                  IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA15-910

                                      Filed: 19 January 2016

Mecklenburg County, No. 10-JA-548 and 549

IN THE MATTER OF:

A.B.

J.B.

       Appeal by respondent from order entered 5 June 2015 by Judge Elizabeth

Trosch in District Court, Mecklenburg County. Heard in the Court of Appeals 17

December 2015.


       Mecklenburg County Department of Social Services, Youth and Family
       Services, by Senior Associate County Attorney Kathleen Arundell Jackson, for
       petitioner-appellee.

       Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant.

       Michael N. Tousey, for guardian ad litem.


       STROUD, Judge.


       Respondent-mother appeals order terminating her parental rights to her

children, Jacob and Alexis.1 For the following reasons, we affirm.

                                            I.      Background




       1   Pseudonyms are used to protect the identity of the minors involved.
                                  IN RE: A.B. & J.B.

                                  Opinion of the Court



      On 3 February 2015, this Court issued the opinion, In re A.B., ___ N.C. App.

___, 768 S.E.2d 573 (2015) (“AB I”). We summarized the history of the case in our

prior opinion:

                    The Mecklenburg County Department of Social
             Services, Youth and Family Services (“DSS”) initiated the
             underlying juvenile case by filing a petition on 8 September
             2010, alleging the juveniles were neglected and dependent.
             DSS asserted that respondent had an extensive history of
             taking Jacob to the emergency room for unnecessary
             treatment and that she was beginning to show a similar
             pattern with Alexis. DSS further stated that Alexis had
             recently been hospitalized because she had consumed some
             of Jacob’s seizure medicine, suggesting that respondent
             had given the medicine to Alexis. Additionally, DSS
             reported that respondent was overwhelmed and overly
             stressed from parenting the juveniles, missed numerous
             appointments to address Jacob’s behavioral issues, was
             unemployed and struggled financially, and had difficulty
             following doctors’ instructions when providing routine
             treatments to the children at home. DSS took non-secure
             custody of the juveniles that same day.
                    On or about 5 November 2010, DSS entered into a
             mediated agreement with respondent, establishing a case
             plan for reunification with the juveniles. Respondent’s
             case plan required her to: (1) continue participating in an
             anger management program and demonstrate the skills
             learned; (2) complete parenting classes and demonstrate
             the skills learned; (3) maintain legal and stable
             employment providing sufficient income to meet the
             juveniles’ basic needs; (4) maintain an appropriate, safe,
             and stable home for herself and the juveniles; (5) maintain
             weekly contact with her social worker; (6) cooperate with
             the guardian ad litem; and (7) attend the juveniles’ medical
             and therapy appointments when able to do so. DSS and
             respondent also agreed to supervised visitation with the
             juveniles three times per week and a tentative holiday
             visitation plan.


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                     Opinion of the Court



       After hearings on or about 7 January and 17
February 2011, the trial court entered an adjudication and
disposition order holding that Alexis and Jacob were
neglected juveniles. The court adopted concurrent goals of
reunification and guardianship and set forth a case plan
for respondent. The trial court adopted the mediated case
plan developed by the parties and specifically directed
respondent to undergo a complete psychological
evaluation, obtain a domestic violence evaluation, and
participate in counseling services or therapy.
       DSS worked towards reunification of the juveniles
with respondent, but in review and permanency planning
orders entered 13 May and 31 August 2011, the trial court
found respondent needed to further address her mental
health and anger management problems. In a permanency
planning order entered 19 January 2012, the court found
that respondent had made some positive changes in that
she was managing her anger, was “emotionally balanced”
around the juveniles, and had realized that she needed
“batterer’s intervention treatment.” But the court found
that respondent still needed to complete her parenting
capacity evaluation, show she could manage her mental
health problems, and complete her domestic violence
program. The court further found that there were no likely
prospects for guardianship or permanent custody of the
juveniles and set the permanent plan for the juveniles as
reunification or adoption.
       On 25 April 2012, the trial court entered a
permanency planning order that ceased further efforts
towards reunification of the juveniles with respondent,
concluding respondent had failed to alleviate the
conditions that caused the juveniles to be placed in the care
and custody of DSS. The court directed that a Child Family
Team (“CFT”) meeting be held within thirty days of the
order to develop recommendations for a permanent
placement for the juveniles, and that DSS refrain from
moving to terminate respondent’s parental rights until
after the court received the recommendations from the
CFT. The trial court entered an order on 27 June 2012,
directing DSS to proceed with an action terminating


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                      Opinion of the Court



respondent’s parental rights to the juveniles.
       DSS filed petitions to terminate respondent’s
parental rights to the juveniles on 25 July 2012. DSS
alleged grounds existed to terminate respondent’s parental
rights based on neglect, abandonment, failure to make
reasonable progress to correct the conditions that led to the
juveniles’ removal from her care and custody, and willful
failure to pay a reasonable portion of the cost of care for the
juveniles while they were placed outside of her home. See
N.C. Gen. Stat. § 7B–1111(a)(1)–(3), (7) (2013). The trial
court heard the petitions on 25 March and 11 April 2013.
At the conclusion of the hearing, the court found one
ground to terminate respondent’s parental rights: failure
to make reasonable progress to correct the conditions that
led to the juveniles’ removal from her care and custody.
However, the court concluded that terminating
respondent’s parental rights was not in the best interests
of the juveniles and directed respondent’s counsel to
prepare a proposed order for the court and circulate the
order to all parties.
       On 23 September 2013, before the trial court had
entered an order on the termination petitions, DSS filed a
“Motion for Relief from Order and Motion to Consider
Additional Evidence” pursuant to North Carolina Rule of
Civil Procedure 60. See id. § 1A–1, Rule 60 (2013). DSS
asked that the trial court reconsider its best interests
conclusion based on allegations that respondent had misled
the court by providing inaccurate information and
testimony at the termination hearing, and that she had
failed to comply with her case plan since the termination
hearing. The trial court allowed the motion and held an
additional hearing on 1 October and 4 November 2013 in
which it allowed DSS to present additional dispositional
evidence as to the best interests of the juveniles.
       By order entered 27 January 2014, the trial court
terminated respondent’s parental rights to the juveniles.
The Court found that respondent had failed to make
reasonable progress to correct the conditions that led to the
juveniles’ removal from her care and custody, and
concluded that it was in the juveniles’ best interests to


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                                    Opinion of the Court



             terminate her parental rights. Respondent filed timely
             notice of appeal.

AB I, ___ N.C. App. at ___, 768 S.E.2d at 574-75.

      In AB I, this Court addressed the issues on appeal primarily stemming from

inconsistences in the order terminating respondent’s parental rights. See id. at ___,

768 S.E.2d at 576-81. Ultimately this Court determined that

                    [t]he contradictory nature of the trial court’s
             findings of fact and conclusions of law prohibit this Court
             from adequately determining if they support the court’s
             conclusions of law that (1) respondent failed to make
             reasonable progress toward correcting the conditions that
             led to the removal of the juveniles from her care and
             custody, and (2) terminating respondent’s parental rights
             is in the juveniles’ best interests. Accordingly, we reverse
             the termination order and remand to the trial court for
             entry of a new order clarifying its findings of fact and
             conclusions of law.

Id. at ___, 768 S.E.2d at 581-82.

      On 5 June 2015, upon remand from this Court, the trial court entered an order

terminating respondent’s parental rights based upon North Carolina General Statute

§ 7B-1111(a)(2) for “willfully [leaving] the juvenile[s] in foster care or placement

outside of 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.” N.C. Gen. Stat. § 7B-1111(a)(2)

(2013). Respondent appeals.

                              II.     Standard of Review


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                                       Opinion of the Court



                     Termination of parental rights proceedings are
              conducted in two stages: adjudication and disposition. In
              the adjudication stage, the trial court must determine
              whether there exists one or more grounds for termination
              of parental rights under N.C. Gen. Stat. § 7B–1111(a). This
              Court reviews a trial court’s conclusion that grounds exist
              to terminate parental rights to determine whether clear,
              cogent, and convincing evidence exists to support the
              court’s findings of fact, and whether the findings of fact
              support the court’s conclusions of law. If the trial court’s
              findings of fact are supported by ample, competent
              evidence, they are binding on appeal, even though there
              may be evidence to the contrary. However, the trial court’s
              conclusions of law are fully reviewable de novo by the
              appellate court.
                     If the trial court determines that at least one ground
              for termination exists, it then proceeds to the disposition
              stage where it must determine whether terminating the
              rights of the parent is in the best interest of the child, in
              accordance with N.C. Gen. Stat. § 7B–1110(a). The trial
              court’s determination of the child’s best interests is
              reviewed only for an abuse of discretion. Abuse of
              discretion results where the court’s ruling is manifestly
              unsupported by reason or is so arbitrary that it could not
              have been the result of a reasoned decision.

AB I, ___ at ___, 768 S.E.2d at 575-76 (citations, quotation marks, and brackets

omitted).


                                III.      Standard of Proof

       Respondent first contends that “the trial court stated a standard of proof for

only one finding[,] (original in all caps), but “[a]ll [a]djudicatory [f]indings [m]ust [b]e

[b]y [c]lear [a]nd [c]onvincing [e]vidence.” (Emphasis added.) Respondent argues that

the trial court’s failure to affirmatively state in the order that all of the findings of


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                                  Opinion of the Court



fact, not just finding of fact 13, were made pursuant to the proper standard of proof

was erroneous. We agree that all findings of fact must be supported by clear, cogent,

and convincing evidence. See N.C. Gen. Stat. § 7B-1109 (2013) (“[A]ll findings of fact

shall be based on clear, cogent, and convincing evidence.”)

      Just as respondent noted, finding of fact 13 recites the appropriate standard.

Finding of fact 13 provides “[t]hat the Department of Social Services has substantially

proven the facts that were alleged in paragraphs a-k of the termination of parental

rights petition by clear, cogent and convincing evidence.” Furthermore, the order

does not mention any different standard of proof than as stated in finding of fact 13.

Lastly, the trial court stated in its rendition before entry of the first order, “Well,

having announced findings previously of facts established by clear, cogent, and

convincing evidence that there are grounds to terminate the parental rights of the

Respondent-Mother for failing to make reasonable progress under the circumstances,

to ameliorate the conditions that brought the children into custody . . . .” No new

evidence was taken upon remand, and thus there is no reason to conclude that the

trial court used the wrong standard of proof in the current order. This Court has

previously determined that

             [a]lthough the trial court should have stated in its written
             termination order that it utilized the standard of proof
             specified in N.C. Gen. Stat. § 7B–1109(f), the fact that the
             trial court orally indicated that it employed the appropriate
             standard and the fact that the language actually used by
             the trial court is reasonably close to the wording that the


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                                        Opinion of the Court



               trial court should have employed satisfies us that the trial
               court did, in fact, make its factual findings on the basis of
               the correct legal standard.

In re M.D., 200 N.C. App. 35, 39, 682 S.E.2d 780, 783 (2009) (emphasis added).

       Therefore, while we agree it would have been preferable for the trial court to

plainly state its standard of proof for all of the findings of fact, based upon the

language in finding of fact 13, the lack of evidence of an erroneous standard, and the

oral rendition stating the appropriate standard, we conclude that the trial court used

the correct standard of proof. This argument is overruled.

                                  IV.      Finding of Fact 13

       Respondent next makes four arguments regarding finding of fact 13. Again,

finding of fact 13 states “[t]hat the Department of Social Services has substantially

proven the facts that were alleged in paragraphs a-k of the termination of parental

rights petition by clear, cogent and convincing evidence.” Respondent first contends

that paragraphs a-k2 in the petition to terminate are allegations regarding the ground

of neglect and because the trial court failed to find neglect as a basis for termination,

it was inconsistent to find the facts supporting neglect by reference to the petition.

       Indeed, just as respondent argues, subparagraphs a-k of paragraph 6, allege

“[t]hat the respondent parents have neglected the said juvenile as defined in G.S.

Section 7B-101(15) in that the respondent parents have failed to provide proper care,


       2  It appears that paragraphs a-k are actually subparagraphs of paragraph 6 of the petition,
since only one paragraph of the petition has subparagraphs a-k.

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                                  Opinion of the Court



supervision, and discipline for said juvenile and have abandoned said juvenile. . . .”

Yet when we consider the substance of subparagraphs a-k, they are actually

providing a general background of the case, which would be applicable no matter the

ground for termination. Subparagraphs a, b, e, and k address the procedural history

including the reasons for the initial petition and some prior determinations made by

the trial court. Subparagraphs c and d are regarding one of the children’s putative

fathers. Subparagraph f summarizes respondent’s case plan. Subparagraphs g-h

note respondent’s inconsistency in completing her case plan and complying with a

prior court order. Subparagraph i addresses respondent’s compliance with her case

plan such as completing a parenting class and regularly visiting the children, and

subparagraph j is regarding respondent’s lack of employment. Therefore, the trial

court could properly rely upon these allegations for determinations other than finding

the ground of neglect, since they also provide a relevant background for considering

the ground for termination the trial court did find, failure to make reasonable

progress. This argument is overruled.

      Heavily relying upon In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004),

respondent also contends that the trial court should not have wholesale adopted

subparagraphs a-k but instead should have made its own independent determination.

             While petitioner is correct that there is no specific
             statutory criteria which must be stated in the findings of
             fact or conclusions of law, the trial court’s findings must
             consist of more than a recitation of the allegations. In all


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             actions tried upon the facts without a jury the court shall
             find the facts specifically and state separately its
             conclusions of law thereon.

Id. at 702, 596 S.E.2d at 853 (citations, quotation marks, and ellipses omitted)).

      But this Court has recently noted that it is not necessarily error

             for a trial court’s findings of fact to mirror the wording of a
             party’s pleading. It is a longstanding tradition in this State
             for trial judges to rely upon counsel to assist in order
             preparation. It is no surprise that parties preparing
             proposed orders might borrow wording from their earlier
             submissions. We will not impose on our colleagues in the
             trial division an obligation to comb through those proposed
             orders to eliminate unoriginal prose.

In re J.W., ___ N.C. App. ___, ___, 772 S.E.2d 249, 251, disc. review denied, ___ N.C.

___, 776 S.E.2d 202 (2015) (citation and quotation marks omitted).

      Upon our examination of the entire record and transcripts, we have been able

to determine that the trial court did go through the evidence thoughtfully and did not

just accept the petition’s allegations. As we noted when this same case was before

us previously,

              [w]e also understand that the initial drafts of most court
              orders in cases in which the parties are represented by
              counsel are drafted by counsel for a party. Unfortunately,
              in North Carolina, the majority of District Court judges
              have little or no support staff to assist with order
              preparation, so the judges have no choice but to rely upon
              counsel to assist in order preparation.
A.B. I, ___ N.C. App. at ___, 768 S.E.2d at 579. But the trial court is still ultimately

responsible for the contents of the order:



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                                  Opinion of the Court



                    We again caution the trial court that its order, upon
             which the trial judge’s signature appears and which we
             review, must reflect an adjudication, not mere one-sided
             recitations of allegations presented at the hearing. In re
             J.W., ___ N.C. App. ___, ___, 772 S.E.2d 249, 251 (2015)
             (“[W]e will examine whether the record of the proceedings
             demonstrates that the trial court, through the processes of
             legal reasoning, based on the evidentiary facts before it,
             found the ultimate facts necessary to dispose of the case.”).

In re M.K. (I), ___ N.C. App. ___, ___, 773 S.E.2d 535, 538-39 (2015).

      Although finding of fact 13 certainly includes some “unoriginal prose[,]” id., the

trial court made 70 findings of fact. The trial court referred to the allegations from

DSS’s petitions by reference to subparagraphs a-k in one of seventy findings, so it is

clear that the trial court made an independent determination of the facts and did

“more” than merely “recit[e] the allegations.” In re O.W., 164 N.C. App. at 702, 596

S.E.2d at 853.   This argument is overruled.

      Respondent then argues that various small portions of subparagraphs a-k were

not supported by the evidence. But not even respondent contends that these portions

of subparagraphs a-k were essential to the determination made by the trial court to

terminate. Instead, respondent argues the allegations of paragraphs “a-k of the

termination petition were not supported by clear and convincing evidence. They

cannot be used to support termination grounds.” Rather than engage in a lengthy

discussion of each and every contested background fact in subparagraphs a-k, which

are adopted by Finding of Fact 13, we will agree, arguendo, with respondent that



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                                   Opinion of the Court



finding of fact 13 alone would not be sufficient to support a ground for termination.

But there are still 69 unchallenged findings of fact which could support the ground

for termination.

      Lastly, respondent contends that due to the numerous issues with finding of

fact 13 and because it cannot be used to support the ground for termination, “the

ground must be reversed.” We disagree, since approximately 98.5% of the trial court’s

findings of fact are unchallenged and therefore binding on appeal. See generally In

re J.K.C., 218 N.C. App. 22, 26, 721 S.E.2d 264, 268 (2012) (“The trial court’s

remaining unchallenged findings of fact are presumed to be supported by competent

evidence and binding on appeal.”) Thus even if we completely disregard finding of

fact 13 as respondent requests, the other unchallenged findings of fact may support

the trial court’s determination. This argument is overruled.

                          V.    Changes in Order on Appeal

      Respondent argues that the trial court’s findings of fact and conclusions of law

in the order on appeal must be consistent with any prior orders and oral renditions.

Respondent raises essentially two arguments: (1) the trial court’s order on remand

from this Court contradicts the oral rendition at the initial hearing and the first order

which ultimately resulted from that rendition, and (2) “[t]he [t]rial [c]ourt [e]xceeded

[t]he [s]cope [o]f [t]he [r]emand [o]rder.” We address both arguments in turn.

      Respondent argues that the trial court’s second order, currently on appeal,



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contradicts both the oral rendition after the initial hearing and the first order which

was entered after that rendition. But respondent’s argument fails to acknowledge

that the second order was the result of this Court’s remand and specific direction to

the trial court to make its order internally consistent:

                    If the only problem in the order was one poorly
              worded conclusion of law, we might be able to determine
              that this conclusion of law contains a clerical error that
              could be remedied by a direction to correct it on remand.
              But the internal inconsistencies of the order go far beyond
              one sentence. As noted above, there are contradictory
              findings as to respondent’s mental health care and her
              domestic violence issues[, and] contradiction[s] to its
              ultimate conclusions regarding grounds for termination
              and the juveniles’ best interests . . . .

See AB I, ___ N.C. App. ___, 768 S.E.2d at 579. The only possible way for the trial

court to make a consistent order would naturally require some findings

“contradicting” the oral rendition and the first order which resulted in the remand in

the first place. The order had to clear up the internal contradictions from the prior

order, and this would logically require leaving out some of the findings which the trial

court presumably did not intend to include in the prior order, but, thanks to errors in

drafting as noted in our first opinion, ended up in the prior order. See id. As this

argument ignores the procedural posture of this case, we find it to be without merit.

       Respondent next contends that “this Court instructed the trial court to enter

‘a new order clarifying its findings of fact and conclusions of law[,]’” and the trial court

went far beyond clarification. Respondent specifically directs us to two findings of


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                                   Opinion of the Court



fact that were so changed upon appeal they went far beyond “clarification,” but

respondent’s argument does not address the sufficiency of the evidence to support the

findings but only the fact that the findings in the first order were different than those

in the second. When the word “clarifying” is read within the entire context of AB I,

it is evident that this Court remanded this case for the trial court to make whatever

changes necessary to have an internally consistent order. The trial court needed to

make the findings which the trial court, in its role as fact-finder and judge of

credibility of the evidence, determined were supported by the evidence. See AB I, ___

N.C. App. ___, 768 S.E.2d 573, 575-82. The first order contained findings of fact that

did not logically support the conclusions of law. See id. at ___, 768 S.E.2d at 579.

Furthermore, the conclusions of law were inconsistent with one another. See id. This

Court remanded the order for the trial court to draft a consistent order, see id., ___

N.C. App. ___, ___, 768 S.E.2d at 579-82, which would necessarily require significant

changes from the first inconsistent order. Respondent notes that “[c]larify means ‘to

make (something) easier to understand’” and that is exactly what this Court

requested, an order that was internally consistent and thus reviewable. We would

have hoped, given this instruction in our prior opinion, that the new order now on

appeal would have been more carefully drafted, but respondent has not argued that

the changed facts are not supported by evidence, and thus this argument is overruled.

                        VI.    Contradictory Findings of Fact



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        Respondent next contends that “the trial court retained most of its

contradictory findings from the prior order.” (Original in all caps.) Again, we turn to

AB I:

                     It is not unusual for an order terminating parental
              rights to include both favorable and unfavorable findings
              of fact regarding a parent’s efforts to be reunited with a
              child, and the trial court then weighs all the findings of fact
              and makes a conclusion of law based upon the findings to
              which it gives the most weight and importance.

Id. at ___, 768 S.E.2d at 578. Thus, “contradictory” findings of fact are “not unusual”

in a termination order because in many cases parents take many positive steps along

with many negative ones. Almost always, the parent will present evidence of her

progress and improvement, and in many cases, she has actually made some progress.

Likewise, the petitioner will present evidence regarding the parent’s failures and

omissions. The trial court’s role is to determine the credibility of all of this evidence

and to weigh all of it and then to make its findings of fact accordingly. Although the

evidence will be inconsistent, the trial court’s ultimate order must be consistent in its

findings of fact such that they will support its conclusions of law to come to an

ultimate determination. See id.

        While respondent directs our attention to numerous “inconsistent” findings of

fact and argues regarding various changes between the first order and the one

currently on appeal, respondent does not actually challenge the sufficiency of the

evidence to support the findings of fact nor does respondent make an argument that


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the findings of fact as currently drafted fail to support the determination that

respondent failed to make reasonable progress. North Carolina General Statute §

7B-1111(a)(2) provides that a court may terminate one’s parental rights when “[t]he

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.        N.C. Gen. Stat. § 7B-1111(a)(2) (2013).

“[W]illfulness is not precluded just because respondent has made some efforts to

regain custody of the child.” In re D.H.H., 208 N.C. App. 549, 553, 703 S.E.2d 803,

806 (2010) (citation and quotation marks omitted).

      Although the trial court’s findings did note respondent’s desire to keep her

children and her attempts to correct conditions which led to her children’s removal,

the trial court also found:

             10.    The Court identified the primary issues Ms. [Smith]
                    was facing at the time of the children’s removal to be
                    issues of Mental Health. The goals for the mother
                    have been developing the capacity, skills and
                    cultivating the support necessary to manage
                    aggression and anger and conflict in a way that did
                    not result in aggressive outbursts that impacted the
                    emotional and physical well-being of the children.

             11.    That over the course of time the issues of domestic
                    violence with the mother as a primary aggressor
                    became apparent. After the birth of . . . [Kyle] . . .
                    these issues were required by the Court to be
                    addressed during the time that the children had


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       been in custody prior to filing the termination
       petitions.
....

15.    That . . . [although respondent] has cooperated and
       began outpatient psycho-therapy with Linda
       Avery[,] . . . Ms. [Smith] was not completely
       forthcoming about the circumstances that brought
       the children into custody or the issues of violence in
       her relationships . . . and that Ms. Avery concluded
       that Ms. [Smith] had not made discernible progress
       in achieving goals that they had set for treatment.

16.    . . . . despite [her positive desire], the mother
       voluntarily withdrew herself from services with Ms.
       Linda Avery contrary to clinical recommendations.
       Failure to provide complete and honest information
       about the injuries sustained by [Alexis] to the
       clinician in addition to failure to provide honest
       information about the persistence of violence in her
       relationships, resulted in a treatment plan that was
       inadequate to assist Ms. [Smith] [in] alleviat[ing]
       the conditions of mental illness and aggressive
       outbursts, ultimately undermining the efficacy and
       progress of treatment. Ms. [Smith]’s failure to
       participate consistently in sessions with Ms. Avery
       further impeded progress in treatment goals.

....

24.    Initially, Ms. [Smith] was not forthcoming about
       issues of Domestic Violence. . . . After Ms. [Smith]
       had been properly assessed and screened for the
       issues of domestic violence, she was found to be a
       predominant aggressor who was not appropriate for
       victim services, but could benefit from batter[er]’s
       intervention treatment program and was referred to
       NOVA, a state certified batter[er]’s intervention
       program[.]



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25.    That the mother began NOVA treatment on three (3)
       separate occasions prior to November 2012 and that
       she was unsuccessfully discharged and terminated
       in January 2012, May 2012 and September 2012 due
       to excessive absences.

26.    That the mother has been actively engaged in NOVA
       services since November 2012 . . . .

27.    That Tim Bradley of NOVA is not providing direct
       counseling to Ms. [Smith] . . ., but has had
       interactions with . . . [her] in his capacity as case
       manager. In Mr. Bradley’s opinion Ms. [Smith] has
       not developed enough relationship skills to be in an
       intimate partner relationship with Mr. [Jones] . . . .

....

35.    Ms. [Smith] was the person responsible for the
       neglect that the Court found at adjudication in the
       underlying proceedings and has willfully left [Jacob]
       and [Alexis] . . . in foster care for twelve (12) months
       without showing to the satisfaction of the Court that
       reasonable progress has been made in alleviating
       the conditions that brought her children into the
       custody of the Department of Social Services. These
       children have been in custody and in various
       placements for over two years solely because the
       mother, throughout that time, engaged in a pattern
       of self-defeating cycles of dishonesty with therapists,
       social services professionals, the court and herself.
       Reunification could not be achieved over that two
       year period because Ms. [Smith] continued to engage
       in a pattern of violence with her paramours, family
       members and caretakers to her children. These
       children were willfully left in foster care for nearly
       two years as Ms. [Smith] attempted to conceal
       unfavorable information from the Court and avoid
       taking any productive, consistent, and relevant
       action to alleviate the conditions that brought the


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       children into custody.

....

38.    Through the majority of time that these children
       have been in custody, . . . [respondent] has engaged
       in a pattern of short progress followed by long
       periods of regression in mental health and anger
       management. . . .

39.    That . . . [respondent] is not currently able to provide
       for the basic shelter and the children are in need of
       permanency[.]

....

41.    That when . . . Ms. [Smith] first gave testimony at
       the termination proceedings on 25 March and 11
       April 2013, she denied that she had an intimate
       partner and specifically denied being in a
       relationship with [Mr. Jones] in early 2013. Ms.
       [Smith] testified at that time that she had not been
       in an intimate partner relationship with him in the
       past four or five months.

42.    The respondent-mother has impeached herself,
       stating not only that they had been in a voluntary
       intimate relationship, but that they were
       cohabitating from February 2013 until sometime
       early in July 2013.

43.    That since 11 April 2013 there were four 911 calls
       for service involving domestic disputes between Mr.
       [Jones] and Ms. [Smith].

44.    That Ms. [Smith] was the primary aggressor in each
       of those events.

....



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46.   That police responded to Mr. [Jones’] residence, but
      Ms. [Smith] substantially minimized the nature of
      the conflict and denied telling law enforcement that
      she had lived at that residence.

47.   That Ms. [Smith] denied to Ms. Mitchell that she
      was living at Mr. [Jones’] residence at any point
      immediately prior to the police response on 25 July
      2013.

48.   That only when confronted with collateral
      information from Charlotte-Mecklenburg Police
      reports did Ms. [Smith] acknowledge the significant
      aspects of those conflicts including that she was
      throwing the personal property of Mr. [Jones] from
      the balcony of Mr. [Jones’] residence . . . .

49.   That during Ms. [Smith]’s third enrollment in
      batterer intervention classes with NOVA over the
      period of January through July 2013, the
      respondent-mother did not disclose the nature of her
      relationship with Mr. [Jones] or that they were
      cohabitating.

50.   That the respondent-mother did not disclose all of
      the altercations that occurred between the two of
      them, but that during her recent participation in
      NOVA, Mr. Tim Bradley observed Ms. [Smith] to be
      defensive and to demonstrate no insight in the
      conduct that occurred on 7 April 2013, 25 July 2013,
      1 August 2013, and 22 August 2013.

51.   That Mr. Bradley received documentation and
      explanation about one of the respondent-mother’s
      absences as the result of an illness requiring medical
      attention. Ms. [Smith] failed [to] justify her other
      absences and for the third time she was terminated
      from NOVA for excessive absences.

52.   That Ms. [Smith] had not benefited from the


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                    Opinion of the Court



      information provided in NOVA in the cumulative 21
      sessions attended in the three opportunities she had
      to complete batterer intervention treatment.

53.   That Ms. [Smith] continues to require therapy to
      address causes of her aggressive conduct.

54.   That even today Ms. [Smith] minimizes the
      significance of her outbursts on those four known
      occasions for which law enforcement was called to
      respond to domestic disturbances in 2013 between
      Ms. [Smith] and Mr. [Jones].

55.   That Ms. [Smith] was provided with referrals to at
      least two other programs to address her need for
      batterer intervention and that despite her ability
      since receiving those referrals and reports prior to
      today, she has failed to enroll in such a program and
      take reasonable steps to address the issues of
      domestic violence.

56.   That the respondent-mother had not been entirely
      forthcoming with Mr. McQuiston regarding events
      that had caused her children to come into custody
      during their sessions. She had not informed him of
      her participation in batterer intervention treatment
      and collateral information subsequently provided to
      him in the form of Dr. Bridgewater’s evaluation. The
      failure of the respondent-mother to provide
      information impacted Mr. McQuiston’s ability to
      develop appropriate treatment goals to assist Ms.
      [Smith] in addressing what he described as self-
      defeating cycles of the destructive use of anger.

57.   The Court is not convinced that the respondent-
      mother is providing him with the information that
      he would need to provide her with meaningful
      assistance to address the conditions of domestic
      violence and increasing her capacity to manage her
      anger in a way that would be necessary to [e]nsure


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       or build her capacity to safely and effectively parent
       her children.

58.    That despite the respondent-mother having
       reported to her clinicians and to the Court she
       received substantial benefit in stabilizing her mood
       while complying with prescription psychotropic
       medications, she has for at least the second time
       ceased compliance with her prescribed psychotropic
       medications without the consultation or input from
       her psychiatrist, therapist, or psychologists.

59.    That since 1 April 2013, the respondent-mother has
       had significant conflicts with the caretakers of her
       children around the scheduling and execution of her
       visitation rights.

60.    That those are conflicts created by the respondent-
       mother’s own unrealistic demands on those
       caretakers or last minute and off-the-schedule
       visitation.

61.    The respondent mother lacked the ability, tools, and
       interpersonal relationship skills to negotiate those
       conflicts and resolves the conflicts without the
       assistance and intervention of DSS.

....

63.    That Ms. [Smith] continues to engage in self-
       defeating cycles of loss of emotional control and the
       destructive use of anger in her interpersonal
       relationships.

64.    Ms. [Smith]’s conduct since April 2013 combined
       with her voluntary cessation of her mental health
       treatment and medication intervention indicates
       that self-defeating pattern of emotional volatility
       and use of anger is unlikely to be ameliorated in the
       foreseeable future.


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             65.    That Ms. [Smith] has also created significant conflict
                    in her relationship with each of the care providers
                    around visitation and parenting strategies.

             ....

             67.    The [caretakers] are committed to providing a
                    permanent, safe and stable home for [Alexis] and
                    [Jacob]. The [caretakers] have a strong bond to the
                    juveniles and juveniles have a strong bond to . . .
                    [them].

             ....

             70.    It is in [Jacob] and [Alexis’] best interests that the
                    parental rights of the respondent-mother . . . be
                    terminated.

The trial court then concluded:

             2.     That there are grounds to terminate the parental
                    rights of the parents in that the parents have
                    willfully left [Jacob] and [Alexis] . . . in foster care
                    for more than twelve (12) months without showing
                    to the satisfaction [of] the Court that reasonable
                    progress has been made in correcting the conditions
                    which le[]d the children to be removed . . . .

             3.     Adoption is the permanent arrangement that is most
                    consistent with [Jacob] and [Alexis]’s needs for a
                    permanent home within a reasonable period of time.

             4.     It is in [Jacob] and [Alexis’] best interests that the
                    parental rights of the respondent mother . . . be
                    terminated[.]

Thus, while the trial court acknowledged and even made numerous findings

regarding respondent’s progress, the progress was ultimately not enough. It is also


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clear from the findings of fact that the trial court did not find respondent’s evidence

of her progress in some areas to be credible. The findings support the conclusions,

which in turn support the ultimate determination to terminate.       This argument is

overruled.

                                VII.   New Evidence

      Lastly, respondent contends “the trial court abused its discretion when it did

not receive new evidence as to best interest.” (Original in all caps.) Respondent

argues that “[i]t was not possible for the trial court to formulate a reasoned best

interest finding regarding children this young on information which was three years

old[,]” particularly in regards to the children’s bond with respondent. We agree that

with the passage of time, respondent’s and the children’s circumstances may change,

perhaps in ways that would be relevant to the decision to terminate parental rights.

But the trial court was under no obligation to consider new evidence on remand, since

our prior opinion left the decision of whether to receive additional evidence entirely

within the discretion of the trial court. See AB I, ___ N.C. App. at ___, 768 S.E.2d at

582 (“The trial court may receive additional evidence on remand, within its sound

discretion.”). The trial court is in a far better position than this Court to determine

whether additional evidence may be useful in a case of this type. In addition, the

record does not indicate that respondent made any motions for the trial court to

receive additional evidence nor does respondent argue on appeal that any such



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request was denied.   Respondent has not demonstrated how the trial court abused

its discretion. This argument is overruled.

                                 VIII. Summary

      For the foregoing reasons, we affirm.

      AFFIRMED.

      Judges DIETZ and TYSON concur.




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