An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-507
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 7 January 2014


IN THE MATTER OF:

      H.J.A. and T.M.A.                        Mecklenburg County
                                               Nos. 08 J 326
                                                    09 J 368




      Appeal by Respondent-Appellant Mother from orders entered

11 February 2013 by Judge Louis A. Trosch in District Court,

Mecklenburg County.          Heard in the Court of Appeals 10 December

2013.


      Twyla   Hollingsworth-Richardson,  for  Petitioner-Appellee
      Mecklenburg County Department of Social Services, Youth and
      Family Services.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Joyce L. Terres, for Respondent-Appellant Mother.

      Poyner Spruill, LLP, by Kathryn R. Paradise, for Guardian
      ad Litem.


      McGEE, Judge.


      The    trial     court     terminated         the   parental    rights      of

Respondent-Mother          (“Mother”)     to    H.J.A.     and    T.M.A.      (“the

juveniles”)     in    an    order   entered     7    February    2012.      Mother
                                        -2-
appealed the termination order and the permanency planning order

of   6   January    2011,    in   which    the     trial       court    ordered     the

Mecklenburg      County    Department     of   Social      Services      (“DSS”)     to

cease reunification efforts with Mother.                  This Court held that

the findings in the permanency planning order were insufficient

to support the conclusion to cease reunification efforts.                       In re

H.J.A. and T.M.A., ___ N.C. App. ___, ___, 735 S.E.2d 359, 363

(2012).     This Court reversed the permanency planning order and

remanded for additional findings of fact.                Id.

      Because this Court reversed the permanency planning order,

it also reversed the termination of parental rights order.                          “As

we   must   reverse    and    remand     the   order     ceasing       reunification

efforts as to respondent-mother, we must also reverse and remand

the order terminating her parental rights to the juveniles.”

Id. at ___, 735 S.E.2d at 363-64.                This Court did not address

arguments regarding         the termination order.               Id.   at ___, 735

S.E.2d at 364.

      The   trial   court    held   a    hearing    on    17    January      2013   and

entered     an   amended    permanency    planning       order    on    11   February

2013.     The trial court also entered an order in which it found

that additional findings on the termination of parental rights

were unnecessary.          The trial court concluded: “The 7 February
                                       -3-
2012 Termination of Parental Rights order continues to be the

order   of   this    court.”          The    trial    court    incorporated       by

reference the 7 February 2012 termination order and attached a

copy of it to the order. Mother appeals.

 I. Whether the Trial Court Erred in Incorporating By Reference
             the 7 February 2012 Termination Order

    Mother argues the trial court erred by “reaffirming” the 7

February     2012   termination   order       after    it     was    reversed    and

remanded by this Court.        We disagree.

    The trial court’s 11 February 2013 order states:

             Regarding the Termination of Parental Rights
             order of 7 February 2012, the [Court of
             Appeals]   did   not  identify   any   issues
             regarding any of the findings made in that
             order and the court’s ultimate decision to
             terminate [] [M]other’s parental rights.
             This court also notes the Termination of
             Parental Rights hearing was a separate
             action from the Permanency Planning Review
             hearing. Therefore, with no noted issues on
             the merits or any clear direction from the
             [Court of Appeals], this court does not find
             any additional finding to its Termination of
             Parental Rights order are necessary and it
             maintains its decision to terminate the
             parental rights of the respondent parents
             (see the 7 February 2012 Termination of
             Parental    Rights   order    attached    and
             incorporated herein by reference).

    Mother contends that “reverse” is synonymous with “vacate,”

and when an order is reversed, it cannot be “reaffirmed.”                       As a

preliminary    matter,   we    note    that   the     order    the    trial     court
                                          -4-
entered 11 February 2013 did not reaffirm the 7 February 2012

order, but rather incorporated by reference the 7 February 2012

order.      We therefore review whether the trial court erred in

incorporating by reference its 7 February 2012 order.

      Mother cites In re I.B.M., ___ N.C. App. ___, 731 S.E.2d

444, 446, disc. review denied, 366 N.C. 400, 735 S.E.2d 191

(2012)     (“I.B.M.    III”),     in    which   the    Property      Tax    Commission

noted that it was bound by the “law of the case” as to certain

findings.        This     Court        speculated     that     the    Property      Tax

Commission may have “construed the fact that IBM I used the term

‘vacate’ and that IBM II used the word ‘reverse’ as creating

some sort of meaningful difference in the portions of its final

decision approved or disapproved by this Court.”                           I.B.M. III,

___ N.C. App. at ___, 731 S.E.2d at 448.                    This Court stated: “As

a    practical      matter,   the      terms    ‘vacate’      and    ‘reverse’      are

synonymous as used in most cases.”                   Id. at ___, 731 S.E.2d at

449 (emphasis added).           The portion of I.B.M. III Mother quoted

in   her    brief    is   dicta     because     it    was    “unnecessary      to   the

resolution of the case.”               Durham Hosiery Mill Ltd. Partnership

v. Morris, ___ N.C. App. ___, ___, 720 S.E.2d 426, 429 (2011).

“Language in an opinion not necessary to the decision is obiter

dictum and later decisions are not bound thereby.”                    Id.
                                        -5-
    Mother also cites In re A.R.P., ___ N.C. App. ___, 721

S.E.2d    725,    727-28     (2012),    in    which    the    trial    court        made

“neither a conclusion of law that respondent’s parental rights

should be terminated nor a conclusion that termination is in the

best interest of the children.”               This Court reversed the trial

court’s termination order because “we have no complete order

addressing all of the facts and substantive issues.”                              Id. at

___, 721 S.E.2d at 728.             “Essentially, the trial court’s order

is asking us to piece together a complete order                        terminating

respondent’s parental rights from” a reversed order, a second

order addressing only willfulness, and a transcript not included

in the record.      Id.

    Even       assuming     arguendo,    without      deciding,      that    reversal

renders an order void, Mother cites no case holding that, on

remand,    the    trial     court    cannot    incorporate      by    reference        a

previously reversed order.             This Court in In re A.R.P. did not

reverse because the trial court incorporated a reversed order.

Rather,   we     reversed    because    there   was     no   complete       order     to

review.     Id.      By     contrast,    in   the   present    case,        the    trial

court’s   11     February    2013    order    contained      findings       of     fact,

conclusions of law, and incorporated its 7 February 2012 order

by reference.       We therefore have before us a “complete order
                                              -6-
addressing      all       of   the   facts     and    substantive     issues.”         Id.

Mother has not shown error on this basis.

        II. Whether Mandate Required a New Petition or Trial

       Mother also argues that “when the entire termination of

parental rights order was reversed, the case returned to the

same status as before the termination trial occurred” and a new

petition and trial were required.                   We disagree.

       When a case has been remanded from this Court, the general

rule   is     that    a    trial     court    “must    follow   the   mandate     of    an

appellate court in a case without variation or departure.”                             In

re R.A.H., 182 N.C. App. 52, 57, 641 S.E.2d 404, 407 (2007).                            In

the present case, the trial court followed this Court’s mandate

without variation or departure.

       This    Court       instructed        the     trial   court    only   to     make

additional findings of fact in the reunification order.                           We did

not suggest that a new petition and trial were required.                            This

Court’s opinion gave a discrete set of instructions.                         We noted

“there was sufficient evidence in the record to support proper

findings as to [the conclusion on reunification,] and it appears

from the trial judge’s statements at the hearing that he meant

to make these findings.”              In re H.J.A. and T.M.A., ___ N.C. App.

at ___, 735 S.E.2d at 363.                   Further delay of the resolution of
                                        -7-
this case is not necessary.                While the most cautious practice

may   be   to   enter   a   new    order    terminating   parental     rights   on

remand, Mother has not shown error on this basis.

                III. Grounds to Terminate Parental Rights

      Mother argues “the trial court erred by concluding that

grounds exist to terminate Mother’s parental rights pursuant to

N.C. Gen. Stat. § 7B-1111(a)(3)” (2011).               We disagree.

                            A. Standard of Review

      We review an adjudication order to determine “(1) whether

the   findings    of    fact   are   supported    by    clear    and   convincing

evidence, and (2) whether the legal conclusions are supported by

the findings of fact.”            In re A.R., ___ N.C. App. ___, ___, 742

S.E.2d 629, 631 (2013).            “If such evidence exists, the findings

of the trial court are binding on appeal, even if the evidence

would support a finding to the contrary.”                  Id.     “Findings of

fact are also binding if they are not challenged on appeal.”

Id.

                                      B. Rule

      The trial court may terminate parental rights upon finding

that:

            The juvenile has been placed in the custody
            of    a   county   department   of   social
            services . . . for a continuous period of
            six months next preceding the filing of the
                                           -8-
              petition or motion, has willfully failed for
              such period to pay a reasonable portion of
              the cost of care for the juvenile although
              physically and financially able to do so.

N.C.   Gen.     Stat.   § 7B-1111(a)(3)          (2011).      “A    finding    that    a

parent has ability to pay support is essential to termination

for nonsupport on this ground.”                  In re Ballard, 311 N.C. 708,

716-17,    319   S.E.2d    227,      233   (1984).         Mother    challenges      the

following finding as unsupported by evidence: “[Mother] had the

ability    to    pay    some   amount      greater    than     zero      towards     the

juveniles’ care.”         Mother points to a social worker’s testimony

that Mother’s expenses exceeded her income.

       However, Mother was employed at a restaurant from February

2011 to July 2011.         From her income at that restaurant, she was

able to pay rent for her apartment.                   About a week before the

hearing,    Mother      left   the   restaurant      to    work     at   a   fast   food

restaurant to earn more money.               Mother testified that she pays

her rent without assistance.                She also pays for gas, lights,

food costs, phone, and lawn mowing bills.                    She pays a neighbor

for transportation to work.                 Mother also testified that her

boyfriend has given her money in the past.                    When asked whether

she provided any money to DSS to assist in the care of the

juveniles, Mother answered that no one asked her to provide

funds.     She further answered that she could buy clothes for one
                                   -9-
of the juveniles, but she would never see the juvenile wearing

those clothes.

    The finding that Mother had the ability to pay some amount

greater than zero toward the juveniles’ care was supported by

clear and convincing evidence in the record.               Even though there

may be evidence in the record to support a contrary finding, the

trial   court’s   finding   remains    binding     on   appeal   when   it    is

supported by competent evidence.         In re A.R., ___ N.C. App. at

___, 742 S.E.2d at 631.

    Mother    further   contends      that   the   trial    “court   did     not

specifically find that any failure to pay on [Mother’s] part was

done willfully.”     Mother cites In re Maynor, 38 N.C. App. 724,

248 S.E.2d 875 (1978), for support of her argument.                  However,

the trial court labeled as a conclusion of law the following

statement:

           That pursuant to N.C.G.S. § 7B-1111(a)(3),
           the juveniles ha[ve] been placed in the
           custody of [DSS], and the respondent parents
           for a continuous period of six months next
           preceding the filing of the Petition to
           Terminate Parental Rights, have willfully
           failed for such period to pay a reasonable
           portion of the cost of care for the
           juveniles     although     physically    and
           financially able to do so.

    Willfulness in failing to pay a reasonable portion of the

cost of care constitutes a finding of fact.                 In re Huff, 140
                                      -10-
N.C. App. 288, 292, 536 S.E.2d 838, 841 (2000) (characterizing

failure to pay a reasonable portion of the cost of care as a

finding of fact); see also In re M.R.D.C., 166 N.C. App. 693,

697, 603 S.E.2d 890, 892-93 (2004) (“Facts are things in space

and time that can be objectively ascertained by one or more of

the five senses or by mathematical calculation.”).                  The trial

court’s designation of the willfulness of Mother’s failure to

pay as a conclusion of law, rather than a finding of fact, is

not binding on this Court.        In re Hogan, 32 N.C. App. 429, 433,

232   S.E.2d    492,   494   (1977)   (“We    will   ignore   the   incorrect

designation[.]”).       Mother has not shown the trial court erred on

this basis because the trial court did make a finding as to

Mother’s willfulness.

      Because    we    affirm   the   trial   court’s   order   terminating

Mother’s parental rights on the ground stated in N.C.G.S. § 7B-

1111(a)(3), we need not address Mother’s arguments concerning

other grounds for termination of parental rights.             In re T.D.P.,

164 N.C. App. 287, 291, 595 S.E.2d 735, 738 (2004).

      Affirmed.

      Judges McCULLOUGH and DILLON concur.

      Report per Rule 30(e).
