The Court determines from the file that due to the respondent mother's failure to make any progress on a plan of reunification, it appears unlikely that the children will be returned to her care within the next six months. []

        8. . . .The Petitioner has made reasonable efforts to eliminate the need for the children's placement in care. A continuation of such efforts by Petitioner would be futile and inconsistent with the best interest of the children.

Therefore, the court ordered petitioner cease reunification efforts with respondent and instead seek termination of respondent's parental rights and foster care placement with adoption potential.
    On 29 October 2001, petitioner filed a petition to terminate respondent's parental rights. On 12 February 2002, the court entered orders terminating respondent's parental rights to bothD.L. and C.E. In both orders the court made only the following non-procedural findings of fact:
        5. That the child, [identification of the particular child], has been in the custody of Petitioner since January 5, 2001. Petitioner has made diligent efforts to reunite the minor child with the respondent mother, Bridgett Heck. Efforts to reunite the minor child with his mother have been futile due to respondent mother's failure to comply with the case plan set forth by Petitioner. The respondent mother also has a history of drug and alcohol abuse and instability in her living arrangements.

        6. That the Court takes judicial notice and hereby incorporates by reference all the orders, court reports and other documents bearing on [this case] and all of the findings of fact, which include all court reports incorporated by reference and contained in all of the orders of the Court in that juvenile proceeding and the petition filed therein, if incorporated, are herein adopted by this Court as findings of fact in this proceeding and incorporated herein by reference and adopted by the Court as findings of fact as if set forth herein in full.

The court then concluded as a matter of law:
        1. That sufficient grounds exist to terminate the parental rights of the respondent mother, namely:

        a. The respondent mother has neglected the child within the meaning of N.C. Gen. Stat. § 7B-101(15) and it is probable that there would be a repetition of neglect if the child were placed in the care of the respondent mother. The respondent mother has a history of drug and alcohol abuse and has no residence of her own. In their diligent efforts to reunify this family, Petitioner attempted to work with the respondent mother by developing a case plan whereby she was to attend parenting classes, attend all mental health sessions at Lee-Harnett Mental Health, obtain stable housing, obtain employment, and attend all visitations with the minor child. Therespondent mother has attended only two parenting classes, one in April and the other in December 2001. She has not attended mental health regularly and was last seen there on October 18, 2001 to receive medication. The respondent mother last visited with the minor child on March 28, 2001. She has contacted the Petitioner's social worker to schedule visitations, but failed to show. This type of instability and neglect necessitated the child's removal from the respondent mother's care and the respondent mother has not shown to the satisfaction of the Court that reasonable progress in correcting these conditions under the circumstances has been made within 12 months.

While the court noted several witnesses appeared for respondent, it concluded the best interests of the children were served by termination of the respondent's parental rights.
    Respondent appeals asserting the trial court erred in terminating her parental rights because: (I) there was insufficient evidence of neglect; (II) the court incorporated the prior orders into the findings of fact; and (III) the court erroneously concluded as a matter of law the children were neglected and abused its discretion in terminating petitioner's parental rights.
I. Sufficiency of the evidence
    North Carolina law provides for parental rights to be terminated on the basis that “[t]he parent has abused or neglected the juvenile.” N.C. Gen. Stat. § 7B-1111(a)(1)(2001). A neglected juvenile is “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent[.]” N.C. Gen. Stat. § 7B-101(15)(2001). The burden of proof in termination of parental rights proceedings “shall be upon the petitioner or movantto prove the facts justifying such termination by clear and convincing evidence.”   (See footnote 1)  N.C. Gen. Stat. § 7B-1111(b)(2001).
    For petitioner to properly prove neglect in a termination case, there must be clear, cogent and convincing evidence of (1) neglect and (2) as a consequence of the neglect, “the juvenile has sustained 'some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment[.]'” In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000)(quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)). “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). However, “in most termination cases the children have been removed from the parents' custody before the termination hearing.” In re Beasley, 147 N.C. App. 399, 404, 555 S.E.2d 643, 647 (2001). “Consequently, 'to require that termination of parental rights be based only upon evidence of events occurring after a prior adjudication of neglect which resulted in removal of the child from the custody of the parents would make it almost impossible to terminate parental rights on the ground of neglect.'” Id. (quoting In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984)). Therefore, in cases where        a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis[.] . . .'The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.'

In Re Shermer, ___ N.C. App. ___, ___, 576 S.E.2d 403, 407 (2003) (quoting Ballard, 311 N.C. at 715, 319 S.E.2d at 232. Relevant factors also include prior adjudications of neglect, changed conditions, and visitation by the parent. Id.
    In the case at bar, the children were adjudicated neglected by respondent in February 2001. At the time of termination, the court found as fact:   (See footnote 2)  that respondent had previously neglected the children; thereafter, although respondent initially made sporadic attempts at compliance, she failed to comply with the case plan requiring she “attend parenting classes, attend all mental health sessions at Lee-Harnett Mental Health, obtain stable housing, obtain employment, and attend all visitations with the minor child.” At the time of termination, the court found “[t]he respondent mother last visited with the minor child on March 28, 2001[,]” nearly one year earlier.
    On appeal, respondent asserts the trial court failed to consider respondent's evidence that she was gainfully employed, had weekly visitation with her children at church, spoke with herchildren consistently on the telephone, and had been seeking proper housing. Although contrary evidence may be relevant, its existence is not determinative; rather the question for this Court is whether the order is supported by clear, cogent and convincing evidence. In re Allred, 122 N.C. App. 561, 568, 471 S.E.2d 84, 88 (1996) (holding “[w]hile respondent did provide some contrary evidence, the trial court's findings are adequately supported by the evidence and are binding on this Court.”). In the case at bar, the findings are supported by the orders, court reports, and other documents bearing on the case which the court incorporated by reference, as well as the testimony of Lucy Rigsbee, the Lee County Department of Social Services social worker. We find this is clear, cogent and convincing evidence, and hold the trial court's findings of fact conclusive on appeal despite the contrary evidence supplied by respondent.
    Respondent also asserts petitioner failed to meet its burden of proof that the children sustained some physical, mental, or emotional impairment or there is a substantial risk of such impairment. We disagree. The evidence tended to show respondent initially scheduled visitation with the children, but then failed to attend, a pattern that disappointed the children. Upon entry into foster care, and despite remaining assigned to the same school, the children needed significant assistance with their schoolwork. After evaluation by the area mental health agency for attention deficit disorder, one of the boys needed, and received, counseling. Moreover, we note the substantial risk of physical,mental or emotional impairment is manifest considering that at the time of the hearing respondent had failed to comply with her case plan and still had not secured a stable living environment for her children. The Supreme Court has stated that in neglect cases such as the one before us the determinative factors are the best interests of the child and the fitness of the parent to care for the child. See Ballard, 311 N.C. at 715, 319 S.E.2d at 232. Considering the evidence before the Court, we do not find the trial court erred in concluding petitioner met its burden of proof pursuant to N.C. Gen. Stat. § 7B-1111.
II. Incorporation
    Respondent next asserts the trial court erred by incorporating “all the [prior] orders, court reports and other documents bearing [on this case]” and adopting all prior findings of fact. Respondent correctly asserts that some of this evidence concerned respondent's other two children and that incorporation of facts from past orders could not adequately prove neglect. However, in this case, although erroneously labeled conclusions of law, the trial court found sufficient facts to support the conclusion that the requirements of N.C. Gen. Stat. § 7B-1111 were met. Where the trial court makes sufficient findings of fact relating to the situation at the time of the proceeding, it is not error for the trial court to incorporate additional information including facts found by the court in previous orders. See generally Shermer, ___ N.C. App. at ___, 576 S.E.2d at 407 (where the trial court took judicial notice of past orders); Reyes, 136 N.C. App. at 814, 526S.E.2d at 500 (where the trial court incorporated the findings of fact of prior orders and determined that based upon this history of neglect there was a probability of repetition of neglect).
III. Conclusions of Law and Disposition
    Respondent also asserts the trial court erred in concluding as a matter of law the children were neglected and there was a probability of future neglect. In the present case, we hold the findings of fact delineated above amply support the conclusion of law that “[t]he respondent mother has neglected the child[ren] within the meaning of N.C. Gen. Stat. § 7B-101(15) and it is probable that there would be a repetition of neglect if the child[ren] were placed in the care of the respondent mother.”
    Finally, respondent contends the trial court abused its discretion by concluding as a matter of law the best interests of the children were served by terminating respondent's parental rights. We cannot hold the trial court abused its discretion in terminating the parental rights of respondent, who failed to provide proper care and supervision to her children, failed to comply with the case plan aimed at reunification, and demonstrated so much instability that the court determined any continuation of efforts to reunify the family would be “futile.”
    Having found no merit to respondent's arguments, we affirm the decision of the trial court.
    Affirmed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).


Footnote: 1
    “We note that Chapters 7A and 7B interchangeably use the 'clear, cogent and convincing' and the 'clear and convincing' standards. It has long been held that these two standards are synonymous.”  In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d 165, 166 (2002).
Footnote: 2
    Some of the findings of fact are mislabeled conclusions of law, however such labels are not binding and “a pronouncement by the trial court which does not require the employment of legal principles will be treated as a finding of fact, regardless of how it is denominated in the court's order.” Dunevant v. Dunevant, 142 N.C. App. 169, 173, 542 S.E.2d 242, 245 (2001).

*** Converted from WordPerfect ***