An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1452


Filed: 2 December 2003

IN THE MATTERS OF:                Rowan County
J.J.B., J.U.B.    and                Nos. 96 J 148
J.D.B.,                             96 J 150
        Minor Children                 96 J 151

    Appeal by respondent from order entered 14 June 2002 by Judge Charles Brown in Rowan County District Court. Heard in the Court of Appeals 27 October 2003.

    Rebekah W. Davis for respondent-appellant.

    No brief filed by the petitioner-appellee.

    EAGLES, Chief Judge.

    Respondent, LaWanda Bellamy McDowell, is the mother of J.J.B., J.U.B. and J.D.B. On 9 May 1999, eleven-year-old J.J.B. called the Spencer Police Department and reported that he was home alone and scared. J.J.B. told the police that he had been left alone as a form of punishment and that his stepfather, Walter McDowell, had beat him with a belt. J.J.B. had linear marks and bruises of differing stages covering the majority of his body with some areas of broken skin and bleeding resulting from injuries inflicted by Mr. McDowell. J.J.B. was placed in a licensed foster home on 9 May 1999. J.U.B. and J.D.B. were placed in the custody of the Rowan County Department of Social Services (“DSS”) on 20 May 1999, after discovery and examination of injuries to J.U.B. and the subsequentarrest of Mr. and Mrs. McDowell. On 12 July 1999, J.J.B. was adjudged to be an abused, neglected and dependent juvenile and J.U.B. and J.D.B. were found to be abused and neglected juveniles. Custody of the children was awarded to DSS on that date.
    DSS worked with respondent for over two years. On 1 October 2001, the court ordered DSS to cease reunification efforts and begin the process of terminating respondent's parental rights to J.J.B., J.U.B. and J.D.B. On 20 December 2001, DSS filed a petition to terminate respondent's parental rights as to J.J.B., J.U.B. and J.D.B. On 14 June 2002, the court entered an order terminating respondent's parental rights. Respondent appeals.
    Respondent argues on appeal: (1) that the order terminating her rights did not contain ultimate findings of fact from the hearing; (2) that the conclusion of abuse and neglect was not supported by sufficient evidence or findings of fact; (3) that the conclusion that respondent willfully left her children in foster care for more than twelve months without making reasonable progress was not supported by sufficient evidence or findings of fact; and (4) that the trial court erred in concluding that terminating respondent's parental rights was in the best interest of the children.
    Respondent argues that the trial court's order terminating her parental rights does not include adequate findings of fact. We agree. Our standard of review of a nonjury trial is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light ofthese facts. Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). “If the court's factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary.” Lagies v. Myers, 142 N.C. App. 239, 246, 542 S.E.2d 336, 341, disc. review denied, 353 N.C. 526, 549 S.E.2d 218 (2001) (citing Newland v. Newland, 129 N.C. App. 418, 420, 498 S.E.2d 855, 857 (1998)).
    The trial court made several findings of fact related to jurisdictional issues and the respondent father, which are not at issue here. The following findings by the trial court pertained to the respondent:
        1. By stipulation of the Petitioner, the Guardian ad Litem and the Respondent Mother, the Court receives and incorporates by reference herein all orders, including the findings of fact, in File Numbers 96 J 148, 150 & 151.

        2. By stipulation of the Petitioner, the Guardian ad Litem and the Respondent Mother, the Court receives and incorporates by reference herein all Court Reports and attachments, including delinquently obtained psychological evaluations, letter from Francine Conyers, and numerous other documents attached as exhibits.

        . . . .

        9. On June 28, 1999, the juveniles were adjudicated abused and neglected juveniles as defined by NCGS 7B-101(1) & (15), in that they received inappropriate discipline to modify their behavior, they did not receive proper care, supervision, and discipline, and they lived in an environment injurious to their welfare while in the care of their mother; that said neglect has continued and there is reason to believe that said neglect would continue in the foreseeable future.
        10. Respondent Mother has willfully left the juveniles 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 twelve (12) months in correcting those conditions that led to the removal of the juveniles.

    The first two findings incorporated by reference all previous court orders, including the findings of fact, and all court reports and attachments. N.C.R. Civ. P. 52 requires that in all actions tried upon the facts without a jury, as was the instant case, “the court shall find the facts specially and state separately its conclusions of law . . . .” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2001). While the documents incorporated are competent evidence to support a finding of fact, merely incorporating the documents by reference is not a sufficient finding of fact. “[A] proper finding of facts requires a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). Findings of fact must show that the trial court has reviewed the evidence presented and through logical reasoning found the facts.
    Findings of fact #9 and #10 are not sufficient to support the conclusions in the order. These are mixed findings of fact and conclusions of law. “The language of Rule 52 is mandatory; in nonjury actions, the trial court shall find the facts specially and state separately its conclusions of law.” Pineda-Lopez v. N.C. Growers Ass'n, 151 N.C. App. 587, 589, 566 S.E.2d 162, 164(2002)(emphasis in original). The trial court did not make adequate findings of fact regarding the current state of respondent's relationship with the children, the likelihood that the neglect would continue or whether the respondent willfully left the children in foster care for more than twelve months without showing reasonable progress under the circumstances. In its order, the trial court instead stated conclusions about these issues without making the appropriate findings. Because the trial court must make appropriate findings of fact before it can conclude that the grounds for termination exist, the findings of fact here are not adequate to support its conclusions.
    We need not discuss respondent's other assignments of error. After careful consideration, we reverse and remand to the trial court for further proceedings consistent with this opinion.
    Reversed and remanded.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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